Harley v Commonwealth of Australia
[2011] FMCA 197
•25 March 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARLEY v COMMONWEALTH OF AUSTRALIA | [2011] FMCA 197 |
| HUMAN RIGHTS – Allegations of indirect discrimination (three occasions) and direct discrimination under Age Discrimination Act – application for appointment of Court expert – application deferred to close of pleadings and discovery. |
| Federal Magistrates Court Rules 2001, rr.15.09, 15.10, 15.11, 15.12 & 17 Family Law Rules 2004, Part 15.05 Age Discrimination Act 2004, ss.15, 18, 31 & 39 Defence (Personnel) Regulations 2002 Federal Magistrates Act 1999, s.45 Evidence Act 1995 (Cth), ss.76 & 80 Disability Discrimination Act 1992, s.7 Sex Discrimination Act 1984, s.6 Australian Human Rights Commission Act 1986, s.46 |
| AWB Ltd v Honourable Terence Rhoderic Hudson Cole (No.2) [2006] FCA 913 |
| Applicant: | GUY HARLEY |
| Respondent: | COMMONWEALTH OF AUSTRALIA |
| File Number: | ADG 259 of 2010 |
| Judgment of: | Lindsay FM |
| Hearing date: | 13 December 2010 |
| Date of Last Submission: | 13 December 2010 |
| Delivered at: | Adelaide |
| Delivered on: | 25 March 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Harley |
| Solicitors for the Applicant: | Dixon Gallasch |
| Counsel for the Respondent: | Ms Firkin |
| Solicitors for the Respondent: | Blake Dawson |
ORDERS
(a)That the application by the applicant for the appointment of a single expert is adjourned to a directions hearing on a date and at a time to be allocated after discovery has been completed and the pleadings closed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE |
ADG 259 of 2010
| GUY HARLEY |
Applicant
And
| COMMONWEALTH OF AUSTRALIA |
Respondent
REASONS FOR JUDGMENT
The applicant is a 54 year old man who has made a number of applications to join the RAAF Active Reserve (hereinafter referred to as “the Active Reserve”).
He made an application in 2004 to join the Active Reserve as an Operations Officer which was subsequently refused.
He made an application in 2007 to be accepted by the Active Reserve as an Administrative Officer. His application was refused.
He made an application in 2009 to be, once again, an Operations Officer with the Active Reserve, which was also unsuccessful.
Later in 2009 he made another application to join the Active Reserve as an Operations Officer. That also was refused.
The first three applications i.e. the 2004, 2007 and the first 2009 application are the subject of an application which alleges indirect age discrimination. At the heart of that claim is the administration by the Active Reserve of what is commonly known as a “beep test” in relation to the fitness of proposed applicants.
The refusal of his second application in 2009 is the subject of a claim relating to direct age discrimination (and also disability discrimination and sex).
On 13 December 2010 I gave Reasons for rejecting the applicant’s claim to have that part of his application which related to the claim for direct discrimination dealt with as a separate question. I gave my Reasons in somewhat truncated form. I will refer to that matter hereafter.
On that same day, I heard submissions from the applicant and from Ms Firkin on behalf of the respondent in relation to an application by the applicant for an appointment of a Court expert pursuant to Rule 15.09 of the Federal Magistrates Court Rules 2001 (hereinafter referred to as “the Rules of Court”) and for ancillary and consequential orders in relation thereto.
Rule 15.09 of the Rules of Court provide:
Court expert
(1) The Court may, at the request of a party or of its own motion:
(a) appoint an expert as court expert to inquire into and report on a question arising in the proceeding; and
(b)give directions about an experiment or test (other than a testing procedure for section 69W of the Family Law Act) for the purposes of the inquiry or report; and
(c)give further directions, including to extend or supplement the inquiry or report.
(2)If possible, the Court expert should be a person agreed upon between the parties.
Rule 15.10 of the Rules of Court goes on to deal with the process by which the expert provides the report to Court.
Rule 15.11 deals with the expert’s remuneration and expenses.
Rule 15.12 provides:
Further expert evidence
If a Court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the Court.
There is no provision in the Rules of the Court corresponding to the provision in the Family Law Rules 2004 relating to the appointment of a single expert. That is to be found in Part 15.5 of those Rules.
It might be argued that that requirement of leave to adduce evidence or the grant of leave to adduce evidence on the same question as the Court appointed expert has reported is capable of having the same effect as an order for a single expert. Other questions arise in relation to this subrule. It effectively requires the grant of leave to adduce evidence, which, provided it is relevant, a party might be expected to be able to adduce in any event without leave. It is certainly a provision which is capable of having a significant effect on the ability of a party to conduct a case in the way the party wishes to conduct a case and one might have expected such a provision to be found in the relevant legislation rather than in the Rules made by the Court relating to the practice and procedure of the Court.
The case in relation to indirect age discrimination relates to the administration of a beep test and the insistence by the Active Reserve that the applicant obtain a passing level of 6.5 on that test regardless of his age.
The applicant failed the beep test in 2004, 2007 and on the first occasion in 2009 and was unable to proceed with his application for appointment to the Active Reserve in each case. He contends that the use of the beep test contravenes s.15 of the Age Discrimination Act 2004 (hereinafter referred to as “the Act”).
Section 15 of the Act provides:
Discrimination on the ground of age--indirect discrimination
(1)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the age of the aggrieved person if:
(a)the discriminator imposes, or proposes to impose, condition, requirement or practice; and
(b) the condition, requirement or practice is not reasonable in the circumstances; and
(c) the condition, requirement or practice has, or is likely to have, the effect of disadvantaging persons of the same age as the aggrieved person.
(2)For the purposes of paragraph (1)(b), the burden of proving that the condition, requirement or practice is reasonable in the circumstances lies on the discriminator.
The applicant says that the administration of the beep test contravenes that section because it fails to take into account changing physiology with age and does not reflect the actual fitness requirements of the employment sought. He says the test is not aligned with the fitness levels required of RAAF personnel after they have commenced employment, particularly when such fitness levels are adjusted for their age. Generally, he says that the beep test disadvantages people of the applicant’s age. He specifically contends that whilst ninety-three percentum (93%) of eighteen year olds can pass the beep test to the appropriate level of 6.5 only fifty-three percentum (53%) of fifty-three year olds can do so (the applicant was 53 years of age in 2009).
In addition to seeking an order for the appointment of the expert per se, the applicant seeks orders specifying what it is that the expert is to inquire into and to report on and nominates a particular individual, a Professor Kevin Norton, as the appropriate person to receive the appointment.
The matters about which Professor Norton should be asked to inquire and report, according to the applicant are:
a)The fitness level and type of fitness required by a person to perform the duties of an Administration Officer and Operations Officer in the Active Reserve;
b)The fitness level and type of fitness which is measured by the entrance fitness test for an Officer of the Royal Australian Air Force (known as the “Entrance Fitness Standard”); and
c)The correlation between the Administration Officer and Operations Officer fitness standard on the one hand and the Entrance Fitness Standard on the other; and
d)Whether the Entrance Fitness Standard has or is likely to have the effect of disadvantaging persons of the ages of 47 to 54.
The applicant also seeks a series of orders that provide for the expert to be provided with certain documents by the applicant and by the respondent in sequence, and providing for a mechanism whereby the Court expert may require documentation to be produced to him by the parties.
There are additional orders sought in relation to discovery so as to facilitate the preparation of a report by the Court expert.
Generally speaking, the report is sought in relation to what the positions of Administration Officer and Operations Officer in the Active Reserve require by way of fitness and then a comparison of those requirements with the actual fitness level and type of fitness which is measured by the Entrance Fitness Standard of which the beep test was an integral part.
I proceed upon the basis that the person proposed to carry out the report is someone with an appropriate level of expertise. So much was apparent from the affidavit material filed in support of the application.
The appointment of a Court expert can serve a number of useful purposes. There will be cases where the parties have either been unable or unwilling to adduce evidence themselves as to a matter important to the determination of the controversy. That is, the parties themselves have left to the Court the adjudication of issues which are appropriately the subject of the opinions of persons with appropriate expertise but have failed to call the evidence themselves. In those circumstances, the Court can only complete its adjudication by itself commissioning the evidence in the form of a report from an expert. That is one circumstance in which the order for a Court expert will be made.
Another occasion for the appointment of a Court expert will be where the Court is dissatisfied with the evidence that the parties have called either because the witness or witnesses were inappropriately qualified or partisan or simply unhelpful. Once again the rationale for the appointment will be the Court’s need for the evidence to be able to adjudicate upon the issues raised in the case.
They are just two examples of the occasions in which the Court may commission an expert’s report.
I put to one side for the purposes of dealing with this application the reservations I have as to whether the reach of r.15.12 of the Rules of Court exceeds the rulemaking power of the members of the Court. I proceed upon the assumption that either no question will arise as to the grant of leave for the adduction of evidence by other experts on the same question or that no such application will be made. Counsel seem content for me to approach the matter on that basis.
I should say something about the nature of the respondent’s opposition to the claim.
The main response is the contention that the requirement for applicants to achieve 6.5 for a beep test is imposed in direct compliance with paragraph 14(1) of the Defence (Personnel) Regulations 2002, Defence Instructions (Air Force) PERS 33-4 Physical Training and Assessment during Royal Australian Air Force courses, and Defence Force Instructions (General) PERS 36-3 Inherent requirements of service in the Australian Defence Force. Because, it is said, the requirement is imposed by those provisions the imposition of such requirements cannot be unlawful discrimination within the meaning of s.15 of the Act on account of the operation of s.39(1)(b) of the Act.
Section 39 of the Act provides:
(1) This Part does not make unlawful anything done by a person in direct compliance with:
(a) an Act mentioned in Schedule 1; or
(b) a regulation or any other instrument mentioned in Schedule 1.
It is contended that the aforementioned provision of the Regulations are covered by that indemnity.
Section 18 of the Act makes age discrimination in relation to arrangements for the offer of employment unlawful. It is found in Part 4 of the Act.
I readily accept the advantages that will inure to the applicant if I made the order for the single expert.
The appointment would expedite and provide a focus to the process of discovery of documents (on the assumption that I will be persuaded to make a further declaration under s.45 of the Federal Magistrates Act 1999 – I did make an order for discovery on 22 November 2010 but only in relation to pay matters and the need to make a declaration was not specifically addressed). A person with appropriate expertise could identify, within what is no doubt the great volume of discoverable material relating to the selection process of these personnel, those documents which would assist him or her in answering the questions that are put and those questions, after all, are the questions which are at the heart of the resolution of the application.
Counsel for the respondent conceded during the course of argument that the respondent would be calling expert evidence at least on the question of the utility of the beep test and possibly also on the question of the necessary fitness attributes of persons holding the positions for which the applicant applied.
At this stage of the proceedings I only have the assertions of the applicant in his affidavit and in his pleadings that the beep test operates to disadvantage persons of his age. If I am satisfied that it does and that it is not reasonable in the circumstances for it to do so then I will be satisfied that the applicant has been discriminated against.
These matters – the disadvantage of the persons of the age of the applicant and the unreasonableness of the condition giving rise to the disadvantage – are at the very heart of the dispute. It seems reasonable to assume that the evidence relating to the way in which the beep test operates will be expert testimony such as to give rise to the exception to the inadmissibility of opinion evidence provided for in s.76 of the Evidence Act 1995(Cth). It may be the case that expert evidence is also required in relation to the topic of the necessary and reasonable fitness requirements of the positions for which the applicant applied.
Even without recourse to s.80 of the Evidence Act 1995 (Cth) it is unlikely that either of these issues are themselves issues that will require the giving of opinion evidence about matters that are the ultimate issue in the proceedings. Evidence about the content of the requirements for the position and evidence about the operation of the beep test and about what it measures and how it measures those things are distinct questions from the key issues of disadvantage and the key issues of the actual disadvantage of the operation of the condition of employment and, if so, the reasonableness or otherwise of the imposition of that condition.
I am reluctant to commission an expert’s report at the stage of only having the applicant’s assertions as to the physical fitness requirements of the positions he sought and the way in which the beep test assists in the evaluation of whether a candidate has met those conditions.
The order commissioning the expert’s report need not be made at the outset of the proceedings. It can be and frequently is made at a point in the proceedings when it becomes clear that the assistance of such an expert report is required.
I do not accept the submission of the respondent’s counsel that expert evidence as to the nature of the beep test and the inherent requirements of the roles the applicant applied for is not properly expert evidence or, I should say, is necessarily not properly expert evidence. They may be matters of fact. If the evidence proposed to be called relates to a recognised area of expertise and is given by a person possessing that expertise then because it is about a factual issue does not mean it is inadmissible.
Section 80 of the Evidence Act 1995(Cth) provides:
Evidence of an opinion is not inadmissible only because it is about:
(a) a fact in issue or an ultimate issue; or
(b) a matter of common knowledge.
The parties are agreed that this matter should proceed by way of pleadings (I made such an order on 22 November 2010) and ordinarily evidence in chief is given by affidavit. So before the trial commences we will know what the respondent has to say about the beep test, whether there is a disadvantage to a person of the applicant’s age and whether the disadvantage is said to be reasonable. Whatever facts the respondent is relying upon to assert that answer to the applicant’s claim will be set out either in the pleadings or amplified in the affidavit material. The applicant will have the opportunity at that stage to make any submission as to why an expert report should be commissioned by the Court. Part of the applicant’s submission was that there will be peculiar disadvantages to him on account of the quantities of information held by the bureaucracy concerned and the lack of knowledge in relation to that information in persons outside the Department of Defence which will require the appointment of a Court expert. In that sense, I think the submission really pointed to the forensic and investigative advantages of a Court expert rather than a private expert. There may well be some substance to that claim but I think it is premature to make that assessment at this stage.
I agree with the respondent’s counsel that the making of an order at this stage may well prove less efficient than the making of an order at the close of the pleadings.
I also agree with the submission of the respondent that there is about the appointment of an expert at this stage a possibility that the order will operate to assist the applicant in the gathering and presentation of evidence rather than assisting the Court in the elucidation of the issues. I cannot ignore the fact that the appointment of a Court expert is likely to lead to the sharing of the costs between the parties and that in itself will be a significant advantage to the applicant in a case such as this where the costs of the expert are likely to be reasonably large.
In all of the circumstances I propose to postpone the determination of the issue of the appointment of a Court expert until issues relating to discovery and pleadings have been finalised.
In amplification of the Reasons given on 13 December 2010 for not proceeding to hear the question of the cases that related to the allegation of direct discrimination, I add the following matters.
A significant problem with making the orders sought would be the need to disentangle the evidence as to loss as it arose from the one occasion of direct discrimination as against the three occasions of indirect discrimination which had, on the applicant’s case, taken place over a period of three years prior.
As already noted, on 13 December 2010, I refused an application for a decision on a separate question.
That application was made pursuant to Rule 17 of the Rules of Court.
Rule 17 of the Rules of Court provides:
17.01 Definition
In this Part:
question includes a question or issue in a proceeding, whether of fact or law, or partly of fact and partly of law, and whether raised in a document, by agreement of the parties or otherwise.
17.02 Order for decision
The Court may make an order for the decision by the Court of a question separately from another question at any time in a proceeding.
17.03 Separate question
A separate question must:
(a) set out the question or questions to be decided; and
(b) be divided into paragraphs numbered consecutively.
17.04 Orders, directions on decision
If a question is decided under this Part, the Court may make the orders and directions that the nature of the case requires.
17.05 Disposal of proceeding
The Court may, in relation to a decision of a question under this Part:
(a) dismiss the proceeding or any part of the proceeding; or
(b) give judgment, including a declaratory judgment; or
(c) make another order.
As far as I can ascertain the application was made orally by the applicant.
I was asked to determine the claim as it related to the one occasion of direct discrimination prior to determining the application as it related to the three occasions of indirect discrimination (which all involved the administration of the beep test).
Ultimately the application was made on the basis of the applicant undertaking to the Court that in the event that his claim as it related to direct discrimination was successful he would discontinue the balance of his claim.
The corollary of that, was, however, that if he was unsuccessful then he would proceed with the claim as it related to indirect discrimination.
The direct discrimination claim had two aspects. The applicant claims that during an interview with a Defence Interviewer on 29 October 2009 the Interviewer made remarks indicating a focus on his age. The specific words that are alleged that were used are set out in paragraph 24 of the complaint form filed with the Human Rights Commission which itself is an annexure to his application in this Court. Further remarks of that Defence Interviewer said to indicate discrimination on the basis of age is set out in paragraph 26 of that complaint.
The applicant says that on the following day another Defence Interviewer confirmed that the applicant’s age was a factor in the Interviewer making a decision not to recommend that he appear before an Officer Selection Board. The detail of that conversation is set out at paragraph 27 of the same form.
That same Interviewer said on 10 November 2009 that other candidates offered a “greater return on service”. The applicant sets out his understanding of that expression at paragraph 28 of that document.
These matters are said to constitute age discrimination contrary to s.18 and s.31 of the Act.
Mr Harley underwent an interview with a Defence Force Reserve Psychologist on 29 October 2009. He was given an “R1” rating by that psychologist. That wording, it is said, recognised a range of positive and negative features in his candidature. Some correspondence with the Chief Psychologist and the Principal Psychologist said, it is alleged, that the rating arose from the fact that the applicant’s wife and child had mental health difficulties.
These matters it is said can constitute discrimination on the basis of disability as defined in s.7(1) of the Disability Discrimination Act 1992 and discrimination on the basis of marital status within the meaning of s.6 of the Sex Discrimination Act 1984.
In Part C of the complaint form, Mr Harley, in answer to a question headed “How has this affected you?” says:
1.I was not appointed as an Officer in the RAAF Active Reserve.
2.This has caused me loss of wages for:
2.1.The period from 2004 to 2014, and
2.2.The period of any renewal of the appointment to the mandated retirement age of 65.
3.I have also been deprived of the opportunity to:
3.1.Serve my country,
3.2. Undertake rewarding work,
3.3. Improve my educational qualifications and
3.4. Improve my career prospects.
4.I feel betrayed, abused, denigrated and demeaned and have been left distressed and depressed.
In paragraph 12 under the heading “What outcome are you seeking?” he says:
1.Employment as an Officer in the RAAF Active Reserve on the terms contained in the letter of offer dated 19 March 2009 but excluding the requirement to pass a fitness test.
2.Compensation by way of special damages.
3.Compensation by way of general damages.
4.A change in DFR procedures to eliminate discrimination on the basis of age.
5.Implementation of an age appropriate fitness test for recruitment by the ADF.
6.Implementation of a program to educate ADF and DFR personnel on their obligations under discrimination law.
I noted on 13 December in the brief Reasons I gave the way in which the complaint alleged before the Human Rights Commission under s.46P of the Australian Human Rights Commission Act 1986 carries the character of a “complaint” through the process leading up to the determination of the complaint under s.46PH and then the application to the Court when the complaint is terminated under s.46PO. Sub-section 3 of s.46PO says that:
The unlawful discrimination alleged in the application:
(a)must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.
The scheme of the Australian Human Rights Commission Act 1986 indicates an intention to ensure that it is the same complaint in substance that was before the Human Rights Commission that ends up before the Court.
The “complaint” may be constituted by a number of acts, omissions or practices. Mr Harley’s complaint as it has made its way into the application is a complaint that deals with a course of conduct between the years 2004 and 2009.
I indicated in the brief Reasons of 13 December 2010 that one of the matters that concerned me about dealing with the direct discrimination as a separate question was the difficulty associated with the calculation of damage in relation to those alleged discriminatory acts. That is a concern.
When Mr Harley gives particulars of loss in his application he confines himself to a calculation of the income loss on account of his non-selection. That is the only aspect of the loss and damage about which particulars are given. I do not think that he should be taken to have jettisoned the more general damage which he has referred to in his complaint. It is really the matters that come under the description of general damages which would be difficult to disentangle in any exercise relating to the calculation of any damage. In other words, his inability to procure employment with the Active Reserve in the period between 2004 and 2009 on account of what he claims was the discriminative effect of the need to pass the beep test would need to be recognised and assessed in order to make any appropriate calculation of the way in which the acts of direct discrimination of October and November 2009 affected him.
So I think there is a concern in relation to the difficulty in the calculation of damages although I do not think that it is the principal reason why a trial on a separate question should be refused.
I have a lingering dissatisfaction of the use of the separate question procedure as a way of in effect separating the hearing of the application up into different counts or applications relating to different occasions on which discrimination is said to have occurred. The use of this separate question procedure is a somewhat procrustean one. It is an attempt to use a provision of the Rules to deal with the imperative which will arise from time to time to wish to deal separately with different aspects of what is alleged as discriminatory behaviour.
The cases that are set out in the decision of Young J in AWB Ltd v Honourable Terence Rhoderic Hudson Cole (No 2) [2006] FCA 913 at [27] in dealing with a similar provision of the Federal Court Rules, make clear that the purpose of the use of the procedure is to attempt to quell the controversy between the parties by facilitating a conclusive or final judicial decision based on concrete facts. The facts can be agreed or they can be ascertained as part of the separate decision or separate question process but the purpose of embarking upon the process is to finally determine the rights of the parties in respect of the controversy that is before the Court.
Utilising the separate question procedure in this case would only have that effect if Mr Harley were successful in his application. If he were unsuccessful the Court would then have to embark upon a separate trial in relation to the act said to constitute indirect discrimination. The Australian Human Rights Commission Act 1986 provides for a procedure in which Mr Harley may seek adjudication of a complaint that he has been discriminated against by the Defence Force in respect of his applications for certain positions. His complaint encompassed different discriminatory acts at different times. It was the entire complaint that was terminated. I do not see any utility in isolating the complaint now that it has reached the application stage. That would be the effect of embarking upon the separate question procedure.
That is why I refused that application.
I adjourn the question of the appointment of a single expert to a directions hearing on a date to be allocated after discovery has been completed and the pleadings closed.
I will hear the parties on the form of the order in relation to discovery.
I certify that the preceding seventy-seven (77) paragraphs are a true copy of the reasons for judgment of Lindsay FM
Date: 25 March 2011
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