Kowalski v Domestic Violence Crisis Service Inc (No.1)
[2003] FMCA 99
•22 May 2003
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KOWALSKI v DOMESTIC VIOLENCE CRISIS SERVICE INC (No.1) | [2003] FMCA 99 |
| HUMAN RIGHTS – Sex discrimination – provision of services – whether preference in the provision of services given on the basis of gender – whether and if so when the service provider aware that applicant was seeking a service. |
Administrative Decisions (Judicial Review) Act 1975 (Cth)
Associations Incorporation Act 1991 (ACT)
Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46PO
Sex Discrimination Act 1984 (Cth), ss.4, 5, 22, 39
K v Domestic Violence Crisis Service Inc (unreported, HREOC, Dodson C, 20.01.98)
K v Domestic Violence Crisis Service Inc [1999] FCA 794
Kowalski v Domestic Violence Crisis Service Inc [2001] FCA 1082
| Applicant: | STAN LECH KOWALSKI |
| Respondent: | DOMESTIC VIOLENCE CRISIS SERVICE INC |
| File No: | CZ2 of 2002 |
| Delivered on: | 22 May 2003 |
| Delivered at: | Sydney, via telephone to Canberra |
| Hearing dates: | 18 and 19 March 2003 |
| Judgment of: | Driver FM |
REPRESENTATION
| Counsel for the Applicant: | Mr Anforth |
| Solicitors for the Applicant: | Pamela Coward & Assoc |
| Counsel for the Respondent: | Ms Nomchong |
| Solicitors for the Respondent: | Smyth, Burnett, Bowden |
ORDERS
The application is dismissed.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT CANBERRA |
CZ2 of 2002
| STAN LECH KOWALSKI |
Applicant
And
| DOMESTIC VIOLENCE CRISIS SERVICE INC |
Respondent
REASONS FOR JUDGMENT
Introduction and background
Thirteen years ago Stan Kowalski had an argument with his wife Julia. The police were called and attended the Kowalski’s home. The police arranged for two domestic violence crisis workers to attend the home. They did so. What happened when the two workers arrived has been a matter of dispute ever since. There has been an inquiry conducted by the Human rights and Equal Opportunity Commission (“HREOC”) into a complaint by Mr Kowalski of sex discrimination, and two proceedings in the Federal Court arising out of that inquiry.
These current proceedings relate to an application filed on 5 April 2002 in this Court under s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“the HREOC Act”). The applicant, Stan Kowalski, seeks a declaration that the respondent, the Domestic Violence Crisis Service Inc (“DVCS”) has engaged in unlawful conduct in the provision of services contrary to ss.5 and 22 of the Sex Discrimination Act 1984 (Cth) (“the SDA”). He also seeks an apology, damages and costs. The proceedings were transferred to this Court from the Federal Court by order of His Honour Finn J on 8 February 2002, following an earlier application under the HREOC Act to the Federal Court.
The following statement of background facts appears from the judgment of Finn J in K v Domestic Violence Crisis Service Inc [1999] FCA 794 (the first Federal Court decision).
a)On the evening of 6 February 1990 a domestic altercation occurred between Mr Kowalski and his wife Dr Julia Kowalski in which, according to Mr Kowalski’s evidence, Dr Kowalski was the abusive party and which resulted, amongst other things, in Mr Kowalski’s proposal that they have separate rooms in the house. He then moved some additional furniture into the master bedroom which Dr Kowalski was to use.
b)Shortly afterwards, two police officers knocked at the front door. They were taken to see Dr Kowalski and one of the officers, Detective Constable Perkins, gave evidence that Dr Kowalski made allegations of domestic violence against Mr Kowalski. Constable Perkins then arranged for the DVCS to provide assistance to Mr and Dr Kowalski.
c)The circumstances of the two DVCS workers’ arrival at the Kowalski’s residence and of their being taken to see Dr Kowalski on their arrival are outlined separately [in the judgment of Finn J]. They spent approximately one and a half hours with Dr Kowalski. After emerging from her room, although Mr Kowalski requested that they then interview him, they declined to do so but gave him a DVCS business card with their names on it and asked that he ring the next day for an appointment.
d)The evidence of the two DVCS workers was that Dr Kowalski appeared distressed; the state of the master bedroom was a shambles; Dr Kowalski referred to Mr Kowalski being violent to her over the period of their marriage; and that Mr Kowalski appeared agitated at the time.
e)Five persons gave evidence: Mr Kowalski and his son Mark, who was in the house at the time of the events in question; Detective Constable Perkins; and the two DVCS workers, Ms Simpson and Ms Reis.
Mr Kowalski made a complaint to the ACT Discrimination Commissioner in 1994 about the conduct of the DVCS workers. He asserted that he had been discriminated against by reason of his gender. The complaint was heard before Commissioner Dodson of HREOC in September and October 1997. Commissioner Dodson handed down his decision on 20 January 1998: K v Domestic Violence Crisis Service Inc (unreported, HREOC, Dodson C, 20.01.98) (the HREOC decision). Commissioner Dodson found that there had been no unlawful discrimination.
Mr Kowalski challenged Commissioner Dodson’s decision in the Federal Court under the Administrative Decisions (Judicial Review) Act 1975 (Cth) (“the ADJR Act”) which led to the first Federal court decision by Finn J identified in paragraph 3 above. His Honour allowed that application, set aside the HREOC decision and remitted the matter to the HREOC for further consideration. It is clear from the reasons for His Honour’s decision that Mr Kowalski succeeded in his application on the basis that HREOC had failed to make a determination on a necessary factual issue, namely, what the two DVCS workers did when they first arrived at the Kowalski’s home and why. Commissioner Dodson had found that the DVCS workers had treated Mr Kowalski less favourably than Dr Kowalski but that this was a result of their interview with Dr Kowalski after they arrived at the home, and the conduct of Mr Kowalski as they were leaving. Finn J found that it was necessary to consider whether the conduct of the DVCS workers when they first arrived at the home was discriminatory and that Commissioner Dodson had failed to do this. Since the actions of the DVCS workers were based, in part, on the fact that they had seen Dr Kowalski first, a finding needed to be made as to why the DVCS workers saw Dr Kowalski first and if the reasons for doing so contravened the provisions of the SDA.
As matters turned out there was no further inquiry by HREOC because Commissioner Dodson had left HREOC and the legislation under which HREOC had conducted its inquiry had changed. Under the amended legislation HREOC could not make determinations binding on the parties but a complainant could, following the termination of a complaint, make application to this Court or the Federal Court. The question then arose whether Mr Kowalski could take advantage of the amended legislation in order to take court proceedings. HREOC decided that he could not do so due to the fact that his complaint arose well before the legislation was amended. Mr Kowalski challenged that decision in the Federal Court under the ADJR Act. Once again, Mr Kowalski was successful: Kowalski v Domestic Violence Crisis Service Inc [2001] FCA 1082 (the second Federal Court decision). In those proceedings His Honour Madgwick J made orders that permitted Mr Kowalski to commence proceedings in the Federal Court, or this Court, which he duly did.
The scope of the present proceedings
It was agreed between the parties that I should consider the issue of liability before any hearing on loss. At the interlocutory stage of these proceedings it was common ground that the hearing would be restricted to the issue dealt with by Finn J in the first Federal Court proceedings. That is, whether the two DVCS workers engaged in discriminatory conduct when they first arrived at the home of Mr and Dr Kowalski on the night of 6 February 1990. More particularly, the question is whether the DVCS treated Mr Kowalski less favourably than Dr Kowalski by seeing Dr Kowalski first.
At the commencement of the trial of the matter I advised counsel for the parties that in dealing with the matter under the present HREOC legislation I could not be bound by the decision of Commissioner Dodson. I stated that I considered myself bound by the findings made by Finn J, both of fact and law, but that I was only prepared to proceed on the basis of the factual findings made by Commissioner Dodson if they were agreed by both sides. The decision of Commissioner Dodson was tendered on behalf of the respondent: exhibit R1. The findings of fact made by Commissioner Dodson appear on pages 20 and 21 of the HREOC decision. Commissioner Dodson made the following factual findings:
(a) on the night of 6 February 1990, the DVCS workers who attended the home of Mr and Dr Kowalski formed the view that Mr Kowalski was the perpetrator of domestic violence and that Dr Kowalski was the victim of that violence. This was the result of Ms Simpson and Ms Reis being led to see Dr Kowalski first, the state of the master bedroom and the version of events given to Ms Simpson and Ms Reis by Dr Kowalski.
(b) As a result of that belief, the DVCS workers spent a lengthy period of time with Dr Kowalski.
(c) The workers did not spend time with Mr Kowalski asking for his version of events or interviewing him as they did not view him as being the victim of domestic violence as they were of the view that Dr Kowalski was the only victim.
(d) It is unlikely that the DVCS workers gave Mr Kowalski the option of calling back the police so that the workers could interview him. Furthermore, [Commissioner Dodson found] it difficult to believe on all the evidence that Ms Simpson and Ms Reis feared for their safety in relation to Mr Kowalski given that they then left [the Kowalski’s child Mark] and Dr Kowalski alone in the house with Mr Kowalski. Rather [Commissioner Dodson thought] it more likely that they had concluded that they had consulted with the only victim of domestic violence in the house, being Dr Kowalski, and that there was no need to interview Mr Kowalski.
(e) On 7 February 1990 when Mr Kowalski spoke to [a Ms McLean] on the telephone, Mr Kowalski did not receive the same level of assistance and advice that Dr Kowalski received from DVCS by telephone that same day.
At the commencement of the trial of this matter, only one fact in the above findings of fact was disputed between counsel. That was the finding that:
Furthermore, I find it difficult to believe on all the evidence that Ms Simpson and Ms Reis feared for their safety in relation to Mr Kowalski, given that they then left Mark and Dr Kowalski alone in the house with Mr Kowalski.
In the circumstances, I stated that I could not adopt that fact as an agreed fact for the purpose of these proceedings.
After the presentation of evidence had concluded and at the outset of his oral submissions, Mr Anforth, for Mr Kowalski, sought clarification of the statement of agreed facts drawn from the findings of Commissioner Dodson. In particular, he sought clarification of agreed facts (a) and (d). I decided that some modification to this factual matrix needed to be made in the light of the findings of Finn J and in the light of the evidence that had been presented to me. I decided that I could not simply accept that Ms Simpson and Ms Reis had formed the view that Dr Kowalski was the victim and that Mr Kowalski was the perpetrator simply because they had been led to see Dr Kowalski first, the state of the master bedroom and the version of events given by Dr Kowalski to Ms Simpson and Ms Reis. It was apparent from the evidence that I had heard that this case turns on the issue of what, if any, view Ms Simpson and Ms Reis had about who was the victim and who was the perpetrator at the time they arrived at the Kowalski’s house, not later. In addition, the outcome of the first Federal Court proceedings before Finn J was that that was the issue that needed to be determined by HREOC. Further, I decided that the second and third findings made by Commissioner Dodson at (d) were so closely related that it was misleading and unsatisfactory to adopt one but not the other. In the circumstances, I ruled that I would deal with the matter on the basis of the following facts drawn from the decision of Commissioner Dodson:
a)on the night of 6 February 1990 the DVCS workers who attended the home of Mr Kowalski and Dr Kowalski formed the view that Mr Kowalski was the perpetrator of domestic violence and that Dr Kowalski was the victim of that violence. Commissioner Dodson found that this was the result of Ms Simpson and Ms Reis being led to see Dr Kowalski first, the state of the master bedroom and the version of events given to Ms Simpson and Ms Reis by Dr Kowalski;
b)As a result of that belief, the DVCS workers spent a lengthy period of time with Dr Kowalski.
c)The workers did not spend time with Mr Kowalski asking for his version of events or interviewing him as they did not view him as being the victim of domestic violence as they were of the view that Dr Kowalski was the only victim.
d)It is unlikely that the DVCS workers gave Mr Kowalski the option of calling back the police so that the workers could interview him. Commissioner Dodson found that it was difficult to believe on all the evidence that Ms Simpson and Ms Reis feared for their safety in relation to Mr Kowalski given that they then left Mark and Dr Kowalski alone in the house with Mr Kowalski. Rather, Commissioner Dodson thought it more likely that they had concluded that they had consulted with the only victim of domestic violence in the house, being Dr Kowalski, and that there was no need to interview Mr Kowalski.
e)On 7 February 1990 when Mr Kowalski spoke to [a Ms McLean] on the telephone, Mr Kowalski did not receive the same level of assistance and advice that Dr Kowalski received from DVCS by telephone that same day.
It is inherent in this statement of facts and the first Federal Court decision that it remains an open question what occurred to cause the two DVCS workers to see Dr Kowalski first and whether the DVCS unlawfully discriminated against Mr Kowalski in the provision of services before their interview with Dr Kowalski, by choosing to see her in preference to Mr Kowalski.
Madgwick J ruled in the second Federal Court proceedings that the evidence presented before the HREOC inquiry conducted by Commissioner Dodson should be evidence in these proceedings. The full transcript of the HREOC inquiry was tendered by the applicant: exhibit A2. Extracts from the transcript are annexed to the affidavit of Dennise Simpson, relied upon by the respondent, together with a statement of Dennise Simpson, the code of practice of DVCS staff and a letter from the AFP to Dennise Simpson dated 10 September 1996. The decisions by Commissioner Dodson, Finn J and Madgwick J were also tendered as exhibits: exhibits R1, R2 and R3. Mr Anforth also tendered copies of all documents tendered by the parties before Commissioner Dodson: exhibit A3. Mr Anforth also tendered (exhibit A1) documents prepared for a domestic violence forum by the respondent in 1990.
After the applicant’s case had closed Mr Anforth told me that another document of significance had been given to him by Mr Kowalski. This turned out to be an important AFP document produced in 1998 in response to an FOI request from Mr Kowalski. The AFP document is a print out of a computer record of an incident report prepared by the AFP relating to their attendance at the home of the Kowalskis on 6 February 1990. Because of its significance, and the fact that Mr Anforth was not aware of it previously, I permitted him to tender the document together with correspondence between Mr Kowalski and the AFP which established the authenticity of the AFP record: exhibit A4. I also accepted from Ms Nomchong a tender of the ACT Magistrates Court file relating to domestic violence order (DVO) applications made by Dr and Mr Kowalski on 7 February 1990: exhibit R4, and an original telephone log recording the call from police operations to the respondent on the night of 6 February 1990: exhibit R5.
The parties, consistently with the rulings of Madgwick J, relied upon the evidence presented to Commissioner Dodson. However, this was augmented by documentary and oral evidence clarifying the relevant issues. I heard oral evidence from Mr Kowalski, Ms Simpson and Ms Reis. Dr Kowalski was not called as a witness. I do not regard her as a necessary witness and I draw no adverse inference against either party from her absence. The two AFP officers who attended the home of the Kowalskis on 6 February 1990 were also not called by either party. I was told that the first officer, Constable Perkins, is now serving on Norfolk Island and that he could not now remember anything. I was told that the second officer, Constable Lamb, could not be found. At a directions hearing I refused an adjournment of the proceedings for the purpose of making further efforts to find Constable Lamb. In view of what I was told about Constable Perkins’ lack of memory, and my refusal to adjourn proceedings further, I draw no adverse inference in relation to the failure of either party to call those police officers.
The applicant’s case
The substance of the complaint made by Mr Kowalski to HREOC is that when Ms Simpson and Ms Reis attended his home on 6 February 1990 they had a lengthy discussion with Dr Kowalski but refused to have a discussion with him. The complaint to HREOC also dealt with events on 7 February 1990 when Dr Kowalski obtained a DVO in the ACT Magistrates Court, but it was agreed between the parties in these proceedings that those events were not properly the subject of these proceedings. In addition, Mr Anforth conceded that the conduct of Ms Simpson and Ms Reis at the time they were leaving the Kowalskis’ home after interviewing Dr Kowalski, was not discriminatory. He conceded that by that stage, Ms Simpson and Ms Reis had reasonably concluded that Dr Kowalski was making allegations of domestic violence at the hands of Mr Kowalski and that they had accepted her as a client of the respondent. The conduct of Ms Simpson and Ms Reis on their departure from the home, when they refused to speak to Mr Kowalski was therefore explicable by that decision by the DVCS workers. However, the complaint that Mr Kowalski presses is that Ms Simpson and Ms Reis spoke to Dr Kowalski first without interviewing him and that in doing so they treated him less favourably than his wife by reason of his gender.
The HREOC complaint also alleged discrimination on the basis of marital status but it is clear that the alleged discrimination is on the basis of sex. The applicant’s case is that he was discriminated against by reason of his sex contrary to ss.5 and 22 of the SDA in that he was refused services by the respondent in circumstances when he had requested those services. Mr Kowalski asserts that he had requested the attendance of the DVCS workers but that the respondent, through Ms Simpson and Ms Reis, had refused to speak to him and had instead assisted his wife. Mr Anforth submits that the documentary evidence relating to the manner of operation of the DVCS shows that the respondent had a gender bias in favour of women and against men and that the conduct of Ms Simpson and Ms Reis is explicable by reference to those documents. Mr Anforth stresses that the respondent has not taken refuge in s.32 or s.7D of the SDA which protects certain special needs services. The respondent has presented itself as an organisation which provides services to all victims of domestic violence, regardless of gender. Mr Anforth also refers to evidence from Ms Simpson that the respondent is able to provide a limited service to perpetrators of domestic violence and persons generally engaged in domestic conflict in defined circumstances. Mr Anforth concedes that Dr Kowalski had also requested the attendance of the respondent’s workers but submits that in those circumstances Ms Simpson and Ms Reis should have spoken to both Dr Kowalski and Mr Kowalski and should not have immediately chosen to speak to one and not the other.
The respondent’s case
Ms Nomchong, for the respondent, submits that the evidence presented to me establishes that Ms Simpson and Ms Reis were informed by the police, prior to attending the Kowalskis’ home, that Dr Kowalski had made a complaint of domestic violence and had requested DVCS attendance. She submits that Ms Simpson and Ms Reis had no knowledge of any request for assistance by Mr Kowalski when they arrived at the home and that they interviewed Dr Kowalski immediately because that is why they were there. They were there to render assistance to a person claiming to be a victim of domestic violence. Ms Nomchong submits that I could not be satisfied, on the state of the evidence, that Ms Simpson and Ms Reis were motivated by anything else. Ms Nomchong stressed that there is no onus on the respondent to prove anything and that the onus rests on the applicant. She sought only the application of ordinary civil onus of proof. Ms Nomchong submits that on the state of the evidence before me the applicant cannot discharge that onus but, to the extent that the respondent is required to satisfy me of anything, I could be satisfied that the conduct of the respondent was not discriminatory. Put simply, Ms Nomchong submits that Mr Kowalski was not refused services by the respondent at the time Ms Simpson and Ms Reis arrived at the home because they did not know that he was seeking any service. She submits that Ms Simpson and Ms Reis did know that Dr Kowalski was seeking their services and they attended in order to provide that service.
The legislation
Section 5 of the SDA provides that:
(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator ) discriminates against another person (in this subsection referred to as the aggrieved person ) on the ground of the sex of the aggrieved person if, by reason of:
(a) the sex of the aggrieved person;
(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
(2)For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person ) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.
(3)This section has effect subject to sections 7B and 7D.
Section 22 of the SDA provides that:
(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy:
(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2) This section binds the Crown in right of a State.
Consideration and findings
What services were available from the respondent at the relevant time?
The respondent, DVCS, is an association incorporated under the Associations Incorporation Act 1991 (ACT) that engages in assisting those affected by domestic violence on a not for profit basis. The priority of this service is working with those subjected to domestic violence: respondent’s statement of facts, issues and contentions, paragraph 1. The DVCS was first incorporated on 16 February 1988 under superseded ACT legislation. Annexure B to the affidavit of Dennise Simpson filed on 23 September 2002 is the constitution of the DVCS. Clause 2 sets out the objectives of DVCS. These are:
a)in co-operation with the police and other relevant agencies, to work towards the elimination of violence in inter personal relationships and to provide a dedicated service;
b)to change the inherent power difference between women and men which creates and perpetuates domestic violence;
c)to work towards the empowerment of all women and children through access to information, knowledge and development of living skills;
d)to develop and promote a sound analysis and understanding within the community of domestic violence;
e)to ensure that there are a wide range of services available to survivors and perpetrators of domestic violence and to facilitate access to those services;
f)to enable those who experience domestic violence to see themselves as survivors not victims, and to educate the community to accept them as survivors.
Since March 1988 the DVCS has been recognised as a charitable organisation by the Australian Taxation Office and has been exempt from sales tax and income tax: annexure C to the affidavit of Dennise Simpson filed 23 September 2002. The DVCS has a contract with the ACT Government pursuant to which it receives funds from the ACT Government to provide assistance to those involved in domestic violence on a non fee basis. Annexure D to the affidavit of Dennise Simpson filed on 23 September 2002 is a copy of the service agreement in effect from 9 October 1989. Pursuant to that agreement the objectives of funding reproduce the six objectives quoted above from the DVCS constitution. Paragraph 6 of the agreement sets out the key tasks to be undertaken from 1988-1989. These are:
a)to establish, operate and maintain the Domestic Violence Crisis Service on a 24 hour per day and seven days per week basis;
b)to provide crisis intervention services at domestic violence occurrences;
c)to co-ordinate and monitor the effectiveness of referrals to services in the government and non-government sectors (for DVCS clients);
d)to serve as a focus of community awareness of the problems of domestic violence;
e)to gather statistics daily on usage of service, and to compile the statistical information on a monthly basis together with relevant documentation of regional needs and provide the [ACT] Department with the compiled statistical information every three calendar months during the term of funding;
f)to distribute the statistical information in task (e) to interested community organisations and government bodies;
g)develop evaluation strategies for the work of the DVCS to ensure that the needs of the ACT community re domestic violence are met in the most effective way; and
h)to undertake evaluations of the service, staff and management during the term of funding and report on the evaluation to the community health branch of the [ACT] Department.
For present purposes the key tasks are those set out in paragraphs (a) and (b) above.
Ms Simpson gave evidence, and I accept, that DVCS is not funded as a gender specific service. It is funded to work with victims of domestic violence, regardless of gender, age, race, class or sexuality. Both men and women can be victims of domestic violence and abuse. I find that, pursuant to its constitution and the funding agreement, DVCS holds itself out as providing, and provides, services to victims of domestic violence, perpetrators of domestic violence, and others affected by domestic violence. In particular, DVCS provides crisis intervention services at domestic violence occurrences notified to it. Whilst the service was established with a view to ameliorating the position of women and children as the primary victims of domestic violence, and whilst DVCS has a clear focus on victims of domestic violence, its services are provided without regard to gender or marital status and are available to anyone affected by domestic violence, be they a victim, perpetrator or others.
The term “services” is not exhaustively defined in the SDA. It includes financial services, entertainment services, travel services, transport services, services to a trade or profession and government services: s.4. I find that the respondent provided services at the relevant time within the meaning of that term in s.22 of the SDA.
Ms Simpson is the current manager of DVCS. She has worked for DVCS since 1988. She gave evidence, which I accept, that the crisis intervention service provided by DVCS would ordinarily be activated by a telephone call to the service, frequently from the ACT Police attending a domestic violence situation at a home. Ms Simpson also gave evidence, which I accept, that the manner of the provision of services varied depending upon the circumstances. In response to a telephone call seeking crisis intervention, two workers from the respondent would attend the relevant premises. If crisis intervention had been requested by a purported victim of domestic violence, the workers would attend that person and offer assistance. If two individuals requested the intervention the practice was for the workers to separate the individuals and talk to both of them (normally at the same time): transcript, 18 March 2003, page 72 at line 5. If the attendance of the workers had been requested by a purported perpetrator of domestic violence, the ordinary practice was for the workers to speak to that individual in the presence of the police: (transcript, 18 March 2003, p 107 at line 5). In 1990 it was unusual for DVCS to respond to a crisis call except at the request of a purported victim (transcript, 18 March 2003, p 106 at line 30).
Who requested the provision of DVCS services?
Mr Kowalski gave evidence to Commissioner Dodson, in the two Federal Court proceedings and before me that his wife was the abusive party on 6 February 1990. In the first Federal Court decision Finn J found that two police officers attended the Kowalski home but made no finding on who had called them. However, the evidence of Mr Kowalski before HREOC, supported by the evidence of Mark Kowalski, was that it was Dr Kowalski who contacted the police requesting assistance. Importantly, this is corroborated by exhibit A4 (the Australian Federal Police incident report record) which was available for the first time in the proceedings before me. That record clearly states that the complainant was Dr Kowalski. It is clear that she requested police attendance on the basis that Mr Kowalski was removing all property from her surgery, which was located in the family home. I find that it was Dr Kowalski who requested the attendance of the police on 6 February 1990 on the basis of a complaint by her about the conduct of Mr Kowalski.
Shortly afterwards, AFP Constables Perkins and Lamb attended the Kowalski’s home. Finn J found that the police officers were taken to see Dr Kowalski and that Dr Kowalski made allegations of domestic violence to Constable Perkins against Mr Kowalski. Finn J found that Constable Perkins then arranged for DVCS to provide assistance to Mr and Dr Kowalski. Finn J made no finding as to how that occurred. Constables Perkins and Lamb were not available as witnesses in the proceedings before me and the earlier evidence of Constable Perkins is not particularly helpful on this point. However, exhibit A4 shows that AFP Police Operations were requested to notify DVCS at 10.17pm on 6 February 1990 by Constables Perkins and Lamb. I find that there was no direct communication between Constables Perkins and Lamb with DVCS prior to the arrival of the DVCS workers at the Kowalski home. What Constables Perkins and Lamb did was to request AFP Police Operations to notify a domestic crisis to DVCS.
The evidence of Mr Kowalski is that both he and his wife had asked Constables Perkins and Lamb to request the attendance of DVCS workers. Mr Kowalski’s recollection is supported by a minute prepared by Constable Perkins on 1 October 1991, apparently at the request of Mr Kowalski. The minute is part of the bundle of documents forwarded by HREOC in compliance with a direction by Finn J: exhibit A3. In any event, I consider myself bound by Finn J’s finding that Constable Perkins arranged for DVCS to provide assistance to Mr and Dr Kowalski.
The next question is whether the request from Dr and Mr Kowalski was properly communicated to DVCS. I have no evidence as to precisely what Constable Perkins or Constable Lamb said to AFP Police Operations. However, I do have a record of the call from Police Operations to DVCS. That is exhibit R5, which is a log of telephone calls received on the evening of 6 February 1990. That log shows that Police Operations called at 10.15pm and that this was a first contact. The log includes a final column headed, “Messages, Comment, etc”, and in that column the words appear, “crisis Julia Kowalski”. This telephone log was in evidence in the proceedings before me for the first time. I was told that it had been thought lost but had been recently discovered. Initially a photocopy of the relevant page of the log was tendered. I called for the original which, after a further search, was produced and tendered: exhibit R5. The time of the call is inexact in that the AFP record discloses that Constables Perkins and Lamb only called Police Operations at 10.17pm. I accept the police record as accurate. It must have been after then that Police Operations called DVCS.
The words “crisis Julia Kowalski” in the “Messages, Comments, etc” column require some comment. The notes in this column are completed in either blue ink, pencil or black ink. Most of the entries are in blue ink but some are in pencil. The entry for the call in relation to Julia Kowalski appears in black ink. The entries all appear to be in the same hand and Dennise Simpson gave evidence that although she cannot recall making the entry it appears to be her entry. On close inspection the words “crisis” and “Kowalski” appear to have been originally written in pencil and to have been overwritten in black pen. The word “Julia” appears to have been written only in black pen. Also, the placement of the words in the column is not uniform, creating the possibility that the word “crisis” was written at a different time than the words “Julia” or “Kowalski” or both. At trial I raised the issue of the reliability of this entry. Ms Simpson could not remember anything about the making of the entry, apart from the fact that it appears to be her entry, but she sought to explain a possible sequence of events so as to avoid any suggestion of fabrication. She did not dispute the possibility that the three words were not all written at the same time (transcript 19 March 2003, p136). On its face, the call record indicates that Police Operations informed DVCS that Dr Kowalski had requested their attendance. There is some doubt in my mind as to when the word “Julia” was added to the call record and I therefore treat the record with some caution. It is, however, the only evidence of what Police Operations said to DVCS. Ms Simpson has no recollection. She was not required to recall the events of this night until years after the event when the complaint by Mr Kowalski was dealt with by HREOC and it is not surprising that she has no recollection.
There is no evidence before me that Police Operations communicated to DVCS that it was both Mr Kowalski and Dr Kowalski who were requesting their attendance. The only evidence of what Police Operations said to DVCS is the call record. Whilst I treat that record with some caution I am unwilling to draw a conclusion that it is not a true record of the message that was conveyed by Police Operations. It is more likely than not that Police Operations only made known to DVCS that Dr Kowalski had requested their attendance. I so find.
What did Ms Simpson and Ms Reis know when they arrived at the Kowalski’s home?
On the basis of my finding concerning the DVCS call record I find that when Ms Simpson, accompanied by Ms Reis, arrived at the Kowalski home all they knew was that their attendance had been requested by Dr Kowalski in relation to a domestic violence crisis. However, there is evidence before me that as they arrived at the home Ms Simpson and Ms Reis met and had a short conversation with Constables Perkins and Lamb. The evidence of Ms Simpson and Ms Reis differed as to where this conversation occurred. Neither had any reliable recollection of what was said. Ms Simpson recalled that the police were in the course of leaving and that they had met in the front garden near the police car. Ms Reis recalled that they met and spoke either directly inside or directly outside the front door of the Kowalski home. She stated that they were greeted at the front door of the Kowalski home by a police officer who gave them a brief description of what had happened. She did not recall hearing from the police that Mr Kowalski was claiming to be the victim of any violence at the hands of Dr Kowalski. She did recall that they had an invitation to attend the house which could have been from both Mr and Dr Kowalski (transcript 19 March 2003, p155). In his minute dated 1 October 1991 Constable Perkins states that the DVCS workers arrived as he and Constable Lamb were departing the premises. That supports a conclusion that the conversation between the two DVCS workers and the police occurred outside the premises. Constable Perkins goes on in that minute to state:
Before leaving the premises Mr Kowalski was informed that he could also speak to the personnel of the DVCS. It was also explained to Mr Kowalski that DVCS were under no obligation to speak to any of the parties involved in such a dispute unless they wished to do so; and further that they were definitely under no direction from the police to speak to any of the parties in such a dispute.
Constable Perkins goes on to state that there were no indications to police that any physical violence had taken place in the premises or to any of the persons spoken to at the premises that night.
Ms Simpson recalls being told by the police that there had been no physical violence (transcript 18 March 2003, p79). It seems clear that that was part of the conversation that occurred outside the premises as the police were leaving and as Ms Reis and Ms Simpson were arriving. It is likely that what Constable Perkins said to Mr Kowalski about being able to ask to speak to the DVCS workers occurred inside the house before the police officers spoke to Ms Reis and Ms Simpson. The conversation between the police and Mr Kowalski occurred inside the home before they left. The conversation between the police and the DVCS workers occurred as they were leaving. Mr Kowalski recalls the police being outside the home with the DVCS workers and that they then left (transcript 18 March 2003, p38). It is entirely possible, indeed likely, that the police escorted Ms Simpson and Ms Reis at least to the front door of the home and introduced them to Mr Kowalski. That was Ms Simpson’s evidence to Commissioner Dodson. It was also Ms Reis’ evidence to me (Transcript 19 March 2003, p157). While the available evidence is sketchy I find, on the balance of probabilities, that Ms Simpson and Ms Reis were given information by the police as they arrived at the premises to confirm that Dr Kowalski was the complainant of domestic violence but that there had been no physical violence. The police told the DVCS workers that they had an invitation from either or both Dr Kowalski and Mr Kowalski to enter the premises. Importantly, I find that Constables Perkins and Lamb said nothing to Ms Simpson and Ms Reis to contradict the brief information conveyed by Police Operations. I find that while Ms Simpson and Ms Reis probably knew when they were escorted to the premises by the police that they had an invitation to enter from Mr Kowalski, they did not know that Mr Kowalski was a complainant of domestic violence. They did know that Dr Kowalski was a complainant of domestic violence.
What happened when Ms Simpson and Ms Reis entered the home?
The recollection of Ms Simpson and Ms Reis about what happened when they entered the Kowalski home is hazy after so many years. They were not asked to recall the events until about six years after the event and their recollection has never been very reliable. On the basis on my findings made above I am satisfied Ms Simpson and Ms Reis entered the Kowalski home in the knowledge that Dr Kowalski had made a complaint of domestic violence but also in the knowledge that there had been no physical violence. Ms Simpson and Ms Reis knew that they had an invitation to enter the premises either from Dr Kowalski or from both Dr Kowalski and Mr Kowalski. It is likely that Constables Perkins and Lamb left the premises after escorting Ms Simpson and Ms Reis to the front door of the premises and introducing them to Mr Kowalski, who answered the door. Although Ms Reis thought otherwise in the proceedings before Commissioner Dodson it is likely that the police did not come into the house with the two DVCS workers. It is common ground that only the briefest of conversations took place between Mr Kowalski and Ms Reis and Ms Simpson when the two DVCS workers entered the home. The conversation barely proceeded past introductions. Mr Kowalski gave evidence to Commissioner Dodson that after the two DVCS officers introduced themselves they asked to see Dr Kowalski. His evidence was that he said, “yes”, and that he led them down the corridor to the master bedroom where his wife was: transcript HREOC proceedings, pages 37-38. Mr Kowalski gave a somewhat inconsistent account in cross-examination but his account in chief before Commissioner Dodson is consistent with his complaint to the ACT Discrimination Commission on 22 February 1994: exhibit A3, annexure R6. In the proceedings before me Mr Kowalski claimed that Ms Reis and Ms Simpson demanded to see his wife and pushed past him brusquely and made their way down the corridor themselves. This version of events lacks credibility when compared to the earlier accounts given by Mr Kowalski.
In the HREOC proceedings Ms Reis thought that she and Ms Simpson had been escorted down the corridor to the master bedroom by the police. However, she conceded at that time and confirmed in the proceedings before me that it could well have been Mr Kowalski who escorted them. Mr Kowalski has never claimed that when the two DVCS workers entered the premises he asked to speak to them about his complaint of domestic violence. I find that he did not do so. The conversation between Mr Kowalski and Ms Reis and Ms Simpson was limited to introductions and a request from either or both of the DVCS workers to see Dr Kowalski. I find that Mr Kowalski escorted Ms Simpson and Ms Reis down the corridor to the master bedroom and left them with Dr Kowalski.
Ms Reis and Ms Simpson spoke to Dr Kowalski for several hours. She gave them a lengthy account of her claims of domestic violence allegedly perpetrated over a long time. The state of the bedroom was that the contents of Dr Kowalski’s surgery had been placed around the bedroom in a disorganised way. A contemporaneous note prepared by Ms Simpson describes the bedroom as a “complete shambles”. Dr Kowalski was distressed. It is clear that, having entered the bedroom and commenced speaking with Dr Kowalski to obtain information from her, Ms Reis and Ms Simpson adopted Dr Kowalski as a client of DVCS. The information given to Ms Simpson and Ms Reis by Dr Kowalski confirmed their understanding the Dr Kowalski was claiming to be a victim of domestic violence and was requesting the services of DVCS.
It is equally clear that as time progressed Mr Kowalski became agitated. He had expected an opportunity to speak to the DVCS workers. Time dragged on. When Ms Simpson and Ms Reis finally emerged from the master bedroom they made to leave the premises. Mr Kowalski confronted them and asked for what he thought was his entitlement to equal time. It is clear that Mr Kowalski expected an opportunity at least to put his version of events, if not to make his own complaint of domestic violence. It is common ground that Mr Kowalski was not given that opportunity at that time and was merely presented with a card and invited to call DVCS the following day.
Why did Ms Simpson and Ms Reis see Dr Kowalski first?
Ms Nomchong has submitted, and I accept, that Ms Simpson and Ms Reis attended on Dr Kowalski first when they entered the Kowalski home on 6 February 1990 because they believed that it was Dr Kowalski who was the victim of domestic violence on that night. That belief came about because it was Dr Kowalski who had made a complaint to the police and Dr Kowalski had also requested the attendance of the DVCS workers. Mr Kowalski had also requested the attendance of the DVCS workers but his request was not communicated to DVCS. His request did not form part of the message conveyed by Police Operations. Neither did it form part of the brief conversation between Constables Lamb and Perkins and the DVCS workers prior to Ms Simpson and Ms Reis entering the premises. Ms Simpson and Ms Reis have consistently asserted, and I accept, that they did not know when they entered the premises that Mr Kowalski was claiming to be a victim of domestic violence. If they had known that then, in accordance with DVCS procedures, Mr Kowalski and Dr Kowalski would have been interviewed separately. Also, although the police informed Mr Kowalski before the police left the premises that he could also speak to the DVCS workers, that statement was not made in the presence of Ms Reis and Ms Simpson. In addition, the reference to Mr Kowalski also being able to speak to the DVCS workers suggests that it was a common understanding of the police and Mr Kowalski at that time that Dr Kowalski would be spoken to first. It may have been simply that the police told Mr Kowalski that he would have an opportunity to give his side of the story at some stage. I find that whatever promise or undertaking was given by the police to Mr Kowalski, that promise or undertaking was not passed on to Ms Simpson or Ms Reis. In his own mind Mr Kowalski considered that he had a grievance with his wife that he needed to communicate to the DVCS workers. However, Ms Simpson and Ms Reis were not aware of that until they made to leave the premises after interviewing Dr Kowalski.
Did Ms Simpson and Ms Reis act in a discriminatory way in breach of s.22 and s.5 of the SDA?
In the light of the foregoing analysis I have no doubt in concluding that Ms Simpson and Ms Reis did not act in a discriminatory way in breach of s.22 and s.5 of the SDA in seeing Dr Kowalski first. They received no information from Constable Lamb or Constable Perkins that Mr Kowalski was claiming to be a victim of domestic violence. They did receive information from Police Operations that a domestic crisis required their attention but they proceeded on the understanding that the complainant was Dr Kowalski. That understanding was correct in fact and was confirmed in the brief conversation that Ms Simpson and Mr Reis had with Constables Perkins and Lamb outside the Kowalski home. Ms Reis and Ms Simpson probably knew that they had an invitation from Mr Kowalski as well as Dr Kowalski to enter the premises. It is understandable in those circumstances that the police saw no need to remain, especially as there had been no physical violence. However, a invitation to enter is a very different thing from a request for assistance. When they entered the home Ms Reis and Ms Simpson proceeded under the impression that the only request for assistance came from Dr Kowalski. They were not given any different understanding until they were leaving the premises after interviewing Dr Kowalski. I am firmly of the view that Ms Simpson and Ms Reis saw Dr Kowalski first on the evening of 6 February 1990 because they believed that Dr Kowalski was claiming to be the victim of domestic violence and had requested the assistance of the DVCS. They did not show preference to Dr Kowalski because she was a woman. They certainly did not show preference to Dr Kowalski because she was married.
Mr Kowalski has placed emphasis on briefing notes prepared by DVCS and distributed at a forum in April 1990. Those briefing notes (exhibit A1) show a strong sympathy for the position of women as victims of domestic violence. Mr Kowalski sought to present the briefing notes as evidence of an institutional bias within DVCS in favour of women and against men. Neither Ms Simpson or Ms Reis were the author of the briefing notes. They were authored by the then director of the DVCS. Ms Simpson in particular sought to distance herself from certain of the statements contained in the briefing notes. She did not need to do so. Exhibit A1 reflects the supportive position that has consistently been taken by DVCS to women and children as victims of domestic violence. There is nothing wrong in that. Women and children are the primary victims of domestic violence. The briefing notes make clear that claims by women in particular about domestic violence must be taken seriously. So they should. It stretches credulity to breaking point to suggest on the basis of those briefing notes that Ms Simpson and Ms Reis would refuse assistance to a person claiming to be a victim of domestic violence because the victim was male. The sex and marital status of Mr Kowalski formed no part of the decision of Ms Simpson and Ms Reis to see Dr Kowalski first on the night of 6 February 1990.
I am prepared to accept that when Dr Kowalski made her complaint to the police and the police attended the Kowalski home Mr Kowalski represented to the police that Dr Kowalski was the party at fault. However, no claim of domestic violence perpetrated by Dr Kowalski against Mr Kowalski was communicated to DVCS prior to Ms Simpson and Ms Reis attending the Kowalski home and interviewing Dr Kowalski. A claim of domestic violence perpetrated by Mr Kowalski against Dr Kowalski had been communicated and it was that claim that led Ms Simpson and Ms Reis to interview Dr Kowalski. It now appears that there were competing claims at the time and that there was inadequate communication between Mr Kowalski, the police and the DVCS. That shortcoming in communication was not the fault of DVCS. There was no discrimination on the basis of gender or marital status by DVCS against Mr Kowalski in the DVCS workers attending the Kowalski home on 6 February 1990 and in interviewing Dr Kowalski first. HREOC has previously found that there was no unlawful discrimination in relation to later events and that finding was not disturbed by the Federal Court.
Are there any remaining issues?
As noted earlier in this judgment, Mr Anforth conceded that there is no issue of unlawful discrimination in relation to conduct of the respondent after Ms Simpson and Ms Reis had interviewed Dr Kowalski. In the first place, as I have already noted, the HREOC inquiry conducted by Commissioner Dodson found that that later conduct was not unlawful under the SDA and that conclusion was not disturbed by Finn J. Even if there were any remaining issue about that later conduct, it is clear to me that by the time Ms Simpson and Ms Reis had completed interviewing Dr Kowalski they knew they had a client and it was too late and inappropriate to offer the same services to Mr Kowalski. In addition, as was conceded by Mr Anforth, the conduct of the DVO proceedings in the ACT Magistrates Court is not properly the subject of these present proceedings. I note also that Mr Kowalski made a complaint to the AFP about the conduct of Ms Simpson in relation to the ACT Magistrates Court proceedings and that the police have decided to take no action: exhibit R6.
The voluntary association defence
The respondent had raised at the interlocutory stage of these proceedings a defence based on s.39 of the SDA. At trial, Ms Nomchong wisely did not press that defence. Section 39 clearly has no application in these proceedings because Mr Kowalski was not a member of the respondent and was not seeking to join.
Conclusion
I will dismiss the application. I will hear the parties as to costs.
I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Driver FM
Associate:
Date: 22 May 2003
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