Mathews, R.G.H. v Sheedy, J.
[1993] FCA 234
•21 APRIL 1993
Re: RUSSELL GORDON HAIG MATHEWS
And: JOAN SHEEDY; HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION; QUENTIN BRYCE
and CHRIS SIDOTI
No. QG43 of 1991
FED No. 234
Number of pages - 18
Administrative Law
(1993) 33 ALD 750 (extract)
COURT
IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY
GENERAL DIVISION
Spender J(1)
CATCHWORDS
Administrative Law - judicial review - decision of Human Rights and Equal Opportunity Commission - discrimination on the ground of sex - determination that complaint of sexual harassment in employment substantiated - decision amenable to review - no error of law on grounds of taking irrelevant considerations into account or failing to take a relevant consideration into account - no error of law in making of confidentiality order - ordinarily inquiries should be conducted in public - allegation of improper or fraudulent exercise of power of Commission - alterations made, with complainant's agreement, to original handwritten letter of complaint in typed copy sent to applicant - no change in intent or impact - importance of perception of impartiality and objectivity - whether decision involved breach of the rules of natural justice - inference that Commissioner was approached by the Commission in the absence of the applicant - Commissioner's obligation to act fairly - not reasonably to be apprehended that Commissioner did not bring to the determination of the complaint an impartial and objective mind.
Administrative Decisions (Judicial Review) Act 1977
Sex Discrimination Act 1984-1991 ss. 57, 59, 66, 67, 77, 81 and 82
Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321
Hall v. Sheiban Pty Ltd (1989) 20 FCR 217
Koppen v. Commissioner for Community Relations (1986) 11 FCR 360
Murphy v. Ramus Pty Ltd (No. 2) (1990) EOC 92-309
HEARING
BRISBANE, 28-30 April 1992
#DATE 21:4:1993
The applicant appeared in person.
Counsel for the respondents: Mrs P. M. Wolfe
instructed by: Human Rights Commission
ORDER
The Court orders that:
1. The application for order of review against the second, third and fourth respondents is dismissed.
2. There be no order as to costs.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
JUDGE1
SPENDER J This is an amended application by Russell Gordon Haig Mathews (Mr Mathews) seeking, amongst other things, an order for review of a decision that "a complaint of sexual harassment made by one Jo-Anne Barker against (Mr Mathews) was substantiated, made by Commissioner Mr K O'Connor of the Human Rights and Equal Opportunity Commission in his REASONS FOR DECISION, dated 7 March 1991".
The amended application was filed on 3 June 1991 and an amended statement of claim was filed on the same day.
On 8 July 1991 I dismissed the application against the first respondent with costs, including reserved costs, for the reasons which I then gave. On the same day I made orders striking out a number of paragraphs of the amended application. The third respondent was the Sex Discrimination Commissioner appointed under s. 96 of the Sex Discrimination Act 1984 ('the Act'), and the fourth respondent was at all relevant times the Registrar of the Human Rights and Equal Opportunity Commission ('the Commission').
In a letter dated 25 July 1989, Ms Jo-Anne Barker lodged a complaint under the Act with the Commission's Queensland Regional Office in Brisbane. She alleged she was forced to leave her employment as an office manager with 'Tips for Tax', which was a business conducted by a company, AAH-REM Pty Ltd of which Mr Mathews and his parents were directors, as she was being sexually harassed by Mr Mathews. Her employment commenced on 28 December 1988. She left on 27 February 1989.
On 7 March 1991 the Commission made a determination against Mr Mathews. The Commission was constituted by the Privacy Commissioner, Mr K. O'Connor. He determined that the complaint was substantiated and further that:
"Pursuant to section 81(1)(b)(iv) of the Act, I declare that
the respondents, Mr Mathews and AAH-REMM Pty. Ltd. should pay to the complainant damages by way of compensation in the sum of $6,000 in relation to the stress, humiliation, embarrassment and financial loss caused to the complainant."
In the course of the reasons of 8 July 1991 I referred to the nature of the decision made by Commissioner O'Connor that the complaint of sexual harassment was substantiated.
Section 81(2) of the Act provides:
"A determination of the Commission under subsection (1) is
not binding or conclusive between any of the parties to the determination."
I raised the question whether any such decision was amenable to review.
As I indicated then, my inquiry was prompted by the observations of the High Court in Australian Broadcasting Tribunal v. Bond (1990) 170 CLR 321 as well as by s. 81(2) of the Act.
Section 82, before the amendment of the Act by the Sex Discrimination and Other Legislation Amendment Act 1992, provided:
"(1) The Commission or complainant may institute a proceeding
in the Federal Court for an order to enforce a determination made pursuant to subsection 80(1) or 81(1).
(2) Where the Federal Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under this Act, the Federal Court may make such orders (including a declaration of right) as the Federal Court thinks fit.
(3) Orders made by the Federal Court under subsection (2) may give effect to a determination of the Commission."
There is no doubt that the decision is final in the sense that it is not a decision reached along the way nor is it in any sense at all a matter of procedure. This application has proceeded on the basis that a determination of the Commission is a decision of an administrative kind made under an enactment and affecting the parties to it by, inter alia, putting in train the consequences for which the Act makes provision. In my opinion, the determination is amenable to review. Hall v. Sheiban Pty Ltd (1989) 20 FCR 217 was a review of determinations made by the Commission pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ('the ADJR Act').
As a result of the striking out orders of 8 July 1991, the position remaining is that Mr Mathews seeks review, pursuant to the ADJR Act, of the decision by Commissioner O'Connor in respect of the complaint made to the Commission, review of a decision to make a confidentiality order in respect of the identity of the complainant and, as well, he claims that there has been an improper exercise of the power or a fraudulent use of the power of the Commission concerning, inter alia, the treatment by the Commission of the original letter of complaint of the complainant.
In particular, it was said that the decision involved a breach of the rules of natural justice in that in connection with the making of the decision the Commission denied Mr Mathews a fair hearing by interrupting him in cross-examination of the complainant, by ruling adverse to him as to the extent to which he could cross-examine the complainant, and by permitting the complainant's parents to be outside the courtroom within hearing distance so as to enable them to corroborate any evidence which the complainant would give.
It was said by the applicant that the Commissioner took into account irrelevant considerations including the testimony of the complainant, it being said that she lacked all credibility. It was said that the Commissioner had also failed to take a relevant consideration into account, namely, failing to pay due heed to a record of interview between the complainant and police concerning a complaint by Mr Mathews of theft of paper from the office at which Ms Barker had worked, and also failing to give due consideration to the claim by Mr Mathews that the complainant owed her employer money for training and for wages paid in advance.
The proceedings before Commissioner O'Connor can be shortly summarised.
The complainant alleged that during her employment she was required to make coffee for Mr Mathews from the back room of the office, in which room he lived and kept a double inflatable mattress, that he told her frequently her fiance was not good enough for her, that she should not get married, that if she stayed with him he would give her the world. He repeatedly told her how pretty and intelligent she was, that he would frequently pat her on the shoulder, that he asked her to braid his hair (which she refused to do), that he spoke of a line of girls who worked for him and went out with him in the past, that in February 1989 he told her that he loved her and asked her to leave her fiance and marry him. She says that after speaking with her father she returned to the office everything that belonged there, including the office key, and that subsequently Mr Mathews demanded money in respect of computer training and then sent her thirty red roses and a note.
Mr Mathews some time later complained to the police that the complainant had stolen documents from him. Some months later still, the police interviewed her and took no action on his complaint.
Before the Commissioner, Mr Mathews submitted repeatedly that the complainant lacked credibility, a claim based, amongst other things, on her account of taking documents from the office relating to the training she had received, which Mr Mathews said amounted to theft, and that she had agreed to undertake specified training at a cost of $1250.00 and had refused to make payments that were owing. Mr Mathews complains that Commissioner O'Connor wrongly refused his submission that there was no case to answer due to the lack of credibility of the complainant and that in the circumstances it was dangerous to rely on her testimony.
The complaint based on the taking into account of irrelevant considerations or failure to take into account relevant considerations may be shortly disposed of.
It is clear the Commissioner accepted the complainant as a reliable witness. He was bound to form his assessment of the evidence before him. Nor can it be suggested that the question of the record of interview and the significance of it from Mr Mathews' point of view was not forcefully made many times over to the Commissioner. No error of law has been made out in respect of this aspect of Mr Mathews' complaint.
I turn now to the issue of the 'editing' of the letter of complaint.
The original letter of complaint is a handwritten three page document dated 25 July 1989. A further letter typed at the office of the Commission, addressed to it and signed by the complainant, was forwarded to Mr Mathews. That letter is dated 16 November 1989. This letter substantially incorporates the contents of the earlier letter but adds some paragraphs concerning the general pattern of her work at the office. The penultimate paragraph in the original letter was deleted. It read:
"I enclose photocopies of the Record of Interview, the
contract, the dictated statement, computer print-out of "training times" my hand written "training times" and overtime I worked. I never signed any form of attendance sheet and never received a pay slip from my employer. My pay went straight into the bank and on one occasion I rang Townsville to write out my own pay slip. I also enclose a photocopy of this, and a copy of a card and note that was attached to the roses."
The typed letter of 19 November 1989 contained the statement:
"When I went to re-enroll at the CES I gave 'sexual
harassment' as my reason for leaving."
Mr Mathews seeks an order for review of "conduct, namely that (the Commission) did edit Jo-Anne Barkers original letter of complaint to substantially change the intent and impact and disguise the existence of a police record of interview with Jo-Anne Barker, incriminating of Jo-Anne Barker by (the Commission) between July and November 1989..." A file note of the Commission of 14 February 1990 records a request for the original letter of complaint, and contains a reference from Mr Mathews about "a Department writing their own letters of complaint." Mr Mathews was seeking to make the point that those whose job is to investigate a complaint should not assume a responsibility for formulating it.
Comparison of the two documents shows that there is no disguise of the existence of a police record of interview. Towards the end of the typewritten letter (and also in the original hand written letter) the following appears:
"After a couple of months he took out a complaint of stealing
against me with the CIB. To protect my rights I consulted a solicitor and had to attend a 3 hour record of interview with the police. I had to borrow money to pay for the solicitor."
While documents enclosed by the complainant in her handwritten letter of complaint of 25 July 1989 are not referred to in the typed letter of complaint, looking at the matter objectively there is no change in either the intent and impact of either statement.
The conduct complained of involves no error of law nor did it affect the ultimate decision. However, I recognise that a perception of lack of impartiality and objectivity can be generated by conduct which suggests that the Commission and the complainant to it are "on the same side". If there are matters of further complaint which come to light resulting in a further letter of complaint, that further letter can be sent. If there are irrelevancies in any communication by a complainant to the Commission, they can be omitted from any communication with any party to a matter requiring investigation, it being made plain that such omissions have been made.
The most important issue is the allegation by Mr Mathews that he was denied natural justice by the Commission.
I have had regard to the entire transcript of the proceedings before Commissioner O'Connor. The record of the proceedings shows that matters raised by Mr Mathews were dealt with courteously and with patience. On a fair reading of those proceedings, Mr Mathews was both combative and assertive in his questioning of the complainant and in his exchanges with the Commissioner. Mr Mathews appeared on his own behalf before the Commission and before this court. He clearly is intelligent, confident to a fault in himself and his own abilities; on occasions he is excessively rude and offensive to others and demeaning of them, yet he lacks any real perception of the nature of his conduct.
Shortly before the luncheon adjournment Mr Mathews stated:
"...this whole tribunal, I believe, is incompetent - not
yourself, your Honour, but it has been brought incompetently, and on certain understandings which I have of the real state of affairs."
Commissioner O'Connor said:
"Well, certainly, Mr Mathews, I think it is - I gather from
what you are saying you propose to walk out."
and Mr Mathews replied:
"That is right.
The Commissioner then said:
"Now, I would suggest to you that it is not in your interests
to follow that course of action."
And later:
"...I think that if we are asking questions as to the nature
of your relationship with her that it would be in your interests to be present to offer any views that you may wish to offer. "
Mr Mathews indicated that he did not propose to return after the luncheon adjournment and indicated that the matter could be heard in his absence.
The evidence of the proceedings demonstrates the lack of substance in the complaints of denial of natural justice in the way of presentation of his case or in cross-examination of witnesses called against him, or in his complaint about the parents of the complainant being within hearing of the Commission. The matter was not assisted by Mr Mathews' personality, and the difficulties of the proceedings were exacerbated by what appears to be a misconception by Mr Mathews of the significance or value of his complaints concerning a theft of documents or paper and an inflated and erroneous view of the destructive effect on the complainant's credibility of the police record of interview with her.
There is however one matter of concern. At the commencement of the proceedings, Commissioner O'Connor indicated the procedure that would be followed, the complainant and Mr Mathews stated their names, and there then followed a dialogue between Commissioner O'Connor and Mr Mathews concerning the handling of the matter by the staff of the Commission, the qualifications of the Commissioner, and the ambit of the Act and avenues of appeal. Then the Commissioner said:
"Now I understand that the complainant has an application to
make in relation to the conduct of the proceedings. Is that correct?"
To which the complainant said:
"I was just wondering if I could ask that this proceedings be
a closed court."
The inference from the Commissioner's observation is that he had been approached prior to the proceedings by the complainant or, more probably, somebody on the staff of the Commission speaking on her behalf, in respect of this application. This communication was one to which Mr Mathews was not a party. The statement not only reinforces a perception that officers of the Commission in a sense were agents of the complainant but that the Commissioner hearing the complaint has been the recipient of private communications from one party only to the proceedings.
That perception is reinforced by a question asked by the Commissioner, without any previous suggestion in the record of proceedings on which his observation might be made, to this effect:
"Now, is there any truth in the allegation that you have had
contact with the complainant by phone since the lodgment of the complaint?"
There is room on the material for a perception to be entertained by Mr Mathews that the complainant has had privileged and unilateral access to the person whose task it is to determine the merits of the complaint impartially and evenhandedly.
Under s. 77 of the Act the Commission is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit. By s. 59 the Commission is required to hold an inquiry into each complaint or matter referred to it under, inter alia, s. 57(1), which was the case here. Section 63 requires the Commission to give such notice as the Commission determines of the inquiry to, inter alios, the parties to the inquiry, and the Commission is required to give each party to an inquiry reasonable opportunity to call or give evidence, examine or cross-examine witnesses. By s. 74 in the course of an inquiry the Commission may, in its discretion, receive in evidence, inter alia, any report of the Commissioner "if a copy of that report has been made available to every other party to the inquiry. "
As the Act then stood, on the Commission making a determination under s. 81(1)(b), the Commission or complainant could institute a proceeding in the Federal Court for an order to enforce such a determination: s. 82(1). The Act provided in s. 81(2), that a determination under s. 81(1) "is not binding or conclusive between any of the parties to the determination". Nonetheless, the making of determinations under s. 81(1) was an important precondition to the institution of proceedings provided by s. 82.
Having regard to the statutory provisions, it is plain that the Commission in conducting an inquiry under s. 59 is obliged to act fairly. I had occasion to consider the existence of that obligation and its content in a not unrelated context in Koppen v. Commissioner for Community Relations (1986) 11 FCR 360. It is, in my opinion, of great importance that the Human Rights and Equal Opportunity Commission charged with the important functions set out in s. 48 of the Act should conduct itself with complete impartiality and objectivity and give no cause for any reasonable apprehension to the contrary.
In this case it seems likely that an officer of the Commission has discussed with Commissioner O'Connor aspects of the complainant's complaint, her wishes in relation to the hearing of the matter and allegations about Mr Mathews' conduct after the making of the complaint, without any reference to and in the absence of the respondent to the complaint. I regard such conduct as not only unwise but wrong.
The question is whether such conduct is such as to generate a reasonable apprehension in the mind of an objective observer with knowledge of that conduct that in the discharge of his important duties, Commissioner O'Connor was biased. I accept that respondents to complaints of the kind here in question often have an understandable sensitivity to conspiracy theories or incidents suggesting improper collaboration. The conclusion I have reached on a detailed examination of the record of the proceedings of the Commission is that while the unilateral communication of the wishes of the complainant to the presiding Commissioner should not have happened, it was not reasonably to be apprehended that he had prejudged the matter or that he would not bring to the determination of the complaint an impartial and objective mind.
As to the issue of confidentiality orders, ss. 66 and 67 of the Act provide as follows:
"66. (1) Subject to subsection (2), an inquiry shall be held
in public.
(2) The Commission may, of its own motion or on the application of a party to the inquiry, if it is satisfied that it is appropriate to do so, direct that an inquiry, or a part of an inquiry, be held in private.
67. (1) The Commission may direct that:
(a) any evidence given before it;
(b) the contents of any document produced to the Commission; or
(c) any information that might enable a person who has appeared before the Commission to be identified; shall not be published, or shall not be published except in such manner, and to such persons, as the Commission specifies.
(2) Nothing in this section shall be taken to derogate from the Commission's powers under section 66."
The Commissioner said in the course of quite forceful submissions by Mr Mathews:
"...these proceedings are obviously sensitive and important
ones, but my object is to conduct them in as reasonable a manner as possible and it really depends in this situation on both people involved being somewhat helpful to the process, and we have not got a situation which one normally has of legal representation, and I do not mind that. ...I think I can assure you that if lawyers were representing the parties, at this point I think there would be an understanding that this kind of application itself needs to be discussed privately before we make a ruling on the application.
But I do not wish to suggest to you for a moment that because one receives the application privately that that connotes anything as to the conclusion that might be reached."
And he later said:
"I am as conscious, I think, as you are, Mr Mathews, of the
importance that our community attaches to legal proceedings being conducted ...in public and that all the evidence of legal proceedings be known to the public, and obviously that is a very important feature of a democratic society; but on the other hand, the Parliament did, when it passed this legislation, devote two sections to striking the balance between holding matters in public and holding matters in private or restricting the evidence of certain matters, and it is a common feature of the court system that some discretion to that effect is given in relation to civil proceedings."
The application by the complainant to which Commissioner O'Connor referred was an application that "these proceedings be a closed court". The Commissioner asked of the complainant:
"Would you be satisfied if the names of the parties were
suppressed to meet your concern?
To which she replied, "Yes." The Commissioner then asked:
"I mean I think it is fairly clear to me from the Act that
the Act contemplates that normally inquiries like this should be held in public."
Mr Mathews said that he was happy to have his name "not suppressed", but that he wanted "her (the complainant's) name public too".
Commissioner O'Connor then said:
"...I certainly do not regard the application of the
complainant to have her name suppressed at this stage as an unreasonable application, and I am prepared to grant that application, so I make an order under section 67 that the identity of the complainant in the matter not be published in any way by the - by any persons present at this proceeding or by press or other media."
Section 66 indicates that ordinarily inquiries should be conducted in public. Section 67 confers a discretion on the Commission. While it may be accepted that a complainant would like to be spared the possibility of embarrassment, it is also the case that serious allegations should not ordinarily be cloaked in anonymity.
In Murphy v. Ramus Pty Ltd (No. 2) (1990) EOC 92-309, Graham J discharged earlier directions which had the effect of prohibiting the publication of the identity of all parties to an inquiry. Graham J said, at 78-096:
"The circumstances of the acts of discrimination were such
that they were proper for them to be available for the purpose of publication should the media so desire. The tribunal may have had cause to adopt a different approach to the question of publication of the identity of the parties had not the complainant on 31 January and today made an application which would have the effect of throwing open to publication the identities of all the parties involved. In a case where allegations of sexual harassment are made it is of course obvious and notorious that the allegations are sometimes said to reflect adversely on a complainant himself or herself. It is in any event embarrassing and a matter of some concern for a complainant to have her identity so publicised.
The analogous situation of the victim of a sexual offence is recognised as a special case in the Crimes Act of this State and for similar reasons privacy is commonly accorded to the victims of sexual assault. However in this case the complainant has chosen to relinquish the cloak of anonymity which had been accorded to her by the tribunal prior to the conclusion of the proceedings. There is in my view a public interest in knowing the identity of those who are guilty of unlawful discrimination under the Anti-Discrimination Act..."
It is unfortunate that an analogy is drawn between a complainant alleging sexual harassment and a victim of a sexual offence. To equate the making of allegations with their proof is to prejudge the truth of the allegations and it is precisely this tendency which engenders the perception that the inquiry process is not evenhanded, but biased in the complainant's favour.
I am unable in the circumstances of the present case to conclude that the exercise of discretion in making the confidentiality order involved an error of law.
For these reasons the application for order of review is dismissed.
Having particular regard to the matter of unilateral communication between the Commission and persons on the complainant's behalf, which I regard as a serious matter, having the potential to undermine public confidence in the integrity and impartiality of the inquiry process, I make no order as to costs.
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