Fraser v President, Anti-Discrimination Board and 3 Ors

[2000] NSWSC 1083

CITATION:

FRASER v PRESIDENT, ANTI-DISCRIMINATION BOARD & 3 ORS [2000] NSWSC 1083

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

SC 30059/99

HEARING DATE(S):

8/12/99, 9/12/99, 18/2/00, 16/5/00, 17/5/00, 18/5/00

JUDGMENT DATE:

28 November 2000

PARTIES :

Courtney Jane Fraser (Plaintiff)

v

President, Anti-Discrimination Board (First Defendant)
The University of Sydney (Second Defendant)
Stephen Morris (Third Defendant)

JUDGMENT OF:

Adams J at 1

LOWER COURT JURISDICTION :	Anti-Discrimination Board
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :	Mr Christopher Puplick

COUNSEL :	Ms S Winters (Plaintiff) Mr G Bartley (First Defendant) Mr M Neil QC with Mr G L Turner (Third Defendant)
SOLICITORS:	Turner Freeman, Solicitors (Plaintiff) I V Knight (First Defendant) Graham Molloy & Associates (Third Defendant)
CATCHWORDS:	Sexual harassment - complaint out of time - whether "good cause" shown under s 88(4) Anti-Discrimination Act 1977 - relevant considerations - procedural unfairness
LEGISLATION CITED:	Anti-Discrimination Act 1977 Supreme Court Act 1970 Anti-Discrimination Act 1991 (Qld) Freedom of Information Act 1989
CASES CITED:	McAuliffe v Puplick (unreported, NSWSC, 1 February 1996) Bordern v Walters & ors [1999] QSC 226 Gallo v Dawson (1990) 64 ALJR 458 Brisbane South Regional Health Authority v Taylor (1966) 186 CLR 541 Jones v Dunkel (1959) 101 CLR 298 Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985-1986) 162 CLR 24 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
DECISION:	Judgment for the defendants.

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

TUESDAY 28 NOVEMBER 2000

30059/99

COURTNEY JANE FRASER v PRESIDENT OF THE

ANTI-DISCRIMINATION BOARD & OTHERS

JUDGMENT

1    HIS HONOUR: The Anti-Discrimination Act 1977 (the Act) provides that it is unlawful for an education authority to discriminate against a person on the ground of sex, amongst other things by subjecting the student to “any...detriment”: s 31A. Complaints of sexual discrimination may, in certain circumstances, be determined by the Anti-Discrimination Board (the Board). They must be in writing and lodged within six months after the date of the alleged contravention of the Act. However, the President, “on good cause being shown, may accept a complaint which is lodged more than six months after the date” of the alleged contravention: s 88. The plaintiff filed a complaint after the expiration of the six-month period. The President considered that good cause had not been shown and therefore declined to accept it. 2 The plaintiff seeks orders in the nature of prerogative relief under s 65 of the Supreme Court Act 1970. It is submitted on behalf of the plaintiff that, when the President declined to accept the complaint out of time, he improperly exercised the discretion available to him under s 88(4) of the Act as he failed to take into account relevant factors, took into account irrelevant factors, failed to accord natural justice, in the sense of procedural fairness, to her when making the decision and acted as no reasonable decision maker would have. Before moving to the facts in the matter it is convenient to deal with submissions concerning the meaning of the phrase “good cause”. 3 In McAuliffe v Puplick (unreported, NSWSC, 1 February 1996), Levine J held that the merit of the substantive complaint was irrelevant in determining whether good cause had been shown by an applicant seeking to lodge a complaint under the Act out of time. Referring, amongst other things, to the Rules of this Court concerning the time for appealing to the Court of Appeal and generally to extensions and abridgment of time, his Honour said, “The fundamental matters involved in ‘good cause’ being shown are the explanation of the delay and whether prejudice has been created” to other parties. Ms Winters submitted that his Honour erred by drawing an analogy between the jurisdiction of the Supreme Court on the one hand and the powers of the President and the functions of the Board under the Act, on the other. This submission over-emphasises the significance of his Honour's reference to the Rules of Court, which was used simply as an example of provisions which permitted extension of time and gave only slight significance to any notion of “merit”. In Bordern v Walters & ors [1999] QSC 226, Mackenzie J, in considering a similar provision to s 88 of the Act, contained in the Anti-Discrimination Act 1991 (Qld), said that the “reason for the delay in making the complaint is a relevant factor...[and another] relevant factor in relation to good cause is the risk of prejudice to a respondent if the complaint is accepted.” 4 Ms Winters submitted that the time limit on lodgment of complaints should not, to adopt the language of McHugh J in Gallo v Dawson (1990) 64 ALJR 458 at 459, become an instrument of injustice and relied upon his Honour's statement that, “the discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties”. However, his Honour added -

“In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time.”

5    Ms Winters submitted that, because the refusal to extend time meant that the plaintiff lost her right to litigate her complaint before the Board without any other remedy being available to her in the circumstances, it was not appropriate for the President to have considered any prejudice which might be caused to the respondent by granting an extension of time. She submitted that, having regard to the beneficial purpose of the legislation, in effect, the only prejudice which should be considered was that caused to her by not permitting lodgment of her complaint. This submission, if accepted, would virtually destroy the function of the time limit provided by the legislation, which must be seen as an expression by the Parliament of an appropriate policy concerning the timely making of complaints. Moreover, where the availability and reliability of evidence may have been adversely affected by the delay, the integrity of the hearing or analogous proceeding itself might well be seriously qualified. In my view, it is appropriate to apply here, making adjustment for the character of the Act, the considerations referred to in the judgment of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551-553 (omitting some references) -

“The discretion to extend time must be exercised in the context of the rationales for the existence of limitation periods. For nearly 400 years, the policy of the law has been to fix definite time limits (usually six but often three years) for prosecuting civil claims. The enactment of time limitations has been driven by the general perception that ‘[w]here there is delay the whole quality of justice deteriorates’ ( R v Lawrence [1982] AC 510 at 517, per Lord Hailsham of St Marylebone LC). Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo (1972) 407 US 514 at 532, ‘what has been forgotten can rarely be shown’. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now ‘knowing’ that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued. The longer the delay in commencing proceedings, the more likely it is that the case will be decided on less evidence than was available to the parties at the time that the cause of action arose.
“Even before the passing of the Limitation Act 1623 (Imp), many civil actions were the subject of time limitations (Bacon, New Abridgment of the Law , 5th ed (1798), vol 4, pp 461 et seq). Moreover, the right of the citizen to a speedy hearing of an action that had been commenced was acknowledged by Magna Carta itself...Thus for many centuries the law has recognised the need to commence actions promptly and to prosecute them promptly once commenced. As a result, courts exercising supervisory jurisdiction over other courts and tribunals in their jurisdictions have power to stay proceedings as abuses of process if they are satisfied that, by reason of delay or other matter, the commencement or continuation of the proceedings would involve injustice or unfairness to one of the parties ( Walton v Gardiner (1993) 177 CLR 378).
“The effect of delay on the quality of justice is no doubt one of the most important influences motivating a legislature to enact limitation periods for commencing actions. But it is not the only one. Courts and commentators have perceived four broad rationales for the enactment of limitation periods. First, as time goes by, relevant evidence is likely to be lost...Second, it is oppressive, even ‘cruel’, to a defendant to allow an action to be brought long after the circumstances which gave rise to it have passed...Third, people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them...The final rationale for limitation periods is that the public interest requires that disputes be settled as quickly as possible.
“In enacting limitation periods, legislatures have regard to all these rationales. A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is ‘to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced’ ( Sola Optical Australia Pty Ltd v Mills (1987) 163 CLR 628 at 635). But whether injustice has occurred must be evaluated by reference to the rationales of the limitation.”

6    It follows that both the considerations referred to by Levine J in McAuliffe are relevant to the President's consideration of the plaintiff's application to lodge her complaint out of time. It is neither necessary nor desirable for me to list all the material matters which the President should consider but, generally, they will encompass those matters which were adverted to by McHugh J in Gallo in the passage set out above.

7    Before discussing the plaintiff’s further submissions, it is necessary to set out the history of the matter. 8    On 11 November 1997, the plaintiff lodged with the Board what she described as a formal complaint of sexual harassment and victimisation against three parties identified by her as “respondents”, two of whom were the first and third defendants. The plaintiff added that the University (the first defendant) was currently conducting an investigation into the allegations but that the matter was not yet resolved. She enclosed copies of the informal and formal complaints made to the University against the third defendant, respectively dated January and February 1997, a statutory declaration of October 1996 and a formal complaint against the Head of the relevant School, dated October 1997. The complaint of January 1997, which was addressed to the Head of the relevant School of the University, was expressed as an “informal complaint of sexual harassment” against the third defendant. These allegations covered an extended period in 1996, and elaborated a number of allegations that had been made in October of that year in the statutory declaration which was not communicated to the University authorities at the time because, the plaintiff said, she was worried “about further negative effects on me in the future”. The statutory declaration referred to a number of incidents, one of which concerned the alleged misuse of a report prepared by the plaintiff for course work by other students as well as the allegations of sexual harassment.

9    The declaration also referred to a meeting in September 1996 involving the Head of School, the third defendant and Ms Pauline Croxon, manager of employee and industrial relations for the University, who was identified by the plaintiff as her aunt. Ms Croxon attended this meeting as the plaintiff’s support person. The allegations of sexual harassment had not been previously disclosed by the plaintiff and were not discussed at the meeting, which concerned only the issues arising from the alleged misuse of the plaintiff’s report. It is reasonable to infer both that Ms Croxon had knowledge of the jurisdiction of the Board, in particular its procedures for instituting complaints, and would have been likely indeed, almost certainly, to have been consulted by the plaintiff when, in due course, she made her formal complaints to the University of sexual harassment.

10    It appears from material later provided to the President by the University (in circumstances which I shall come to presently) that, on 3 January 1997, the plaintiff conferred with Ms Kathryn McDonald, who was the University’s Director of Equal Employment Opportunity. She read out her statutory declaration to Ms McDonald and discussed it in detail with her, mentioning, in particular, her fear that if she had complained at the time about the third defendant’s behaviour she believed that she would not receive the help that she needed to successfully complete her honours programme and adversely affect her marks. A contemporaneous note by Ms McDonald states that she gave the plaintiff the Guidelines (obviously the University’s) for Harassment and Sexual Harassment, apparently obtained from the internet, together with a list of discrimination advisers and told her about the informal and formal procedures available within the University as well as “external (leading to) HREO & ADB” which, in the circumstances, can mean only that the plaintiff was advised as to the remedies available from these sources. Ms McDonald noted that “after discussing pros and cons of formal and informal” (semble procedures) the plaintiff indicated a decision to lodge an informal complaint within the University and that she told the plaintiff that she “could also seek help from discrimination advisers, SRC or just get advice from ADB etc”. 11    The plaintiff was also advised by Ms McDonald that “complaints and allegations made in good faith and without malice to the appropriate person are protected by qualified privilege”. These notes were forwarded to the plaintiff by the University on 26 May 1997 pursuant to a request made by her under the Freedom ofInformation Act 1989. 12 Ms McDonald, in a statement dated 21 May 1999 expanding on her notes obtained by the Board from the University in May 1999, said that, at the meeting of 3 January 1997, the plaintiff was informed by her, in respect of her right to make a complaint to the Board or the Human Rights and Equal Opportunity Commission in addition to the University’s internal complaints process, that there were deadlines for external complaints, namely “six months for the Anti-Discrimination Board or twelve months for the Human Rights Commission, but you’re in time at the moment”. Furthermore, Ms McDonald stated that she believed that she handed to the plaintiff information sheets, amongst other things, from the Board. Attached to Ms McDonald’s statement was a copy of this document, which states -

“For us to be able to help, you must have been treated unfairly in the last six months . If you were treated unfairly, write a letter to the President of the Anti-Discrimination Board explaining why you think you have been discriminated against.” (Emphasis in original)

13    On 5 February the Head of School acknowledged receipt of the plaintiff’s letter of 30 January and its enclosure and said that he would take action, informing her that she should call in about two weeks if she wished to be appraised of progress. 14    On 16 February 1997, the Head of School wrote to the plaintiff concerning the issues that she had raised and, in respect of the allegations of sexual harassment, said that they were serious and required assessment that involved a member of the University external to the School, assuring her that the process would be initiated on the return from outside Australia of the third defendant. 15    On 21 February 1997, the plaintiff responded that, amongst other things, the University’s guidelines for dealing with sexual harassment had not been followed, in particular, she had not been consulted on the intended process of investigation. On 2 March 1997, the plaintiff advised the Head of School that she had now made a formal complaint to the Vice-Chancellor of the University concerning the matters which she had earlier identified. The Vice-Chancellor, on 13 March 1997, appointed Professor Napper, the Pro Vice-Chancellor (Sciences and Technology), his nominee to deal with the matter in accordance with the relevant Award for the purpose of initiating the University’s procedures concerning such complaints. On 27 March 1997, Professor Napper informed the plaintiff of the process which he intended to undertake and informed her that she would be contacted for the purpose of being interviewed. In early April 1997, the University retained the services of a private investigator to investigate the plaintiff’s complaints, who reported on 3 June 1997. Ms McDonald’s statement of 21 May 1999 says that, on 29 July 1997, at a meeting involving the plaintiff, her mother and uncle, and Professor Napper, for the purpose of bringing the plaintiff up to date with the progress of her internal complaint, Professor Napper told her that it would take three to six months to complete a tribunal hearing. This meeting had been referred to briefly in the letter of the plaintiff’s solicitor to the Board on 25 June 1998 as the occasion upon which he was informed by Professor Napper of the investigator’s report and that the University’s procedures would be instituted. On 2 October 1997, Professor Napper informed the plaintiff that her allegations against the third defendant whould be referred to a Misconduct Investigation Committee in accordance with the relevant University protocol. She was informed of a request made on the third defendant’s behalf that the dispute be mediated and was asked for her response. On 14 October 1997, the plaintiff informed Ms Clarke, the University’s senior personnel officer that she was not interested in mediation. A week later the plaintiff was informed that the proceedings would probably commence on 24 November and arrangements for interviewing her would be made in due course to obtain a statement. As I have mentioned, on 5 November 1997, the plaintiff lodged her complaint with the President. 16    It is not controversial that the alleged harassment ended at the end of October 1996, almost twelve months before lodgment of the complaint with the Board and just under six months after expiration of the statutory time limit. 17    A Senior Conciliation Officer with the Board, Ms Jillian Moir, stated in an affidavit tendered in these proceedings (in respect of which she was not sought to be cross-examined) that she telephoned the plaintiff on 1 December 1997 to inform her, in effect, that the Board could not allocate her complaint for investigation for perhaps ten months and asked whether this would pose a problem as the investigation by the University was still proceeding. Ms Moir said that the plaintiff told her that the delay posed no problem since she had “lodged the complaint at this stage with the Board to put pressure on the University to deal with my complaint”. Ms Moir informed her that, as the complaint had been lodged outside the six month time limit, the President would have to decide whether or not it should be accepted for investigation. She told the plaintiff -

“The sorts of things he considers when deciding whether you have got ‘good cause’ for delay are what you have been doing about it in the meantime, how long the delay is, whether the University will be disadvantaged if we accept it. You will have to give us your reasons for delay in lodging the complaint in writing.”

The plaintiff said that she would write to the Board once she found out whether the University would resolve the issue in the New Year. On 5 December 1997, Ms Moir wrote to the plaintiff confirming, amongst other things, that her complaint had been lodged outside the six months’ time limit and that she would need to show the President that there were good reasons why the complaint was not sent within that period. She informed the plaintiff that the President would consider what she had to say and might also ask those about whom she was complaining for their views. Ms Moir asked the plaintiff to “send us all the reasons why you did not lodge your complaint for over six months after the events”.

18 It may be worth noting, though no point is taken by the plaintiff in this regard, that the “good cause” to which s 88(4) of the Act refers relates to the President's acceptance of a complaint which is lodged out of time rather than the reasons for the delay in lodgment. It is clear that the reason for the delay is but one of the matters that the President needs to consider in deciding whether to accept an out of time complaint. 19 On 22 December 1997, the plaintiff’s solicitors informed the President that they acted for the plaintiff in connection with the complaint. On 31 March 1998, the Board wrote to the plaintiff’s solicitors attaching a copy of the letter to the plaintiff of 5 December 1997 and asking whether the plaintiff wished to proceed with her complaint. In particular, the letter noted that she had been requested to provide the Board “with all the reasons why she did not make her complaint to the Board within six months of the discrimination occurring”. The solicitors were asked to provide this information as soon as possible if the plaintiff wished to pursue her complaint. On 29 April 1998, the solicitors responded by confirming that the plaintiff did, indeed, wish to pursue her complaint and said that her instructions had been sought in respect of the matters which had been raised by the Board’s letter.

20    On 25 June 1998, the solicitors wrote to the President a comprehensive letter attempting to demonstrate that there was good cause for the President’s acceptance of her complaint out of time. The letter commenced by stating the plaintiff’s instructions that the University had established a committee to deal with her complaint “in about December 1997” but the actions of the committee were stalled by proceedings in the Supreme Court of New South Wales instigated by the third defendant. This, as is clear from the preceding account of events, was somewhat inaccurate, as the committee had actually arranged to sit on 24, 25, 26 November 1997. The solicitors informed the President that the plaintiff had been advised that the committee was (now) able to proceed with the matter and was last informed that it would meet in the near future. Even so, the plaintiff wished to pursue her complaint in the Board. The solicitors noted that the fundamental issues involved in demonstrating “good cause” were “the explanation for the delay and whether any prejudice has been created”. This was clearly a reference to McAuliffe (supra). The plaintiff’s explanation for the delay may be briefly summarised as follows -

· no complaint was made either to the University or to the Board for the period up to December 1996 because of the plaintiff’s concerns that a complaint might adversely affect her grades;

· in early January 1997, the plaintiff commenced informal procedures within the University including obtaining advice from the Equal Opportunity Department of the University about making the complaint;

· in February she made a formal complaint of sexual harassment because she was not satisfied with the informal procedures;

· in March the Pro Vice-Chancellor was appointed to deal with the complaint and an investigation was commenced which led to a report of late May 1997 being prepared by a private investigator who, amongst other things, interviewed the plaintiff and obtained a written statement from her;

· this report was provided at the end of July 1997 and, in early November, the complaint was made to the Board when the plaintiff felt that the proceedings being undertaken by the University had stalled.

The plaintiff’s solicitor said that the complaint was not made earlier because the plaintiff believed that the University would investigate and deal with her complaint in an efficient and proper manner and “that it was not appropriate and necessary to additionally complain to you at the same time”. Of course, this necessarily implies that the plaintiff was aware, at least, of her ability to complain to the Board about her allegations and had made a choice about whether to do so. The letter asserted that the plaintiff only became aware by the correspondence with the Board and a telephone conversation with a conciliation officer (obviously Ms Moir) that her complaint was out of time. In light of the statement that the plaintiff obtained advice in early January 1997 from the Equal Opportunity Department of the University, which was plainly a reference to her meeting with Ms McDonald of 3 January, this assertion of ignorance seems a little surprising, especially in light of the provision to the plaintiff of Ms McDonald’s notes of the meeting in May the previous year. There was no attempt to explain this. The solicitor submitted that the plaintiff’s explanation for delay was reasonable and satisfactory. They also submitted that the respondents to the complaint had not suffered prejudice by virtue of the delay since they were aware of the nature of her allegations when the complaint was first made to the University on 30 January 1997 and were therefore in at least the same position in terms of dealing with it as they would have been had the complaints been made to the Board within time. This argument did not deal with the issue of the availability of witnesses or the cost of their attendance at any hearing.

21    On 2 December 1998, the plaintiff’s solicitor contacted the Board and informed a Mr Murray that the complaint should now be allocated urgently for a number of reasons which he was asked to communicate in writing. Accordingly, he wrote to the President on 4 December 1998 requesting that he give urgent consideration to opening the investigation into the complaint. The President was informed that the plaintiff's complaint had been fully investigated by the University which had done “little or nothing to resolve it” by conciliation. However, as I have pointed out, mediation was rejected by the plaintiff at an early stage. The letter further asserted that the University was unable to conduct the necessary committee of enquiry as required by the Award because of injunctions obtained by the third defendant which prevented the committee from sitting. That action was, the solicitor said, due to commence hearing on 7 December 1998 and was listed to run for at least a week. The plaintiff was not a party in those proceedings. The solicitor said that the plaintiff “is now in a position of being a witness only” in connection with the University enquiry. Of course, this was the position since the beginning and the implication that there had been a significant change in this regard was completely incorrect. The solicitor also commented that “the status of the committee of enquiry in unknown” and accordingly witness privilege may not be available to the plaintiff. However, the University’s guidelines for dealing with harassment clearly set out the nature of the qualified privilege of a genuine complainant who is not motivated by ill-will or malice and this document was considered by the plaintiff, certainly by 21 February 1997, since it is referred to in correspondence of that date between her and the Head of School. Moreover, this matter had been raised in the interview with Ms McDonald on 3 January 1997. The solicitor made the point that the third defendant may be inclined to sue the plaintiff and was concerned that the University had refused to provide her with an indemnity. The solicitor also alleged that the University had inappropriately deflected its enquiry from an attempt to resolve the plaintiff’s complaint into one looking at the activities of the alleged harasser. No evidence was referred to which might have supported this allegation, the meaning and significance of which is difficult to discern. The solicitor also claimed that, although the plaintiff was the victim, “nothing whatsoever has been done to resolve her complaint by anyone”. This was, to say the very least, disingenuous.

The solicitor contrasted the University’s ability to deal with the plaintiff’s complaint with that of the Board and, rightly in my view, pointed out that the Board and the Equal Opportunity Tribunal provided a more adequate forum, in some (but by no means all) respects, for dealing with the plaintiff’s complaint than the University's protocol. Even so, this letter conveys a marked change in the position as it was advised by the plaintiff personally to Ms Moir on 1 December 1997, to which conversation I have already referred.

22 On 14 December 1998, the plaintiff’s solicitor spoke to Ms Moir about the plaintiff’s complaint. Ms Moir told him, as her contemporaneous note states, that it would be necessary for the Board to write to the University and the third defendant. It is obvious that such letters would, amongst other things, seek their response to the plaintiff’s attempt to lodge her complaint out of time. The plaintiff’s solicitor had already informed the President that the question of prejudice to them was a material consideration. Furthermore, the solicitor informed Ms Moir that he thought that the Supreme Court matter had been completed and suspected that the third defendant had agreed to resign. On 12 January 1999, the plaintiff’s solicitor was advised by the University’s solicitors that on 9 December 1998 the proceedings between the third defendant and the University were finalised by consent orders which included dismissal of the statement of claim and costs. 23 On 8 January 1999, the President wrote to the Vice-Chancellor of the University to inform him of the plaintiff’s complaint and the fact that it was lodged out of time, pointing out that he had a discretion to accept the complaint, amongst other things, “if this is fair to both you and the complainant”. This letter also stated that the President could accept an out of time complaint, “if the complainant can show ‘good cause’ for it being late”. As I have pointed out, this was a misstatement of the discretion given by s 88 of the Act. However, the President added the following -

“In making my decision I must balance the interests of both parties in the matter. I will consider :

· whether I am satisfied by the complainant’s explanation for the delay in lodging the complaint;

· any disadvantage to the complainant if I were not to accept this complaint outside the statutory time limit; and

· any disadvantage to you if I were to accept this complaint.”

Accordingly, the President asked for the Vice-Chancellor’s views concerning the possible disadvantage to the University if the complaint should be accepted and for comments as to the plaintiff’s explanation for delay in lodgment of the complaint. That explanation was briefly set out in the letter and it is unnecessary for me to refer to it further. A similar letter was sent to the third defendant.

24    On 11 January 1999, Ms Moir sent copies of these letters to the plaintiff’s solicitors for his information and sought, in particular, an assurance that the description of the plaintiff’s complaints were correctly identified. It is clear, however, that the plaintiff, through her solicitor, was entitled to raise any other matter which concerned her arising from the correspondence. On 10 February 1999, the plaintiff’s solicitor wrote to the President informing him that the plaintiff’s complaints had been briefly but adequately set out, subject to a minor qualification. The solicitor added, however, that neither the University nor the third defendant could have “any legitimate or genuine grounds for opposing the acceptance of the complaint” because in substance, they must have equipped themselves fully to deal with the issues raised by the complaint for the purpose of the Supreme Court litigation. There was no request for an opportunity to respond to any submissions that might be made by the University and the third defendant in response to the President’s enquiry. 25    On 2 February 1999, the solicitors acting for the third defendant wrote a detailed letter to the President, largely argumentative, and mostly confined to matters already substantially disclosed to the Board, although some additional facts concerning the merits of the plaintiff’s complaint were also alleged. So far as the disadvantages to the third defendant were concerned, again the submission was, in substance, an argument based upon material either explicitly or implicitly contained in the material that had already been provided to the Board by the plaintiff although some details as to residence abroad of two “primary witnesses” was also provided. The University wrote to the President on 8 February 1999, referring to the meetings of January and July 1997 with Ms Kathryn McDonald, which showed that the plaintiff was aware of the relevant deadlines and the timetable of the University’s processes. The University also set out a brief chronology, which was not controversial, as to the time frames of the various steps. General submissions were made concerning the stress and anxiety of staff members and students who were involved in the proceedings. 26    On 3 May 1999, Ms Moir contacted the University to request the notes or other evidence relied on by the University for its description of the meetings between Ms McDonald and the plaintiff. In the meantime, on 13 May 1999, before Ms Moir’s request to the University of 3 May had been complied with, Mr Goldberg spoke to Ms Moir. Because of the importance of this conversation, I set out Ms Moir’s file note in full, expanding the abbreviations for the sake of clarity -

“I return his call.

“I explained where matter is up to and waiting for information from University.

“Where’s prejudice to respondents?

“I said, not only consideration in out of time - he thinks it is.

“He’s upset re delay and doesn’t think information I am seeking is relevant - I do.

“I said - if I don’t have information within a week or so, I’ll proceed without it - he thinks I should proceed without it now - I explain I can’t - I’ve asked them for information - must give them opportunity to provide it”

27    The accuracy of this note was not subject to any real controversy in these proceedings. There was no attempt to call any evidence, particularly from the plaintiff’s solicitor, which might justify an interpretation of the note which either corrected or qualified its ordinary meaning. I consider that the correct interpretation of the note is that Ms Moir told the plaintiff’s solicitor what had, up to that date, transpired. It is clear from the correspondence to which I have already referred that the plaintiff’s solicitor was well aware of the nature of the material which was being sought by the Board from both the University and the third defendant, which covered not only the prejudice that might be suffered by accepting the complaint but also the course of events in dealing with the plaintiff’s internal complaints.. The only fair interpretation, in the circumstances, of the note is either that Ms Moir informed the solicitor what had so far been conveyed by the University and the third defendant or, she having indicated that some material had been provided, the solicitor did not enquire as to its content. It is very likely that Ms Moir told the solicitor what information was still being sought. This inference is considerably strengthened by the solicitor’s response to Ms Moir that the information which she was seeking was irrelevant. As I have already pointed out, the plaintiff already had the notes made on 3 January 1997 by Ms McDonald. The solicitor must have appreciated that those notes and Ms McDonald’s account of the conversation with the plaintiff would be provided to the President by the University. These notes, without more, would have led to the conclusion that the plaintiff had been informed of the time limit for complaints under the Act. The failure or refusal of the solicitor to deal with the matter was not for want of opportunity. Nor could he have been under a misapprehension as to its relevance. 28    Whether the plaintiff’s solicitor was made aware by Ms Moir in a detailed way of all the material which had thus far been provided and which was being sought, must be regarded as uncertain, though, in the circumstances, I think it probable. Moreover, the plaintiff’s solicitor, being aware that the Board regarded this material as relevant to his client’s application, did not ask that he be given an opportunity to respond to it or even that he be informed about its content when it arrived. Having regard to the ground agitated in this Court by the plaintiff, that she was denied procedural fairness because the President considered the material provided by the University and the third defendant in connection with her application without making her aware of it or giving her an opportunity to respond, the failure to call her solicitor to contradict the inferences to which I have referred arising from the file note, leads to the conclusion, applying the rule in Jones v Dunkel (1959) 101 CLR 298, that such evidence would not have assisted her. 29 It is for the plaintiff to establish that she was not informed of the material obtained or to be obtained from the other parties and denied the opportunity to respond to it. So far from proving that this was so, I am satisfied on the balance of probabilities that this was not the case.
30    In these circumstances, the plaintiff was not denied procedural fairness by the President proceeding to determine the matter in the absence of further information from her. I consider that the President was entitled to conclude both that the plaintiff had ample opportunity to put relevant material to him and that she did not wish to respond to anything supplied by the University or the third defendant and was, further, content to limit her argument to that which had already been put by her solicitor to Ms Moir namely, that anything which they might produce was irrelevant. In this respect, I note that there has been no attempt to adduce evidence in this proceeding to demonstrate that there was, indeed, material which could have been produced to the President capable of contradicting or qualifying the factual assertions made by the University and the third defendant, the two most significant aspects of which seem to me to concern the plaintiff’s knowledge of the six months’ time limit for the making of complaints to the Board and the difficulty in obtaining evidence from witnesses who were, or might be, abroad or otherwise whose attendance it was difficult to secure. 31    In so far as the application in this Court rests upon an alleged denial of natural justice, I consider that this ground has not been made out. 32    The President’s reasons for declining to accept the plaintiff’s complaint out of time referred to the following matters which, it is submitted on the plaintiff’s behalf, were not relevant: · the extent of the plaintiff’s awareness of the time limits imposed under the Act and the relevant Federal legislation; · whether the plaintiff had access to advice from experts who were also relatives who had participated in some of the relevant meetings: · whether the plaintiff was clear about her own strategy for dealing with these matters and was not uncertain or confused about her position about the University proceedings; · whether the plaintiff had accepted the University’s time frame for those proceedings of six to nine months; · whether the University had failed to act in good faith throughout the proceedings; · whether the plaintiff could have lodged a complaint with the Board within time and asked for it not to be proceeded with pending satisfactory conclusion of the University proceedings and had done so in connection with her dealings with the University; · whether there was possible prejudice to the respondents in accepting the matter out of time; · what were the University’s own attempts to deal with the complaint · the report provided to the Pro-Vice Chancellor in connection with the plaintiff’s complaint; · the Supreme Court proceedings; · whether there was significant prejudice to the University outweighing the competing claims of the plaintiffs; · the resignation of the third defendant from the University (to which the President accorded “little weight”) · the University’s claims about the impact on persons who had already been through the investigation and litigation processes; and · the general issues of time delays involved. 33    Most of these matters were agitated by the plaintiff in her solicitor’s initial application of 12 June 1998, as elaborated by the letter to the President of 4 December 1998, the substance of which I have briefly summarised above. I consider that, in any event, all the matters suggested to be irrelevant bore, to a greater or lesser extent, on the issue which the President was required to consider. I need hardly add that his factual determinations in respect of these issues are not examinable in this Court but, at all events, I do not see any basis for concluding that the President erred in this respect. The President had an unfettered discretion in weighing these considerations and it was for him to determine their relative significance. 34    During argument Ms Winters submitted, in addition, that the President should not have considered anything that came from the second respondent because he “was not a respondent to the complaint”. It was argued that, since s 31A of the Act refers only to unlawful behaviour by educational authorities, the third defendant could not properly be a party to any complaint under the Act. For the reasons I set out in my judgment as to joinder of the third defendant to these proceedings, I consider that this argument is without merit. Moreover, the plaintiff’s solicitors adopted the identification by the plaintiff, in her initial approach to the Board, of the third defendant as a respondent to her complaint and raised no objection to the President’s so regarding him for the express purpose of considering any prejudice that he might suffer by accepting the complaint. 35    The plaintiff also submitted that a number of relevant matters were not considered by the President in determining that no good cause was shown. All the matters referred to under this head were contained in the material in the relevant file and most of them were either explicitly or implicitly referred to in the detailed submissions of the plaintiff’s solicitors or, one way or another, in material provided by the plaintiff to the President or by the report to him of Ms Moir. In particular, the President said, in his correspondence with the respondents, copies of which (as I have mentioned) were sent to the plaintiff, that he would consider “any disadvantage to the complainant” if the complaint were not accepted. That the President did not specifically mention this factor in his reasons for not accepting the complaint does not justify the conclusion that he did not consider it. Indeed, I have no doubt, on a perusal of the material tendered before me, that he did do so. The President stated in his reasons that he had read all the material on the files and had discussed them directly with Ms Moir, who was the officer who principally had the carriage of the matter within the Board. I do not consider that there is any basis for concluding that the President did not consider the matters identified by the plaintiff’s counsel as relevant. In saying this, however, I should not be taken as suggesting that these were all matters which the President was bound to take into account for there to have been a valid exercise of his statutory discretion. 36    In Minister for Aboriginal Affairs v Peko Wallsend Ltd (1985-1986) 162 CLR 24, Mason J said (at 40, omitting references) -

“...What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion. If the statute expressly states the considerations to be taken into account, it will often be necessary for the court to decide whether those enumerated factors are exhaustive or merely inclusive. If the relevant factors — and in this context I use this expression to refer to the factors which the decision-maker is bound to consider — are not expressly stated, they must be determined by implication from the subject-matter, scope and purpose of the Act. In the context of judicial review on the ground of taking into account irrelevant considerations, this Court has held that, where a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject-matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard...By analogy, where the ground of review is that a relevant consideration has not been taken into account and the discretion is unconfined by the terms of the statute, the court will not find that the decision-maker is bound to take a particular matter into account unless an implication that he is bound to do so is to be found in the subject-matter, scope and purpose of the Act.”

37    I consider that the matters taken into account by the President were well within the scope of materiality described by the requirement that he accept a complaint that is lodged out of time where “good cause” for doing so is demonstrated. Nor has the plaintiff identified any relevant matter that he failed to consider. 38    Accordingly, the plaintiff cannot succeed on this issue. 39    The plaintiff also submitted that the President’s decision that good cause had not been shown for accepting her complaint out of time was so unreasonable that, to use the language of Lord Green MR in Associated Provincial Picture Houses vWednesbury Corporation [1948] 1 KB 223 at 230, no reasonable person could have made it. This test, as was noted by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd (162 CLR at 41) “has been embraced in both Australia and England...[although] there has been considerable diversity in the readiness with which the courts have found the test to be satisfied”. His Honour pointed out (ibid at 42) that, “in the context of administrative law, a court should proceed with caution when reviewing an administrative decision on the ground that it does not give proper weight to relevant factors, lest it exceed its supervisory role by reviewing the decision on its merits”. 40    In this case, Ms Winters’ submission depended largely on a narrative of the plaintiff’s dealings with the University and the second respondent, directed to showing that she had acted reasonably in delaying lodgment of her complaint with the Board. Whether the plaintiff acted reasonably and, if so, its significance was, though undoubtedly relevant, not the only consideration to which the President was entitled or, indeed, obliged to refer. However, I should mention that the account of the plaintiff’s actions omits reference to several facts referred to by the President and reasonably capable of significantly qualifying the importance of the matters Ms Winters relies on. I should mention that Ms Winters also relied on the happenstance that senior officers of the Board recommended to the President that the plaintiff’s complaint should be accepted. In my view, this recommendation does not bear on the question whether the President’s decision was relevantly unreasonable. That the President referred to the submission from the Board staff and their recommendation, saying that he was reluctant to overturn recommendations of his officers, does not give the recommendation any greater weight in the context in which I am considering the suggested unreasonableness of his decision. 41    The additional matters that the President was entitled to consider included, but were not confined to, the prejudice which may, and probably would, have been suffered by the other interested parties. These were referred to in general terms by the President. I would add the comment that proceedings under the Act of the kind contemplated by the plaintiff’s complaint are extremely serious and an adverse decision can have grave consequences for the party concerned. The availability and reliability of material witnesses is therefore a most significant consideration in determining whether to accept a complaint that is lodged out of time since the absence of reliable evidence attributable to delay might well affect the integrity of the Board’s own proceedings. This was a significant matter which was not addressed in terms by the President, although he may well have considered it. It would, to my mind, have been a most material factor in this case, even if the plaintiff’s conduct might be regarded as reasonable despite the existence of, and her awareness about, the statutory time limit. 42    It was submitted on behalf of the defendants that, at all events, the University and thus, indirectly, the third defendant, must have succeeded by virtue of s 53 of the Act, as it could be demonstrated that the alleged conduct of the third defendant was not authorised by the University or that the University took all the steps reasonably open to it to prevent the third defendant from committing the alleged conduct. Cogent evidence was tendered in this Court in support of this submission. However, as I have found against the plaintiff on the grounds of her application, it is unnecessary for me to consider the significance of the existence of such a defence in the exercise by this Court of its discretion concerning the granting of relief, even where the proceedings below have relevantly miscarried. 43    Accordingly, I give judgment for the defendants.

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Last Modified: 12/01/2000