James and Sayers (the Trustee for Sayers Famly Trust) and Ors
[2006] WASAT 332
•13 NOVEMBER 2006
JAMES and SAYERS (THE TRUSTEE FOR SAYERS FAMLY TRUST) & ORS [2006] WASAT 332
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2006] WASAT 332 | |
| EQUAL OPPORTUNITY ACT 1984 (WA) | |||
| Case No: | EOA:52/2006 | 30 AUGUST 2006 | |
| Coram: | JUDGE J ECKERT (DEPUTY PRESIDENT) MS J TOOHEY (SENIOR MEMBER) | 13/11/06 | |
| 26 | Judgment Part: | 1 of 1 | |
| Result: | The Tribunal does not have jurisdiction to hear allegations not included in the original complaint to Commissioner Mr Goodlet is not a proper party Suppression order declined Mr Goodlet has leave to represent the respondents | ||
| B | |||
| PDF Version |
| Parties: | ESTHER JAMES PETER AND DEBORAH SAYERS (THE TRUSTEE FOR SAYERS FAMLY TRUST) PETER SAYERS DEBORAH SAYERS ABID BAJWA ESTHER JAMES PETER AND DEBORAH SAYERS (THE TRUSTEE OF SAYERS FAMILY TRUST) NATALIE VAN OPIJNEN |
Catchwords: | Original complaint to Commissioner Jurisdiction to deal with further allegation Referral by Commissioner Proper parties Suppression |
Legislation: | Anti-Discrimination Act 1977 (NSW) Equal Opportunity Act 1984 (WA), s 4, s 35Y(1)(a), s 35Y(1)(b), s 35Y(1)(c), s 35Z(1)(a), s 35Z(1)(b), s 38, s 67, s 83, s 83(1), s 83(4), s 83(5), s 84, s 89, s 89(1), s 90, s 90(2), s s 91, s 93, s 93(1), s 107, s 160, s 161 State Administrative Tribunal Act 2004 (WA), s 9, s 14, s 17, s 38, s 61(1), s 61(2), s 61(4), s 61(4)(c), s 61(4)(g), s 61(4)(h) State Administrative Tribunal Rules 2004 (WA), rule 51(5) |
Case References: | Bilos and Placer Dome Asia Pacific [2004] WAEOT 10 David Syme and Co v General Motors Holden Ltd (1984) 2 NSWLR 294 J v L & A Services Pty Ltd (Unreported, QLD CA, Fitzgerald and Lee JJ, 15 February 1993) John Fairfax & Sons v Police Tribunal of NSW & Anor (1986) 5 NSWLR 465 Kassa and Bitmead & Anor (Unreported; 26 July 2006) MacDonald v Puplick [1998] NSWSC 428 Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 R v Craig & Ors (1991) 25 WAR 107 Raybos Australia Pty ltd v Jones (1985) 2 NSWLR 47 Re Bromfield, Stipendiary Magistrate; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 Re Robins SM; ex parte West Australian Newspaper Ltd (1999) 20 WAR 511 Summerville and Department of Education [2006] WASAT 174 TK v Australia Red Cross (1988/90) 1 WAR 335 Winter and Commissioner of Western Australia Police Service 2006 [WASAT] 87 Zinni v Coventry Group Limited EOT of WA 21/3/02 Nil |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : JAMES and SAYERS (THE TRUSTEE FOR SAYERS FAMLY TRUST) & ORS [2006] WASAT 332 MEMBER : JUDGE J ECKERT (DEPUTY PRESIDENT)
- MS J TOOHEY (SENIOR MEMBER)
- Applicant
AND
PETER AND DEBORAH SAYERS (THE TRUSTEE FOR SAYERS FAMLY TRUST)
First Respondent
PETER SAYERS
Second Respondent
DEBORAH SAYERS
Third Respondent
ABID BAJWA
Fourth Respondent
- Applicant
AND
PETER AND DEBORAH SAYERS (THE TRUSTEE OF SAYERS FAMILY TRUST)
First Respondent
PETER SAYERS
Second Respondent
DEBORAH SAYERS
Third Respondent
NATALIE VAN OPIJNEN
Fourth Respondent
Catchwords:
Original complaint to Commissioner Jurisdiction to deal with further allegation Referral by Commissioner Proper parties Suppression
Legislation:
Anti Discrimination Act 1977 (NSW)
Equal Opportunity Act 1984 (WA), s 4, s 35Y(1)(a), s 35Y(1)(b), s 35Y(1)(c), s 35Z(1)(a), s 35Z(1)(b), s 38, s 67, s 83, s 83(1), s 83(4), s 83(5), s 84, s 89, s 89(1), s 90, s 90(2), s s 91, s 93, s 93(1), s 107, s 160, s 161
State Administrative Tribunal Act 2004 (WA), s 9, s 14, s 17, s 38, s 61(1), s 61(2), s 61(4), s 61(4)(c), s 61(4)(g), s 61(4)(h)
State Administrative Tribunal Rules 2004 (WA), rule 51(5)
Result:
The Tribunal does not have jurisdiction to hear allegations not included in the original complaint to Commissioner
Mr Goodlet is not a proper party
Suppression order declined
Mr Goodlet has leave to represent the respondents
(Page 3)
Category: B
Representation:
EOA 52 of 2006
Counsel:
Applicant : Self-represented
First Respondent : Mr W Goodlet
Second Respondent : Mr W Goodlet
Third Respondent : Mr W Goodlet
Fourth Respondent : Mr W Goodlet
Solicitors:
Applicant : Self-represented
First Respondent : Unmack & Unmack
Second Respondent : Unmack & Unmack
Third Respondent : Unmack & Unmack
Fourth Respondent : Unmack & Unmack
EOA 53 of 2006
Counsel:
Applicant : Self-represented
First Respondent : Mr W Goodlet
Second Respondent : Mr W Goodlet
Third Respondent : Mr W Goodlet
Fourth Respondent : Mr W Goodlet
Solicitors:
Applicant : Self-represented
First Respondent : Unmack & Unmack
Second Respondent : Unmack & Unmack
Third Respondent : Unmack & Unmack
Fourth Respondent : Unmack & Unmack
(Page 4)
Case(s) referred to in decision(s):
Bilos and Placer Dome Asia Pacific [2004] WAEOT 10
David Syme and Co v General Motors Holden Ltd (1984) 2 NSWLR 294
J v L & A Services Pty Ltd (Unreported, QLD CA, Fitzgerald and Lee JJ, 15 February 1993)
John Fairfax & Sons v Police Tribunal of NSW & Anor (1986) 5 NSWLR 465
Kassa and Bitmead & Anor (Unreported; 26 July 2006)
MacDonald v Puplick [1998] NSWSC 428
Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1
R v Craig & Ors (1991) 25 WAR 107
Raybos Australia Pty ltd v Jones (1985) 2 NSWLR 47
Re Bromfield, Stipendiary Magistrate; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153
Re Robins SM; ex parte West Australian Newspaper Ltd (1999) 20 WAR 511
Summerville and Department of Education [2006] WASAT 174
TK v Australia Red Cross (1988/90) 1 WAR 335
Winter and Commissioner of Western Australia Police Service 2006 [WASAT] 87
Zinni v Coventry Group Limited EOT of WA 21/3/02
Case(s) also cited:
Nil
(Page 5)
Summary of Tribunal's decision
1 The Tribunal ruled that the applicant could not include in these proceedings an allegation of further victimisation by the first, second and third respondents, and victimisation by their solicitor, as the alleged conduct was not included in her original complaint to the Commissioner for Equal Opportunity. The alleged conduct occurred after she had lodged her original complaint with the Commissioner on 19 September 2005.
Background
2 Ms James, the applicant, alleges that Mr Bajwa and Ms Van Opijnen unlawfully discriminated against her on the grounds of sexual orientation pursuant to s 35Y(1)(a), (b) and (c) and s 35Z(1)(a) and (b) of the Equal Opportunity Act 1984 (WA) (the Act). She alleges that the first, second and third respondents permitted the alleged unlawful conduct and are therefore liable under sections 160 and 161 of the Act, as the first respondent is the employer of Mr Bajwa and Ms Van Opijnen and the second and third respondents are the controlling and directing mind of the trust and personally manage the hotel business where Ms James alleges the unlawful conduct occurred.
3 Ms James also alleges that Mr Bajwa victimised her within the meaning of s 67 of the Act by threatening to call the police and demanding that Ms James leave the premises where the alleged conduct occurred, after she complained about the alleged unlawful conduct and when she indicated her intention to make a complaint to the Commissioner for Equal Opportunity (the Commissioner).
4 Ms James also alleges that the first, second and third respondents are liable for the alleged victimisation by Mr Bajwa in the same manner as they are liable for the alleged unlawful discriminatory conduct set out above.
5 Ms James makes a further allegation of victimisation against the first, second and third respondents in each matter and victimisation against Mr Wally Goodlet, who is counsel acting for the respondents in these proceedings. She alleges that each of them victimised her within the meaning of s 67 of the Act. Her allegation of victimisation against Mr Goodlet is that he sent "inappropriate and offensive" correspondence to her after she had made her complaint of victimisation against him. She also alleges that the first, second and third respondents are vicariously
(Page 6)
- liable for the actions of their solicitor under s 161 of the Act; and that under s 160 of the Act Mr Goodlet is their agent for the purposes of the investigation of her complaint before the Commissioner and these proceedings before the Tribunal and therefore as his principal they are liable for his conduct. Ms James therefore alleges that the first, second and third respondents and Mr Bajwa victimised her because of her intention to make a complaint to the Commissioner. She also alleges further victimisation, subsequent to her complaint to the Commissioner, and we deal with that further below.
6 This application is an interlocutory application by the applicant in the substantive proceedings for orders:
(a) specifying who are the relevant parties to these proceedings;
(b) clarifying what parties and materials comprise the referral to the Tribunal and what is its jurisdiction to deal with Ms James' allegations; and
(c) whether Mr Goodlet should be a party to these proceedings.
7 Ms James also sought a suppression order and we gave our decision and reasons for that decision on 30 August 2006. We declined Ms James' application for a suppression order and we deal with this further in our reasons for decision set out below.
8 On 30 August 2006 we heard oral submissions regarding this interlocutory application from Ms James (who is a legal practitioner admitted in Victoria) and Mr Goodlet. We had before us written submissions from Ms James and Mr Goodlet on behalf of the respondents. We also considered the Commissioner's report and each respondent's bundle of documents. On 22 September 2006 the applicant filed her Statement of Issues, Facts and Contentions in the substantive matter and on 4 October 2006 the respondents filed their response.
9 In considering our reasons for decision we sought additional documents from the Commissioner. On 30 October 2006 we received from the Commissioner:
(a) email from applicant to Commissioner dated 18 May 2006 and Ms Digwood's reply of 1 June 2006;
(Page 7)
- (b) letter from Commissioner to applicant dated 13 June 2006;
(c) applicant's letter to Commissioner dated 22 June 2006;
(d) correspondence between Ms Digwood and Best Western Australia including an email dated 24 June 2006 from applicant to Ms Digwood; and
(e) Commissioner's letter to the applicant dated 30 June 2006.
10 On 26 October 2006 we also asked the Commissioner to clarify for the Tribunal precisely which allegations she had referred to the Tribunal. On 26 October 2006 Mr MacDonald, on behalf of the Commissioner, advised the Tribunal that the documents that he would send the next day (referred to above) would indicate "which parts of her complaint were accepted against which respondents, and which were dismissed, or were not accepted in the first place".
11 We made the following orders on 30 August 2006 (we set out only those that are relevant to these reasons for decision):
12 With respect to proceedings EOA 52/2006:
"1. the first respondent to this matter is Peter Sayers and Deborah Sayers, the trustee for Sayers Family Trust ABN 45152965924;
2. the second respondent to this matter is Peter Sayers;
3. the third respondent to this matter is Deborah Sayers;
4. the fourth respondent to this matter is Abid Bajwa;
…
8. the applicant's application for a suppression order is dismissed; and
9. the matter is listed for hearing on 6 November 2006 at 2:15pm for delivery of an oral decision and reasons addressing the issue of whether Mr Goodlet should be joined as a respondent to this matter."
(Page 8)
13 With respect to proceedings EOA 53/2006 we made the following orders:
"1. the first respondent to this matter is Peter Sayers and Deborah Sayers, the trustee for Sayers Family Trust ABN 45152965924;
2. the second respondent to this matter is Peter Sayers;
3. the third respondent to this matter is Deborah Sayers;
4. the fourth respondent to this matter is Natalie Van Opijnen;
…
8. the applicant's application for a suppression order is dismissed; and
9. the matter is listed for hearing on 6 November 2006 at 2:15pm for delivery of an oral decision and reasons addressing the issue of whether Mr Goodlet should be joined as a respondent to this matter."
14 There are two matters before the Tribunal, 52 of 2006 and 53 of 2006, and these reasons for decision relate to both of those applications.
The complaint
15 Ms James alleges that between 3:00 pm and 3:30 pm on 18 August 2005, accompanied by her female partner, she went to the bookings desk at Best Western Country Club Hotel, Kununurra to enquire about booking a double hotel room for that night. She says she specified that she wanted a double or queen bed. She claims Ms Van Opijnen offered her a triple room and told her that it was "the only room left in the whole complex". She inspected the room and it did not meet her requirements. She went back to reception and she says her partner waited outside. It had become clear to Ms James that there were rooms with double and queen beds available. In particular she heard the receptionist making a telephone booking for a double room for later that night. Ms James then asked a different staff member for a double room and says she was offered a choice of at least three double rooms. She asked to speak to Mr Bajwa, the duty manager. She advised him that she and her partner were a lesbian couple and that they were concerned they had been discriminated against as two women who had asked for a double room.
(Page 9)
- She alleges that Mr Bajwa denied any discrimination and advised her there were no double rooms available. Ms James alleges that he then admitted there was a room and gave her various explanations for this. She says he then refused to let her and her partner have a room and threatened to call the police if she did not return the room key and leave the hotel premises. Ms James alleges that she then said that she would pay cash in advance for a room and that Mr Bajwa said he would only give her accommodation if she paid by credit card and left a credit card pre-authorisation imprint. She alleges he refused to accept her cash and ultimately refused to let her have a room.
16 On 19 September 2005, Ms James lodged with the Commissioner a complaint alleging unlawful discrimination and victimisation.
17 Meanwhile Mr Goodlet was instructed by the respondents. Ms James and Mr Goodlet exchanged a series of letters regarding her claim. It is some of those letters from Mr Goodlet, dated 3 November and 7 November 2005 and 28 February and 7 March 2006, that Ms James alleges constitute victimisation by Mr Goodlet. Ms James also alleges that those letters constitute further victimisation by the first, second and third respondents on the grounds that Mr Goodlet, as the solicitor for those respondents is their agent and as his principal, they are liable for his conduct. We refer to those allegations against Mr Goodlet and the first, second and third respondents as the "further victimisation".
18 Ms James sought to extend her claim being investigated by the Commissioner by letters and emails dated 7 November 2005, 23 February 2006, 17 March 2006, 20 March 2006 and 15 May 2006 where she set out details of the alleged further victimisation. The Commissioner by letters dated 28 November 2005 and 10 January 2006 and by email dated 1 June 2006 advised Ms James that she did not accept her claim of further victimisation as she was of the view that it did not constitute victimisation under the Act.
19 On 5 June 2006 Ms James wrote to the Commissioner asking why the Commissioner had denied her her rights under s 89 of the Act to require aspects of her complaint to be referred to the Tribunal. She attempted by that letter to exercise her right of referral under s 89 of the Act by requiring the Commissioner to refer to the Tribunal "all excluded parties/grounds of complaint to be referred for determination …". For clarity, Ms James set out her understanding of what should be referred to this Tribunal and we have reproduced the table she sent to the Commissioner as follows:
(Page 10)
* indicates party dismissed by conduct |
** indicates aspect dismissed by conduct |
|
|
|
Victimisation |
|
Victimisation via Abid Bajwa; and ** Further Victimisation via faxes to employer and harassing letters |
|
** Victimisation via Abid Bajwa; and ** Further Victimisation via faxes to employer and harassing letters |
|
** Victimisation via Abid Bajwa; and ** Further Victimisation via faxes to employer and harassing letters |
20 Ultimately, on 30 June 2006 the Commissioner referred to this Tribunal Ms James' complaint against Mr and Ms Sayers and Mr Bajwa of unlawful discrimination and victimisation, under s 93(1) of the Act; the Commissioner also referred to this Tribunal, under s 90(2) of the Act at the request of Ms James, Ms James' complaint of unlawful discrimination against Ms Van Opijnen.
The issue
21 The issue before us is whether the Tribunal has jurisdiction to hear the allegation of further victimisation. It will follow from the answer to that question, who are the appropriate parties and in particular whether Mr Goodlet should be a party.
(Page 11)
The legislation
22 The relevant sections of the Act are set out below.
"complaint" means —
(a) a complaint, whether or not a representative complaint, lodged under section 83; and
(b) a matter referred to the Tribunal for inquiry as a complaint pursuant to section 107;
…
83. Making of complaints to Commissioner
(1) A complaint alleging that a person has committed a contravention of this Act, other than a contravention in respect of which a specific penalty is imposed, may be lodged in writing with the Commissioner by ¾
(a) a person on the person's own behalf or on the person's own behalf and the behalf of other persons;
…
(4) A complaint made under subsection (1) or (1a) shall be lodged within 12 months after the date on which the contravention of this Act which is the subject of that complaint is alleged to have been committed.
(5) Notwithstanding subsection (4), the Commissioner, on good cause being shown, may accept a complaint which is lodged more than 12 months after the date referred to in that subsection.
84. Investigation of complaints by Commissioner
The Commissioner shall investigate each complaint lodged with the Commissioner under section 83.
…
(Page 12)
- 89. Commissioner may dismiss certain complaints
(1) Where, at any stage of an investigation, the Commissioner is satisfied that a complaint is frivolous, vexatious, misconceived, lacking in substance or relates to an act that is not unlawful by reason of a provision of this Act, the Commissioner may, by notice in writing addressed to the complainant, dismiss the complaint.
(2) The Commissioner shall, in a notice under subsection (1), advise the complainant of ¾
(a) the reason for dismissing the complaint; and
(b) the rights of the complainant under section 90.
(1) Where the Commissioner has given a complainant a notice under section 89, the complainant may, within 21 days after the receipt of that notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the Tribunal.
(2) On receipt of a notice under subsection (1), the Commissioner shall refer the complaint to the Tribunal together with a report relating to the investigation made by the Commissioner into the complaint.
91. Resolution of complaint by conciliation
(1) Where the Commissioner is of the opinion that a complaint other than a complaint that the Commissioner has dismissed under section 89, may be resolved by conciliation, the Commissioner shall endeavour to resolve the complaint by conciliation.
(Page 13)
- …
93. Reference of complaints to the Tribunal
(1) Without prejudice to the Commissioner's powers under section 89, where the Commissioner ¾
(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 such endeavours; or
(c) is of the opinion that the nature of a complaint is such that it should be referred to the Tribunal,
the Commissioner shall refer the complaint to the Tribunal together with a report relating to the investigation made by the Commissioner into the complaint.
107. Jurisdiction of Tribunal
…
(3) Subject to subsection (3a), the Tribunal shall hold an inquiry into each complaint or matter referred to it under section 90(2), 93(1) or subsection (1)."
23 The applicant claims that the Commissioner does not have the power under the Act to refuse to accept a complaint lodged with her and that the Commissioner must not only accept but also investigate any complaint she receives. The applicant argues that, accordingly, the Commissioner should have accepted and investigated her complaint of further victimisation.
24 Ms James contends that a complaint to the Commissioner is a "moving thing" even though the Act contains no provisions regarding adding matters to an existing complaint. Ms James concedes in her written submissions that the complaint of further victimisation is a
(Page 14)
- "separate complaint made under s 83" but she argues that it is "administratively convenient and appropriate as a matter of procedural fairness to consider related allegations as part of a current investigation and conciliation process".
25 The applicant also contends that the Commissioner must either conciliate, dismiss or refer a complaint to the Tribunal. If the Commissioner dismisses a complaint and an applicant requires the Commissioner to refer it to the Tribunal, then the Commissioner must refer it to the Tribunal. The Tribunal then must hold an inquiry into that complaint.
26 As the Commissioner has not dismissed the applicant's complaint of further victimisation and has not referred it to the Tribunal, Ms James argues that the complaint is deemed to be referred under s 90(2) of the Act. She says that the Tribunal therefore has jurisdiction to hear all of the matters set out in her letter to the Commissioner dated 5 June 2006.
27 Ms James argues that the referral by the Commissioner to the Tribunal is constituted by the complaint which in turn includes all matters and materials before the Commissioner. Ms James also submits that, where there is any doubt as to what the Commissioner has referred, then the Tribunal should give the applicant the "benefit of the doubt" as to what is actually referred for inquiry. Ms James sought to distinguish Winter and Commissioner of Western Australia Police Service 2006 [WASAT] 87 on the basis that it relates to complaints lodged with the Commissioner out of time under the Act.
28 Ms James also argues that the Tribunal is exercising its review jurisdiction under the State Administrative Tribunal Act 2004 (WA) (the SAT Act) and accordingly can review the decision of the Commissioner or the lack of a decision by the Commissioner. During the hearing on 30 August 2006, Ms James conceded that the provisions in the SAT Act relating to the Tribunal's review jurisdiction were not relevant in these proceedings. On that basis it is conceded that the Tribunal cannot review the Commissioner's decision.
29 Ms James also presented arguments as to why the first, second and third respondents should be included as parties to these proceedings and she argued that this Tribunal has the power under s 38 of the SAT Act to join persons or entities who were not named in the original complaint lodged with the Commissioner.
(Page 15)
30 Ms James also made various submissions with respect to suppression which is dealt with below.
Respondents' submissions
31 In their submissions the respondents concede that Peter and Deborah Sayers are proper parties as they are the proprietors of the hotel business named as the Country Club Hotel, Kununurra and they are the employers of Ms Van Opijnen and Mr Bajwa. Whilst in their written submissions the respondents did not concede that Ms Van Opijnen should be a party, they did concede it at the hearing on 30 August 2006. The respondents argued that Mr Goodlet should not be a party and that his conduct as the solicitor for the respondents should not make him personally a proper or necessary respondent. The respondents also made submissions with respect to the suppression application.
32 On 1 September 2006 the applicant made additional submissions with respect to suppression and the response of the respondents was that "as observed orally at the time when the applicant's submissions were last presented, the applicant by inference, must be maintaining that the attitude of our community is essentially homophobic and hence suppression is justified in order to protect the applicant's witness. There is no evidence nor any argument to support a claim that this is so". This contention that Ms James believes the general community to be homophobic is a common theme in the respondents' submissions in these interlocutory proceedings.
Does the Tribunal have jurisdiction to hear the allegation of further victimisation?
33 Our decision is that we have no jurisdiction to hear Ms James' complaint of further victimisation by the first, second and third respondents and victimisation by Mr Goodlet.
34 The allegation of further victimisation was not in Ms James' original complaint to the Commissioner, though on a number of occasions she sought to extend her original complaint to include it. As referred to above Ms James argues that it would have been administratively convenient and appropriate as a matter of procedural fairness for the Commissioner to include the allegation of further victimisation in her investigations under the original complaint. Whilst it might be administratively convenient for the Commissioner to investigate a range of complaints at the same time, and whilst it is sometimes convenient to join separate complaints that have been referred to this Tribunal by the Commissioner, it does not
(Page 16)
- necessarily follow that a range of complaints made by an applicant at various times can be included as part of the original complaint.
35 The law is clear in this regard. In MacDonald v Puplick [1998] NSWSC 428, Justice Simpson of the Supreme Court of New South Wales, when dealing with sections of the then Anti Discrimination Act 1977 (NSW) which were in almost identical terms to the relevant sections in the Western Australian Act, held at page 5 (of the unreported version):
"As can be seen from the provisions earlier extracted, once a complaint is made, it follows a path. The initiating process is the complaint made in writing under s 88. Thereafter, the procedures required by the Act to be implemented all depend upon the existence of 'a complaint'. The inquiry required to be held by the Tribunal by s 96, which is at the end of the process, is an inquiry into 'each complaint…' referred to it.
The complaint made by the plaintiff was a complaint about a contravention of the Act which he alleged was committed by HCS in January 1995. It was not a complaint about events which had not then occurred but which occurred subsequently, in March 1995. The complaint alleging contravention of the Act in January was the only complaint properly so described which found its way to the Tribunal in 1996. The definition of 'complaint' contained in s 87 is, in my opinion, conclusive that the procedural steps prescribed by the Act are all intended to operate in relation to a complaint made under s 88. In this case, that complaint was the complaint made about the H.C.S s procedures and decisions in January. It had nothing to do with what occurred in March."
36 Applying that analysis and reasoning to these proceedings, it is appropriate to note that s 4 of the Act defines complaint. Section 83 deals with the making of a complaint to the Commissioner and s 84 provides that the Commissioner shall investigate each complaint lodged with her. Section 89 allows the Commissioner to dismiss some complaints and sections 90 and 93 relate to the referral of complaints by the Commissioner to the Tribunal. Section 91 deals with resolution of complaints by conciliation. Section 107 provides that if a matter is referred by the Commissioner the Tribunal must hold an inquiry into "each complaint or matter referred to it".
(Page 17)
37 In Winter, this Tribunal, adopting MacDonald and Puplick, also made it clear that this Tribunal has no jurisdiction to hear allegations that are not in the original complaint lodged with the Commissioner, in particular see [36], [49] and [51]. Ms James sought to distinguish Winter, but the principles relating to what is before the Tribunal in these proceedings apply. The findings with respect to the Tribunal dealing with a matter that the Commissioner had found was out of time are separated out in the Winter decision and do not affect the other principles stated in that decision and which are applicable in these proceedings.
38 In Summerville and Department of Education [2006] WASAT 174 the President, at [11], confirmed this approach. He held that the complaint referred to the Tribunal must be the same complaint as that made to the Commissioner by the complainant and determined by the Commissioner. The Tribunal only has jurisdiction to deal with those issues originally raised in the complaint.
39 We cannot therefore deal with matters raised by Ms James after she lodged her complaint with the Commissioner on 19 September 2005. For this Tribunal to deal with those allegations, they must be the subject of a fresh complaint to the Commissioner and then referred by the Commissioner to this Tribunal in accordance with the Act. This is also consistent with, in particular, s 107 of the Act which requires that the Tribunal deal with "each complaint" referred to it.
40 The allegation of further victimisation was not accepted by the Commissioner and therefore not referred to this Tribunal. We cannot decide whether or not the Commissioner should refer a particular complaint; our jurisdiction is triggered only by the Commissioner's referral.
Ms James' remaining submissions
41 It is therefore not necessary for us to deal in any detail with Ms James' other submissions regarding whether the Commissioner can decline to accept a complaint made within the relevant statutory timeframe, whether the Commissioner must deal with a complaint once lodged with her, whether this Tribunal can review the Commissioner's decision regarding dismissal or referral of a complaint, whether a complaint can be deemed referred to this Tribunal and what constitutes the referral to the Tribunal. We will however briefly mention each of these issues as they are matters that come before us at directions hearings from time to time.
(Page 18)
42 With respect to whether the Commissioner can decline to accept a complaint lodged within the relevant statutory timeframe, we have difficulty seeing how the Commissioner can decline to accept a complaint validly lodged with her. It is not clear to us what the Commissioner's arguments are, or could be, to justify her decision not to accept a complaint on the grounds, as in this case, that the conduct complained of does not constitute victimisation under the Act. Even if we did know what her views are, we could not cure any defect in the referral process; that is not within our jurisdiction.
43 Section 84 of the Act provides that the Commissioner "shall investigate each complaint lodged with the Commissioner under s 83". Section 83 specifies that a complaint alleging a contravention of the Act may be lodged with the Commissioner. There is no provision that qualifies either of those sections and it would therefore seem that if a complaint contains an allegation of unlawful conduct under the Act then it should be accepted. However, we do not know, nor can we speculate on, the Commissioner's reasoning for not accepting a complaint.
44 Again, as this Tribunal has no jurisdiction to deal with the complaint of further victimisation, we do not need to make a finding as to whether or not the Commissioner must take some positive action under the Act with respect to a complaint, such as dismissing it as lacking in substance or referring it to this Tribunal under sections 90 or 93 of the Act. It would seem to us that the Commissioner must ultimately deal with a valid complaint but we do not know the Commissioner's views on this.
45 Ms James contends that as the Commissioner did not refer or otherwise deal with the allegation of further victimisation, then it is deemed to be referred under s 90(2) of the Act. This Tribunal has the power to determine whether or not a complaint is within its jurisdiction (Zinni v Coventry Group Limited EOT of WA 21/3/02). In each case, the Tribunal decides, as a matter of fact, what the Commissioner has referred to it and it determines whether a matter is within its jurisdiction; it does not set the limits of its jurisdiction. Within that context, as the Act is beneficial legislation, we would interpret this referral liberally for the benefit of the applicant. We would give it a broad interpretation. But we cannot give it an interpretation that includes a matter that has clearly not been referred to the Tribunal. There is no provision for a complaint to be deemed referred. The SAT Act requires that our jurisdiction be triggered by an application or a referral. It is a leap unfounded in law to conclude that if the Commissioner has not yet dealt with a complaint, then it is deemed to be referred to this Tribunal.
(Page 19)
46 It is also appropriate to note that this Tribunal does not have the power to review the Commissioner's decision to dismiss or refer a complaint; the appropriate mechanism for that is by way of judicial review to the Supreme Court.
47 This Tribunal has an original and a review jurisdiction (s 14 SAT Act). Enabling Acts give this Tribunal its jurisdiction. In this case the Act is the enabling Act. It does not give the Tribunal any express authority to review a decision of the Commissioner, as required by s 17 of the SAT Act. The "matter that" the enabling Act gives this Tribunal is an original jurisdiction to hear the matter referred by the Commissioner.
48 We now turn to the final issue raised by Ms James, namely what constitutes the referral to this Tribunal by the Commissioner. This issue has been settled by the Tribunal in Winter and in Summerville and it is clear from those decisions that what is before this Tribunal is the Commissioner's referral letter together with the complaint as varied by the referral letter. The balance of the Commissioner's report of investigation into the complaint and any other materials put before the Commissioner by the parties and sent to this Tribunal is evidence before the Tribunal. This approach has been consistently followed by this Tribunal, for example, in the oral reasons on an interlocutory application in Kassa and Bitmead& Anor (Unreported; 26 July 2006).
Who are the appropriate parties?
49 As referred to above, the first, second and third respondents are the employers of the fourth respondents in both matters and are the proprietors and managers of the hotel business. Ms James sought to identify the correct parties in her original complaint to the Commissioner. She then sought to clarify the specific names of those parties on a number of occasions, as her research purported to identify them. The respondents were asked to identify Mr Bajwa and Ms Van Opijnen's employer. Under s 38 of the SAT Act this Tribunal has the power to join a person as a party where the Tribunal considers that the person ought to be bound by or have the benefit of a decision of the Tribunal in the proceeding before it or where the person's interests are affected by the proceeding. In Bilos and Placer Dome Asia Pacific [2004] WAEOT 10 the then Equal Opportunity Tribunal held that it is appropriate for the Tribunal to change the names of parties where the identity of the parties is clear but the party is named in a way that does not reflect its true name. But to substitute a respondent with a stranger to the proceeding is not acceptable. We agree with those findings and confirm that each of the respondents is appropriately joined
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- to these proceedings under s 38 of the SAT Act. Therefore for the fair and proper dispensation of these proceedings and in accordance with the Tribunal's objectives set out in s 9 of the SAT Act, we confirm that the respondents named by the Tribunal as respondents to each of these proceedings in its orders of 30 August 2006 are the correct respondents in these proceedings.
Should Mr Goodlet be a party?
50 As we have no jurisdiction to hear the allegation of further victimisation, it follows that Mr Goodlet should not be joined as a party. Indeed on the correspondence and documents before us it does not appear that Ms James has at any time lodged with the Commissioner what could constitute a "complaint", within the terms of the Act, against Mr Goodlet personally. It seems that it is only in these proceedings before this Tribunal that she seeks to join him as a party.
51 In the respondents' submissions filed on 18 August 2006 they request leave of the Tribunal for Mr Goodlet to continue to represent them in these proceedings. Rule 51(5) of the State Administrative Tribunal Rules 2004 (WA) requires a party to proceedings before the Tribunal under the Act to obtain the Tribunal's leave to be legally represented.
52 It is in this context that it is appropriate to consider Mr Goodlet's correspondence to Ms James, some of which is the subject of Ms James' allegation of further victimisation. The tenor and language of much of this correspondence is most inappropriate, particularly from a senior practitioner of some 52 years standing. It is not correspondence that we would expect to see from a lawyer in proceedings before this Tribunal. We have given very serious consideration to refusing leave for Mr Goodlet to continue as counsel in these proceedings. However, we do not wish to limit a party's right to choose their own lawyer. It is with a measure of reluctance therefore that we grant Mr Goodlet leave to appear on behalf of the respondents in this matter. We do so because it would be unfair to deny the respondents legal representation, particularly as Ms James is legally qualified and as Mr Goodlet has dealt with this matter to date. However, the respondents may wish to give serious consideration to instructing Mr Goodlet to brief counsel to represent their interests at the hearing of the substantive matter so as to ensure that no question of independence or impartiality could arise in their representation before this Tribunal.
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Suppression
53 As indicated above on 30 August 2006 we declined Ms James' application for suppression in these proceedings. We indicated to Ms James and Mr Goodlet at the time that if they wish to make further submissions on the issue of suppression we would consider those submissions when preparing these reasons. We have considered those additional submissions and remain of the view that a suppression order is not warranted in these proceedings. The reasons we gave for not granting the suppression order and which we now confirm follow.
54 It is a fundamental principle of common law that justice should be administered in public – David Syme and Co v General Motors Holden Ltd (1984) 2 NSWLR 294 per Street CJ at 300; John Fairfax & Sons v Police Tribunal of NSW & Anor (1986) 5 NSWLR 465 McHugh JA at 476-477; Re Bromfield, Stipendiary Magistrate; ex parte West Australian Newspapers Ltd (1991) 6 WAR 153 per Malcolm CJ at 164 and Rowland J at 179; Re Robins SM; ex parte West Australian Newspaper Ltd (1999) 20 WAR 511 per Ipp J at 514.
55 This principle ensures that courts and tribunals are sufficiently accountable, that justice is both done and manifestly seen to be done and that powerful litigants do not extract greater protection than that enjoyed by ordinary parties (Re Bromfield per Malcolm CJ at 165).
56 The open administration of justice requires that proceedings are conducted in public and that reasons for decision are given. In this context a fair and accurate report of proceedings should also be published (Re Bromfield per Malcolm CJ at 164-165).
57 The requirement for the fair and accurate report of proceedings is also an aspect of the right of free speech (Re Bromfield per Malcolm CJ at 164).
58 The common law is clear that we should only depart from the principle of the public and open administration of justice where there are special or exceptional circumstances, see Mirror Newspapers Limited v Waller (1985) 1 NSWLR 1 per Hunt J at 20; TK v Australia Red Cross (1988/90) 1 WAR 335 per Malcolm CJ at 337; Re Bromfield per Malcolm CJ at 165.
59 Further, any statute purporting to impinge on this principle should be narrowly construed; Raybos Australia Pty ltd v Jones (1985) 2 NSWLR 47 per Kirby P at 55; stated:
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- "Many cases report the scrutiny by courts of statutory provisions designed to derogate from the open administration of justice. Running through these decisions is a common theme. It is that, by our tradition, the open administration of justice is the rule. Statutory derogation from openness is the exception. In defence of the rule, such statutes will usually be strictly and narrowly construed. Unless the derogation is specifically provided for, courts are loathe to expand the field of secret justice: see Australian Broadcasting Corporation v Parish (1980) 43 FLR 129 at 133, 135-136; 29 ALR 228 at 233-234, 236; see also Re Armstrong and State of Wisconsin (1972) 7 CCC (2d) 331; C B v The Queen (1982) 62 CCC (2d) 107.
…
These legislative developments and changes of court practice reflect an increased resolve on the part of Parliament and the courts to defend the principle of the open administration of justice against the many, doubtless well meaning, efforts to erode the principle because of the suggested operation of competing claims of privacy, confidentiality, security, delicacy or administrative efficiency."
60 Ms James bears a heavy onus of proof in her application for suppression and she must provide cogent evidence that shows that a suppression order is reasonably necessary to prevent a real and serious risk of interference with the administration of justice (Mirror Newspapers per Hunt J at 20; John Fairfax v Police Tribunal of New South Wales per McHugh J at 447; TK v Australian Red Cross per Malcolm CJ at 337; Re Bromfield per Malcolm CJ at 165).
61 This Tribunal has a discretion as to whether or not to grant a suppression order and the exercise of that discretion involves a balancing between the public interests in the open administration of justice and the right to a fair trial (R v Craig & Ors (1991) 25 WAR 107).
62 The SAT Act provides in s 61(1) that "unless another provision of this Act provides otherwise, hearings of the Tribunal are to be held in public". The SAT Act then provides in s 61(2) and (4) for the making of orders for private hearings in limited circumstances. Ms James seeks an order for suppression of her and her partner's names under s 61(4)(c) (to avoid prejudice in the administrative of justice); s 61(4)(g) (to avoid the
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- publication of confidential information or information the publication of which would be contrary to the public interest); and s 61(4)(h) (for any other reason in the interests of justice). She argues that information about sexual orientation is confidential and that publication of her and her partner's names would breach that confidence, and that her partner would be deterred from giving evidence if her name is published.
63 We do not find that any of the reasons advanced by Ms James for suppression provide cogent evidence that would require us to exercise our discretion in her favour. In this case Ms James has brought proceedings under the Act by lodging a complaint with the Commissioner who then referred part of that complaint to this Tribunal under s 93(1) and part of it at the request of Ms James under s 90(2). There are consequences in Ms James taking this step. One of them is that she becomes a party to these proceedings. We cannot see that an exceptional circumstance arises that should prohibit publication of her or her partner's names. Publication in our view would not prejudice the administration of justice; it would not be contrary to the public interest, rather publication would in our view be in the public interest. It is also not in the general interests of justice to suppress Ms James and her partner's names.
64 The Courts have held that suppression orders will be issued where the interests of security are at risk (Re Bromfield Malcolm CJ at 171-72); where the openness of court proceedings would destroy the attainment of justice by vindicating the activities of a blackmailer or discourage its attainment by frightening off blackmail victims or informers (John Fairfax Group Pty Ltd (Receivers and Managers Appointed) v Local Court of News South Wales per Kirby P at 141)); or where publication is likely to prejudice a fair trial (Re Robins per Ipp J at 515).
65 Suppression orders should not be issued where publication would result in loss of privacy, embarrassment, distress, financial harm or other "collateral disadvantage" (John Fairfax per Kirby P at 142; J v L & A Services Pty Ltd (Unreported, QLD CA, Fitzgerald and Lee JJ, 15 February 1993)).
66 We are of the view that it is in the public interest and for the proper administration and interests of justice that the names of all of the parties in these proceedings be published. In this regard, we also note that articles have appeared in the gay and lesbian press in New South Wales and in the West Australian regarding these allegations, but not naming Ms James or her partner. The articles name the respondents. Ms James admitted that the articles came about because of her discussions about the allegations.
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- It is therefore somewhat curious that Ms James now seeks a suppression order.
Orders
EOA 52/2006
1. Ms James' application to include in these proceedings allegation of further victimisation by the first, second and third respondents is dismissed;
2. Ms James' applications to include in these proceedings an allegation of victimisation against Mr Goodlet and to have Mr Goodlet joined as a respondent are dismissed;
3. pursuant to rule 51(5) of the State Administrative Rules 2004 (WA), Mr Goodlet has leave to appear for the respondents in this matter's proceedings;
4. by 22 January 2007, the parties are to file with the Tribunal, and give to each other, an indexed and paginated bundle in chronological or other logical order of the documents on which it proposes to rely in the proceedings;
5. by 22 January 2007, if any party proposes to give evidence or call any witness including any expert to give evidence at the hearing, it must file with the Tribunal a signed statement of the witness' evidence and give a copy of the statement to the other party;
6. any document referred to in a witness statement that is contained in a bundle of documents filed by any party must be identified by reference to the relevant bundle and page number in the bundle and must not be attached to the witness statement. Any document referred to in a witness statement that is not contained in a bundle of documents filed by any party must be attached to the witness statement;
7. where a party is required by these orders to file a document with the Tribunal, four copies of that document must be filed;
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- 8. the matter is listed for final hearing for 3 days to commence at 10:00am on 12 February 2007; and
9. the Tribunal gives Ms Mitchell leave to appear at the hearing as a witness via a videoconference.
EOA 53/2006
1. Ms James' application to include in these proceedings allegation of further victimisation by the first, second and third respondents is dismissed;
2. Ms James' applications to include in these proceedings an allegation of victimisation against Mr Goodlet and to have Mr Goodlet joined as a respondent are dismissed;
3. pursuant to rule 51(5) of the State Administrative Rules 2004 (WA), Mr Goodlet has leave to appear for the respondents in proceedings relating to this matter;
4. by 22 January 2007, the parties are to file with the Tribunal, and give to each other, an indexed and paginated bundle in chronological or other logical order of the documents on which they propose to rely in the proceedings;
5. by 22 January 2007, if any party proposes to give evidence or call any witness including any expert to give evidence at the hearing, it must file with the Tribunal a signed statement of the witness' evidence and give a copy of the statement to the other parties;
6. any document referred to in a witness statement that is contained in a bundle of documents filed by any party must be identified by reference to the relevant bundle and page number in the bundle and must not be attached to the witness statement. Any document referred to in a witness statement that is not contained in a bundle of documents filed by any party must be attached to the witness statement;
7. where a party is required by these orders to file a document with the Tribunal, four copies of that document must be filed;
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- 8. the matter is listed for final hearing for 3 days to commence at 10:00am on 12 February 2007; and
9. the Tribunal gives Ms Mitchell leave to appear at the hearing as a witness via a videoconference.
I certify that this and the preceding [66] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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JUDGE J ECKERT, DEPUTY PRESIDENT
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