Crewdson v President, Anti-Discrimination Board of New South Wales - [2000] NSWADT 60

No judgment structure available for this case.

CITATION: Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60

DIVISION: Equal Opportunity Division

PARTIES:
APPLICANT
Gerard Crewdson
RESPONDENT
President, Anti-Discrimination Board of New South Wales

FILE NUMBER: 991097

HEARING DATES: 17/01/2000

SUBMISSIONS CLOSED: 01/28/2000

DATE OF DECISION:
05/16/2000

BEFORE: Rees N - Judicial Member

APPLICATION: Review of President's decision to decline to entertain complaint

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED: Langley v Niland [1981] 2 NSWLR 104
R v Regos (1947) 74 CLR 613
Cody v J H Nelson Pty Ltd (1947) 74 CLR 629
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389
Qantas Airways Ltd v Gubbins {1992} 28 NSWLR 26
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Bevacqua v Klinkert and others (No.1) (1993) EOC 92-515
W v City of Perth (1997) 71 ALJR 943
Commissioner of Corrective Services v Aldridge {2000} NSWADTAP 5
Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389
Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Bevacqua v Klinkert and others (No.1) (1993) EOC 92-515
W v City of Perth (1997) 71 ALJR 943
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

REPRESENTATION: APPLICANT
In person
RESPONDENT
K Eastman, barrister

ORDERS: 1. Application allowed.; 2. Decision of the respondent to decline to entertain the complaint of victimisation lodged by the applicant on 21 January 1999 set aside.; 3. Matter remitted to the respondent for reconsideration in accordance with the Tribunal’s reasons for decision.

1 In this case the applicant, Mr Gerard Crewdson, has appealed to the Tribunal to review a decision made by the respondent, the President of the Anti-Discrimination Board, concerning a complaint made to the President by Mr Crewdson under the provisions of the Anti-Discrimination Act 1977 (the Act).

2 Mr Crewdson has appealed to the Tribunal pursuant to section 90(3) of the Act which permits a person who has lodged a complaint with the President to appeal, in certain circumstances, for a review of the President’s decision to decline to entertain that complaint. The applicant, Mr Crewdson, was not represented and appeared in person at the hearing of this appeal on 17 January 2000. The President was represented by Ms Eastman of Counsel. The Tribunal was informed by Ms Eastman that to the best of her knowledge this was the first case in which the right of appeal granted by section 90(3) of the Act, which came into force on 1 January 1999, had been exercised.

3 The Tribunal has determined, on the basis of the material before it, that the correct and preferable decision in the case is different from the decision made by the President. Accordingly, the Tribunal proposes to order that the President’s decision be set aside and that the matter be remitted to him for reconsideration in accordance with this decision.

4 I have set out below the history of this matter, the relevant statutory provisions, the submissions made by the parties and the reasons for the decision.

History of the Application

5 This case has a long and complex history. This summary is drawn from documents filed by the President, in particular, the statement of Ms Jillian Moir dated 11 November 1999 and from the documents filed by Mr Crewdson. To the best of my understanding there are no disputes between the parties concerning the material facts in the case. What is in dispute is the President’s interpretation of the section of the Act which deals with victimisation, section 50, and the President’s exercise of his discretionary power to decline to entertain a complaint under section 90 of the Act.

6 Mr Crewdson commenced employment with the Department of Community Services (DOCS) in September 1990. In 1997, when Mr Crewdson was working as a residential care assistant in a group home for people with intellectual and physical disabilities run by DOCS he was referred, by DOCS, to HealthQuest for an assessment of his fitness to continue work. On 29 October 1997 HealthQuest recommended to DOCS that Mr Crewdson “is currently unfit for work and in need of further psychiatric assessment and consideration of treatment”. HealthQuest recommended that Mr Crewdson “should proceed on sick leave and not resume work until he has provided a report requested from his consulting psychiatrist to HealthQuest”. DOCS acted upon this recommendation and on 29 October 1997 it directed Mr Crewdson to cease work. At first Mr Crewdson was on sick leave and when this leave expired he remained an employee of DOCS on leave without pay.

7 On 30 December 1997 Mr Crewdson lodged a complaint with the President against DOCS and HealthQuest alleging unlawful discrimination under the disability provisions of the Act. At Mr Crewdson’s request the complaint was characterised throughout as one of ‘presumed’ disability discrimination. I take this to be a reference to the fact that Mr Crewdson did not believe that he suffered from any disability but, in making his complaint to the President, he was relying upon the provisions of section 49 A of the Act which, in general terms, provides that a reference in the Act to “a person’s disability,” includes a reference to a disability that the person is thought to have, or a disability that person had in the past or was thought to have had in the past.

8 In April 1998 Mr Crewdson broadened his complaints against DOCS and HealthQuest to include allegations of victimisation contrary to section 50 of the Act. He also lodged complaints of ‘presumed’ disability discrimination against the Health and Related Employees Association and the Medical Appeals Panel. On 7 May 1998 the complaints of disability discrimination and victimisation against DOCS were referred to the Equal Opportunity Tribunal by the President on the ground that he did not believe that the complaints could be conciliated. On 15 May 1998 Mr Crewdson’s complaints against HealthQuest were also referred to the Equal Opportunity Tribunal on the ground that they could not be conciliated.

9 On 21 September 1998 Mr Crewdson applied to the Equal Opportunity Tribunal for an interim order that he be reinstated in his employment with DOCS. That application, which was adjourned to 12 October 1998, was not finalised as it was overtaken by other events.

10 Around this time settlement discussions took place between Mr Crewdson and the legal practitioners who represented DOCS and HealthQuest. The two matters formerly before the Equal Opportunity Tribunal were case number 58/98 Crewdson v Director General, Department of Community Services and case number 67/98 Crewdson v Central Sydney Area Health Service. It appears that HealthQuest is an organisation which operates under the auspices of the Central Sydney Area Health Service.

11 During October 1998 an agreement was reached between the parties to settle the two cases which were pending before the Equal Opportunity Tribunal (now the Equal Opportunity Division of this Tribunal). A deed, purporting to record the terms of the settlement, was prepared and executed by Mr Crewdson, Ms Carmel Niland (the Director General of the Department of Community Services) and Dr Helia Gapper (the Director of HealthQuest).

12 Mr Crewdson was not legally represented in the settlement discussions and it appears that he signed the deed without legal advice. He was in fact in New Zealand at the time he executed the deed residing with his brother Mr A.J. Crewdson. It appears that the legal practitioners who acted for DOCS and the Central Sydney Area Health Service in relation to the matters before the Equal Opportunity Tribunal and the settlement of those cases were a barrister, Ms Therese Anderson, and a solicitor employed in the office of the State Crown Solicitor, Mr Raoul Salpeter.

13 On 6 November 1998 the two cases referred to in paragraph 10 were listed before the Equal Opportunity Division of this Tribunal, which by that stage had assumed the jurisdiction previously exercised by the Equal Opportunity Tribunal. Mr Crewdson did not appear before the Tribunal and on that date Ms Rogers, a solicitor from the State Crown Solicitor’s office, appeared for the respondents. Ms Rogers informed the Tribunal that she had been asked by Mr Crewdson’s brother to mention the matter on his behalf. Ms Rogers read to the Tribunal a document described as ‘Joint Public Statement’ which was Annexure ‘B’ to the deed. That statement was:

Mr Gerard Michael Crewdson resigned from his employment as a residential care assistant in the Department of Community Services on 2 October 1998.

As a result of discussions between the parties, Mr Crewdson now acknowledges that neither the Department of Community Services nor the Central Sydney Area Health Service subjected him to discrimination and /or victimisation within the meaning of the Anti-Discrimination Act 1977.

The Department of Community Services acknowledges that Mr Crewdson was a satisfactory employee.

The Tribunal then dismissed Mr Crewdson’s complaints against the Director General of the Department of Community Services and the Central Sydney Area Health Service.

14 The deed was placed in evidence, by Mr Crewdson, in the current matter before the Tribunal. Whilst it is unnecessary to consider the contents of that document in order to determine this appeal, for the sake of completion, I should record some of its key provisions:

(b) Mr Crewdson agreed to publicly acknowledge by means of a joint public statement that the State of New South Wales and the Central Sydney Area Health Service had not subjected him to discrimination and/or victimisation within the meaning of the Act.

(c) Mr Crewdson agreed that the Tribunal should dismiss his complaints.

(d) Mr Crewdson agreed to submit his written resignation from his employment with DOCS from 2 October 1998.

(e) Mr Crewdson agreed to release the State of New South Wales and the Central Sydney Health Service from all claims in relation to his employment with DOCS and his health assessment by the Central Sydney Area Health Service.

(f) the parties agreed that the deed may be pleaded in bar to any proceedings commenced by any other party in connection with any of the matters referred to in the deed.

(g) with the exception of the joint public statement the parties agreed not to disclose the contents of the deed except as they may be required to do so by law.

15 On 21 January 1999 Mr Crewdson lodged with the President complaints of victimisation under section 50 of the Act against Ms Niland (the Director General of DOCS), Dr Helia Gapper (the Director of HealthQuest), Mr Raoul Salpeter (solicitor from the Crown Solicitor’s Office) and Ms Therese Anderson (barrister).

16 In his letter of complaint to the President Mr Crewdson stated:

(3) Raoul Salpeter Senior Solicitor Crown Solicitors Office

(4) Therese Anderson Barrister employed by the above.

Date alleged Unlawful Action enacted: 6/11/98

1. Section 50(1)(a) states:

“It is unlawful for a person (“the discriminator”) to subject another person (“the person victimised”) to any detriment in any circumstances on the ground that the person victimised has: - brought proceedings against the discriminator or any other person under this Act”.

2. On 6/11/98 Complaints of Unlawful Discrimination and Victimisation that I had made against my Employer DOCS and HealthQuest were dismissed in the Equal Opportunity Tribunal not by a full and open hearing into those Complaints but by means of a Joint Public Statement I had been forced to sign in which I acknowledged that no Unlawful Discrimination or Victimisation had taken place.Judge Murrell referred to this Statement as my “apology”.

3. Section 50 of the Act states “any detriment in any circumstances”

4. I assert that any circumstances could conceivably include the circumstance of well-resourced Respondents taking advantage of a vulnerable Complainant to force the dismissal of a Complaint within the EOT prior to a full public hearing of the evidence and on terms that are unfair, unjust or unreasonable for the complainant.

5. I alleged that my respondents took deliberate advantage of my financial vulnerability to press upon me an unfair and unjust Public Statement of Apology as a pre-condition of my being granted financial relief.

6. I allege that this Joint Statement was also set as a condition for my being granted a Statement of Satisfactory Service.

7. I allege that my resignation from DOCS was also set as a condition of my being granted financial relief and a Statement of Satisfactory Service.

8. I allege therefore that by their action of setting such conditions and by the pressure they exerted to guarantee my compliance, the Respondents subjected me to detriments that would be in breach of s 50 of the AD Act.

9. I allege also that I was subjected to a detriment in that I was forced to sign a Statement that I knew to be untrue and that I knew would be read out in the Tribunal.

10. I allege that I was subjected to these detriments as a direct result of my having brought proceedings under the AD Act against the Respondents.

11. I allege that by discrediting me as a Complainant, this Statement also sought to prevent me from taking further action of any sort under the NSW AD Act connected with my employment with the NSW Public Service.

12. I allege therefore that the Joint Public Statement drafted by the Respondents represents Unlawful Victimisation within the meaning of s 50 of the AD Act.

13. I allege that the Provisions of the Deed of Release that gave rise to this Joint Public Statement also represent Unlawful victimisation within the meaning of the AD Act 1977.

17 On 12 August 1999 the President wrote to Mr Crewdson to inform him that he had declined the complaints of victimisation against Ms Niland, Dr Gapper, Mr Salpeter and Ms Anderson pursuant to section 90(1) the Act. The President informed Mr Crewdson that “after considering carefully all the relevant information you have provided the Board, I am satisfied that what you have alleged does not disclose a contravention of the NSW Anti-Discrimination Act”. The President attached to his letter a document described as ‘Statement of Reasons prepared in accordance with section 49(3) NSW Administrative Decisions Tribunal Act 1997’. In that document the President set out his understanding of Mr Crewdson’s complaint, his understanding of the elements of section 50 of the Act, the list of the matters which he took into consideration in reaching his decision and then, under the sub-heading ‘Reasons for my decision’, the President stated:

Anti-Discrimination Act, 1977

It cannot be the intention of the ADA to include the prospect that the terms of a Deed of Release signed by the parties under the auspices of the ADT could be seen as subjecting a person to a detriment on the grounds that they have lodged a complaint under the Act.
Even if it is the case that the ADA was intended to cover such an allegation, your complaints do not make out the necessary elements of victimisation because:
by an objective measure you have not suffered a detriment as you have accepted a clear benefit in the negotiations with the respondents, in the form of financial compensation and a statement of service; and
even if you have suffered a detriment, it has not arisen “on the ground of” you having made a complaint, but as a consequence of engaging in settlement negotiations to resolve the complaint. Victimisation under the Act requires an element of retaliation on the part of the respondent in inflicting the detriment, and it is clear that the actions of the respondents were taken in the context of resolving the complaint, not because you had made the complaint.

18 On 9 September 1999 Mr Crewdson appealed to this Tribunal, pursuant to section 90(3) of the Act, for a review of the President’s decision to decline his complaint of victimisation. In his application Mr Crewdson sought review on the following grounds:

(b) the President’s decision ignores all relevant/available evidence

(c) the President was biased or there was a conflict of interest.

19 Following a directions hearing the parties filed documents with the Tribunal and the matter was listed for hearing on 3 December 1999. On that occasion the hearing of Mr Crewdson’s appeal did not proceed as the judicial member then comprising the Tribunal granted Mr Crewdson’s application that he (the judicial member) disqualify himself because the judicial member had earlier heard Mr Crewdson’s application for an interim order referred to in paragraph 9. The matter was listed for hearing before me on 17 January 2000.

20 At that hearing no oral evidence was taken but both parties relied on the documents which had been filed and spoke to their written submissions. At the conclusion of the proceedings on 17 January 2000 the parties were granted leave to file further written submissions. Mr Crewdson availed himself of that opportunity and filed a document titled ‘Applicants Final Submission’ on 28 January 2000.

Relevant Statutory Provisions

21 The President made the decision under review pursuant to the powers granted to him by section 90(1) of the Act. Under section 90(2) of the Act the President was required to notify Mr Crewdson of his decision and of the reasons for that decision. Mr Crewdson has appealed to this Tribunal in accordance with the right of appeal granted to him by section 90(3). Section 90 of the Act should be set out in full:

(1)

(2) The President shall, in a notification under subsection (1), advise the complainant of:

(b) where section 91(1) applies to the notification - the rights of the complainant under that subsection.

(3)

22 Those parts of the Act which deal with complaints to the President, the President’s obligations upon receiving a complaint and the consequences which flow from a decision by the President to decline to entertain a complaint are succinctly described in Ms Eastman’s written submission to the Tribunal. I accept her summary of the effect of the relevant provisions of the Act:

2. Section 89(1) of the ADA provides that the President shall investigate each complaint lodged with the President under section 88 of the ADA. At any stage of the President’s investigation, he may decline to entertain the complaint if he is satisfied that any one or more of the grounds set out in section 90(1) of the ADA exist.

3. When a complaint is declined, section 90(2) requires the President to notify the complainant in writing. The President must provide reasons for declining to entertain the complaint and, where section 91(1) of the ADA applies, he must inform the complainant of his or her right to have the complaint referred to the Administrative Decisions Tribunal. A complainant then has 21 days in which to request that the complaint be referred. The complaints referred to the Tribunal under the section are referred to the Equal Opportunity Division (EOD) of the Tribunal.

4. Not all of the President’s decisions to decline a complaint give a complainant a right to have the complaint referred to the Tribunal. Section 91(1A) of the ADA provides that where the President has declined a complaint and given as a reason that what has been alleged in the complaint does not disclose any contravention of the Act, there is no right to seek to have the complaint referred to the Tribunal. In effect, the investigation into the merits of the complaint is brought to an end at this point. In the present case, the Applicant cannot have his complaints referred to the EOD of the Tribunal, where the Tribunal has jurisdiction to make original decisions within the meaning of sections 7 and 27 of Administrative Decisions Tribunal Act 1997 (ADT Act).

5. Relevant to this application is section 90(3) of the ADA. Section 90(3) was inserted into the ADA in 1998 by schedule 2 of the Administrative Decisions Tribunal Legislation Amendment Act 1998 with effect from 1 January 1999. It provides:

If the President declines under subsection (1) to entertain a complaint for any reason other than that the complaint is vexatious, misconceived or lacking in substance, the complainant may apply to the Tribunal for a review of the President’s decision.

6. The effect of section 90(3) is to enable a complainant, whose complaint has been declined because the President decides that the complaint is frivolous or for any other reason that it should not be entertained, to seek a review of the President’s decision not to entertain the complaint.

7. The President’s decision to decline a complaint on the ground that it does not disclose a contravention of the ADA is a reviewable decision under section 8 of the ADT Act.

8. The Tribunal’s review of the President’s decision is a review under section 38(1)(a) of the ADT Act.

9. In exercising its powers to review the President’s decision, the Tribunal may exercise all of the functions exercised by the President under the ADA: see section 63 (2) of the ADT Act.

10. In this case, the Tribunal must decide what is the correct and preferable decision under section 90(1) of the ADA: see section 63(1) of the ADT.

23 As Ms Eastman’s written submission reveals, the net effect of the decision by the President to decline Mr Crewdson’s complaint of victimisation because it does not disclose any contravention of the Act is to deprive Mr Crewdson of the opportunity to have that complaint of victimisation determined by this Tribunal. The only routes to the Equal Opportunity Division of this Tribunal are those set out in the Act. No person, other than the relevant minister (see section 95), may commence proceedings under the Act in this Tribunal unless he/she has first lodged a complaint with the President pursuant to section 88 and the President has decided to refer that complaint to the Tribunal pursuant to section 94, or the President has been required to refer the complaint to the Tribunal pursuant to section 91. Further, no person may commence proceedings for a breach of this Act in a court or tribunal other than this Tribunal (see section 123 of the Act). Consequently the decision by the President to decline to entertain Mr Crewdson’s complaint of victimisation on the ground that it does not disclose a contravention of the Act has ended, subject to this appeal, Mr Crewdson’s opportunity to have his complaint of victimisation determined by any court or tribunal.

24 Those provisions of the Administrative Decisions Tribunal Act 1997 (ADT Act) which govern this review of the President’s decision were referred to in the quoted portion of Ms Eastman’s written submission. Section 63 of the ADT Act should be set out in full:

(1)

(b) any applicable written or unwritten law.

(2)

(3) In determining an application for the review of a reviewable decision, the Tribunal may decide:

(b) to vary the reviewable decision, or

(c) to set aside the reviewable decision and make a decision in substitution for the reviewable decision it set aside, or

(d) to set aside the reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.

25 As section 63(1) makes clear, the Tribunal must decide what is the correct and preferable decision having regard to the material now before it. Accordingly, when determining what is the correct and preferable decision in this case, the Tribunal is not limited to the material which was before the President. The Tribunal must reach its decision after considering all of the relevant factual material before it and after considering the law in force at the date upon which the decision is made, rather than the law in force at the time the President made his decision. Whilst, in this case, there is no suggestion that there have been changes to the law since the President made his decision, the Tribunal has been provided with factual material, such as the deed of Release, which was not available to the President when he made his decision.

Submissions of the Parties

26 I have set out in paragraph 18 the three grounds upon which Mr Crewdson seeks to review the President’s decision to decline his complaint of victimisation because it did not disclose a contravention of the Act. Those grounds are first, that the President’s decision arbitrarily restricts the definition of section 50 of the Act, secondly, that the President’s decision ignored all relevant and available evidence and, thirdly, that the President was biased or there was a conflict of interest. In view of the Tribunal’s decision in this case there is no need for me to consider Mr Crewdson’s second and third review grounds in any detail and to make decisions concerning their merit other than to say that, in my opinion, there is no substance to the arguments concerning bias. Accordingly, I have no difficulty in remitting this matter to the President for reconsideration in the light of the Tribunal’s decision.

27 In support of his appeal Mr Crewdson filed detailed written submissions with the Tribunal and he spoke to these submissions at the hearing on 17 January 2000. Following the conclusion of the hearing Mr Crewdson filed additional written submissions.

28 Ms Eastman, for the President, resisted all of the review grounds advanced by Mr Crewdson and responded to questions from the Tribunal about the circumstances in which the President should exercise his powers under section 90 of the Act. Of particular relevance to this case was her submission that when exercising his powers under section 90 the President should first consider whether the complaint discloses a contravention of the Act. If, and only if, that question is answered in the affirmative should the President then proceed to determine whether a complaint which may appear to be unmeritorious is “frivolous, vexatious, misconceived or lacking in substance”.

Correct and Preferable Decision

29 In this case I have decided that the President’s decision should be set aside and that the matter should be remitted to him for reconsideration in accordance with this decision. In taking this step I do not intend in any way to be critical of the President. The processes which he followed in dealing with Mr Crewdson’s complaint of victimisation and in determining to decline to entertain that complaint were, in my opinion, quite appropriate. I have decided to set aside the President’s decision for the reason that I disagree with his construction of the Act. The President has erred in his construction of section 90 and he has taken an unnecessarily narrow view of the ambit of section 50. Whilst Mr Crewdson, in his grounds of review, does not directly challenge the President’s construction of section 90, his appeal itself raises the construction of section 90. Ms Eastman addressed the meaning of this section in her submissions and the Tribunal alerted Ms Eastman to its concerns about the President’s exercise of his discretion under section 90. Accordingly, the President has been given proper notice of the matters which arise for consideration in this appeal.

30 The provisions of the Act concerning the exercise of the President’s discretion are not particularly clear. Section 90(1) permits the President to decline to entertain a complaint if satisfied “that the complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained.” It should be noted that this provision, which empowers the President to decline to entertain complaints, does not specifically refer to a complaint being declined because it does not disclose any contravention of the Act. Presumably the words “or that for any other reason the complaint should not be entertained” are broad enough to encompass a complaint which is declined because it does not disclose any contravention of the Act.

31 The only place in which the words “does not disclose any contravention of this Act” are specifically used is in section 91(1A) which, when read with section 91(1), operates to preclude a complainant, such as Mr Crewdson, from exercising the opportunity otherwise afforded to a complainant whose complaint has been rejected by the President to require the President to refer the complaint to the Tribunal for a hearing.

32 The operation and meaning of sections 90 and 91, when in slightly different form, were considered by Hunt J in Langley v Niland [1981] 2 NSWLR 104. In my opinion that case is binding authority for this Tribunal.

33 The facts of Langley v Niland are not dissimilar to the case currently before the Tribunal. In that case the Counsellor for Equal Opportunity, who previously exercised the functions now vested in the President, declined to entertain a complaint of victimisation as not being one within the provisions of the Act. The issue which fell for determination by Hunt J was whether the Counsellor was obliged to inform Ms Langley of her right to require the Counsellor to refer the complaint to the Tribunal. Hunt J decided in favour of Ms Langley. Subsequent to that case, and presumably because of that case, sections 90 and 91 of the Act were amended in order to bring about the result that when a complaint is declined because it does not disclose any contravention of the Act the complainant has no right to require the President to refer the complaint to the Tribunal.

34 In reaching his decision Hunt J considered the meaning of section 90(1). He stated:

Anti-Discrimination Act

In its present context, however, the word “misconceived” should not, in my view, be given here a meaning beyond a complaint founded upon a wrong idea as to the facts, so that a common genus or class is maintained with the three other adjectives utilized in s 90(1).

But that is not an end to the inquiry. The counsellor may also decline to entertain a complaint where she is satisfied that it should not be entertained “for any other reason”. Normally, such a phrase would be construed ejusdem generis with the four adjectives which preceded it so as to exclude the application of s 90 where the complaint is considered to be outside the provisions of the Act rather than one for which there is an insufficient or unmeritorious factual basis. The ejusdem generis rule must nevertheless give way to an indication that the words are to be read in the general sense in which they are expressed: R v Regos (1947) 74 CLR 613, at pp 623, 624; Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at p 639. There is, in my opinion, a strong indication in this statute that the words in question should not be read ejusdem generis.

For relevant purposes “complaint” is defined by s 87 as meaning a complaint lodged under s 88(1). It is described in s 88 (1) as being “in respect of any contravention of this Act ... which is alleged to have been committed by any other person or persons”. To amount to a complaint within the provisions of the Act, the written document required by that section must therefore allege the commission by the other person or persons of a contravention of the Act. The complaint must identify that contravention, but it need not allege the relevant facts with the particularity of an indictment or of a pleading. Some account must be taken of the fact that the complainant is a lay person who may have some difficulty in articulating such a complaint.

But once an allegation is made in the document that another person has committed a contravention of the Act, the complaint must be investigated by the counsellor: s 89. In carrying out that investigation, however, the counsellor may conclude “at any stage of his investigation” that, even assuming that the factual basis of the allegation can be made out, what has been alleged does not amount to or constitute a contravention of the Act as alleged by the complainant. It may be that what is complained of falls within one of the general exceptions to the Act provided for in Pt VI, to cite a very obvious example.

In these circumstances, the counsellor is clearly entitled to conclude her investigation of the complaint by rejecting it as not falling within the provisions of the Act. To reject a complaint in this way is, to my mind, to decline to entertain it. A complainant,as I have said, has the right to have referred to the board any complaint which the counsellor declines to entertain: s 91. I agree with the submission of the plaintiff that a complainant’s right to do so may be exercised only when, in accordance with s 90, he or she has been given a notification by the counsellor that she has declined to entertain the complaint and advising the matters specified in s 90(2). There is no other way provided by the Act by which a complainant can have a rejected complaint referred to the board (or tribunal) for its determination. It would be a strange result (and one which I am satisfied was not intended) if such a right to have the board (or tribunal) review the counsellor’s decision - even if only to dismiss it upon the same grounds at the commencement of its inquiry, pursuant to s111 - were to be restricted to cases where the counsellor concluded that there was an insufficient or unmeritorious factual basis for the complaint and was not available where the counsellor concluded that the complaint was not within the provisions of the Act at all. The responsibility for making determinations is placed by the Act squarely upon the board (or tribunal). The counsellor, who performs very important functions under the Act, nevertheless is not given that responsibility.

35 Four points of relevance to the case before the Tribunal may be drawn from the quoted extract from Hunt J’s judgment in Langley v Niland. They are:

(b) the words “or that for any other reason the complaint should not be entertained” when used in section 90(1) of the Act are of sufficient breadth to permit the President to decline to entertain a complaint because it does not disclose a contravention of the Act

(c) the President, and others interpreting the Act, should take a liberal approach when determining whether a complaint lodged by a lay person discloses a contravention of the Act

(d) there is no simple formula for determining when a complaint which appears to be untenable should be declined because of the absence of factual merit and when it should be declined because it does not disclose a contravention of the Act

36 This case directly raises the final point which is how to distinguish between a complaint which lacks factual merit and a complaint which fails to disclose a contravention of the Act. When determining this issue the relevant portions of the Act must be given their ordinary and natural meaning and, when determining that meaning, it is appropriate to prefer a meaning which would promote the objects of the legislation (see section 33 Interpretation Act 1987). In my opinion the terms of section 90 alone do not resolve the issue of construction and it is necessary to examine the objectives of the Act.

37 When the President is considering the exercise of his discretion under section 90 the threshold issue for him to consider is whether, as Ms Eastman has submitted, the complaint discloses a contravention of the Act. It is only if the complaint does disclose a contravention of the Act that the President should consider whether it is “frivolous, vexatious, misconceived or lacking in substance” for all of those descriptors or characterisations relate to a complaint which does disclose a contravention of the Act but which lacks factual merit. The President’s task would be made a little easier if the terms “misconceived” and “lacking in substance” had the broad meaning attributed to them by the Victorian Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102. In that case Ormiston JA stated (at 109) that a case which was “misconceived” was one which did not disclose a cause of action, whereas a case which was “lacking in substance” was one where, in a court, the defendant could obtain summary judgment. He went on to say that the term “misconceived” was commonly used by lawyers to mean “a misunderstanding of legal principle” and the term “lacking in substance” to mean “an untenable proposition of law or fact”.

38 Many borderline cases, like this one before the Tribunal, involve mixed issues of law and fact. Questions of law arise when determining what are the elements of a particular breach of the Act and whether there is any evidence in support of each of the elements. Questions of fact arise when determining disputed issues of fact and the sufficiency of the facts marshaled in support of the complainant’s case. The meaning of a particular word or phrase in the Act may be either a question of law or a question of fact depending on whether it is to have an ordinary or technical meaning and, as the Federal Court noted in Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 289, “..the question whether the facts fully found fall within the provision of a statutory enactment, properly construed, is generally a question of law”.

39 It is, in my opinion, a highly artificial exercise to expect a person who exercises administrative functions, such as the President, to disentangle issues of law from issues of fact, especially without the benefit of legal argument from both the complainant and the respondent. Our highest courts, which are assisted by experienced counsel, do not find this an easy task. As the High Court stated in Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 at 394:

40 However, as I noted earlier, this Tribunal is bound by the decision in Langley v Niland which limits the terms “frivolous, vexatious, misconceived or lacking in substance” to an absence, or insufficiency, of factual merit in the complaint. Gleeson CJ and Handley JA point out in Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26 at 30 that the words “equity, good conscience and the substantial merits of the case” (previously found in section 108 of the Act and now found in section 73(3) of the ADT Act) “are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found”. The same may be said of the terms “misconceived” and “lacking in substance” in section 90. Meaning has been given to these terms by the decision of Hunt J in Langley v Niland.

41 Thus, to return to the threshold issue identified in paragraph 37, how does the President determine whether a complaint which appears to be unmeritorious does disclose a contravention of the Act thereby necessitating a consideration of whether it is “frivolous, vexatious, misconceived or lacking in substance”? If the complainant alleges a contravention of a specific section of the Act (for example, section 50) or alleges behaviour prohibited by the Act (for example, sex discrimination in hiring), if the respondent is someone who is arguably amenable to the Act and if the complainant evinces a general awareness of the material facts which must be proved if the complaint is to succeed and if, after reasonable investigation, there is arguably some evidence in support of the material facts then, in my opinion, the complaint is one which must not be declined on the ground that it does not disclose a contravention of the Act. It may not in fact disclose a prima facie contravention of the Act because it is so factually weak that it should be declined because it is “misconceived” or “lacking in substance”. Nevertheless, because in most circumstances the complaint will be one lodged by a lay person without legal assistance, once the conditions previously mentioned have been satisfied the President should not require the complainant, to use the words of Hunt J, to “allege the relevant facts with the particularity of an indictment or a pleading” in order for the complaint to be characterized as one which discloses a contravention of the Act.

42 In this case Mr Crewdson has alleged a breach of a specific section of the Act (section 50), his complaint has been made against people who are amenable to the Act and he has demonstrated a general awareness of the elements which must be proved if a victimisation complaint is to succeed. The complaint is novel and, in my opinion and on the basis of the material before me, Mr Crewdson is highly unlikely to succeed in any proceedings before this Tribunal in relation to the victimisation complaint in question. However, it is altogether another step to say that his complaint does not disclose a contravention of the Act. It is strongly arguable that the complaint is misconceived, for Mr Crewdson appears to have a wrong idea about the facts and it is open to argument that the complaint is vexatious, for it may have been made with the intention of setting aside the deed and re-opening the earlier complaints against DOCS and HealthQuest, rather than to pursue a remedy for victimisation. I have concluded that these are issues ultimately best determined by the President.

43 I should examine Mr Crewdson’s complaint of victimisation and the requirements of section 50 in some detail. Relevant portions of his initial letter of complaint to the President have been set out at paragraph 16. In essence I understand his complaint to be that the four named respondents subjected him to a detriment by “forcing” him to execute a deed in which he resigned from his position with DOCS, agreed to the release of a Joint Public Statement with which he did not agree and agreed to his complaints of discrimination against DOCS and HealthQuest being dismissed in exchange for the payment of money and the provision of a statement of satisfactory service from DOCS. Mr Crewdson claims that this compromise of his litigation constitutes a detriment within the meaning of section 50 and that he was subjected to that detriment by the four named respondents because he had brought proceedings against DOCS and HealthQuest under the Act. Presumably Ms Niland and Dr Gapper were named as respondents because they head, respectively, DOCS and HealthQuest and because they executed the deed on behalf of their organisations. I presume that Mr Salpeter and Ms Anderson were named as respondents because they acted for DOCS and HealthQuest in the Tribunal proceedings and settlement negotiations. It may be argued that section 52 of the Act – which is an extension of liability provision - is broad enough to permit a complaint of victimisation to be made against these two legal practitioners.

44 Section 50 of the Act provides as follows:

the discriminator

the person victimised

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under the Act;

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act;

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done or intends to do, any of them.

45 This section of the Act was examined at some length by the former Equal Opportunity Tribunal in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808. I accept the analysis of section 50 by the Tribunal in that case:

Bhattacharya v Department of Public Works

Bogie v The University of Western Sydney

Australian Iron Steel Pty Ltd v Banovic

Waters v Public Transport Corporation

Bodart-Bailey v Australian National University

Waterhouse v Bell

46 The President’s reasons for declining Mr Crewdson’s complaint of victimisation on the ground that it does not disclose a contravention of the Act are set out in paragraph 17. Whilst most of these reasons are clearly arguable, and whilst I am of the opinion that Mr Crewdson’s complaint lacks merit, I do not believe that the weaknesses in his complaint lead inexorably to the conclusion that the complaint does not disclose a contravention of the Act. For the reasons which I have given I believe this ground for rejecting a complaint should be construed narrowly.

47 The first reason given by the President for concluding that the complaint did not disclose a contravention of the Act was that it could not have been the intention of the Act to include the prospect that the terms of a deed of release could fall within the section governing victimisation. This argument is simply too broad to be compelling and, as the Victorian case of Bevacqua v Klinkert and others (No.1) (1993) EOC 92-515 demonstrates, circumstances can arise in which pressure to sign a deed of release can constitute victimisation. I note, for the sake of completeness, that the victimisation provisions in the Victorian Equal Opportunity Act 1984, were differently worded to section 50 of the current NSW Act.

48 The second reason given by the President is that Mr Crewdson had not suffered a detriment for, as a result of the deed, he received financial compensation and a statement of service. However, as the Equal Opportunity Tribunal stated in Shaikh, “detriment” means “loss, damage or injury”. As a consequence of executing the deed Mr Crewdson ceased his employment with DOCS, he agreed to his complaints of discrimination being dismissed and he was a party to a Joint Public Statement which he now disavows. At the very least it should be open to Mr Crewdson to argue that despite the financial compensation and the statement of service he has in fact suffered loss, damage or injury.

49 The third reason given by the President is that even if Mr Crewdson has suffered a detriment it did not occur on the ground of his action in lodging a complaint under the Act. The President looked to the motivation of those who negotiated and executed the deed when he stated that “victimisation under the Act requires an element of retaliation on the part of the respondent in inflicting the detriment, and it is clear that the actions of the respondents were taken in the context of resolving the complaint, not because Mr Crewdson had made the complaint”. In my opinion this statement is wrong for as Kirby J stated in W v City of Perth (1997) 71 ALJR 943 at 975 “... the weight of authority supports the proposition that it is unnecessary for a complainant to show that the alleged discriminator intended to discriminate or set out with that motivation and purpose ...”. Whilst Kirby J made these remarks when discussing the necessary proofs in a case of direct discrimination they are of relevance, in my opinion, to a complaint of victimisation. The issue of causation should be approached in victimisation cases as it is in direct discrimination cases. As this Tribunal said in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 “When considering causation, it is the grounds or the reasons for a respondent’s action, as opposed to his or her intentions or motives for so acting, which are relevant”.

50 To put these statements in context it is arguable that if Mr Crewdson suffered a detriment he did so on the ground that he had brought proceedings under the Act. The motives or intentions of the named respondents in offering to settle his complaints are simply not relevant. However it is arguable that their reason or ground for offering Mr Crewdson what he now seeks to characterise as a detriment was that he had commenced proceedings under the Act against DOCS and HealthQuest.

51 As the foregoing analysis illustrates all of the reasons advanced by the President in support of his decision to decline Mr Crewdson’s complaint are, at the very least, open to challenge. Interestingly, the President failed to identify what I consider to be the weakest part of Mr Crewdson’s complaint. Mr Crewdson will have great difficulty, I believe, in establishing that any of the four named respondents subjected him to anything. To “subject” is relevantly defined in the Macquarie Dictionary to mean “to cause to undergo or experience something”. In its context in section 50 of the Act the word must mean that a person is forced, required or perhaps coerced to experience something which is a detriment. The objective facts appear to be that the respondents offered to settle the litigation and that Mr Crewdson accepted the offer. There is no suggestion that the respondents required, forced or coerced Mr Crewdson to settle his litigation. The choice to settle was made by Mr Crewdson and he exercised that choice when he signed the deed. It would seem that the respondents cannot be held liable, under section 50, for the operation of whatever internal factors caused Mr Crewdson to accept the offer of settlement.

52 Mr Crewdson has argued that it was a case of “well-resourced Respondents taking advantage of a vulnerable Complainant”. If he can prove this, which I doubt, for he has advanced no evidence of any improper behaviour by any of the respondents during the settlement negotiations, it may be possible for Mr Crewdson to argue elsewhere that the deed should be set aside, but I fail to see how it can be said that the respondents subjected him to anything, even if a court were to find that deed which records the settlement is unconscionable. Nevertheless this weakness in Mr Crewdson’s case does not lead to the conclusion that his complaint fails to disclose a contravention of the Act. It may lead the President to the conclusion that the complaint is “misconceived” or “lacking in substance” and Mr Crewdson may then elect, bearing in mind the President’s assessment of the strength of his case, whether to take the risk of litigating his complaint before the Tribunal.

53 In some cases it will not be difficult for the President to determine that a complaint does not disclose a contravention of the Act. When a complainant alleges discrimination on a ground not covered by the Act (for example discrimination on the ground of political belief or religious belief), when a complaint is made in relation to behaviour which took place beyond the territorial reach of the NSW legislature and when, as Hunt J pointed out in Langley v Niland, a complaint concerns behaviour which falls within the general exceptions to the Act set out in Part 6, the President will have little difficulty in deciding that he should decline to entertain the complaint because it does not disclose a contravention of the Act. The President’s task becomes more difficult when he entertains doubts about the capacity of the complainant to prove all of the requisite elements of his or her complaint.

54 All who practise regularly in this jurisdiction are well aware of the fact that unlawful discrimination is difficult to prove and that it is quite common for complainants to deeply and sincerely believe that they have been the victims of unlawful discrimination but to be unable to point to any evidence which may be used to prove this belief. The same may be said of complaints of victimisation. Just as the courts have been reluctant to strike out pleadings on the ground that a cause of action has not been disclosed without giving the moving party an opportunity to present his or her case (see B. Cairns, Australian Civil Procedure (4th edition) Law Book Co, Sydney, 1996 at 235), so the President should be slow to decline a complaint on the ground that it does not disclose a contravention of the Act when his reason for questioning the strength or the merit of the complaint is the absence of evidence to prove one or more elements of the complaint. To do otherwise would be to deny a complainant the opportunity to have his or her complaint determined by an independent Tribunal which must conduct a public hearing (unless exceptional circumstances exist) into that complaint, which must comply with the rules of natural justice and which must decide the case according to law. This is the proper and just way to determine whether in fact the complainant can prove all of the elements of his or her case.

55 There is, of course, a converse issue to consider if the President, in order to permit a complainant with a weak or dubious case to litigate that complaint, is slow to exercise his discretion to decline a complaint on the ground that it does not disclose a contravention of the Act. The respondent to the complaint, who may have acted lawfully and fairly at all times, may be put to the trouble and expense of defending an unmeritorious complaint before the Tribunal. That may well be the case in the matter currently before the Tribunal but it is a hallmark of our legal system that all members of the community have the opportunity to seek relief from a court or tribunal if they believe their legal rights have been infringed or if they believe others have failed to perform their legal obligations. In order that the community not be engulfed by litigation and that mature judgment be exercised before litigation is commenced the general rule is that those who litigate do so at their own peril. If the party who commences litigation does not succeed, unless exceptional circumstances exist, he or she is held responsible for the costs of the other party. In my opinion that should be the general rule in this Tribunal in those cases where the President has declined a complaint and the complainant has required the President to refer the complaint to the Tribunal pursuant to section 91(1).

56 The Tribunal is given the power by section 111(1) of the Act to dismiss a complaint at any stage of an inquiry if “satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained”. These words are precisely the same as those found in section 90(1) which permits the President to decline to entertain a complaint. Section 111(2) permits the Tribunal to order the complainant to pay the costs of the inquiry if it dismisses a complaint under section 111(1). In my opinion it should be a rule of practice that the Tribunal will order costs against an unsuccessful complainant (unless truly exceptional circumstances exist) if the Tribunal dismisses a complaint under section 111(1) when the President has earlier declined the complaint pursuant to section 90(1) and the complaint has come before the Tribunal at the insistence of the complainant. Even if the complaint is fully heard, and section 111 is not invoked, the power to order costs granted by section 114(2) should be invoked (unless truly exceptional circumstances exist) if a complaint which is dismissed by the Tribunal is one which came before the Tribunal at the insistence of the complainant after it had been declined by the President.

57 Further, in appropriate cases, the Tribunal should not be reluctant to exercise the power granted to it by section 114(2) to order security for costs when the complaint before it has been earlier declined by the President. Whilst the courts have kept within reasonably narrow confines the categories of cases in which security for costs may be ordered (see S. Colbran, Security for Costs, Longman Professional, Melbourne, 1993 and B. Cairns, Australian Civil Procedure (4th edition), Law Book Co, Sydney, 1996 at 628-631) there is no reason why the Tribunal should not exercise its security for costs power in cases of the type under discussion. Section 90(1) of the Act is clearly a filtering device. A person with expertise in this field, the President, is given the power to stop the progress of a complaint in certain defined circumstances. In recognition of the general principle that access to courts and tribunals is an important right, section 91 permits the complainant, in most cases, to effectively override the decision of the President by requiring him to refer the complaint to the Tribunal. Because the Tribunal, in keeping with the statutory dictate that it act “in an informal and expeditious manner” (see section 3 (c) ADT Act), does not require strict compliance with rules of pleading or preparation of detailed case management documents it is possible that an unclear and unmeritorious case, which had earlier been declined by the President, could proceed to hearing thereby exposing the respondent to considerable expense. In such cases it should be open to the respondent to apply to the Tribunal for an order for security for costs. This mechanism is, in my opinion, the most effective way of striking a fair balance between permitting a complainant to litigate a complaint which has been rejected by the statutory filter provided by the President and in providing appropriate protection for a respondent against the expense associated in defending a complaint which may prove to be unmeritorious.

58 In this case, for the reasons given, I have decided that the President’s decision to decline Mr Crewdson’s complaint of victimisation on the ground that it does not disclose a contravention of the Act should be set aside. In keeping with the submission made by Ms Eastman I have also decided that the preferable course is to remit this matter to the President for reconsideration in accordance with the reasons for decision rather than to substitute my own decision for that of the President. To do otherwise would be to put the Tribunal in the invidious position of appearing to have made a conclusive finding about the merits of a case which may ultimately make its way back here for determination. As no application was made for costs it is unnecessary for me to consider this issue.

59 The Tribunal makes the following orders:

2. Decision of the respondent to decline to entertain the complaint of victimisation lodged by the applicant on 21 January 1999 set aside.

3. Matter remitted to the respondent for reconsideration in accordance with the Tribunal’s reasons for decision.

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Citations

Crewdson v President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60

Most Recent Citation

Crewdson v Central Sydney Area Health Service [2000] NSWADT 184

Cases Citing This Decision

21

Crewdson v Niland [2002] NSWADTAP 5

JQ v Double Bay Out of School Hours Inc. (No. 2) [2010] NSWADT 257

Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271

Cases Cited

8

Statutory Material Cited

1

Cody v J H Nelson Pty Ltd [1947] HCA 17

CITATION:	Crewdson -v- President, Anti-Discrimination Board of New South Wales [2000] NSWADT 60
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gerard Crewdson RESPONDENT President, Anti-Discrimination Board of New South Wales
FILE NUMBER:	991097
HEARING DATES:	17/01/2000
SUBMISSIONS CLOSED:	01/28/2000
DATE OF DECISION:	05/16/2000
BEFORE:	Rees N - Judicial Member
APPLICATION:	Review of President's decision to decline to entertain complaint
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Langley v Niland [1981] 2 NSWLR 104 R v Regos (1947) 74 CLR 613 Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Collector of Customs v Pozzolanic (1993) 43 FCR 280 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Qantas Airways Ltd v Gubbins {1992} 28 NSWLR 26 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Bevacqua v Klinkert and others (No.1) (1993) EOC 92-515 W v City of Perth (1997) 71 ALJR 943 Commissioner of Corrective Services v Aldridge {2000} NSWADTAP 5 Collector of Customs v Agfa-Gevaert Limited (1996) 186 CLR 389 Qantas Airways Ltd v Gubbins [1992] 28 NSWLR 26 Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 Bevacqua v Klinkert and others (No.1) (1993) EOC 92-515 W v City of Perth (1997) 71 ALJR 943 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1. Application allowed.; 2. Decision of the respondent to decline to entertain the complaint of victimisation lodged by the applicant on 21 January 1999 set aside.; 3. Matter remitted to the respondent for reconsideration in accordance with the Tribunal’s reasons for decision.