Hatic v Linfox Transport (Australia) Pty Ltd

[2003] NSWADT 43

CITATION:	Hatic -v- Linfox Transport (Australia) Pty Ltd [2003] NSWADT 43
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Senad Hatic RESPONDENT Linfox Transport (Australia) Pty Limited
FILE NUMBER:	021047
HEARING DATES:	23 September 2002
SUBMISSIONS CLOSED:	11/06/2002
DATE OF DECISION:	03/07/2003
BEFORE:	Britton A - Judicial Member; Farmer L - Member; Toltz D - Member
APPLICATION:	Race Discrimination - In work - Racial - Vilification - Victimisation
MATTER FOR DECISION:	Jurisdiction
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Police, New South Wales Police Service v Mooney (EOD) [2001] NSWADTAP 20 Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999) Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
REPRESENTATION:	A Cardell-Ree, Solicitor J Oakley, Barrister
ORDERS:	1. That part of the complaint lodged by the complainant with the President of the Anti-Discrimination Board on 29 June 2000 and referred to the Tribunal that relates to the period before 29 December 1999 is beyond the jurisdiction of the Tribunal. ; 2. The complainant is to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which he seeks to rely within 28 days ; from the date these reasons are published. ; 3. The respondent is to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which it seeks to rely within 28 days of receiving the documents referred to in Order 2;; 4. The complainant is to file and serve in reply within 14 days of receiving the documents referred to in Order ; 3; ; 5. Hearing dates to be set by the Registrar;; 6. Complainant is granted leave on or before 14 days from the date these reasons are published to apply to the Tribunal to have this timetable set aside, if he decides to ask the President to exercise his discretion under s 88(4) of the Anti-Discrimination Act in respect of those matters that occurred before 29 December 1999.; 7. The parties are granted leave to restore this matter for further directions and/or orders upon 7 days notice.

1 This decision concerns the scope of a complaint. The respondent, Linfox Transport (Aust) Pty Ltd makes application under s 111(1) of the Anti-Discrimination Act 1977 (NSW) (“the Act”) to have part of the complaint made by Senad Hatic (“the complainant”) dismissed on the grounds that it is out of time and as a consequence the Tribunal lacks jurisdiction. The complainant contends that the whole of the complaint is “within time” and thus the jurisdictional issue does not arise.

The Complaint
2 Mr Hatic commenced employment with the respondent as a driver in 1996. On 29 June 2000 he lodged a complaint (“the initiating complaint”) with the President of the Anti-Discrimination Board (respectively “the President” and “the Board”) claiming he had been subjected to race discrimination by the respondent and its employees. Further, he alleged that when he complained he was victimised by his employer. Attached to the initiating complaint, were copies of three letters, dated respectively 6 October 1998, 7 June 1999 and 21 June 1999, from the complainant to the respondent. In these, Mr Hatic detailed allegations of race discrimination said to have occurred throughout the period April 1998 to May 2000.

3 The initiating complaint consists of two key allegations. First, that throughout the period April 1998 to May 2000 Mr Hatic was the target of verbal abuse, verbal intimidation and intimidatory conduct by the respondent’s employees. Second, that the respondent failed to take steps to address this offending conduct.

4 Mr Hatic lodged a second complaint with the Board on 7 May 2001 and claimed that the discrimination had continued. He made further allegations concerning the conduct of the respondent’s employees throughout the early part of 2001. On 18 June 2001, a third complaint was lodged about an incident alleged to have occurred on 14 June 2001.

5 By letter dated 10 May 2002, the President referred Mr Hatic’s three complaints to the Tribunal, under s 94(1) of the Act, together with a report relating to his inquiries into those complaints (“the President’s Report”).

Relevant Legislation-Jurisdiction
6 The statute establishing the Tribunal, the Administrative Decisions Tribunal Act 1977 (“the ADT Act”), sets its jurisdiction. The Tribunal has no power to inquire at large into matters. Chapter 3 of the ADT Act provides that the Tribunal has such jurisdiction as is conferred by other Acts of Parliament. Division 3 of Part 9 of the Anti-Discrimination Act confers jurisdiction under that Act upon the Tribunal.

7 The jurisdiction of the Tribunal in this matter arises out of the operation of s 96 of the Act. Section 96 says that the Tribunal shall hold an inquiry into each complaint or matter referred to it under s 94(1). A complaint so referred to the Tribunal (as was Mr Hatic’s) is initiated by a “complaint” in writing lodged with the President “in respect of any contravention of this Act”: s 88(1). That complaint must be lodged with the President within six months after the alleged contravention is said to have been committed: s 88(3). The President has discretion to accept a complaint outside that period where good cause has been shown: s 88(4). Section 94(1) requires the President to refer a complaint to the Tribunal (after investigation: s 89) where the President:

(a) is of the opinion that a complaint cannot be resolved by conciliation,
(b) has endeavoured to resolve a complaint by conciliation but has not been successful in his or her endeavours, or
(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal,

Issues
8 The parties agree that the Tribunal has jurisdiction to inquire into those matters referred to in the initiating complaint that occurred after 29 December 1999 and all matters raised in the second and third complaints. What is in issue is the Tribunal’s jurisdiction to inquire into matters set out in the initiating complaint that are alleged to have occurred before 29 December 1999, which was the date six months before the lodgment of the initiating complaint.

9 The respondent argues that that part of the complaint concerning alleged incidents before 29 December 1999 was invalidly received by the President and as a consequence invalidly referred to the Tribunal.

10 The complainant does not challenge the assertion made by the respondent that the President did not exercise his discretion to accept the complaint out of time. He says that the exercise of the discretion did not arise because the whole of the initiating complaint was within time.

11 Central to this argument is the meaning of “the contravention” for the purpose of s 88(3). The complainant identifies three types of contraventions of the Act:

a single act or discrete incident or event;
an initial, discrete act, to which a respondent adheres and repeats in an ongoing or continuing fashion;
a series of discrete incidents or events which together form a single series or course of conduct;

12 He contends that his complaint falls within the third of these categories, which he labels a “Mooney contravention” (See Commissioner of Police, New South Wales Police Service v Mooney (EOD) [2001] NSWADTAP 20). He maintains that in respect of a “Mooney contravention”, providing the date of the last act (or to use the language of Barbour J in Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140, the “last manifestation”) occurred no more than six months before the lodgement of the complaint, all preceding events/incidents that form part of that series of events (or course of conduct), are also within time. In this case the “last manifestation” occurred within this six month period. As a consequence he asserts those incidents or events that occurred before 29 December 1999 are also within time. Hence, the whole of the initiating complaint was lodged in compliance with s 88.

13 The respondent rejects this argument. It asserts first, that the authorities do not support the complainant’s contention that “course of conduct” contraventions should be treated differently, in respect to the statutory time limit, from discrete acts, which constitute a contravention of the Act or continuous contraventions of the Act. Second, in any event, it challenges the complainant’s characterisation of his “complaint” as a series of discrete acts, which together form a course of conduct.

Case law
14 Two recent Appeal Panel decisions have considered the operation of s 88. The most recent, Wollongong City Council v Bonella & ors and Bonella & ors v Wollongong City Council (EOD) [2002] NSWADTAP 26 concerned a complaint of indirect discrimination on the grounds of sex in the allocation of employment-related benefits, namely private use rights of motor vehicle supplied by the respondent council. The Panel was asked to determine whether the Tribunal below had erred in determining that it was beyond its jurisdiction to consider any contravention of the Act that occurred earlier than six months before the complaint was lodged.

15 The Panel held that even though s 88(3) does not expressly contemplate a continuing contravention, a contravention of the Act can continue over a period of time. That is, a contravention is not limited to a discrete act or acts. The Panel noted [at 79]:

Previous cases have acknowledged that circumstances may exist where a contravention of the Act continues for a period of time. (See for example, Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140.) A continuing contravention of the Act is said to occur when, following an initial discrete act, a state of affairs continues. The current case provides an example. The applicants were refused private use rights of a motor vehicle on 2 April 1996. The Tribunal has found that the refusal constituted indirect sex discrimination. Following that refusal the Council continued to discriminate against the applicants, not by any further discrete act, but by continuing to adhere to the 1990 Motor Vehicle Policy and the management decision making which was the basis for the initial refusal.
16 The Panel then went on to determine two issues of direct relevance to the matter now before us. First, when must a complaint of continuing contravention be lodged to be considered within time and, second, whether any continuing contravention earlier than 6 months before the complaint was lodged can form part of the complaint?

17 The Panel said that the established principles that apply to complaints which consist of a discreet act (see French v Sydney Turf Club & Anor [1999] NSWCA 195 (18 June 1999)) should apply to a “continuing contravention”. Accordingly, “The date for determining the 6 month time period is the date of the discrete act which triggered the continuing contravention or, if that date is more than 6 months before the date of the complaint, any date on which the contravention against the complainant continued.”: [at 90]

18 The Panel held [at 82-87] that a complaint concerning a continuing contravention of the Act should be limited to the six month before the complaint being lodged:

In Najdovska & Ors v Australian Iron And Steel Pty Ltd (1985) EOC 92-140 Barbour J came to the view that a complaint involved a continuing contravention of the Act and that the complaint should not be limited to the 6 months prior to the complaint being lodged. His Honour concluded that the complaint could be accepted any time within 6 months after the conduct has terminated. His Honour said, at p 76,385, that:

The submission is that each of the 1980 complaints in groups 1, 3, 5 and 7 must be treated as a complaint about failure to hire for the six months immediately before it was lodged. We cannot agree. Whereas in the present case the contravention alleged is a continuing contravention a complaint can be lodged under s 88(1) and accepted without resort to s 88(4), at any time within six months after the conduct has terminated. If so, there is no warrant in the Act for imposing any limitation on the extent of the conduct constituting the contravention which may be investigated. We accept Mr Basten's submission on this point and we decline to rule that the complaints should be limited to the six months before their dates.

At [54], the Tribunal in the present case expressed a view contrary to that of Barbour J's on the question of whether a complaint of a continuing contravention can extend to the period prior to the 6 months before the complaint was lodged. The Tribunal concluded that conduct which occurred prior to 6 months before the complaint is lodged cannot form part of the complaint.

The Tribunal acknowledged that a contravention of the Act could be continuing for the period of six months prior to the complaint being lodged. This is apparent from the words in italics in the previous paragraph and a later comment at [122], that "a contravention of the Act took place between March and September 1996".

The applicants submitted that the Tribunal erred in coming to the conclusion that the period which is relevant in determining whether there has been any contravention of the Act is the six months prior to the date in which the complaints were lodged.

We agree with Barbour J's conclusion in Najdovska (supra), that a complaint can be lodged at any time as long as the contravention was continuing on a date which is 6 months before the complaint was lodged. In terms of s 88(3), that date is the "date on which the contravention . . . is alleged to have been committed."

However, in accordance with the Tribunal's view at first instance, unless the President extends time under s 88(4), any continuing contravention occurring earlier than 6 months before the complaint was lodged cannot form part of the complaint…

19 The complaint before the Appeal Panel in Commissioner of Police, New South Wales Police Service v Mooney concerned the application and implementation of the respondent Commissioner’s sick leave policy. There the complainant alleged that an incident which occurred in the early 1990s was the basis of alleged discriminatory acts toward him and that those acts continued until 1995.

20 The Panel held that the Tribunal below erred in determining that the relevant date for the purpose of s 88(3) was the date of the respondent’s resignation (18 August 1995) as opposed to the earlier date of 21 July 1995 when he physically left the workplace. It said [at 19-21]:

A complaint for the purposes of section 88 is an allegation in writing that the Act has been contravened by conduct directed towards the complainant by a respondent. Such alleged discriminatory conduct towards a complainant, which occurs in the workplace, (as is alleged in the present circumstances) may have consequences for the complainant after he has physically left the workplace and does not intend to return. However, the complainant made it abundantly clear in the terms of the complaint lodged with the Board that the alleged discriminatory acts all occurred in the period leading up to and including 21 of July, 1995. In other words, there was no contravention of the Act on the date upon which the resignation took effect.

In arriving at this conclusion, we have not overlooked the fact that the complainant alleged a series of acts, or a course of conduct which was said to constitute discrimination. Time commences to run from the last manifestation of the course of conduct, for the purposes of s 88(3); per Barbour J in Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 at p 76,385. In this matter, the last manifestation of the alleged course of conduct for the purposes of establishing discrimination was 21 July 1995.

It follows that the Tribunal erred in determining that the date of resignation was the relevant date for the purposes of section 88 (3). The last date for the lodgement of the complaint was the 21 January, 1996.

21 The Appeal Panel stated that as a consequence of the operation of s 88, the Tribunal lacked jurisdiction to inquire into the complaint:
Section 88 (1) relevantly provides that a complaint in writing in respect of a contravention of the Act may be lodged with the President by a person on the person’s own behalf. The provisions of subsections 3 and 4 of section 88 have already been referred to above. Section 89(1) provides that "the President shall investigate each complaint lodged with the President under section 88." It must therefore, in our view, be lodged in compliance with all of s 88(1) (4). On the face of those subsections, it appears to the Panel that a complaint which is not lodged within six months of the alleged contravention of the Act (s 88(3)), and has not been the subject of the exercise of the discretion to accept a complaint lodged out of time (s 88(4)), is not a complaint lodged with the President under section 88, for the purposes of section 89 (1) of the Act. In short, the statutory power to investigate a complaint apparently arises only when the conditions attaching to s 88 are observed, that is, when a complaint is validly received.
Findings and Conclusion
22 As noted, the respondent contends that those allegations that occurred before 29 December 1999 do not, as the complainant argues, constitute a course of conduct. Rather, according to the respondent, those allegations concern discrete incidents, involving different people, separated by time. Whichever the case may be, in our view, given the nature of the application before us at this stage great caution should be exercised before concluding that the events complained of could not possibly form a related series of events constituting a course of conduct. Therefore, for the purpose of the argument now before us, it will be accepted that the events alleged may constitute a course of conduct.

23 Central to the complainant’s argument is the meaning of the word “contravention” for the purpose of s 88(3). As the Appeal Panel observed in Bonnella [at 74], the Act is drafted in a way which contemplates that a contravention will occur through discrete acts. The Act does not expressly address the situation where a contravention is continuing.

24 The complainant asserts that the Act is ambiguous, as it does not expressly state how the six-month time limit is to operate in the context of a continuing or course of conduct contravention, other than to say that time runs from “the date on which the contravention is alleged to have been committed” [emphasis added]. He argues that if the meaning of “the contravention” is limited to a single act within a course of conduct it would remove a complainant’s ability to bring a complaint about conduct that occurred over a period of time longer than six months, without first obtaining leave of the President. Given this undesirable outcome, he argues any ambiguity should be construed in a way that promotes the objects of the Act.

25 The complainant urges us to accept a broad definition of “the contravention”. He argues that “the contravention” should not be interpreted as limited to a single act, rather it should embrace single acts which together form a series of events. In respect of a contravention involving a course of conduct he argues that “the contravention” is not committed until the “last manifestation” of that course of conduct. Accordingly time cannot begin to run for the purpose of s 88(3) until “the contravention (or last manifestation) was committed.

26 We do not accept this argument. The wording of the provision is clear. The relevant date for the purpose of s 88(3) is the date the contravention is alleged to have been committed. Where the contravention is ongoing, the relevant date/s for the purpose of s 88(3) is the date/s the contravention is alleged to have been committed. In our view it matters not whether the complaint consists of a continuous contravention or discrete acts which together form of a course of conduct. We see nothing in the wording of s 88, which supports the complainant’s contention that in respect of course of conduct contraventions the only relevant date for determining when it was “alleged to have been committed” is the date of the “last manifestation” of that conduct.

27 While we do not share the complainant’s view that s 88(3) is ambiguous he correctly identifies a real problem imposed by the statutory time limit in respect of ongoing complaints whether they are, to use the language of the complainant, Bonnella or Mooney contraventions. As he points out, s 88, as drafted, means in effect that ongoing contraventions which extend beyond six months are outside the jurisdiction of the Tribunal unless the President exercises his discretion under s 88(4) or a fresh complaint is lodged. (The later option is of course not available to a complainant who for whatever reason has tolerated ongoing discriminatory conduct for a period in excess of six months).

28 The complainant argues that Mooney is authority for the proposition that for course of conduct complaints, the Tribunal’s jurisdiction is not limited to the six months before the complaint was lodged (except in respect of the “last manifestation”). He argues that there is a fundamental distinction to be drawn between Mooney and Bonella in relation to the principles applying to different types of contraventions.

29 The respondent submits that the Tribunal ought follow Bonella and find that those parts of the alleged course of misconduct on the part of the respondent that occurred more than six months before the lodgement of the complaint are outside the Tribunal’s jurisdiction. The respondent argues that, even taking the complainant’s case at its highest, there is no ground upon which this case and Bonella can be distinguished in principle.

30 Certainly it appears that in Mooney the Appeal Panel seems to have assumed, without consideration, that the approach taken by Barbour J in Najdovska at p 76,385 (ie a continuing contravention is not limited to the six months before the complaint was lodged) was correct.

31 The difficulty for the complainant, however, is that in Mooney the question was not the question posed in Bonella or this application but a different one. In Mooney the issue for determination was whether the complaint had been lodged in time. It followed that without an extension of time from the President, the six-month period allowed to a complainant for the making of a complaint began at the time of the last manifestation of the conduct complained of. This was the ratio of the case and any implied approval of Najdovska is beside the point, especially since the point was not argued.

32 In our opinion, the Tribunal has drawn no material distinction between the factual situations in Bonella and Mooney and certainly has not developed different principles if there is a distinction to be made. If there is a distinction between the different types of ongoing conduct dealt with in Mooney and Bonella it is so slight as to be meaningless in principle.

33 In Bonella, the Panel considered Najdovska and explicitly overruled the approach taken. We agree with that analysis. We are not persuaded that s 88(3) should be applied differently in respect of continuous contraventions or course of conduct contraventions. Accordingly, we find that events alleged by the complainant which fall outside the six-month limit (ie before 29 December 1999) do not fall within the scope of the Tribunal’s jurisdiction.

34 However, evidence about certain events outside the six-month limit may have probative value in, for example, explaining the context within which an event within jurisdiction took place. That will be a matter to be determined at the hearing itself.

Section 111(1)
35 Section 111(1) of the Act provides:

“Where, at any stage of an inquiry, the Tribunal is satisfied the complaint is frivolous, vexatious, misconceived or lacking in substance or that for any other reason the complaint should not be entertained, it may dismiss the complaint.”
36 As acknowledged by the respondent, its application is not strictly speaking a s 111(1) application. Those matters referred to in the initiating complaint that occurred before 29 December 1999 do not comply with the requirement of s 88. Therefore the President was without power to refer that part of the complaint to the Tribunal. In our view absent a valid complaint, the Tribunal’s power to dismiss under s 111(1) cannot be invoked. We note that this view departs from that taken by the Appeal Panel in Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 which briefly considered the appropriate mechanism to deal with part of a complaint where the Tribunal does not have jurisdiction.

Orders and Directions

1. That part of the complaint lodged by the complainant with the President of the Anti-Discrimination Board on 29 June 2000 and referred to the Tribunal that relates to the period before 29 December 1999 is beyond the jurisdiction of the Tribunal.

2. The complainant is to file and serve Amended Points of Claim, statements of witnesses and copies of documents upon which he seeks to rely within 28 days from the date these reasons are published.

3. The respondent is to file and serve Amended Points of Defence, statements of witnesses and copies of documents upon which it seeks to rely within 28 days of receiving the documents referred to in Order 2;

4. The complainant is to file and serve in reply within 14 days of receiving the documents referred to in Order 3;

5. Hearing dates to be set by the Registrar;

6. Complainant is granted leave on or before 14 days from the date these reasons are published to apply to the Tribunal to have this timetable set aside, if he decides to ask the President to exercise his discretion under s 88(4) of the Anti-Discrimination Act in respect of those matters that occurred before 29 December 1999.

7. The parties are granted leave to restore this matter for further directions and/or orders upon 7 days notice.