Hopper v Mt Isa Mines - [1998] QSC 287

IN THE SUPREME COURT
OF QUEENSLAND  No. 1740 of 1997
Brisbane
BETWEEN:
  MOUNT ISA MINES LIMITED
  First Appellant
AND:
  JOE KIRVENSNIEMI
  Second Appellant
AND:
  DARRYL JAMESON
  Third Appellant
AND:
  CHRIS AHERN
  Fourth Appellant
AND:
  PERCY ELLIOT
  Fifth Appellant
AND:
  NARELLE MARIE HOPPER
  Respondent
REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 17 December 1998

CATCHWORDS: ADMINISTRATIVE LAW - anti-discrimination - appeal from Tribunal decision - award of damages for discrimination and sexual harassment affirmed - whether finding that employer was vicariously liable for employees’ contraventions was sustainable - whether Tribunal acted on findings not complained of - adequacy of reasons.

Counsel: H.B. Fraser Q.C. with R.M. Galloway for the appellants.
D. Richards with S.J. Hamlyn-Harris for the respondent.

Solicitors: Allen Allen and Hemsley for the appellants.
Legal Aid Office (Queensland) for the respondent.

Hearing Date:            13 November 1997
IN THE SUPREME COURT
OF QUEENSLAND  No. 1740 of 1997
Brisbane
BETWEEN:
  MOUNT ISA MINES LIMITED
  First Appellant
AND:
  JOE KIRVENSNIEMI
  Second Appellant
AND:
  DARRYL JAMESON
  Third Appellant
AND:
  CHRIS AHERN
  Fourth Appellant
AND:
  PERCY ELLIOT
  Fifth Appellant
AND:
  NARELLE MARIE HOPPER
  Respondent
REASONS FOR JUDGMENT - MOYNIHAN J.

Judgment delivered 17 December 1998

Introduction

This is an appeal from a decision of the Anti-Discrimination Tribunal constituted under the Anti-Discrimination Act 1991 (“the Act”). The Tribunal made findings of sexual harassment and of discrimination. It found that the first appellant was jointly and severally liable pursuant to s.133 of the Act for its workers’ (the second, third, fourth and fifth appellants) contraventions of the Act. The Tribunal ordered that the appellants pay the complainant $48,742.10 as compensation for loss and damage. The figure was made up of $10,000.00 for hurt and humiliation, $33,674.10 for loss of income and $5,050.00 interest on lost income. The damages were not apportioned among the appellants, who were ordered to pay the respondent’s costs on the District Court scale for matters under $50,000.00.
The Legislation
Section 217(1) of the Act provides for an appeal on a question of law to this court against a Tribunal decision. In order for such an appeal to succeed the error of law must arise on the facts as found by the Tribunal, the Tribunal’s findings of fact must be vitiated by an error of law or it must have omitted a finding necessary to sustain its conclusion. A wrong finding of fact is not itself an error of law; see Waterford v. The Commonwealth[1]. A step in the course of reasoning leading to a final decision authorised by statute is seldom reviewable; Australian Broadcasting Tribunal v. Bond & Ors[2].
[1](1987) 163 CLR 54 per Brennan J. at 77
[2](1990) 170 CLR 321
Relevantly for present purposes the Act prohibits discrimination on the basis of the attribute of sex (s.7(1)(a)) or by limiting a worker’s opportunities or access to benefits such as promotion or transfer, denying access to programs or by treating a worker unfavourably in connection with work; s.15(1).
Section 8 of the Act provides that discrimination…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1998] QSC 287
Decision Date: 17 December 1998

CaseChat Overview and Summary

In the case of Hopper v Mt Isa Mines, the respondent, Narelle Marie Hopper, alleged that she experienced unlawful discrimination and sexual harassment during her employment as an apprentice diesel fitter mechanic at Mt Isa Mines Limited. The appellants, who were employed by the company during the relevant period, were named in the complaint. The matter was referred to the Tribunal by the Anti-Discrimination Commissioner, who accepted the respondent's complaint. The central legal issues revolved around whether the Tribunal had jurisdiction to hear the complaint, the sufficiency of the reasons provided by the Tribunal, and whether the findings of harassment and discrimination were justified.

The court found that the Tribunal had jurisdiction to hear the complaint, as it was referred in compliance with the statutory requirements. The court also determined that the Tribunal's reasons were sufficient and appropriately disposed of the issues presented. In evaluating the choice between conflicting evidence, the court noted that there is no obligation to provide detailed reasoning, particularly when the decision involves weighing expert opinions. The court further found that the Tribunal's findings of harassment and discrimination were justified and based on evidence that was properly admissible.

Consequently, the court upheld the Tribunal's decision, affirming the order that the appellants pay the respondent $48,724.10 in compensation, along with costs on the District Court Scale for matters under $50,000. The court found that the Tribunal's conclusions were well-founded and that the appellants had not demonstrated any errors on the part of the Tribunal.

Orders

Orders of the court

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Background

Background to the litigation

The complaint here was referred to the Tribunal. It is difficult to avoid the conclusion that the Tribunal’s jurisdiction, which is statutory rather than inherent, is founded on referral of a complaint complying with the terms of s.136; see ss.175, 248(a) and (f) and cases such as Parisienne Basket Shoes Pty Ltd & Ors v. Whyte[3] and Craig v. The State of South Australia[4]. This also founds consistency in what is investigated, is the subject of conciliation and is referred to the Tribunal and provides for procedural fairness to all parties. By s.175(1) of the Act:-[3](1938) 59 CLR 369 [4](1995) 184 CLR 163“The Tribunal must accept a complaint that is referred to it by the Commissioner, unless the complaint was made to the Commissioner more than 1 year after the alleged contravention of the Act.(2) If the complaint was made more than 1 year after the alleged contravention, the Tribunal may deal with the complaint if the Tribunal considers that, on the balance of fairness between the parties, it would be reasonable to do so.”The Tribunal has power to join parties, allow amendments of a complaint and to deal with two or more complaints jointly if they arise out of substantially the same events; ss.177, 178, 179. It has power to give directions, which was exercised in this case, including for the exchange of pleadings and for the provision of affidavits of evidence. By s.208(1) of the Act the Tribunal:-“...is not bound by the rules of evidence and:-(a)may inform itself on any matter as it considers appropriate; and(b)must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms;”Background The events giving rise to this appeal have their origin in Mt Isa Mines Limited’s (the first appellant) employment of Narelle Marie Hopper (the respondent) as an apprentice diesel fitter mechanic from 29 January 1992 to 16 April 1994. The other appellants were employed by the first appellant during the relevant period. The second appellant was employed in a supervisory capacity, while the third, fourth and fifth appellants were co-apprentices with the respondent. On 17 August 1994 the Legal Aid Office (Queensland), acting on behalf of the respondent, “enclosed by way of complaint” a statement by the respondent. The letter went on to say the respondent “complains of a number of incidents which constitute unlawful discrimination and sexual harassment”. It nominated the five appellants as “The particular persons complained of”. The statement referred to them and to other identified or identifiable individuals. It was a complaint “in writing” with “reasonably sufficient detail” made to the Anti-Discrimination Commissioner of a number of contraventions of the Act[5]. The Commissioner accepted the complaint. I have not been directed to any indication that the Commissioner exercised the discretion conferred by s.138(2). [5]It is clear from the letter, the statement and ss.136, 207 that the statement and not the other documentation which accompanied the Commissioner’s subsequent referral to the Tribunal was the complaint under the Act.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

The crucial requirement is for the Tribunal to give reasons which disclose what has been taken into account and in a manner so that any error can be exposed; Soulemezis v. Dudley (Holdings) Pty Ltd[15]; Sun Alliance Insurance Ltd v. Massoud[16]; Cypressvale[17]. The test is one of sufficiency in context and form; Cypressvale[18]. In Housing Commission NSW v. Tatmar Pastoral Co Pty Ltd[19] Hutley JA with whom Samuels JA agreed said:-“The extent to which a court must go in giving reasons is incapable of precise definition. A court must not nullify rights of appeal by giving no or nominal reasons, but there is no duty to expound reasons so as to facilitate appeals. This applies particularly to the situation where a judge has to decide between conflicting witnesses, including experts. The choice between conflicting experts may have to be a matter of judgment, not of detailed reasoning.”In my view the Tribunal’s reasons satisfy those requirements and effectively disposed of the issues traversed before it.[15](1987) 10 NSWLR 247 per McHugh JA. at 279[16](1989) VR 8 at 19[17]at 479 per Fitzgerald P.[18]at 482 per McPherson and Davies JJA.[19](1983) 3 NSWLR 378 at 381Conclusion The position may be summarised as follows. The Tribunal made findings under the various headings canvassed in these reasons of harassment (Mobile Equipment Workshop and TAFE) and of discrimination (Level 17 and R62) which were the subject of the complaint forwarded under cover of the letter of 17 August 1994. It found that the first appellant had failed to make out the defence it pleaded in reliance on s.133(2) of the Act. It made findings of fact based on evidence properly admissible of other incidents of poor or adverse treatment of the respondent in the workplace. It has not been demonstrated that the Tribunal erred in its conclusions or findings so far referred to. The Tribunal went on to find contraventions based on justifiable conclusions of fact but not the subject of complaints in compliance with s.136(b) of the Act, in circumstances where it had not been demonstrated that the appellants had been deprived of an opportunity to controvert the facts on which the finding of contravention were based or that the Tribunal erred in making them. It made justifiable findings of the effect of the way in which the respondent was treated on her heath, well being and employment. The findings are such that the award made by the Tribunal is, in my view, sustainable even though the Tribunal found contraventions not the subject of a complaint in terms of s.136. The considerations being those to which I have adverted, in my view, the appropriate outcome is to affirm, pursuant to s.218(a) of the Act, the Tribunal’s decision that the appellants pay the respondent$48,724.10 compensation with costs on the District Court Scale for matters under $50,000.00.

Ratio Decidendi

Legal Principle Established

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