Lovejoy v Myer Stores Ltd
[1999] VSC 271
•4 August 1999
SUPREME COURT OF VICTORIA
CAUSES JURISDICTION Do not Send for Reporting Not Restricted
No. 6670 of 1998
| A.A. LOVEJOY | Appellant |
| v | |
| MYER STORES LTD & STEPHEN PART | Respondents |
| No. 7211 of 1998 | |
| A.A. LOVEJOY | Plaintiff |
| v | |
| MYER STORES LTD, S. PART AND OTHERS | Defendants |
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JUDGE: | Warren J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20, 21 and 22 July 1999 | |
DATE OF JUDGMENT: | 4 August 1999 | |
CASE MAY BE CITED AS: | Lovejoy v Myer Stores Ltd and Anor (No. 2) | |
MEDIA NEUTRAL CITATION: | [1999] VSC 271 | |
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Anti-Discrimination Tribunal – Appeal - Equal Opportunity Acts 1984 and 1995 – Prerogative writ – Judicial review – Order 56 - Extension of time – Special circumstances
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APPEARANCES: | Counsel | Solicitors |
For the Appellant/Plaintiff | Mr D. Perkins | Kuek & Assoc. |
| For the Respondents/Defendants | Mr S.W. Kaye QC with Ms F. O'Brien | Freehill Hollingdale & Page |
HER HONOUR:
Adam Lovejoy brought two proceedings, one being an appeal and one by originating motion seeking to challenge a decision of the Anti Discrimination Tribunal.
The background to the proceedings are that Mr Lovejoy lodged complaints under the Equal Opportunity Act 1984 ("the 1984 Act") alleging religious and sexual discrimination and victimisation, sexual harassment and discrimination on the grounds of impairment, namely mental illness. The complaints were made against Myer Stores Limited and its employees (collectively referred to hereafter as "Myer"). Myer is the principal respondent and defendant in both proceedings. Myer operates a very large department store in the central business district of Melbourne.
Mr Lovejoy alleged that Myer discriminated against him in the provision of goods and services "by engaging in a course of conduct over the period from Mothers' Day 1993 until Christmas 1993 of harassing, assaulting and humiliating … and excluding or ejecting him from Myer stores". In summary, Mr Lovejoy alleged that Myer had refused him access to specific areas of its department store in Melbourne, threatened eviction, directed his conduct and, eventually, refused him entry to the store. Mr Lovejoy alleged that Myer conducted itself in this way contrary to the 1984 Act. Myer alleged that insofar as it treated Mr Lovejoy less favourably it did so as a result of his conduct within the department store and the concern and anxiety caused to Myer staff by that conduct. Myer applied to the Equal Opportunity Board pursuant to s.46C of the 1984 Act to have the complaint struck out on the grounds that it was frivolous, vexatious, misconceived or lacking in substance. In its reasons dated 10 April 1996 the Board concluded that "the complaint is lacking in substance in those aspects of it that claim discrimination on the ground of sex and religion or political activity or belief. The complaint in all its other parts should proceed to a full hearing". As a consequence of the ruling of the Board the complaint of Mr Lovejoy was confined to discrimination based on the ground of impairment being mental illness.
The Equal Opportunity Act 1995 ("the 1995 Act") repealed the 1984 Act and gave rise to the replacement of the Equal Opportunity Board by the Anti Discrimination Tribunal ("the Tribunal"). Pursuant to the transitional provisions of the 1995 Act (in particular s.217 of that Act) the reduced complaint was heard by the Tribunal applying the provisions of the 1984 Act. The hearing proceeded over 26 hearing days between 7 October 1996 and 13 March 1998. Mr Lovejoy was represented by counsel for 25 of the 26 hearing days. Myer was represented throughout by counsel. Mr Lovejoy was the only witness called on his behalf and he was cross-examined. Counsel for Mr Lovejoy closed his case on 10 February 1997 and in the subsequent period Myer presented its case and called a number of witnesses. The parties made final submissions both oral and written. On 30 June 1998 the Tribunal dismissed the complaint and published reasons for its decision.
On 30 July 1998 Mr Lovejoy purported to commence proceeding No. 6670 of 1998 seeking to appeal against the decision of the Tribunal ("the appeal proceeding"). After a number of adjournments and interlocutory orders and declarations made by the Master, the appeal proceeding came before Master Wheeler on 1 October 1998 on which occasion Mr Lovejoy was represented by counsel and an application was made ex parte for leave to appeal against the decision of the Tribunal. The Master dismissed the application.
Some time earlier, on 16 September 1998 Mr Lovejoy issued a second proceeding being No. 7211 of 1998 commenced by originating motion in which relief was sought against the orders of the Tribunal made on 30 June 1998 substantially in the nature of prerogative writ relief pursuant to Order 56 of Chapter 1 of the General Rules of Procedure in Civil Proceedings ("the originating motion proceedings"). On 28 September 1998 Myer issued a summons seeking to have the originating motion set aside or summarily determined. The Master referred the summons issued by Myer for hearing before a judge. On 2 October 1998 Mr Lovejoy filed a notice of appeal against the orders dismissing the application for leave to appeal against the Tribunal made by Master Wheeler on 1 October 1998. Myer issued a summons dated 2 October 1998 to have the appeal determined summarily. Hence, on 8 and 15 February 1999 the three remaining matters, namely, the appeal from the order of the Master in the appeal proceeding, the summons of Myer in the originating motion proceeding to have that proceeding set aside or summarily determined and the summons of Myer in the appeal proceeding seeking to have that appeal summarily determined came on for hearing before Mandie J. On 3 March 1999 the learned judge held that both summonses filed by Myer should be dismissed and that the appeal against the order of Master Wheeler in the appeal proceeding be allowed. (See Lovejoy v Myer Stores Ltd and Anor, unreported judgment of Mandie J delivered 3 March 1999; (1999) VSC 45).
One of the issues determined by Mandie J was the correct method of appeal against the orders of the Tribunal in light of the transitional provisions of the 1995 Act. The learned judge determined that the appeal from the decision and orders of the Tribunal was to be made under the 1995 Act. (See unreported judgment, supra, at 3‑6). No issue was raised on this matter before me. It is not necessary for me to determine the correct method of appeal and I adopt for the purposes of the present matters before me the approach of Mandie J and treat the appeal as brought under the 1995 Act and consider the decision of the Tribunal for the purposes of the appeal by reference to and consideration of the 1984 Act.
In the appeal proceeding before Mandie J, 17 questions of law were submitted on behalf of Mr Lovejoy. The learned judge considered each question, save for those abandoned, and ultimately reduced the questions of law in the appeal proceeding to four in number:
(a) Was the Tribunal in error in directing itself as to the burden of proof?
(b) Was the Tribunal in error in deciding whether the appellant suffered impairment?
(c) Did the Tribunal fail to give any or any proper reasons for its decisions by way of conclusions on pages 27-28 of the reasons?
(d) Did the Tribunal give effect to irrelevant matters in deciding that the less favourable conduct was either reasonable or justified, or that any reason or justification perceived by the respondents was in law a defence to the appellant's complaint?
Pursuant to Order 58.09 the above four questions of law are the matters in the appeal proceeding to which I confine myself. There was no suggestion at any stage on behalf of Mr Lovejoy that the questions of law should be amended.
As a consequence of the judgment and orders made by Mandie J on 3 March 1999 the two proceedings came before me. As a preliminary matter, Mr S.W. Kaye QC who appeared with Ms F. O'Brien for Myer raised preliminary matters on the originating motion. I heard argument from both Mr Kaye and Mr D. Perkins who appeared on behalf of Mr Lovejoy and reserved my judgment on the preliminary application in the originating motion proceeding. I proceeded to hear the appeal proceeding in full. It is convenient to deal first with the originating motion proceeding.
The originating motion proceeding
Mr Kaye submitted on behalf of Myer that the court did not have jurisdiction to review the decision of the Tribunal by originating motion under Order 56 of the Rules. He submitted that s.150(1) of the 1995 Act provides that a party to proceedings before the Tribunal may appeal to the Supreme Court on a question of law from an order of the Tribunal. Section 150(2) prescribes that the method of appeal is that specified by s.109 of the Magistrates' Court Act 1989, that is, the proceeding must be commenced within 30 days.
An appeal from a decision of the Tribunal lies not by originating motion but initially by application to the Master by virtue of s.109 of the Magistrates' Court Act and Order 58.07–Order 58.09 of the Rules.
By issuing the appeal proceeding and filing the originating motion proceeding, Mr Lovejoy effectively has two appeals or reviews of the decision of the Tribunal on foot at the same time. This position raises the issue as to whether the originating motion is valid in light of the appeal proceeding.
A similar issue arose before this court in Public Transport Corporation v Waters & Ors (1992) 1 VR 151 and subsequently before the High Court in Waters & Ors v Public Transport Corporation (1991-92) 173 CLR 349. Waters was concerned with the introduction of "scratch tickets" for passengers on trams. Persons with disabilities complained against such introduction to the then Equal Opportunity Board. The complaint was upheld by the Board and the Public Transport Corporation appealed to this court under the relevant appeal provisions whereby the corporation obtained an order nisi. The corporation, in addition to the appeal proceedings issued an originating motion largely repeating the grounds set out in the order nisi and adding some further grounds. J.D. Phillips J at first instance (at 186‑188) expressed the view that it was not clear that the additional grounds were open to the corporation as a result of the express time limit contained in the Equal Opportunity Act 1984. The learned judge was concerned with a time limit for the obtaining of an order nisi by way of right of appeal within 28 days of the decision of the Equal Opportunity Board whilst the originating motion under Order 56 allowed judicial review within 60 days. Before J.D. Phillips J it was argued that the then Magistrates' Court Act 1971 provided for an appeal without prejudice to such other right or remedy as may exist. I note that s.109 of the present Magistrates' Court Act contains no such provision. J.D. Phillips J observed that the effect of allowing a party to bring additional grounds by way of an originating motion after an order nisi had been obtained would amount to a circumvention of the appeal procedures under the Equal Opportunity Act 1984 and provide a party with a simple means to appeal out of time. The learned judge stated that he had "grave doubts that the Public Transport Corporation could rely upon the extra grounds". However, as the Corporation had otherwise succeeded it was unnecessary for the learned judge to express a concluded view on this issue.
The complainants before the Equal Opportunity Board in Waters appealed to the High Court. The appeal was successful. In the course of some of the judgments consideration was given to the originating motion filed by the Public Transport Corporation raising additional grounds. The High Court decided the matter on issues other than the additional grounds raised in the originating motion. By way of obiter dicta McHugh J (at 415-416) observed:
"Before this Court, counsel for the Corporation argued that, while the Act does provide a right of appeal, there is an alternative appeal mechanism available under the Supreme Court Rules and that it was not out of time in seeking to raise the s.29(2) defence. At the relevant time, s.49(4) of the Act read as follows:
'Any party to proceedings before the Board may, within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party to the proceedings and on the Registrar of the Board, appeal to the Supreme Court against that order on a question of law only as if the order were an order of a Magistrates' Court and the provisions of Part XI of the Magistrates' Courts Act 1971 shall, with such adaptations as are necessary, apply accordingly.'
Section 88 of the Magistrates' Courts Act provided for appeal by way of order nisi within one month of the order complained of, but it did so without prejudice to such other right or remedy as may exist. The Corporation described O. 56 as another 'right or remedy' within the meaning of s.88. Consequently, the Corporation claimed that it was entitled to avail itself of O. 56 judicial review proceedings. It may be true that O. 56 is another 'right or remedy' within the meaning of s.88. But s.49(4) does not convert an appeal under that sub-section into an order of a Magistrates Court so that the appeal is under Pt XI of the Magistrates' Courts Act. The appeal is one under s.49(4) and must be lodged within twenty-eight days. The provisions of Pt XI of the Magistrates' Courts Act apply to that appeal 'with such adaptations as are necessary'. The effect of the 'as if' clause in s.49(4) was to apply the procedural machinery of Pt XI of the Magistrates' Courts Act 1971 (now repealed) to an appeal under s.49(4) of the Act with such modifications as were necessary. The policy of s.49(4) as discerned from its terms is that an order of the Board can be challenged only on a question of law by an appeal to the Supreme Court lodged 'within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party'. Any provision of Pt XI of the Magistrates' Courts Act which is inconsistent with the legislative intention revealed by that policy must necessarily be modified in its application to an order made by the Board. That means, inter alia, that those parts of s.88 which give a right to appeal within one month of the making of an order and provide that an appeal is not without prejudice to any other 'right or remedy' are not applicable to an order under the Act.
The Supreme Court, therefore, had no jurisdiction to hear the proceedings based on O. 56."
This view was adopted by Mason CJ and Gaudron J (at 371), by Dean J (at 382) and Brennan J (at 382); Dawson and Toohey JJ (at 397) declined to express any view. It follows that in Waters the majority of the High Court expressed the view (by way of obiter dictum) that the appeal provision in the 1984 Act (similar to s.150 of the 1995 Act) had the effect that a decision of the Tribunal might be challenged only on a question of law by an appeal and that, therefore, the Supreme Court had no jurisdiction to hear proceedings under Order 56 to review such a decision.
Applying those views to the present matter I consider that the same approach must be applied. Clearly the Parliament intended that the method of appeal from a decision of the Tribunal be confined to the statutory right and method of appeal enshrined in the 1995 Act and therefore precluded any right of appeal or review under Order 56. Furthermore, if a party sought to issue both an appeal and an originating motion, as has occurred here, the time limits are in conflict and the later time limit provided by Order 56 enables a party to raise matters by review that would otherwise be out of time under the statutory regime. I add that this view is confined to those situations where the Tribunal has delivered a decision and made orders thereby giving rise to a right to appeal. The view does not extend to those situations prior to final orders where the Tribunal might properly be the subject of Order 56 proceedings because of the way it has conducted itself eg prohibition mandamus and the like.
Mr Perkins submitted that it was not open to Myer to challenge the jurisdiction of the court to consider the originating motion because the application had been dismissed by Mandie J on 3 March 1999. Consideration of the reasons of the learned judge discloses that he dismissed the summons because he considered it inappropriate to deal with the application on an interlocutory basis. The originating motion comes before me for final determination. No question of issue estoppel or waiver arises, therefore, at this point being the time of final disposition of the originating motion. Furthermore, it is generally open to a party to re‑visit an interlocutory application. (See Carr v Finance Corporation of Australia Limited (No. 1) (1981) 147 CLR 246.) It follows that I consider this court does not have jurisdiction to consider the originating motion under Order 56 and, accordingly, the proceeding should be dismissed.
Even if the court had jurisdiction to determine the originating motion proceeding it would be necessary for leave to be granted to bring the proceeding out of time. The originating motion proceeding was issued on 16 September 1998 and the decision of the Tribunal was delivered and orders made on 30 June 1998. The originating motion recited 22 grounds some of which attacked the conduct of the hearing before the Tribunal but most of which were directed to the actual decision of the Tribunal. Order 56.01 of Chapter 1 of the Rules provides that relief sought in the nature of certiorari, mandamus, prohibition or quo warranto is to be commenced in accordance with the Rules. Order 56.02(1) of the Rules provides that a proceeding commenced under Order 56 is to be commenced with 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose. Accordingly, in the present matter the time for the commencement of the originating motion proceeding was at the very latest within 60 days of the decision of the Tribunal, namely, 29 August 1998 (the challenge to the conduct of the proceeding before the Tribunal having occurred necessarily prior to the board handing down its decision on 30 June 1998).
Mr Perkins submitted that the court could not make rules to constrain "fundamental rights". He argued that insofar as Order 56 constrained the alleged fundamental right of Mr Lovejoy to seek relief in the nature of the prerogative writs Order 56 was ultra vires. He relied on s.11 of the Administrative Law Act 1978 and which provides that a person affected by a decision of a tribunal has standing to seek relief in the nature of the prerogative writs but that nothing in the section impairs any right to relief otherwise existing. Mr Perkins submitted that s.11 enshrined in statutory form the principle that nothing could impair any right to relief in the nature of the prerogative writs, including the imposition of a time limit for the seeking of such relief. Interestingly, s.12 of the Administrative Law Act provides that any provision in an Act passed before the commencement of the Administrative Law Act which, inter alia, excludes the powers of the Supreme Court does not operate so as to prevent the Supreme Court from determining that matter. Even if Mr Perkins' argument is correct, by virtue of the enactment of the Supreme Court Act 1986 after the Administrative Law Act in 1978 means that the latter Act does not apply to the Supreme Court Act and the rules made under it. In any event, s.11 of the Administrative Law Act does not assist the position of Mr Lovejoy as it is a section concerned with judicial review sought under that Act and not judicial review under Order 56 of the rules.
At odds with the submissions of Mr Perkins are the provisions of the statute that empowers the making of rules. Section 25(1) of the Supreme Court Act 1986 provides that the judges of the court are empowered to make Rules of Court for various matters including any matter dealt with in any Rules of Court in force on 1 January 1987. As at 1 January 1987 the then Supreme Court Rules specified the time when a writ seeking relief in the nature of prerogative writ relief (in particular certiorari) was to be issued (see Order 53 Rule 7 of the General Rules of Procedure in Civil Proceedings 1985). In any event, s.25(1)(f) of the Supreme Court Act provides that the judges have power to make rules with respect to any matter relating to the practice and procedure of the court. It follows that the present time limit imposed by Order 56 of the Rules is valid and the submissions put forward by Mr Perkins in this respect fail.
Order 56.02(3) provides that the court is not to extend the time for the commencement of a proceeding under Order 56 except in special circumstances. As the originating motion was issued on 16 September 1998 it was out of time and it is necessary for Mr Lovejoy, to be granted an extension of time before the matter can proceed. It follows, also, that it is necessary for special circumstances to be made out. Mr Perkins submitted that special circumstances under Order 56.02(3) of the Rules were made out by the plaintiff on two grounds. Firstly, the errors made by the Tribunal as demonstrated by its reasons for decision. Secondly, the fact that Mr Lovejoy was ill at the relevant time for the filing of the originating motion.
In Denysenko v Dessau & Anor (1996) 2 VR 221 a plaintiff delayed filing an originating motion under Order 56 to review a magistrate's decision pending the granting of legal aid during that period. Beach J refused the application to extend time on the basis that notwithstanding that the magistrate's decision was demonstrably wrong such fact could not constitute a special circumstance, rather, he held that there must be something unusual, uncommon, exceptional or extraordinary relating to the plaintiff's failure to commence the proceeding in time, not the decision sought to be reviewed, for an extension to be granted. The learned judge observed (at p.224):
"In my opinion the fact that the magistrate's decision was demonstrably wrong cannot constitute a special circumstance within the meaning of the rule. I should add in this context that it was conceded by counsel for the second-named defendant that the magistrate had erred in the matter; that she should have required the Crown witnesses to be called and allowed them to be cross-examined by the plaintiff in accordance with the provisions of Sch. 5 to the Magistrates' Court Act. If one was to hold that an erroneous decision by a magistrate constituted a special circumstance, then it would follow that in any such case an aggrieved party would be able to ignore the 60 day requirement safe in the knowledge that he could successfully apply for an extension of time when minded to do so. In my opinion that cannot have been the intention of the framers of the rule. 'Special' when used in this connection must mean something unusual, uncommon, exceptional or extraordinary. There is nothing unusual, uncommon, exceptional or extraordinary in a judicial officer, whether he or she be magistrate or judge, making an error of fact or law in a particular case. Indeed, one's experience is to the contrary. The circumstances which must be special must relate to a plaintiff's failure to commence a proceeding in time, not the decision sought to be reviewed."
I respectfully agree. The fact that there is a demonstrable error in a decision sought to be reviewed is irrelevant in determining special circumstances under O. 56.02(3). In order for a party to demonstrate special circumstances it is necessary for that party to demonstrate why the proceeding was not issued within time pursuant to Order 56.02(1). To rule otherwise, would enable parties to come before the court months even years after the expiration of the relevant time limit and rely solely on alleged error by the Tribunal decision sought to be challenged. The first ground relied upon by Mr Perkins to demonstrate special circumstances is not made out.
The relevant ground is the alleged illness of Mr Lovejoy during the period when the originating motion should have been filed within time. In the originating motion proceeding Mr Lovejoy filed an affidavit sworn by him on 15 September 1998 in which the matter of special circumstances under Order 56.02(3) was not addressed. In the affidavit he relied upon an affidavit sworn by him on 30 July 1998 in the appeal proceeding. In that affidavit a number of documents relating to the hearing before the Tribunal were exhibited. The affidavit sworn by Mr Lovejoy on 30 July 1998 did not refer in any way to a special circumstance for the purposes of Order 56.02(3). In a further affidavit sworn by Mr Lovejoy on 19 November 1998 and filed in both proceedings he deposed as to two matters. Firstly, that he had been " … substantially confined to bed due to illness and severe pain from at least 1 May to 1 September 1998". There was no elaboration by Mr Lovejoy in the affidavit as to the nature of the illness and pain he referred to. There was no explanation as to how the alleged illness and pain precluded or prevented him from filing the relevant originating motion within time. In order to satisfy the special circumstance requirement of Order 56.02(3) it is necessary that a party provide adequate evidence as to the circumstance relied upon and not make a broad and general assertion as Mr Lovejoy has done in his affidavit. The second matter dealt with by Mr Lovejoy in his affidavit is the assertion that whilst he had knowledge of his entitlement to "appeal" to the Supreme Court he deposed " … I did not know what time limits may apply". He described in the affidavit his efforts to ascertain the relevant time limits by speaking to the Registrar of the Tribunal. However, the matters deposed to concerning time limits in the affidavit of Mr Lovejoy sworn 19 November 1998 relate to the time limits for the institution of an appeal under the Equal Opportunity legislation against the decision of the Tribunal and not to the time limits for the issue of an originating motion under Order 56. In an additional affidavit filed in support of the originating motion and sworn by Mr Lovejoy on 4 February 1999 there is no reference to special circumstances to support the extension of time for the filing of the originating motion.
On the basis of the affidavits before me there is no satisfactory or sufficient evidence to make out special circumstances for the purposes of Order 56.02(3). Accordingly I would not grant an extension of time for the filing of the originating motion if it was necessary. In any event, on the basis of my findings on the jurisdiction point the originating motion cannot proceed.
Myer succeeds on both preliminary submissions and I will dismiss the originating motion.
I turn to the appeal proceeding.
The appeal proceeding
It is useful for the purposes of the appeal proceeding to summarise the approach of the Tribunal in its reasons In its reasons for decision extending to 28 pages the Tribunal set out the general procedural history of the complaint of Mr Lovejoy before the former Board and then the Tribunal. It observed that the length of the hearing was attributable to the distress caused to Mr Lovejoy by the proceedings necessitating breaks in the hearing from time to time, adjournments caused on occasions by the medical condition or unavailability of counsel for Mr Lovejoy and the hearing of various applications throughout the course of the hearing before the Tribunal.
In its reasons for decision the Board gave an overview of the legislative framework. Section 17(1) of the 1984 Act provides that a person discriminates against another person on the ground of the status of the other person if the first mentioned person treats the other person less favourably than he or she would treat a person of different status. Section 4 of the Act defines "status" as including "impairment" and which is defined by the section to mean, inter alia, a malfunction of the body and to include "an impairment which is imputed to a person". Section 4 also defines "malfunction of a part of the body" as including "a mental or psychological disease or disorder". The requirement under s.17 that the alleged discrimination be on the ground of the status of Mr Lovejoy namely his alleged mental disease or disorder formed an important aspect of the decision of the Tribunal. The definition of "impairment" under s.4 of the 1984 Act as including an impairment imputed to Mr Lovejoy was an important aspect of the decision also.
The Tribunal held that Mr Lovejoy carried the onus of proving that he suffered an impairment, namely, schizophrenia or mental illness and that he had been discriminated against on the ground of that impairment in the provision of goods and services by Myer. The Tribunal observed that Mr Lovejoy was obliged to prove his allegation in accordance with the principles expressed by Dixon J in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. It is apparent from the reasons that there was no dispute between the parties that Myer was in the business of providing goods and services and that Mr Lovejoy had shopped at Myer and operated an account at its stores for many years. Further, Myer did not dispute that it was responsible for the actions of its staff and employees or agents including security staff.
The Tribunal observed in its reasons that Mr Lovejoy had difficulty in establishing express evidence of impairment for the purposes of the legislation. Mr Lovejoy purported to put matters before the Tribunal to show that he had been treated for mental illness in his past but that he denied he was mentally ill both in the past and at the time of the relevant events in 1993 involving Myer. On the basis of Mr Lovejoy's own evidence the Tribunal held that the case of Mr Lovejoy proceeded on the basis that Myer and its staff had imputed to Mr Lovejoy the impairment alleged, namely, mental illness. In the course of its reasons the Tribunal set out extracts of the evidence of Mr Lovejoy and also extracts of the particulars filed by him in support of his complaint. The complaint of Mr Lovejoy was that during the period from May until December 1993 he had been excluded from the Myer store and been the subject of assault and general mistreatment by Myer staff, in particular security staff. There was a description of Mr Lovejoy being followed when he was within the store, being asked to leave, being refused entry and having his conduct within the store scrutinised and being made the subject of directions and requests by Myer staff. Specific episodes occurred during May 1993 when Mr Lovejoy attended a fashion parade at the Myer store involving female models. It was alleged in the evidence that Mr Lovejoy had stood behind a catwalk near the entry point to the models' change room. He was told by Myer staff that he was not permitted to stand at that point. The Tribunal having had the opportunity to hear and observe both Mr Lovejoy and Ms Bagot (a Myer security staff member) accepted the evidence of Ms Bagot. The Tribunal held that there was no evidence that Mr Lovejoy was touched or told he was under arrest and it was satisfied that Mr Lovejoy was not treated in a less favourable manner on the grounds of an imputed impairment and was dealt with by Myer without regard to the status of Mr Lovejoy for the purposes of the 1984 Act.
It was alleged by Myer that the presence of Mr Lovejoy in the women's fashion areas of its store on a number of occasions combined with his demeanour on those occasions had caused anxiety to Myer staff and, in particular, models engaged by Myer. A particular episode concerned a model engaged by Myer, Ms Donna Summers. Ms Summers gave evidence before the Tribunal of a number of encounters with Mr Lovejoy away from Myer including an occasion when he had sandwiched himself between her car and her car door and his sending of pornographic photographs of himself to her and which led her to make a complaint to the police. Ms Summers gave evidence of a fashion parade at Myer in February 1993 where Mr Lovejoy had followed her around while she was walking on a catwalk during a parade. She gave evidence, also, that Mr Lovejoy would regularly attend fashion parades in which she appeared and place himself near the models' change room. The Tribunal found that Ms Summers " … was a very impressive witness and her evidence was more compelling after cross‑examination".
Following her encounters with Mr Lovejoy, Ms Summers complained to Myer staff about his conduct and presence and as a result Myer provided extra security. The Tribunal found that the extra security was provided by Myer to ensure that the conduct of Mr Lovejoy did not cause distress and anxiety to Myer staff. Evidence was given by one Mr Stephen Part on behalf of Myer before the Tribunal. At the relevant time in 1993 Mr Part was the general manager of the Myer Store at Melbourne. He gave evidence that in May 1993 Mr Lovejoy had visited him to complain about his treatment at a fashion parade. The Tribunal observed:
"Mr Part was subjected to lengthy cross‑examination; his evidence was unshaken. Mr Part said he had not regarded Mr Lovejoy as bizarre and unusual at the time of their meeting on 7 May 1993, which we find difficult to accept. We are satisfied, however, that the reasons for Mr Part and Myer treating Mr Lovejoy less favourably (by excluding him from the store) were because of his behaviour in the store which had caused concern to the staff. Even if Myer and its staff saw him as being bizarre and unusual, there is not sufficient evidence to indicate that they considered that as an imputed impairment or that it was a substantial ground for his treatment. We are confirmed in this view by the fact that Mr Lovejoy had been a customer of Myer for many years prior to the alleged incidents and still shops there.
Considering Mr Lovejoy's evidence as a whole, we formed the view Mr Lovejoy had difficulty distinguishing between matters of fact and matters he perceived or imagined. We found him to be an unreliable witness who had a confused recollection of events. Even where there were incidents surrounded by some evidence, he was inclined to take the worst possible view of affairs which, as it turns out, tended to support his perception of how and why he was allegedly treated."
In his capacity as general manager of the Myer store at Melbourne Mr Part engaged in a course of correspondence with Mr Lovejoy. The correspondence was before the Tribunal. In a letter dated 29 November 1999 Mr Part advised Mr Lovejoy, inter alia:
" …
However innocently it is the fact that your presence in certain areas of our store and at certain times, for example during lingerie fashion shows, causes a feeling of anxiety to some staff and models, and after being so advised and you providing assurance that it would cease, your presence in those areas continued. There is nothing more or less alleged in respect of your conduct than this, but on the balance of convenience and fairness we have been left with no option but to withdraw your licence to be on the premises."
After considering the evidence (and which I observe ran to over 1,600 pages of transcript) the Tribunal reached its conclusions (and which I refer to hereafter as "the conclusions"):
"In conclusion where there is sufficient evidence to conclude that a particular incident did in fact take place, we find:
· there is not sufficient evidence to find that the conduct constituted physical threats, assaults or intimidation;
· where that conduct was less favourable, that conduct was based on grounds that Myer and its staff considered were reasonable having regard to Mr Lovejoy's conduct in the store and the concerns of female staff;
· there is not sufficient evidence that the less favourable conduct was wholly or on the ground of Mr Lovejoy's status, or that his status was a substantial ground or reason for the less favourable conduct."
Mr Perkins on behalf of the appellant took me through the reasons of the Tribunal in much detail and attacked the reasons in many ways that did not necessarily relate to the questions of law determined by Mandie J on 3 March 1999. I turn to consider each of the questions of law (as set out previously in my judgment).
(a) Was the Tribunal in error in directing itself as to the burden of proof?
Mr Perkins seemed to rely on four arguments to support the criticism that the Tribunal was in error in directing itself as to the burden of proof. Firstly, that the Tribunal failed to carry out its specialist tribunal role and make allowances for the difficulties of Mr Lovejoy in proving his complaint. Secondly, that the Tribunal failed to treat the multiple assertions of "assault", "humiliation" and the like as similar fact evidence of the substantive complaint. Thirdly, that the Tribunal failed to draw appropriate inferences against Myer. Fourthly, that in any event, the reasons of the Tribunal failed to adequately set out how and why it reached its decision (and presumably concluded that the necessary burden of proof was not satisfied). I consider each of these matters in turn.
Mr Perkins submitted that as the Tribunal was applying specialist legislation concerned with complaints of discrimination, in particular, discrimination on the grounds of mental illness it had a special obligation to do more than recite certain statutory provisions (as it had done) and refer to the relevant principles as to the burden of proof, for example, Briginshaw v Briginshaw (as it had done). He submitted that discrimination claims involving persons who suffer from impairment such as mental illness are notorious for the difficulties encountered in proving the relevant impairment. Mr Perkins suggested that such persons engage in delusion and denial as to their impairment and that as a consequence tribunals applying anti‑discrimination law are under an obligation to conduct such cases in a special way. Mr Perkins submitted that tribunals applying anti-discrimination law are engaged in the application of remedial legislation and must, therefore, adopt a more inquisitorial approach.
Mr Perkins' submissions completely disregarded the role of the Tribunal in considering the evidence that Mr Lovejoy put before it. At all times the Tribunal was obliged under the established principles of administrative law and the framework of the 1984 Act to conduct itself as a tribunal and not as a board of inquiry with broad ranging terms of reference. The Tribunal was bound to act in accordance with law. The submissions of Mr Perkins were tantamount to suggesting the Tribunal was a specialist tribunal subject to special obligations which required it to embark upon a course of inquiry about the matters complained of by Mr Lovejoy. It is a nonsense to suggest that the Tribunal had such a role. The obligation of the Tribunal was to consider the complaint put before it, the evidence in support of the complaint, the testing of that evidence, the evidence against the complaint, the relevant statute and the relevant principles of law. It was never the responsibility of the Tribunal to take up the cudgels of the complaint of Mr Lovejoy and embark upon a broad ranging investigation of that complaint.
Having considered the published reasons of the Tribunal and the evidence before it, it is clear that the decision of the Tribunal was based upon its assessment of the evidence provided by Mr Lovejoy on the one hand and Myer on the other. In its reasons the Tribunal found, as it was entitled to so find, that Mr Lovejoy had not made out a case of impairment but of imputed impairment. It carefully considered and assessed the evidence of the appellant as to each of the incidents listed in his particulars of complaint and made two significant findings. Firstly, that Mr Lovejoy was not a reliable witness and, secondly, that whilst Mr Lovejoy made broad assertions of assault, ill‑treatment and the like he did not provide evidence to substantiate the allegations. Rather, his evidence involved broad ranging assertions that were lacking in the necessary specificity to enable the Tribunal to make findings in his favour. Mr Lovejoy had the opportunity to put his case to the Tribunal as he chose and the Tribunal found that his case was not made out. There is nothing before me to disclose that the Tribunal was in error.
The correct approach to be applied and in fact applied by the Tribunal was not to accept repetition and of assertions of "assault", "humiliation" and the like by Mr Lovejoy against Myer. The allegations against Myer were serious and the Tribunal would have required proper and specific evidence to be adduced of each incident before it could be satisfied that the complaint or complaints were made out. I am satisfied that the Tribunal adhered to the principles stated by Dixon J in Briginshaw v Briginshaw, supra and Murray v Murray (1960) 33 ALJR 521, 524-5 (Dixon CJ), 525 (McTiernan J), 526 (Menzies J). Indeed, the Tribunal would have been in error as a matter of law if it had accepted as proof the mere repetition by Mr Lovejoy of allegations contained in his particulars of complaint. Furthermore, once the Tribunal found Mr Lovejoy to be an unreliable witness with a confused recollection of events it would have been dangerous if not wrong on the basis of the Briginshaw approach to find that any or all of the complaints against Myer were made out.
In support of his arguments that the Tribunal wrongly directed itself as to the burden of proof Mr Perkins submitted the Tribunal should have treated the various complaints of Mr Lovejoy as similar fact evidence. The submission is misconceived. It does not assist a complainant simply to allege that he was assaulted on many, many occasions. Rather, the appellant had an obligation to make out or sustain such assertions by way of cogent evidence of the incidents alleged. Mr Lovejoy failed to do that. I observe that in fact the Tribunal effectively reversed the evidentiary onus by considering whether or not Myer provided a sufficient and satisfactory explanation for excluding Mr Lovejoy from its premises. The Tribunal accepted the evidence of Myer employees, Summers, Part and Bagot and made a specific finding that the reason why Myer treated Mr Lovejoy less favourably was because of his behaviour in the store and which behaviour had caused concern to Myer staff. The Tribunal did not simply reject the appellant's claim that he received less favourable treatment on the grounds of his alleged status, rather, the Tribunal found affirmatively that his different treatment was on the basis of his conduct in the store and not on the basis of his alleged status.
In addition, Mr Perkins criticised the Tribunal for failing to draw appropriate inferences in the absence of evidence on behalf of Myer explaining its exclusion of Mr Lovejoy from its store. Such submission is wrong. The published reasons of the Tribunal disclose that it specifically considered that it was entitled to find discrimination on a proscribed ground if the evidence as a whole indicated that there had been no other credible reason for the relevant conduct. The Tribunal observed that the submission was in fact never put to it but that even if it had it would fail because " … there is ample evidence before us of other reasons for the conduct of the respondents towards Mr Lovejoy, other than an impairment imputed to him, namely, his behaviour and conduct in the store".
In support of his general criticism of the approach of the Tribunal with respect to its reasons, Mr Perkins relied on the principle that a tribunal has an obligation to provide adequate and sufficient reasons so that any error can be detected. (See In the Matter of Sobh (1994) 74 A.Crim.R. 453; Towns v Towns (1991) Fam.LC 92-199 at 78,376; also, Beale v Government Insurance Office of NSW, unreported judgment of the NSW Court of Appeal delivered 2 April 1997). The Tribunal was under an obligation to provide reasons whereby a court of review could ascertain how and why the Tribunal arrived at its decision. A consideration of the decision reveals it has done so: it considered and weighed up the evidence of the appellant's only witness, himself; considered and weighed up the evidence of the witnesses for Myer (ie Summers, Part and Bagot) and as the primary finder of fact disbelieved Mr Lovejoy and believed Summers, Part and Bagot. The analysis is reflected in the reasons preceded by a recitation of the relevant statutory provisions and an acknowledgment of the evidentiary burden borne by Mr Lovejoy.
It follows that all of the submissions on behalf of the appellant with respect to question (a) fail. The first question of law posed by the appeal must be answered in the negative.
(b)Was the Tribunal in error in deciding whether the appellant suffered
impairment?
In the course of considering question of law (a) with respect to the burden of proof I have largely considered the process of the Tribunal in determining whether or not Mr Lovejoy suffered an impairment for the purposes of the 1984 Act. The two questions of law have essentially merged. Many of the observations made and conclusions reached in considering question of law (a) are relevant to determining question of law (b). In addition to the matters already considered there are other observations that may be made.
Firstly, Mr Lovejoy before the Tribunal did not lead any or any sufficient evidence to establish impairment. Secondly, in his written complaint Mr Lovejoy specifically stated that he had never suffered from any mental illness. Thirdly, at no time in the course of the presentation of the case of Mr Lovejoy before the Tribunal was any psychiatric evidence led. Fourthly, newspaper reports were apparently put before the Tribunal to demonstrate Mr Lovejoy's alleged impairment but in a context whereby at all times Mr Lovejoy denied that impairment. In any event, newspaper articles could not establish the truth of their contents. Fifthly, a writ issued in this court was tendered on behalf of Mr Lovejoy before the Tribunal to prove the fact of his apparent admission to the Royal Park Psychiatric Hospital but again in a context of denying mental illness. The writ did not and could not prove the truth of mental illness. Sixthly, in final submissions filed by Mr Lovejoy at the Tribunal in November 1997 (having closed his case on 10 February 1997) Mr Lovejoy purported to put before the Tribunal a medical report and a judgment of this court and which documents it was submitted provided evidence to the Tribunal of the mental illness of Mr Lovejoy. The documents appear to have been disregarded by the Tribunal and in any event did not constitute evidence of mental illness of Mr Lovejoy.
Ultimately, the Tribunal was not satisfied that there was evidence of mental illness to constitute impairment before it. As submitted by Mr Kaye, the Tribunal was correct in doing so as it was not open to the Tribunal to act as amateur psychiatrists. The Tribunal's duty was to act on the evidence before it. Nevertheless, the Tribunal considered that it was open to it to determine whether or not Mr Lovejoy had been the subject of discrimination based on imputed impairment. The 1984 Act proscribes discrimination on the ground of actual impairment (see s.4(1)(a)(2)(e)) or on the ground of impairment imputed by the discriminator (see s.4(1)(f)). Section 4(1)(f) of the 1984 Act provided that "Impairment" means, inter alia "an impairment which is imputed to a person". The Tribunal advanced the matter as far as it could and was unable to be satisfied on the evidence before it that Myer had treated Mr Lovejoy differently on the grounds of an imputed impairment, rather, the reason for the different treatment was attributed to Mr Lovejoy's conduct within the Myer store and its impact upon Myer staff.
It follows that the submissions on behalf of the appellant fail with respect to question (b). The second question of law in the appeal is answered in the negative.
(c)Did the Tribunal fail to give any or any proper reasons for its decisions by
way of conclusions on pp.27-28 of the reasons?
This question of law relates to the conclusions. The conclusions were a summary of the conclusions of the Tribunal reached in its reasons firstly that there was no sufficient evidence that the assaults and other incidents complained of had occurred, secondly, that the conduct of Myer was based on the conduct of Mr Lovejoy in the store and the concerns of female staff and, thirdly, that there was no evidence that less favourable conduct was based on Mr Lovejoy's status. For the reasons already expressed I consider that the reasons for decision of the Tribunal are adequately expressed. Further, I reach that view on the principle that this court should not adopt an overly legalistic approach to the reasons of a tribunal (see Body Corporate Strata Plan No. 4166 & Ors v Stirling Properties Limited (No. 2) (1984) VR 903, 911, 914. If and to the extent that the reasons for decision might be said to not adequately set out the basis for the decision of the Tribunal I cannot be satisfied that any such deficiency vitiates the effect of the decision. (See Repatriation Commissioner v O'Brien (1985) 155 CLR 422, 445-6) per Brennan J; Body Corporate Strata Plan No. 4166 v Stirling Properties Limited, supra, 912.)
Mr Perkins was severely critical of the Tribunal with respect to the conclusions. He submitted that the Tribunal was fundamentally wrong in the way it approached its task. In essence his submission was that the Tribunal was obliged to state and analyse each and every incident that was alleged to have occurred, assess the weight to be attached to the particular incident, assess each and every incident in the context of similar fact evidence, consider the course of conduct of Myer over the extended relevant period of time and to identify the occasions where Mr Lovejoy failed to give precise detail of incidents. Furthermore, insofar as the Tribunal found that where there was sufficient evidence, it was submitted that the particular incidents to which the evidence was attached should have been specified by the Tribunal. Mr Perkins submitted that the conclusions of the Tribunal were wrong in accepting that Myer engaged in the conduct that it did vis-à-vis Mr Lovejoy because of its concerns and the concerns of its staff. Mr Perkins submitted that it was necessary for the Tribunal to determine on an objective basis whether the concerns of Myer and its staff were validly made out and held as distinct from accepting Myer's evidence as to its concerns.
The submissions are misconceived generally but in particular for the purposes of question (c) in the appeal. At pp.27-28 of its reasons the Tribunal did no more than summarise its conclusions and indicate generally the basis upon which it had reached those conclusions. It did not at that point provide detailed analysis of the evidence upon which the conclusions were based. Rather, the Tribunal having analysed the law and then the evidence followed by its findings set out its general conclusions before formally indicating its intention to dismiss the complaint. There is no error exposed by that course.
As question of law (c) related to the conclusions, before determining the answer to the question it is appropriate to consider first the question of law set out in (d) as that question relates to the process by which the Tribunal reached its conclusions.
(d)Did the Tribunal give effect to irrelevant matters in deciding that the less
favourable conduct was either reasonable or justified, or that any reason or justification perceived by the respondents was in law a defence to the appellant's complaint?
In its written reasons the Tribunal observed that Myer called evidence to explain the reason why Mr Lovejoy had been requested to leave the Myer store, in particular, the women's fashion area during the parade on 7 May 1993. In the course of its analysis the Tribunal referred to evidence, both oral and in writing, about the presence of Mr Lovejoy in the women's fashion areas of the store on repeated occasions, his demeanour on those occasions and the anxiety that his presence and demeanour caused to Myer staff. The Tribunal referred, also, to the evidence of Ms Summers, Mr Lovejoy's conduct and demeanour in relation to her, previous activities of Mr Lovejoy, in particular, the forwarding of pornographic photographs of himself to Ms Summers and her reaction to the conduct of Mr Lovejoy. In particular, the Tribunal considered that as a result of the particular concern of Ms Summers and other women models Myer had provided extra security. In this respect the Tribunal accepted the evidence of Ms Summers. As a result of these matters and, in particular, the evidence of Ms Summers, the Tribunal was satisfied that Myer became concerned to ensure that Mr Lovejoy's conduct did not cause distress and anxiety to staff and accordingly acted as it did. In this respect the Tribunal accepted the evidence of Mr Part and went on to conclude that where the conduct of Myer was less favourable to Mr Lovejoy that conduct was attributable to or based on the ground that Myer and its staff had concerns with respect to Mr Lovejoy's conduct in the store and that such concern was reasonable. Of considerable significance was the finding of the Tribunal that there was not sufficient evidence that the less favourable conduct by Myer towards Mr Lovejoy was based on the ground of his status or was a substantial ground or reason for the less favourable conduct.
Mr Kaye emphasised that it was not to the point that Mr Lovejoy's conduct may or may not have emanated from any psychological disorder. The Tribunal decided on the basis of the evidence before it, including the evidence of Mr Lovejoy, that there was no evidence that the conduct of Mr Lovejoy was the result of a psychological disorder. In any event, even if there had been such evidence the Tribunal made a specific finding that Mr Lovejoy was not treated differently on the grounds of his alleged mental illness rather he was treated differently because of the concern of Myer to protect its staff. Mr Kaye emphasised that the finding of the Tribunal as to the basis for the conduct of Myer should be understood in the context of the evidence upon which the finding was based. In addition to the evidence of Ms Summers outlined previously there was her evidence that she expressed concerns to Myer supervising staff about Mr Lovejoy and which in turn led to the calling of the police to the store the arrangement by Myer of extra security for all models. Further, Ms Summers gave evidence that much of her work as a model was for Myer. She also gave evidence that she objected to Mr Lovejoy's unsolicited attention towards her, that she had asked him to leave her alone and that she had complained to police about Mr Lovejoy after he sent pornographic photos of himself to her and had an expectation that they would stop him harassing her. In addition, there was the evidence of Ms Bagot as to the presence and conduct of Mr Lovejoy on the occasion of a parade of lingerie by women models at Myer on 7 May 1993. Ms Bagot gave evidence that the movements of Mr Lovejoy in her view had the potential to cause the models to feel anxious. Then there was the evidence of Mr Part, the general manager of Myer. He gave evidence of his knowledge that Mr Lovejoy had invaded the office of the women's fashion section at Myer and which in turn led to Mr Part withdrawing the licence of Mr Lovejoy to visit the store. Furthermore, in the course of cross‑examination, Mr Lovejoy agreed that a Myer officer had told him that he, Mr Lovejoy, frightened some of the female staff at Myer and if Mr Lovejoy annoyed any of those staff again he would be personally escorted out of the store.
In order to establish unlawful discrimination Mr Lovejoy was bound to show that he not only had an impairment (actual or imputed) but that he received less favourable treatment "on the ground of" his alleged status. The phrase "on the ground of" in s.17(1) of the 1984 Act requires the appellant to show that the basis or explanation for his treatment was his alleged impairment. (See University of Ballarat v Bridges & Anor (1995) 2 VR 418, 426-7, 428-9, 437-438). It was open to the Tribunal to find on the evidence before it and ultimately it did so find that Mr Lovejoy was treated less favourably for a reason other than on the ground of his impairment namely the concern and anxiety caused to Myer staff by the conduct of Mr Lovejoy.
Finally, it was submitted by Mr Perkins that the conduct of Myer in all the circumstances was disproportionate to the problems that Mr Lovejoy created by his conduct. Such submission is misconceived. The issue to be determined by the Tribunal was whether or not the conduct was based on the ground of the status of Mr Lovejoy. The Tribunal found to the contrary. In any event, it is not open to this court to superimpose another layer of fact finding over the finding of facts by the Tribunal. It is apparent that in having had the opportunity to consider all of the evidence and assess the witnesses the Tribunal formed the view that the conduct of Myer in all the circumstances was reasonable. There is nothing before me to indicate that the finding was erroneous.
It follows that the submissions of the appellant with respect to questions of law (c) and (d) fail and the questions should be answered in the negative.
Accordingly, to each of the questions of law the answers are: (a) No; (b) No; (c) No; (d) No.
It further follows that the appeal will be dismissed.
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