Durston, James William v Anti-Discrimination Tribunal
[2016] TASSC 8
•22 February 2016
[2016] TASSC 8
COURT: SUPREME COURT OF TASMANIA
CITATION: Durston v Anti-Discrimination Tribunal [2016] TASSC 8
PARTIES: DURSTON, James William
v
ANTI-DISCRIMINATION TRIBUNAL
FILE NO: 1067/2015
JUDGMENT
APPEALED FROM: Williams v 'Threewisemonkeys' and Durston
[2015] TASADT 4
DELIVERED ON: 22 February 2016
DELIVERED AT: Launceston
HEARING DATE: 1 February 2016
JUDGMENT OF: Pearce J
CATCHWORDS:
Statutes – Acts of parliament – Interpretation – Obligatory and discretionary provisions – Other particular cases – Where compliance not precondition to action taken – Service not precondition to validity of appeal from a statutory tribunal.
Aust Dig Statutes [1123]
Anti-Discrimination Act 1998 (Tas), s 100.
Supreme Court Rules 2000 (Tas), r 707.
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, referred to.
Tasker v Fullwood [1978] 1 NSWLR 20, applied.
REPRESENTATION:
Counsel:
Applicant: In person
Respondent: M Duvjnak
Solicitors:
Applicant: In person
Respondent: Director of Public Prosecutions
Judgment Number: [2016] TASSC 8
Number of paragraphs: 22
Serial No 8/2016
File No 1067/2015
JAMES WILLIAM DURSTON v ANTI-DISCRIMINATION TRIBUNAL
REASONS FOR JUDGMENT PEARCE J
22 February 2016
The applicant, James Durston, applies for an extension of time to appeal a determination of the Anti-Discrimination Tribunal. For the following reasons I find the application to be unnecessary because the appeal was validly instituted within time.
In 2013, the applicant published a pamphlet and distributed it in the Sandy Bay area of Hobart. The pamphlet was entitled "Homosexuality Stats". A complaint about the pamphlet was made to the Anti-Discrimination Commission by Robert Williams. The complaint alleged that the publication and distribution of the pamphlet contravened the Anti-Discrimination Act 1998 ("the Act"), ss 17, 19 and 20. The complaint, after being investigated, was referred to the Anti-Discrimination Tribunal for inquiry. On 30 June 2015 the Tribunal, constituted by Professor M Otlowski, found breaches of the Act to have been established: Williams v 'Threewisemonkeys' and Durston [2015] TASADT 4. The Tribunal made orders under the Act, s 89(1), that the applicant:
"(a)publish an apology in a particular form; and
(b)not repeat the discriminatory conduct."
On 27 July 2015 the applicant a filed a notice of appeal against the Tribunal's determination. The right to appeal a determination of the Tribunal derives from the Act, s 100, which provides:
"(1) A person may appeal to the Supreme Court on a question of law or fact against an order made under section 89(1) or (2) or section 95 within 28 days after the order was made.
(2) A person may appeal to the Supreme Court against a decision under section 78(4) or a dismissal under section 99 within 28 days after the decision or dismissal was made.
(3) A person may appeal to the Supreme Court against a determination on a question of law under section 86(4) within 28 days after the determination was made.
(4) An appeal is to be instituted, heard and determined in accordance with the provisions of the Supreme Court Civil Procedure Act 1932 and the Rules of Court made under that Act."
Because of the terms of s 100(4), reference is necessary to the Supreme Court Civil Procedure Act 1932 ("the SCCP Act") and the Supreme Court Rules 2000 ("the Rules"). Any appellate jurisdiction conferred on the Supreme Court is to be exercised in accordance with the SCCP Act and the Rules, but the operation of the Act and Rules is subject to any provision of the statute conferring the jurisdiction which provides otherwise: SCCP Act, s 6(3) and (4). Part 27 of the Rules provides for appeals, and Div 4 of that Part deals with appeals from statutory tribunals other than courts. In addition, r 704 incorporates into that Part the terms of rr 689 to 694, which apply to appeals from inferior courts.
On the same day that his notice of appeal was filed, the applicant filed an application seeking an order for an extension of time to appeal. He did so on the incorrect understanding that the time limit for his appeal was 21 days, and not 28 days as provided by the Act, s 100(1). The notice of appeal and the application were both listed on 31 August 2015. There is no evidence that the applicant served anyone with a copy of the notice of appeal. As was required by r 689, the Registrar of the Court wrote to the Tribunal on 28 July 2015, applying for provision of the documents relevant to the Tribunal proceedings. On 31 August 2015 Holt AsJ adjourned the proceedings to a directions hearing on 17 September 2015, and directed that notice of the appeal and the directions hearing be given by the Registrar of the Court to the Director of Public Prosecutions and the complainant, Mr Williams. The Court file reveals that notice was posted to Mr Williams on 1 September 2015. On 17 September 2015 a legal practitioner from the office of the Director of Public Prosecutions appeared. Mr Williams did not appear and has played no part in the appeal. On 24 September 2015 the Tribunal filed a notice submitting to the jurisdiction of the Court. The Director of Public Prosecutions appointed counsel to appear as amicus curiae.
Counsel for the DPP submits that the appeal is out of time because, even though the notice of appeal was filed within 28 days of the Tribunal's determination as required by s 100 of the Act, the applicant has not established that the notice of appeal was served on the registrar of the Tribunal or Mr Williams within that time. She relies on r 707, which is entitled "Institution of appeal", and provides:
"An appeal is to be instituted —
(a) by filing the original notice of appeal and one copy in a registry; and
(b) by serving a copy of the notice of appeal on the registrar, chairperson, secretary or other similar officer of the tribunal which made the determination; and
(c) unless a judge otherwise orders, if a person other than the appellant appeared before or was heard by the tribunal in the proceedings in which the determination was made, by serving a copy of the notice of appeal on that person."
The DPP submits that valid institution of the appeal depends not only on filing the notice of appeal as is required by r 707(a), but also on service of the notice as required by r 707(b) and (c), within the time limit provided by the Act. Counsel submits that each of the parts of r 707 are mandatory, and not directory, and that failure to serve the notice of appeal within time means that the appeal has not been "instituted" within time and is "incompetent".
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 the majority of the High Court, comprising McHugh, Gummow, Kirby and Hayne JJ, endorsed the criticism of the distinction between directory and mandatory requirements made by the Court of Appeal of New South Wales in Tasker v Fullwood [1978] 1 NSWLR 20. The majority in Project Blue Sky said at 388-389 [91]:
"An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition ...".
The majority continued at 390 [93] by pointing out that the classification (of mandatory or directory) is the end of the inquiry, not the beginning, and that "a better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid". It is worth setting out the relevant passage from the judgment of the NSW Court of Appeal in Tasker v Fullwood at 23:
"The numerous decisions in this field have been recently reviewed by this court: Attorney General (New South Wales) ex rel. Franklins Stores Pty Ltd v Lizell Pty Ltd [1977] 2 NSWLR 955 and Hatton v Beaumont [1977] 2 NSWLR 211. The position of directory enactments has also been expounded in an authoritative but obiter way in Victoria v The Commonwealth (supra). From these sources we take the following propositions: (1) The problem is to be solved in the process of construing the relevant statute. Little, if any, assistance, will be derived from the terms of other statutes or any supposed judicial classification of them by reference to subject matter. (2) The task of construction is to determine whether the legislature intended that a failure to comply with the stipulated requirement would invalidate the Act done, or whether the validity of the Act would be preserved notwithstanding noncompliance: the Franklins Store Pty Ltd case. (3) The only true guide to the statutory intention is to be found in the language of the relevant provision and the scope and object of the whole statute: Hatton v Beaumont. (4) The intention being sought is the effect upon the validity of the Act in question, having regard to the nature of the precondition, its place in the legislative scheme and the extent of the failure to observe its requirement: Victoria v The Commonwealth. (5) It can mislead if one substitutes for the question thus posed an investigation as to whether the statute is mandatory or directory in its terms. It is an invitation to error, not only because the true enquiry will thereby be sidetracked, but also because these descriptions have been used with varying significations. (6) In particular, it is wrong to say that, if a statute is couched in directory terms, the Act will be invalid, unless substantial performance is demonstrated: the Franklins Stores Pty Ltd case. A statute which, on its proper construction, does not nullify the Act in question, even for total non–observance of the stipulation, is also described as directory in its terms: Victoria v The Commonwealth."
In my view, the terms of s 100 of the Act and r 707 of the Rules should not be construed as to mean that the failure to serve a notice of appeal within 28 days results in invalidity of an appeal. The Act is expressed to be an Act to prohibit discrimination and other specified conduct, and to provide for the investigation and conciliation of, and inquiry into, complaints in relation to such discrimination and conduct. It prohibits direct and indirect discrimination on the basis of a prescribed attribute in specified areas of activity: ss 14 and 15. There are presently 22 prescribed attributes: s 16. They include such attributes as race, age, sexual orientation, disability and political or religious belief. There are seven specified areas of activity: s 22. The areas include employment, education and provision of facilities and goods and services. The Act also prohibits conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of a prescribed attribute: s 17(1). It prohibits sexual harassment: s 17(2). It prohibits the incitement of hatred on the basis of race, disability, sexual orientation or activity or religious belief or affiliation: s 19. Part 5 of the Act provides for exceptions to the prohibition on discrimination and permits the Commissioner appointed under the Act to grant exemptions. Persons may complain to the Commissioner about discrimination or prohibited conduct: s 60(1). If there are reasonable grounds for doing so the Commissioner may investigate discrimination or prohibited conduct without a complaint: s 60(2). In certain circumstances the Commissioner may reject complaints: s 64(1). A person may apply to the Tribunal to review the rejection of a complaint: s 65(2). The Commissioner may investigate complaints: s 69(1). At the conclusion of an investigation the Commissioner may dismiss a complaint, determine that the complaint should proceed to conciliation, or determine that the complaint should proceed to inquiry. Referrals for inquiry are made under s 78. The Commissioner may decline to refer a complaint to the Tribunal and dismiss the complaint if the complainant has, in the opinion of the Commissioner, failed to pursue the complaint or the resolution of the complaint: s 78(4).
The functions of a Tribunal are to conduct an inquiry into a complaint, or to review a decision of the Commissioner relating to exemptions, withdrawals, rejections and dismissals of complaints: s 13. Tribunal inquiries are to be conducted with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before the Tribunal permit: s 86(1). A Tribunal may determine a question of law or procedure: s 86(4). A Tribunal may dismiss a complaint if, after an inquiry, it finds that the complaint is unsubstantiated: s 99. If, after an inquiry, the Tribunal finds that a complaint is substantiated, it may make orders: s 89. A Tribunal may make one or more of the following orders:
"(a) an order that the respondent must not repeat or continue the discrimination or prohibited conduct;
(b)an order that the respondent must redress any loss, injury or humiliation suffered by the complainant and caused by the respondent's discrimination or prohibited conduct;
(c)an order that the respondent must re-employ the complainant;
(d)an order that the respondent must pay to the complainant, within a specified period, an amount the Tribunal thinks appropriate as compensation for any loss or injury suffered by the complainant and caused by the respondent's discrimination or prohibited conduct;
(e)an order that the respondent must pay a specified fine not exceeding 20 penalty units;
(f)an order that a contract or agreement is to be varied or declared void in whole or in part;
(g)an order that it is inappropriate for any further action to be taken in the matter;
(h)any other order it thinks appropriate."
In complaints involving a State Service officer or State Service employee the Tribunal may order the Minister responsible for the Agency in which that officer or employee is employed to exercise any one or more of the powers specified in the State Service Act 2000, s 10.
It can be seen from the foregoing summary that the provisions of the Act are of wide operation. The Tribunal may make determinations which have consequences of considerable importance to those who make complaints and those who are the subject of complaints. The Tribunal may impose financial penalty, it may make orders which affect employment and contracts, and may make orders of great personal, commercial and reputational significance to those affected. The power to appeal contained in s 100 is not confined to orders made under s 89. The right of appeal extends to an order of the Tribunal under s 99 dismissing a complaint it finds unsubstantiated, an order by the Commissioner declining to refer a complaint or dismissing a complaint under s 78(4), and a determination of law made by a Tribunal under s 86(4).
The right, expressly given by the Act, s 100, to appeal to this Court against a determination of the Tribunal, is an important safeguard of the rights of those affected by decisions of the Tribunal. The Act contains no provision permitting extension of the time limit imposed by s 100.
With that background, I am to consider whether a legislative purpose to invalidate an appeal for non-compliance with r 707 of the Rules is to be discerned. As was pointed out by Pearce and Geddes, Statutory Interpretation in Australia, 8th ed, LexisNexis Butterworths, 2014, at [11.25], it is often stated that enactments laying down the procedure to be followed in commencing an action in a court produce invalidity in the event of non-compliance. The learned authors refer to a series of cases, including Public Prosecutor v Oie Hee Koi [1968] AC 829, and Secretary of State for Defence v Warn [1970] AC 394, as authority for the proposition that court procedural requirements are "usually imperative and not merely directory". However, Hatton v Beaumont (1978) 20 ALR 314 is authority for a somewhat different approach. In that case Jacobs J, with whom Gibbs ACJ, Stephen and Aickin JJ agreed, said that the cases referred to did not establish a hard and fast rule and, at 319, that:
"To say that procedural requirements are usually or prima facie mandatory in character cannot gainsay the primary necessity of examining the framework and language of the statute or regulation …".
In my view, a failure to file a notice of appeal, as required by r 707, within the time limit imposed by s 100, invalidates an appeal. That is so notwithstanding that the result of non-compliance is loss of a right of appeal. Institution of an appeal must involve filing a notice of appeal with the Court. The imposition of a statutory time limit discloses a legislative intention that a notice be filed within that time.
However, I have a different view about the requirement for service. I have concluded that the terms of r 707, viewed subject to the scheme and intent of the Act, do not disclose a legislative intention to invalidate an appeal not served in accordance with r 707(b) and (c) of the Rules within 28 days of the order or decision appealed from. The Act itself does not expressly require or refer to service of a notice of appeal. Rather, it provides that appeals "shall be instituted, heard, and determined" in accordance with the SCCP Act and the Rules. The SCCP Act contains no provisions requiring service. Attention must then be given to the provisions of the Rules. Division 4 of Pt 27 of the Rules applies to all appeals from statutory tribunals, not only the Tribunal. The nature of such appeals varies according to the statute constituting the tribunal whose decision is subject to appeal. Rule 705 deals with notices of appeal and provides that an "appeal is to be instituted by notice of appeal in a summary way". In its ordinary language, the terms of r 705 do not make the institution of an appeal dependent on service of the notice. Conversely, it does not expressly refer to "filing".
Counsel for the DPP relies on the terms of the language of r 707 in support of the submission that service is "mandatory". She refers to the use of the words "is to be instituted" and the use of the word "and" at the conclusion of each sub-paragraph, and contends that they unambiguously indicate an obligatory requirement that each part of r 707 is complied with before an appeal can be said to be "instituted". I do not agree. It is the consequences of such a construction which lead me to conclude that there is no such legislative intention. The language of r 707 is indistinguishable from the language of rr 660 and 686 which respectively deal with appeals from a single judge to the Full Court and appeals from an inferior court. If the construction contended by the DPP was accepted then, absent extension or dispensation (if such power exists), no such appeal would be validly commenced unless served within the time limited for appeal on "each party" in the case of an appeal from a judge, "each party directly affected by the appeal" in the case of an appeal from an inferior court, and every person "who appeared before or was heard by the tribunal" in the case of an appeal from a tribunal. The potential for unfairness and injustice is considerable. In the case of appeals from tribunals, a person may have been heard by the tribunal but played only a minor or ancillary role in the proceedings. Instances may commonly occur where service within time is difficult or impossible. A person to be served may be unavailable for service for genuine reasons. An adverse party may frustrate the institution of an appeal within time by evading service. Such factors are relevant in considering whether Parliament intended that non-compliance results in invalidity: Tasker v Fullwood at 24. That is especially so when, as here, no power to extend time exists. It is unfair that an intended appellant may suffer a result of non-compliance with a requirement that he or she, at least in part, is unable to control: Statutory Interpretation in Australia (above) at [11.23]. Rule 707(c) permits a judge to make an order dispensing with the requirement for service under that sub-rule. The sub-rule says nothing about whether such contrary order is required before or after expiry of the time limit for appeal. If it were to be the former, then application for an order excepting the applicant from compliance would be required very promptly indeed. The terms of the rule tend to confirm the non-essential character of the requirement for service.
No purpose has been suggested as to why service of the notice within 28 days should be essential to the validity of the appeal. Time limits encourage the finality of proceedings and ensure the prompt commencement of appeals. Those factors underpin a legislative intention that notices be filed within the time limit specified in s 100. However, compliance with the procedural requirement in the Rules for service is not crucial to those purposes. The purposes are achieved in other ways. Rule 707(b) requires service on an officer of the statutory tribunal appealed from. The statutory tribunal will become aware of the appeal in any event when the request for materials is made by the Registrar under r 689. Once a notice of appeal is filed, the appeal becomes subject to the authority and supervision of the Court. The Registrar is required to enter an appeal for hearing on the first convenient day: r 708(1). If an applicant has not complied with the requirements of the Rules for service, the Court has inherent and statutory powers to supervise the proceedings to avoid delay and injustice.
Although consideration of the language, framework and purpose of the legislation should not be unduly influenced by the circumstances of an individual case, the potential for injustice, if the construction contended by the DPP is accepted, is demonstrated in this case. The Tribunal was not served with the notice of appeal, but was made aware of the appeal by letter sent by the Registrar either just within or just outside the appeal time limit. It submitted to the jurisdiction of the Court. Mr Williams was notified of the appeal about two months after the decision appealed from, and one month after the expiry of the time limit, but played no part in the appeal. I do not accept that the terms of r 707 should be construed so as to deprive the applicant of his right of appeal in those circumstances.
I do not perceive any difficulty in determining that only non-compliance with part only of a single provision, that is, sub-rule (a) of r 707, and not sub-rules (b) and (c), results in the invalidity of an appeal: Hatton v Beaumont. A similar conclusion has been reached in other cases. In Woods v Bate (1986) 7 NSWLR 560, McHugh JA (with whom Hope JA agreed) said at 567:
"In recent times the courts have shown great reluctance to invalidate an act done pursuant to a statutory provision because of the failure to comply with an antecedent condition. See Simpson v Attorney-General [1955] NZLR 271; Clayton v Heffron (1960) 105 CLR 214; Samuel Montague & Co Ltd v Swiss Air Transport Co Ltd [1966] 2 QB 306; Ex parte Tasker; Re Hannon [1971] 1 NSWLR 804; Attorney-General (NSW) (Ex rel Franklins Stores Pty Ltd v Lizelle Pty Ltd) [1977] 2 NSWLR 955 reversed on other grounds sub nom Permewan Stores Pty Ltd (1977) 52 ALJR 218; Tasker v Fullwood [1978] 1 NSWLR 20; Hatton v Beaumont (1978) 52 ALJR 589. Speaking generally, I think that, at the present time, the proper approach is to regard a statutory requirement, expressed in positive language, as directory unless the purpose of the provision can only be achieved by invalidating the result of any departure from it, irrespective of the circumstances or resulting injustice: cf Hatton v Beaumont [1977] 2 NSWLR 211 at 225 per Mahoney J.
But even if enactments regulating the procedures of courts are an exception to the general rule that statutory requirements expressed in positive language are directory, recent cases show that the failure to serve a notice of appeal does not ordinarily invalidate the appeal. In Whitehouse Hotels Pty Ltd v Lido Savoy Pty Ltd (1974) 131 CLR 333 the High Court held that the failure to serve a copy of a notice of appeal within the prescribed time did not invalidate an appeal lodged in accordance with the High Court Rules. A similar result was reached in this Court in Neilsen v Water Resources Commission (1985) 11 IR 102 where the notice of appeal was served nineteen days out of time."
Counsel for the DPP sought to distinguish the terms of the legislative provisions which led to much the same result in Re Honourable John Colinton Moore, the Minister of Business and Consumer Affairs v Tooheys Limited (1981) 56 FLR 345 and David Jones (Aust) Pty Ltd v Arauner (1981) 56 FLR 351. In each case the court considered that it was notice, rather than service, which was essential to the valid institution of the appeal. I accept that each case dealt with provisions somewhat different in their terms than those with which I am dealing in this case. Notwithstanding those differences, after undertaking the exercise of statutory interpretation guided by the principles in Project Blue Sky Inc, I have reached the same conclusion. I find that the applicant's appeal was instituted within time by filing the notice of appeal; and the application to extend time, which I have no power to grant in any event, is unnecessary.
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