Matthews v Hargreaves (No.4)

[2013] FMCA 4

FEDERAL MAGISTRATES COURT OF AUSTRALIA

MATTHEWS v HARGREAVES (No.4) [2013] FMCA 4

HUMAN RIGHTS – Disability discrimination – whether Hepatitis C a disability – dissemination of information regarding infectious disease – whether direct discrimination – whether less favourable treatment – whether less favourable treatment because of disability – whether discrimination in employment – whether harassment in employment – whether state public health legislation imposes duty of disclosure – whether reasonably necessary to protect public health – whether deed of settlement acts as bar to proceedings –whether applicant a vexatious litigant – constitutional validity of local government.

LOCAL GOVERNMENT – Role of council – role of councillor – whether related entity as defined in Corporation Act – constitutional validity of local government.

WORDS AND PHRASES – Director – servant – agent – any other detriment – detriment – any – infectious disease – contagious disease.

Acts Interpretation Act 1901 (Cth), s.15AA.
Australian Human Rights Commission Act 1986 (Cth), ss.3, 32(3), 46PE, 46PH, 46PO, 46PR, 49B
Australian Human Rights Commission Regulations 1989 (Cth), reg.4
Broadcasting Services Act 1992 (Cth), Part 9D
Commonwealth Bank Act 1945 (Cth)
Commonwealth Banks Act 1959 (Cth)
Corporations Act 2001 (Cth), s.9.
Disability Discrimination Act 1992 (Cth), ss.3, 4, 5, 6, 10, 15, 35, 42, 43, 47, 48, 55, 58, 122, 123(2) & (8), Parts 2, 4, Divisions 1, 2, 3 & 5
Disability Discrimination Regulations 1996 (Cth), reg.2A
Federal Magistrates Court Rules 2001 (Cth), r.21.02(1)(b)
Health Act 1911 (WA), ss.3, 248, 249, 250, 251, 252, 254, 255, 263, 264, 272, 282, 286, 287, 288
Judiciary Act 1903 (Cth), s.78B.
Local Government Act 1995 (WA), ss.1.3, 1.4, 2.5, 2.6, 2.7, 2.10, 2.16, 2.26, 3.1, 5.36, 5.40, 5.41
Trade Practices Act 1974 (Cth), s.84(2)

AB & Anor v Western Australia (2011) 244 CLR 390; [2011] HCA 42
Australian Medical Council & Ors v Wilson& Ors (1996) 68 FCR 46
Bryce v Curtis (1981) 51 ALR 73
Collins v Repatriation Commission (1980) 48 FLR 198
Glew v Shire of Geenough [2006] WASCA 260
Hall v Victorian Amateur Football Association (1999) 15 VAR 183
Hay v Dubbeld & Anor [2005] VCAT 642
Jamal v Secretary, Department of Health & Anor (1988) EOC 92-234
McBride v Victoria (No. 1) [2003] FMCA 285
Matthews v Hargreaves [2010] FMCA 840
Matthews v Hargreaves (No.2) [2010] FMCA 933
Minns v State of NSW [2002] FMCA 60
Nesci v TAFE Commission of NSW (No. 2) [2005] NSWADT 183
O’Callaghan v Loder and the Commissioner for Main Roads [1983] 3 NSWLR 89
Otzen v Beabout (1947) 75 CLR 116
Pennicuik v City of Gosnells [2011] WASC 63
Purvis v State of New South Wales (Department of Education and Training) & Anor (2003) 217 CLR 92; [2003] HCA 62
R v Birmingham City Council; Ex parte Equal Opportunities Commission (1989) 2 WLR 520
R v Foster & Ors; Ex parte Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138
R v Toohey & Anor; Ex parte The Attorney-General for the Northern Territory of Australia (1980) 145 CLR 374
Seidler v The University of New South Wales [2011] FCA 640
Tate v Rafin & Anor (2001) EOC 93-125
The Victorian Chamber of Manufactures & Ors v The Commonwealth & Ors (1943) 67 CLR 335
Trade Practices Commission v Queensland Aggregates Pty Ltd & Anor(No. 3) (1982) 44 ALR 391
Trade Practices Commission v Tubemakers of Australia Ltd & Ors (1983) 76 FLR 455
Ware v OAMPS Insurance Brokers Ltd (2005) EOC 93-402; [2005] FMCA 664
Waters & Ors v Public Transport Corporation (1991) 173 CLR 349
WZAPN & Ors v Minister for Immigration & Citizenship & Others (2012) 261 FLR 284; [2012] FMCA 235
X v The Commonwealth of Australia & Anor (1999) 200 CLR 177; [1999] HCA 63

The Shorter Oxford English Dictionary on Historical Principles (Oxford: Clarendon Press, 1973)
The Macquarie Dictionary (2^nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991)

Applicant: KELVIN JOHN MATTHEWS

Respondent: TIMOTHY WYNN HARGREAVES

File Number: PEG 144 of 2010

Judgment of: Lucev FM

Hearing dates: 14-15 June 2011

Date of Last Submission: 15 June 2011

Delivered at: Perth

Delivered on: 11 January 2013

REPRESENTATION

For the Applicant: In person

For the Respondent: In person

ORDERS

1. That the application be dismissed.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT PERTH

PEG 144 of 2010

KELVIN JOHN MATTHEWS

Applicant

And

TIMOTHY WYNN HARGREAVES

Respondent

REASONS FOR JUDGMENT

Introduction

1. By application[1] made pursuant to s.46PO of the Australian Human Rights Commission Act 1986 (Cth),[2] the applicant, Mr Matthews, the former Chief Executive Officer[3] of the Shire of Shark Bay,[4] alleges unlawful discrimination by the respondent, Mr Hargreaves, a Shire Councillor.

   [1] “Application”.

   [2] “AHRC Act”.

   [3] “CEO”.

   [4] “Shire”.

2. Mr Matthews seeks the follows orders:

   a)a declaration ordering an apology from Mr Hargreaves to be printed in the local newspaper in Shark Bay;

   b)a declaration ordering that Mr Hargreaves not engage in any further unlawful, discriminatory behaviour; and

   c)an amount of $10,000 in damages for personal hurt and detriment to Mr Matthews’ reputation as a result of Mr Hargreaves actions.

3. The grounds of the Application are stated as follows:

   I have been discriminated against because of a disability and also because of an alleged criminal record.

   This discrimination is the same as the discrimination which was the subject of my original complaint.

   The conduct and behaviour of an elected Councillor in my previous place of employment (Shark Bay) has caused me considerable hurt and detriment, both personally and professionally.

   Shark Bay is a small community and the Councillor has deliberately spread defamatory allegations about me which were aimed at having me removed from my position as Chief Executive Officer at the Shire of Shark Bay.

4. There were initially two bases for the alleged discrimination in the Application, namely:

   a)disability; and

   b)criminal record.

Jurisdiction

1. Applications alleging “unlawful discrimination” may be filed in this Court under the AHRC Act.[6] The Court is not bound by technicalities or legal forms in these types of proceedings.[7]

   [6] AHRC Act, 46PO.

   [7] AHRC Act, s.46PR.

2. The Court’s jurisdiction to determine this Application arises under s.49B of the AHRC Act, subject to the following preconditions[8] being satisfied pursuant to s.46PO of the AHRC Act:

   [8] “Jurisdictional Preconditions”.

   (1)  If:

   (a)  a complaint has been terminated by the President under section 46PE or 46PH; and

   (b)  the President has given a notice to any person under subsection 46PH(2) in relation to the termination;

   any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint.

   (2)  The application must be made within 60 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows.

   (3)  The unlawful discrimination alleged in the application:

   (a)  must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or

   (b)  must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.

3. There being no dispute that Mr Mathews is an “affected person” for the purposes of s.46PO(1) of the AHRC Act, the Court’s jurisdiction to determine this Application is subject to:

   a)Mr Matthews’ complaints to the AHRC[9] being terminated under the relevant provisions, with such termination being notified in the stipulated form;[10]

   b)Mr Matthews’ Application to this Court being made within 60 days of such notice being issued, unless the Court grants an extension of time;[11] and

   c)the alleged unlawful discrimination in the Application being the same in substance, and arising out of essentially the same facts, as the AHRC Complaints.[12]

   [9] “AHRC Complaints”.

   [10] AHRC Act, s.46PO(1).

   [11] AHRC Act, s.46PO(2).

   [12] AHRC Act, s.46PO(3).

4. The above Jurisdictional Preconditions were addressed in Matthews v Hargreaves[13] and Matthews v Hargreaves (No.2),[14] following interlocutory proceedings that are summarised below.

   [13] [2010] FMCA 840 (“Matthews”).

   [14] [2010] FMCA 933 (“Matthews (No.2)”).

AHRC Complaints

1. Mr Matthews lodged the AHRC Complaints with the AHRC:

   a)on 11 September 2009;[15] and

   b)on 10 May 2010.[16]

   [15] “First AHRC Complaint”.

   [16] “Second AHRC Complaint”.

2. In both the First AHRC Complaint and the Second AHRC Complaint, Mr Matthews claimed that Mr Hargreaves had discriminated against Mr Matthews:

   a)on the basis of his disability;[17] and

   b)on the basis of his criminal record.[18]

   [17] “Disability Discrimination Ground”.

   [18] “Criminal Record Discrimination Ground”.

3. Both the First AHRC Complaint and the Second AHRC Complaint were terminated by the AHRC, on 19 May 2010 and 2 August 2010 respectively.

4. The First AHRC Complaint forms the basis of Mr Matthews’ initial application to this Court, filed 19 August 2010, in matter PEG 144 of 2010.[19] The Second AHRC Complaint forms the basis of Mr Matthews’ subsequent application to this Court, filed 14 September 2010, in matter PEG 168 of 2010.[20]

Interlocutory proceedings

[19] “First Application”.

[20] “Second Application”.

Extension of time and dismissal of Criminal Record Discrimination Ground

1. An interlocutory hearing on 1 November 2010 dealt with Mr Matthews’ extension of time application under s.46PO(2) of the AHRC Act, in respect of the First Application which was filed outside of the 60 day time limit.[21] As set out in Matthews,[22] the AHRC advised Mr Matthews that in response to the First AHRC Complaint against Mr Hargreaves:

   i)that part of the AHRC Complaint of discrimination on the basis of imputed criminal record[23] had been adequately dealt with by the Western Australian Department of Local Government and Regional Development which had made a finding against Mr Hargreaves, and on that basis the AHRC had decided, under s.32(3)(c)(iii) of the AHRC Act, not to continue its inquiry into Mr Matthews’ complaint of alleged discrimination on the basis of an imputed criminal record; and

   (ii)that part of the AHRC Complaint of discrimination on the basis of disability was not one in which there was a reasonable prospect of the matter being settled by conciliation, and therefore the complaint was terminated under s.46PH(1)(i) of the AHRC Act, and a Notice of Termination issued under s.46PH(2) of the AHRC Act was attached to the AHRC Letter.[24]

   Section 32(3)(c)(iii) of the AHRC Act provides that the AHRC may decide not to inquire into a matter, or to continue to inquire into a matter, if it relates to a complaint where some other remedy has been sought in relation to the subject matter of the complaint, and the AHRC is of the opinion that the subject matter of the complaint has been adequately dealt with.

   [21] “Extension of Time Application”.

   [22] Matthews at para.3 per Lucev FM.

   [23] Which is declared to constitute discrimination for the purposes of the AHRC Act by reg.4 of the Australian Human Rights Commission Regulations 1989 (Cth).

   [24] “s.46PH(2) Notice”.

2. The Court did not, therefore, have jurisdiction to deal with the Criminal Record Discrimination Ground of the First Application because that part of the First AHRC Complaint had not been terminated under s.46PE or s.46PH of the AHRC Act, nor had a s.46PH(2) Notice issued.[25] As such, without the s.46PO(1) Jurisdictional Preconditions being met, there was no utility in the Court granting an extension of time in relation to the Criminal Record Discrimination Ground of the First Application because the Court did not have jurisdiction to determine that part of the First Application.[26]

   [25] Matthews at para.23 per Lucev FM.

   [26] Matthews at para.24 per Lucev FM.

3. In relation to the Disability Discrimination Ground of the First Application, which had satisfied the s.46PO(1) Jurisdictional Preconditions, the Court determined that in relation to the Extension of Time Application:

   a)there was an acceptable explanation for Mr Matthews’ delay;[27]

   b)evidence of prejudice to Mr Hargreaves was neutral;[28] and

   c)Mr Matthews had an arguable case.[29]

   At the time the Court determined that there was an arguable case no evidence of any settlement or release entered into by Mr Matthews with respect to his employment with the Shire was before the Court.[30]

   [27] Matthews at paras.10-15 per Lucev FM.

   [28] Matthews at para.16 per Lucev FM.

   [29] Matthews at paras.17-22 per Lucev FM.

   [30] Compare paras.159-161 below.

4. The Court therefore ordered on 1 November 2010 that the Extension of Time Application:

   a)be granted in respect of that part of the First Application relating to the Disability Discrimination Ground; and

   b)be dismissed in respect of that part of the First Application relating to the Criminal Record Discrimination Ground.[31]

   [31] Matthews at paras.24-26 per Lucev FM.

Joinder of applications

1. An interlocutory hearing on 29 November 2010 dealt with both the First Application and the Second Application. In the same circumstances which confronted the Court in Matthews, the Court dismissed the Criminal Record Discrimination Ground of the Second Application, having determined that the Court did not have jurisdiction as a result of the manner in which this part of the Second AHRC Complaint had been disposed of by the AHRC.[32]

   [32] Matthews (No.2) at paras.6-7 per Lucev FM.

2. The Court also determined that it was appropriate for the First Application and the Second Application to be joined because:

   a)the disability alleged;

   b)the conduct complained of;

   c)the parties and their capacities; and

   d)the remedies sought,

   were all the same.[33] Accordingly, the Court ordered on 29 November 2010 that the First Application and the Second Application be joined, with all future papers to be filed in PEG 144 of 2010. Therefore, the remainder of these Reasons for Judgment deal exclusively with the Disability Discrimination Ground in the First Application.

   [33] Matthews (No.2) at para.8 per Lucev FM.

Unlawful discrimination in Application being the same as the AHRC Complaint

1. The final Jurisdictional Precondition requires that the unlawful discrimination alleged in the Application is the same in substance, and arises out of essentially the same facts, as the AHRC Complaints.[34]

   [34] AHRC Act, s.46PO(3).

2. Relevantly, in an AHRC Complaint form, in describing the events that formed the basis of his complaint, Mr Matthews wrote as follows:

   My employer is the Council of the Shire of Shark Bay (body corporate as constituted in accordance with the Local Government Act 1995) consisting of seven (7) elected members. I commenced employment as the Chief Executive Officer of the Shire of Shark Bay on 9 January 2006 under a five year contract of employment. Councilor (Cr) T W Hargreaves was elected as a councilor at the ordinary local government elections for the Shire of Shark Bay in October 2007.

   Consistently from January 2008 (until now) Councilor (Cr) Hargreaves has issued and circulated verbal statements and written material concerning myself by email, fax and letter drops to the community of Shark Bay, various media outlets and government Ministers and departments/agencies. Cr Hargreaves circulates material that is mostly false and misleading that he purports he has obtained from various reliable sources. Of particular concern to me is that Cr Hargreaves obtained personal and confidential information from my ex wife regarding my medical condition of Hepatitis C. In doing so Cr Hargreaves published this fact widely throughout the community (including other elected members and staff) as well as to the media and government Ministers and departments/agencies. The recent material he obtained (in confidence) from the Philippines Embassy in Canberra is a clear example of this.[35]

   As set out in the grounds of the Application, Mr Matthews asserts that the discrimination the subject of the Application is the same as that the subject of the AHRC Complaints.[36]

   [35] First AHRC Complaint, but the Second AHRC Complaint is much the same in substance.

   [36] See para.3 above.

3. The Court is satisfied that the AHRC Complaints are the same in substance, and arises out of the same facts, as the Application to this Court. Thus, having satisfied all the requirements of s.46PO of the AHRC Act, the Court has jurisdiction to determine the Disability Discrimination Ground of the First Application.

Short background facts

1. The alleged unlawful discrimination occurred during Mr Matthews’ tenure as CEO of the Shire, and following Mr Hargreaves’ election as a Councillor of the Shire.

2. Mr Matthews was CEO of the Shire from 9 January 2006 to 28 May 2010.

3. Mr Hargreaves was elected as Councillor of the Shire in October 2007 for a four year term.

4. Mr Matthews has Hepatitis C, having been diagnosed with this medical condition in the early 1990s.[37]

   [37] Transcript, 14 June 2011, p.19.

5. Mr Hargreaves admits that during the period he was a Councillor, he disseminated information to other Shire Councillors, and Shire ratepayers and residents, regarding Mr Matthews’ Hepatitis C.[38]

   [38] Transcript, 14 June 2011, pp.27 and 29-33. See also para.30(b) below.

6. Upon ceasing employment with the Shire, Mr Matthews commenced employment as the CEO of the Shire of Christmas Island.[39]

   [39] Transcript, 14 June 2011, p.15 and 15 June 2011, p.3.

Applicant’s claims and evidence

1. Mr Matthews relies on the following two affidavits[40] sworn by him on:

   a)23 December 2010;[41] and

   b)26 April 2011.[42]

   [40] Neither of which were formally objected to by Mr Hargreaves.

   [41] “Mr Matthews’ December 2010 Affidavit”.

   [42] “Mr Matthews’ April 2011 Affidavit”.

2. Mr Matthews’ December 2010 Affidavit includes annexures said to constitute the basis of Mr Matthews’ claim that Mr Hargreaves engaged in unlawful discrimination, relevantly as follows:

   a)copies of the material that Mr Hargreaves distributed by email, letter or hand as a flyer within the Shire of Shark Bay,[43] including:

   [43] Mr Matthews’ December 2010 Affidavit, Annexure A.

   i)an email dated 8 April 2008 sent to other Shire Councillors concerning Mr Matthews’ hepatitis C which relevantly reads as follows:

   CONFIDENTIAL

   I HAVE BEEN GIVEN TO UNDERSTAND FROM A SEEMINGLY RELIABLE SOURCE THAT MR MATTHEWS HAS HEPATITIS C. THIS INFORMATION IS NOT GIVEN TO YOU BECAUSE OF A PERCEIVED PERSONALITY PROBLEM AS YOU SO OFTEN SUGGEST BETWEEN MR MATTHEWS AND MYSELF BUT AS A DUTY OF CARE RESPONSIBILITY AS NOT ONLY A COUNCILLOR BUT AS A PRIVATE CITIZEN. I DON’T KNOW SUFFICIENT OF THE MEDICAL PROGNOSIS OF THE VARIOUS HEPATITIS CONDITIONS BUT I DO KNOW IT COMES UNDER THE HEADING OF CONTAGIOUS DISEASES. AND EMPLOYEE CANNOT – AS A RULE – BE SACKED FOR HAVING IT BUT AN EMPLOYEE HAS TO DECLARE THIS FACT TO HIS OR HER EMPLOYER.

   …..

   THIS LETTER HAS NOT GONE TO ANYONE OTHER THAN MY FELLOW COUNCILLORS EXCEPT ONE CONFIDENT (sic) FOR LEGAL REASONS.

   THANK YOU

   TIM HARGREAVES

   COUNCILLOR

   ii)an email dated 31 August 2009, addressed to the President of the Shire, but sent to Mr Matthews and copied to others, where Mr Hargreaves states as a Shire Councillor, he is Mr Matthews’ “employer”; and

   iii)email correspondence between Mr Hargreaves and the AHRC dated 30 November 2009 in which Mr Hargreaves asserts that:

   I’m aware that having an infectious disease is not grounds for discrimination against a person. However, it was essentially a case of his [Mr Matthews] concealing this aspect of his health – plus the many and varied other ‘misdemeanours’ of his past – which gave rise to my alerting my fellow Councillors as to the truth of the situation with this employee.

   b)a record of correspondence between the Embassy of the Philippines in Canberra[44] and Mr Hargreaves, which was forwarded to Mr Matthews by a journalist at the Northern Guardian newspaper in Carnarvon,[45] which relates to Mr Matthews’ denial of entry into the Philippines, for reasons including Mr Matthews’ having Hepatitis C;

   c)a record of correspondence and medical certificates from the Central West Mental Health Service allegedly detailing the impact that Mr Hargreaves’ conduct had on Mr Matthews’ health, as follows:[46]

   i)a letter dated 19 January 2009 from the Senior Community Mental Health Nurse which refers to Mr Matthews seeking treatment or support for “stress related problems” arising from “stressful situations at his work place”, but which does not refer specifically to Mr Hargreaves’ conduct;

   ii)a letter dated 11 May 2010 from the Senior Community Mental Health Nurse which refers to Mr Matthews’ stress, upset and depression resulting from personal attacks by a councillor who made public accusations against Mr Matthews, and the impact this had on Mr Matthews’ mental health and social life;

   iii)a medical certificate certifying that Mr Matthews was unfit for work from 5 March 2010 to 5 April 2010, but for which no reason was stated;

   iv)a workers’ compensation medical certificate which reports that Mr Matthews:

   1.      has suffered anxiety and mood disturbance brought about by harassment in the workplace by an employer;

   2.      was unfit for work from 5 March 2010 to 6 May 2010; and

   3.      was referred to a psychiatrist for counselling.[47]

   [44] “Philippines Embassy”.

   [45] Mr Matthews’ December 2010 Affidavit, Annexure B.

   [46] Mr Matthews’ December 2010 Affidavit, Annexure C.

   [47] No psychiatrist’s report was tendered in evidence.

1. Mr Matthews’ April 2011 Affidavit annexes the following further documentation in support of his claim:

   a)documentation from Fremantle Hospital confirming Mr Matthews’ appointment with the Hepatitis Clinic at that hospital, which Mr Hargreaves is alleged to have disseminated;[48]

   [48] Mr Matthews’ April 2011 Affidavit, Annexure B.

   b)an email from Mr Hargreaves to other Shire Councillors, dated 11 May 2010, containing correspondence to the Department of Local Government Standards Panel where Mr Hargreaves confirms he has been disseminating information,[49] and in which Mr Hargreaves:

   [49] Mr Matthews’ April 2011 Affidavit, Annexure C.

   i)makes reference to his duty to report contagious diseases under the Health Act 1911 (WA);[50]

   [50] “Health Act”.

   ii)confirms that he has reported “many and varied aspects of Mr Matthews’ undivulged career” to:

   1.      the Local Government Standards Panel;

   2.      the Minister for Local Government;

   3.      the Corruption and Crime Commission of Western Australia;[51]

   4.      the Ombudsman’s Department;

   5.      the Police;

   6.      the Public Sector Panel; and

   7.      various Members of Parliament;

   and that having received no meaningful response from the above bodies and persons confirms that he then disseminated information to:

   8.      his peers;

   9.      certain members of the public; and

   10.   the media.

   It is unclear on the evidence to what extent the information divulged by Mr Hargreaves to all of the above bodies and persons included information in relation to Mr Matthews having Hepatitis C.

   [51] “CCCWA”.

2. Mr Matthews alleges that by disseminating information regarding Mr Matthews’ Hepatitis C, Mr Hargreaves contravened the provisions of the Disability Discrimination Act 1992 (Cth).[52]

   [52] “DD Act”.

Respondent’s defence and evidence

1. Mr Hargreaves relies upon his affidavit sworn 24 May 2011.[53] Mr Hargreave also called evidence, heard by telephone, from the President of the Shire of Christmas Island, Gordon Thompson.

   [53] “Mr Hargreaves’ May 2011 Affidavit”.

2. Annexed to Mr Hargreaves’ May 2011 Affidavit are various documents, relevantly including:

   a)the Central West Mental Health Service letter of 11 May 2010 referred to above;[54]

   b)a “Statement of Regret” issued by the Shire in April 2010 apologising for harm caused to Mr Matthews by Mr Hargreaves’ dissemination of personal information “about Mr Matthews’ imputed criminal record or disability when expressing his personal views about Mr Matthews”, and indicating that:

   Councillor Hargreaves was not representing the Council in disseminating personal information about Mr Matthews’ imputed criminal record or disability or when expressing his personal views about Mr Matthews.

   and

   c)a letter from the Philippines Embassy in Canberra dated 28 January 2009 indicating that the reason for denying Mr Matthews entry into the Philippines was based on the complaint of Mr Matthews’ wife that, amongst other things, Mr Matthews had failed to attend to treatment for Hepatitis C, a contagious disease.

   [54] See para.29(c)(ii) above.

3. Mr Hargreaves states that he relies upon a three-fold defence in the following terms:

   a)a deed of settlement between the Shire and Mr Matthews which he says operates as a bar to proceedings;

   b)that this is vexatious litigation, which is later also couched in terms of:

   i)fraudulent conduct; and

   ii)a lack of credibility,

   on the part of Mr Matthews; and

   c)constitutional issues (which were not pressed at hearing).[55]

   [55] Transcript, 15 June 2011, p.10.

4. In the course of the hearing it became clear that Mr Hargreaves also seeks to rely upon the following further grounds of defence:

   a)Mr Hargreaves’s alleged obligations of “good governance” under the Local Government Act 1995 (WA);[56] and

   b)Mr Matthews’ alleged obligation to disclose his Hepatitis C under the Health Act.

   [56] “LG Act”.

5. Mr Hargreaves submits that:

   a)he was elected to Council on an anti-corruption ticket, and on behalf of the community, undertook to put a halt to corrupt practices within the Shire;

   b)upon making discoveries about Mr Matthews’ background, Mr Hargreaves reported to various authorities;

   c)nothing of consequence was done in response to Mr Hargreaves’ complaints and in fact, a record number of complaints were made against Mr Hargreaves in retaliation;

   d)he took no joy in revealing certain information regarding Mr Matthews, and was always mindful of the propriety required of elected representatives;

   e)his criticisms were not levelled exclusively at Mr Matthews but at the corrupt practices of the council as a whole, and Mr Matthews was part of the administration;

   f)Mr Matthews sought from the outset of his employment to deceive the Shire as to his true background, including his contagious disease;

   g)Mr Matthews put his colleagues at risk by using the same eating and drinking utensils as other staff members, it was inappropriate and irresponsible for Mr Matthews to do so without disclosing his condition;

   h)it was Mr Hargreaves’ duty as duly elected representative of the electorate to safeguard the wellbeing of the community;

   i)Mr Matthews, as CEO of the Shire, should have been diligent in upholding his responsibilities and duty of care to others; and

   j)Mr Hargreaves submits that the LG Act demands good governance, and that he was acting in accordance with his responsibilities as a dutiful councillor to:

   i)rectify the lack of transparency within the Shire; and

   ii)keep the community aware of anything untoward.

Disability discrimination

Applicant’s submissions

1. Mr Matthews submits that:

   a)Mr Hargreaves engaged in unlawful discrimination consistently from early 2008, for three and a half years;

   b)Mr Hargreaves sought and obtained personal and confidential information regarding Mr Matthews’ Hepatitis C;[57]

   [57] “Mr Matthews’ Hepatitis C Information”

   c)the information was obtained from various sources including Mr Matthews’ ex-wife,[58] and the Philippines Embassy in Canberra;[59]

   [58] “Mrs Matthews”.

   [59] “Philippines Embassy”.

   d)Mr Hargreaves disseminated Mr Matthews’ Hepatitis C Information widely throughout the Shire community, including to:

   i)other elected members of the Shire;

   ii)Shire staff;

   iii)the media; and

   iv)Government minsters, departments, and agencies;

   e)Mr Hargreaves disseminated this information by email, fax, and letter drops;

   f)Mr Hargreaves justifies disseminating this information as Mr Matthews’ employer at the time;

   g)Mr Hargreaves’ discriminatory conduct has had a detrimental impact upon Mr Matthews’ health and professional life; and

   h)Mr Hargreaves has contravened various provisions of the DD Act, but only:

   i)discrimination in employment;[60] and

   ii)harassment in employment,[61]

   in particular were pressed at hearing.

   [60] DD Act, s.15.

   [61] DD Act, s.35.

Respondent’s submissions

1. Mr Hargreaves:

   a)admits to having disseminated Mr Matthews’ Hepatitis C Information by email, but denies having distributed this material by hand, save for one instance of hand delivery to a Shire councillor who did not have email;[62]

   b)submits that Mr Matthews’ Hepatitis C Information only became public knowledge when Mrs Matthews informed the media about the circumstances surrounding Mr Matthews’ denial of re-entry into the Philippines;

   c)submits that given Mr Matthews’ had failed to disclose his medical condition, that as a dutiful councillor Mr Hargreaves was responsible to an electorate who wanted to be kept informed, and to have disclosed to them all relevant information regarding Mr Matthews, particularly as people in the habit of wining and dining with Mr Matthews became increasingly concerned;

   d)denies that his conduct constituted unlawful discrimination against Mr Matthews; and

   e)denies that Mr Hargreaves’ conduct has had a detrimental impact upon Mr Matthews’ health and professional life.

Disability Discrimination Act 1992 (Cth)

[62] Transcript 14 June 2011, pp.27 and 29-33, and see also para.30(b) above.

Unlawful discrimination

1. “Unlawful discrimination” is defined in s.3 of the AHRC Act to:

   a)mean any acts, omissions or practices that are unlawful under Part 2 of the DD Act (which sets out the prohibition of disability discrimination); and

   b)include any conduct that is an offence under Division 4 of Part 2 of the DD Act.

Objects and purpose

1. The objects of the DD Act are:

   a)to eliminate, as far as possible, discrimination against persons on the ground of disability in the area of work;[63]

   b)to ensure, as far as practicable, that persons with disabilities have the same rights to equality before the law as the rest of the community;[64] and

   c)to promote recognition and acceptance within the community of the principle that persons with disabilities have the same fundamental rights as the rest of the community.[65]

   [63] DD Act, s.3(a).

   [64] DD Act, s.3(b).

   [65] DD Act, s.3(c).

2. The standard rules of statutory construction require that the interpretation that best achieves the purpose or object of an Act should be preferred.[66] In AB & Anor v Western Australia[67] the High Court recently highlighted why this principle was particularly important in the context of anti-discrimination legislation:

   … the principle that particular statutory provisions must be read in light of their purpose was said in Waters v Public Transport Corporation (1991) 173 CLR 349 to be of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation “the courts have a special responsibility to take account of and give effect to the statutory purpose”. It is generally accepted that there is a rule of construction that beneficial and remedial legislation is to be given a “fair, large and liberal” interpretation ….[68]

   [66] Acts Interpretation Act 1901 (Cth), s.15AA.

   [67] (2011) 244 CLR 390; [2011] HCA 42 (“AB”).

   [68] AB CLR 402 per French CJ, Gummow, Hayne, Kiefel and Bell JJ; HCA at para.24 per French CJ, Gummow, Hayne, Kiefel and Bell JJ.

Structure of the Act

1. The structure of the DD Act is such that the it makes separate and distinct provision for direct and indirect discrimination in ss.5 and 6 respectively, before dealing with the subject of “prohibition of disability discrimination” in Part 2 of the DD Act. Relevantly, Part 2 is then divided into divisions that deal with:

   a)discrimination in work;[69]

   b)discrimination in other areas;[70] and

   c)discrimination involving harassment.[71]

   [69] DD Act, Pt 2, Div.1.

   [70] DD Act, Pt 2, Div.2.

   [71] DD Act, Pt 2, Div.3.

2. As explained in the plurality majority judgment in Purvis v State of New South Wales (Department of Education and Training) & Anor:[72]

   In its provisions dealing with the prohibition of disability discrimination the Act employs the formula that “it is unlawful for a person to discriminate against another person on the ground of the other person’s disability” by, or in the course of engaging in, certain kinds of conduct.

   Content is given to the clause “to discriminate against a person on the ground of another person’s disability” by the provisions of ss 5 and 6 of the Act.[73]

   [72] (2003) 217 CLR 92; [2003] HCA 62 (“Purvis”).

   [73] Purvis CLR at 149 per Gummow, Hayne and Heydon JJ; HCA at paras.185-186 per Gummow, Hayne and Heydon JJ.

3. The Court must therefore examine what amounts to direct and indirect discrimination, before applying this to the provisions that prohibit certain types of disability discrimination. But first it is necessary to consider the definition of “disability”.

Disability

1. Section 4(1) of the DD Act defines “disability” to mean, in relation to a person:

   (c) the presence in the body of organisms causing disease or illness; or

   (d) the presence in the body of organisms capable of causing disease or illness,

   and includes a past, present, future or imputed disability.[74]

   [74] DD Act, s.4(1).

2. The various elements of the definition of “disability” have “overlapping operation”, and are not “mutually exclusive categories”.[75]

   [75]Purvis CLR at 157 per Gummow, Hayne and Heydon JJ; HCA at para.210 per Gummow, Hayne and Heydon JJ (“Purvis”).

3. Mr Matthews gave oral evidence that:

   a)he has Hepatitis C; and

   b)he became aware that he had Hepatitus C in the early 1990s.[76]

   [76] Transcript, 14 June 2011, p.19.

4. The fact of Mr Matthews having Hepatitis C was not in fact disputed by Mr Hargreaves. The Court, therefore, accepts that Mr Matthews has Hepatitis C.

5. The only evidence in respect of the specific nature of Hepatitis C was Mr Matthews’ oral testimony that to the best of his knowledge, Hepatitis C is a blood-borne contagion that is transmitted by blood, with a remote chance of being transmitted by saliva also.

6. The Macquarie Dictionary defines “hepatitis” as:

   A serious viral disease characterised by inflammation or enlargement of the liver, fever or jaundice and existing in various forms as … hepatitis C, the most life threatening of all.[77]

   and defines “hepatitis C” as:

   A form of hepatitis caused by the recently identified hepatitis C virus, which is transmitted by infected body fluids and occurs mainly in intravenous drug users.[78]

   [77] The Macquarie Dictionary (2^nd Edn) (Macquarie University: The Macquarie Library Pty Ltd, 1991) page 823 (“The Macquarie Dictionary”).

   [78] The Macquarie Dictionary, page 823.

7. In Nesci v TAFE Commission of NSW (No. 2)[79] the New South Wales Administrative Decisions Tribunal accepted that a person who had been diagnosed with Hepatitis C, and who was described as suffering “from a number of chronic medical conditions which included liver disease”, fell within the definition of “disability” under relevant New South Wales legislation, which is for practical purposes identical with the definition of “disability” in s.4(1) of the DD Act.[80]

   [79] [2005] NSWADT 183 (“Nesci”).

   [80] Nesci at paras.45-46 per Britton A - Judicial Member, Weule B and Lowe A - Non Judicial Members.

8. The Court accepts that Mr Matthews’ Hepatitis C is a “disability” as defined in s.4(1) of the DD Act as it:

   a)involves the presence in Mr Matthews’ body of a disease; and

   b)is a condition that presently exists.

Discrimination

1. The term “discriminate” has the meaning given by ss.5 and 6 of the DD Act.[81] There are two forms of disability discrimination:

   a)direct discrimination;[82] and

   b)indirect discrimination.[83]

   [81] DD Act, s.4(1).

   [82] DD Act, s.5.

   [83] DD Act, s.6.

Direct discrimination

1. Direct discrimination is defined in s.5 of the DD Act as follows:

   (1)  For the purposes of this Act, a person (the discriminator ) discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different.

   (2)  For the purposes of this Act, a person (the discriminator ) also discriminates against another person (the aggrieved person ) on the ground of a disability of the aggrieved person if:

   (a)  the discriminator does not make, or proposes not to make, reasonable adjustments for the person; and

   (b)  the failure to make the reasonable adjustments has, or would have, the effect that the aggrieved person is, because of the disability, treated less favourably than a person without the disability would be treated in circumstances that are not materially different.

   (3)  For the purposes of this section, circumstances are not materially different because of the fact that, because of the disability, the aggrieved person requires adjustments.

2. Thus there are 2 types of direct disability discrimination:

   a)less favourable treatment;[84] and

   b)failure to make reasonable adjustments,[85]

   but only the former is relevant to the circumstances of this case.

   [84] DD Act, s.5(1).

   [85] DD Act, s.5(2).

3. To establish that Mr Hargreaves discriminated against Mr Matthews’ “on the ground of” Mr Matthews’ disability, two elements must be established:

   a)that Mr Hargreaves subjected Mr Matthews to less favourable treatment than he would have afforded someone without the disability, in circumstances that are not materially different; and

   b)that such treatment was “because of” Mr Matthews’ disability.

Less favourable treatment

1. In order to determine if there has been less favourable treatment, the Court must consider whether Mr Hargreaves treated Mr Matthews less favourably than Mr Hargreaves would have treated someone without the disability. This requires the Court to identify an actual or hypothetical comparator.[86] As Mr Matthews has not identified an actual comparator, a hypothetical comparator must be utilised.

   [86] Purvis CLR at 160-161 per Gummow, Hayne and Heydon JJ; HCA at paras.223-226 per Gummow, Hayne and Heydon JJ.

2. In Purvis, where a student with an intellectual disability which manifested in violent behaviour towards staff and fellow students was suspended and subsequently expelled, the majority of the High Court held that the relevant comparator was a student who had also acted violently but not as a result of a disability. The relevant comparator in this case should be another senior Shire employee engaged in allegedly corrupt conduct, but who did not have Hepatitis C.

3. Having identified the relevant comparator, Purvis suggests that the following two-step enquiry should be undertaken:

   a)the circumstances attending to the treatment afforded to Mr Matthews must first be identified; and

   b)then consideration must be given to what would have happened (the treatment that would have been afforded) in those circumstances had Mr Matthews not had Hepatitis C.[87]

   [87] Purvis CLR at 161 per Gummow, Hayne and Heydon JJ; HCA at para.224 per Gummow, Hayne and Heydon JJ.

4. The enquiry is further complicated by the requirement that the comparison be undertaken in the context of “circumstances that are not materially different”. The difficulty is that Mr Hargreaves maintains that the primary reason behind his treatment of Mr Matthews was Mr Matthews’ alleged corrupt practices in his capacity as CEO of the Shire, and that the dissemination of Mr Matthews’ Hepatitis C Information was merely a by-product of disseminating information regarding Mr Matthews’ conduct as CEO more generally. It is, therefore, arguable, on a best case scenario for Mr Hargreaves, that in not materially different circumstances, Mr Hargreaves may not necessarily have subjected Mr Matthews to less favourable treatment than that of someone without Hepatitis C. Put differently, it might be argued that Mr Hargreaves might have released personal confidential information, of any kind (including as to a disability), as a by-product of disseminating information concerning another senior Shire employee’s conduct in similar circumstances where the conduct was alleged to be corrupt. The difficulty with this argument is that in relation to the alleged corruption, which was never adequately particularised in any event, it was unnecessary to have regard to Mr Matthews having Hepatitis C for the purposes of assessing, or disseminating information on, the alleged corrupt conduct. Significantly, none of the disparate allegations referred by Mr Hargreaves to various official bodies, including the CCCWA, appear to refer to the Hepatitis C Information at all. Rather, that information is distributed to Shire councillors and other persons within the Shire. It cannot therefore be properly argued that the dissemination of Mr Matthews’ Hepatitis C Information was merely a by-product of disseminating information regarding Mr Matthews’ conduct as CEO more generally.

1. There are, in any event, inconsistencies in Mr Hargreaves evidence. At hearing Mr Hargreaves put the proposition to Mr Matthews that it was inappropriate and unreasonable for Mr Matthews to be sharing eating and drinking utensils with other staff of the Shire.[88] Mr Hargreaves also cross-examined Mr Matthews as to certain disease disclosure provisions of the Health Act.[89] Mr Hargreaves was asked by the Court whether, if the Court found that there had been discrimination contrary to the terms of the DD Act, what his view was about an apology to Mr Matthews. Mr Hargreaves responded as follows:

   … On the subject of apologising to Matthews for the disclosure of his hepatitis, I have no difficulty at all with that, on the understanding there are no repercussions in terms of compensation being sought. I would like to reiterate, I think in section 3.2 of the Local Government Act, demands good governance. I have always seen myself as a responsible councillor. The community voted me in specifically to try and clean up what the community saw, and local government verified, was a corrupt administration and shire. Mr Matthews conceded he had his own mug. There must be a reason for using his own mug. Obviously, there is a potential for the transmission of hepatitis through someone else drinking from your mug. I never noticed him having his own mug, but at least that is an acknowledgement that he knew of the potential for hepatitis being transmitted to others. Frankly, it is a very debilitating illness and, I understand, hard to overcome. So yes, sir, I don’t mind apologising for the hepatitis side if that will achieve anything, but not if it leaves the door open to being sued.[90]

   [88] Transcript, 14 June 2011, pp.18-21.

   [89] Transcript, 14 June 2011, pp.16-17.

   [90] Transcript, 14 June 2011, pp.36-37.

2. So, irrespective of Mr Matthews’ alleged corrupt practices, it is clear that the treatment afforded Mr Matthews by Mr Hargreaves (that is dissemination of Mr Matthews’ Hepatitis C Information) could not have occurred if Mr Matthews did not have Hepatitis C. Moreover, it is clear that the dissemination of Mr Matthews Hepatitis C Information occurred independent of, and not reliant upon, any issue of alleged corruption or corrupt practices.

3. The Court therefore considers that by reason of Mr Matthews having a disability, namely Hepatitis C, he was treated less favourably by Mr Hargreaves than Mr Hargreaves would have treated a person who was a senior Shire employee subject to corruption allegations who did not have Hepatitis C.

“Because of” the disability

1. The expression “because of” requires a causal connection between Mr Matthews’ disability, and the less favourable treatment afforded by Mr Hargreaves.

2. The authorities suggest that the discriminator must have knowledge of the disability, because it is not possible to subject the aggrieved person to less favourable treatment “because of” a disability, without knowledge of the existence of that person’s disability.[91] It is clear that Mr Hargreaves had knowledge of Mr Matthews’ Hepatitis C.

   [91] Jamal v Secretary, Department of Health & Anor (1988) EOC 92-234; Tate v Rafin & Anor (2001) EOC 93-125.

3. Mr Matthews submits that Mr Hargreaves engaged in discriminatory conduct with the intention that Mr Matthews’ employment should be terminated, either by dismissal or resignation. Mr Hargreaves admits that he believed Mr Matthews should have resigned or been dismissed as CEO of the Shire, but denies that his motive in disseminating Mr Matthews’ Hepatitis C Information was to bring about this end. Mr Hargreaves submits that:

   a)his primary intention was the elimination of corruption within the Shire, and that the dissemination of Mr Matthews’ Hepatitis C Information was merely a by-product of disseminating information regarding Mr Matthews’ conduct as CEO more generally; and

   b)Mr Matthew’s medical condition was an ancillary issue.

4. For reasons set out above,[92] the suggestion that the dissemination of Mr Matthews’s Hepatitis C Information was merely a by-product of disseminating information regarding Mr Matthews’ conduct as CEO more generally, cannot be accepted. Further, if the material which disseminates Mr Matthews’ Hepatitis C Information is examined, no allegation of corruption would suffer, or be required to be put differently, if Mr Matthews’ Hepatitis C Information was deleted from the material. Indeed, if the 8 April 2008 email from Mr Hargreaves to other Shire Councillors is examined, it contains no allegations of corrupt conduct at all, but rather a reference to an Asian dating website and the content of that site, and whether it is “befitting the image of a Shire CEO.” That information, coming after the dissemination of information concerning Mr Matthews’ Hepatitis C is introduced with the words “whilst writing to you I would also mention there is a” and goes on to describe the Asian dating website and its content. If this were a matter of concern to Mr Hargreaves there is no reason why it could not have been the subject of a separate email. It is clear, from the 8 April 2008 email, that the primary matter being conveyed is the fact that Mr Matthews has Hepatitis C, and has not declared the fact to the Shire. The dissemination of this information in this manner had nothing to do with allegations of corruption.

   [92] See paras.60 and 62 above.

5. Whilst a causal connection must be established between Mr Matthews’ disability and Mr Hargreaves’ less favourable treatment, the authorities indicate that there need not be an intention or motive to discriminate.[93]

   [93] Waters & Ors v Public Transport Corporation (1991) 173 CLR 349 at 359 per Mason CJ and Gaudron J, and 382 per McHugh J (“Waters”).

6. In R v Birmingham City Council; Ex parte Equal Opportunities Commission,[94] it was stated that:

   The intention or motive of the defendant to discriminate….. is not a necessary condition to liability.[95]

   Otherwise:

   … it would be a good defence for an employer to show that he discriminated against women not because he intended to do so but (for example) because of customer preference, or to save money, or even to avoid controversy.[96]

   [94] (1989) 2 WLR 520 (“Birmingham City Council”).

   [95] Birmingham City Council at 525 per Lord Goff.

   [96] Birmingham City Council at 526 per Lord Goff.

7. Whilst a discriminatory motive or intention is not necessary for an ultimate finding of discrimination, consideration of why the discriminator acted as he or she did may be relevant to whether the alleged conduct was done “because of” the disability. Thus, whilst Mr Hargreaves’ claim that he did not intend to discriminate against Mr Matthews is ultimately irrelevant to whether he did in fact discriminate, the Court must still consider the reasons behind Mr Hargreaves conduct. In Purvis the plurality majority judgment observed as follows:

   … the central question will always be – why was the aggrieved person treated as he or she was?  If the aggrieved person was treated less favourably was it ‘because of’, ‘by reason of’, that person’s disability?  Motive, purpose, effect may all bear on that question.  But it would be a mistake to treat those words as substitutes for the statutory expression ‘because of’.[97]

   [97] Purvis CLR at 163 per Gummow, Hayne and Heydon JJ; HCA at para.236 per Gummow, Hayne and Heydon JJ.

8. Section 10 of the DD Act deals with an act, which includes an omission,[98] and provides that if:

   (a)  an act is done for 2 or more reasons; and

   (b)  one of the reasons is the disability of a person (whether or not it is the dominant or a substantial reason for doing the act);

   [98] DD Act, s.4(2).

   then, for the purposes of this Act, the act is taken to be done for that reason.

9. In circumstances where there is more than one reason behind Mr Hargreaves’ conduct, Mr Matthews’ disability need not be the dominant or substantial reason behind the less favourable treatment. Rather, just one of the reasons for Mr Hargreaves’ conduct needs to be Mr Matthews’ Hepatitis C, in order for it to be “because of” Mr Matthews’ disability. In this case, Mr Hargreaves’ assertion that his dissemination of Mr Matthews Hepatitis C Information was merely a by-product of his campaign with respect to alleged corruption within the Shire cannot be sustained on the facts. It is apparent that Mr Hargreaves was concerned about the fact that Mr Matthews had Hepatitis C because of the potential effects of Hepatitis C on others, and because Mr Matthews had not declared to the Shire upon his being employed, or subsequently for the purposes of the Health Act, that he had Hepatitis C. In the circumstances the alleged discrimination on the basis of disability was “because of” the disability.

Dissemination of Hepatitis C Information

1. During cross-examination of Mr Hargreaves, Mr Matthews asked:

   Can you confirm that you did disseminate the information that you obtained through various means?

   Mr Hargreaves answered:

   Correct, sir; that is correct, Mr Matthews.[99]

   [99] Transcript, 14 June 2011, p.27.

2. Annexure A to Mr Matthews’ December 2010 Affidavit is a written record of material that Mr Hargreaves allegedly distributed by email, letter or by hand.

3. There is a dispute between the parties in respect of whether Mr Hargreaves distributed some or all of the material in Annexure A of Mr Mathews’ December 2010 Affidavit as a flyer by hand. Mr Matthews, relying upon Mr Hargreaves’ admitted handwriting on the document, submits that Mr Hargreaves distributed photocopies of these emails directly to the houses of some Shire residents who had no email addresses and no post office boxes. Mr Hargreaves maintains that he did not distribute photocopies of these emails in this way, save that he may have hand-delivered them to one Shire Councillor who had no email facilities.[100]

   [100] Transcript, 14 June 2011, p.29.

4. Annexure B to Mr Matthews’ December 2010 Affidavit is correspondence from the Philippines Embassy forwarded to Mr Matthews by a journalist at the Northern Guardian newspaper (where Mr Hargreaves allegedly sought to have the confidential information contained in the correspondence published). In relation to Annexure B of Mr Matthews’ December 2010 Affidavit, Mr Hargreaves stated that whilst he could not be sure of the order of events, his correspondence with the Philippines Embassy arose following the publication of information concerning Mr Matthews’ Hepatitis C in the Inside Cover section of The West Australian newspaper. Mr Hargreaves claims that he wanted to clarify that the allegations about Mr Matthews made by the press and Mrs Matthews were in fact true. As a result, Mr Hargreaves admits to having sought and obtained information regarding Mr Matthews’ medical condition from the Philippines Embassy, but claims that he would not have written to the Philippines Embassy, had he not been alerted to the fact.[101]

   [101] Transcript, 14 June 2011, p.29.

5. Despite Mr Hargreaves’ claim that he only disseminated information once the media had already put it into the public arena, Mr Matthews’ relies upon the example of Mr Hargreaves’ forwarding of correspondence with the Philippines Embassy to the Northern Guardian in an attempt to prove that it was actually Mr Hargreaves who initiated the process of disseminating the information to the media. Mr Hargreaves’ response to this proposition was as follows:

   I don’t deny my involvement with the press at all, Mr Matthews. I do deny the suggestion that I was the one that initiated the inquiries to the Philippines.[102]

   [102] Transcript, 14 June 2011, p.30.

6. Asked by the Court whether he sent the information from the Philippines Embassy to the press Mr Hargreaves responded:

   It would seem so, yes.[103]

   [103] Transcript, 14 June 2011, p.30.

7. Mr Hargreaves’ evidence under cross-examination also tends to suggest that he disseminated information concerning Mr Matthews’ medical condition to the press. The following exchanges occurred in cross-examination:

   Third paragraph down, would you be able to tell me, did you recall saying this to the Inside Cover and I will read:

   The main combatant, so Councillor CEO Matthews and Councillor Tim Hargreaves who will tell anyone prepared to listen that the CEO has to go.Is that a general statement that you’ve made consistently, Mr Hargreaves, to the media?‑‑‑No, that is more a media type statement, “anyone who is prepared to listen”.  We had a community that was a fairly major part of the community who had wondered how on earth you’d come to be employed frankly.  So the inference of being fired was – but, no, I did not say “anyone prepared to listen that the CEO has to go”.

   Would you agree that you thought I should resign or be dismissed as CEO?‑‑‑Most categorically.

   Do you agree then that the purpose of your disseminating the information would be for making me resign or having me dismissed?‑‑‑No.  It was a matter of being a dutiful councillor elected to (a) try and clean up the corruption issues that the local government consequently verified and (b) I have an electorate I’m responsible to who wants to be kept informed and I have always done that, irrespective of the issues of the day as you would be aware.

   Then why did you go to the media consistently to do that?‑‑‑To be candid I didn’t.  The media would come to me.  This was an interesting story for them as you know involving high profile politicians etcetera and writer – I don’t even read the West Australian to be candid, let alone Inside Cover.  To me a lot of it’s – I won’t describe what I think of it, but they’re not always exactly accurate in a lot of their stuff.  You will see a photo on that page.  It’s from a bygone age about 20 years earlier.  So ­ ­ ­

   You called in your affidavit, now you called Mr Adshead as a witness originally.  You’ve listed him in your affidavit as subpoenaing or calling him, is that correct?‑‑‑Him and about 20 others, yes.

   What would be the purpose of calling Inside Cover journalist, Gary Adshead?‑‑‑The purpose of calling him as with other witnesses which I was unable to do because of all manner of technical reasons to confirm many of the allegations that you have brought against me as to where they first came from.  I, for example, was never aware of the actual Philippine Consulate directives, nor was I aware of some of the embezzlement details of your previous career in Oris [sic], so I would have him and the other gentlemen that write for Inside Cover come and verify that they had much better facilities to unearth this information than I did and they were the ones that ran with it, as the saying goes.

   You’re saying then that you did disseminate information to the media specifically or you did not?‑‑‑No, it was essentially to my –to those of my electorate who were entitled to know and the media side was incidental.  I would be phoned up.  There was an occasion there when the Northern Guardian came down and there’s a continuity of our meeting and correspondence.[104]

   [104] Transcript, 14 June 2011, pp.32-33.

8. Mr Hargreaves therefore admits to having disseminated information to:

   a)the immediate Shire council initially, including the President (who refused to act) and the Vice-President; and

   b)those of Mr Hargreaves electorate who asked questions and wanted to know,[105]

   but claims that dissemination to the media was incidental and resulted from his being contacted by the media, and that he did not initiate the contact with the media. On the evidence, it became apparent that Mr Hargreaves had contact with the media, however incidental, and as a consequence discussed and disseminated information concerning Mr Matthews’ medical condition to the media. The discrimination complained of in this instance relates to the dissemination of the Mr Matthews’ Hepatitis C Information by Mr Hargreaves, not whether Mr Hargreaves in fact initiated contact with the media concerning Mr Matthews’ Hepatitis C Information.

   [105] Transcript, 14 June 2011, p.32.

9. When asked in cross-examination why Mr Hargreaves felt he could disseminate information regarding Mr Matthews’ medical condition, Mr Hargreaves claimed that he was unaware of the existence of any anti-discrimination legislation that prevented such disclosure. That, however, is inconsistent with Mr Hargreaves’ letter (by way of email) dated 30 November 2009 to the AHRC in which he says that:

   I am aware that having an infectious disease is not grounds for discrimination against a person. However, it was essentially a case of his concealing this aspect of his health – plus the many and varied other ‘misdemeanours’ of his past – which gave rise to my alerting my fellow Councillors as to the truth of the situation with this employee.[106]

   [106] Mr Matthews December 2010 Affidavit, Annexure A.

10. In the circumstances the Court is satisfied that Mr Hargreaves:

    a)distributed by email or letter, and by hand to one Shire Councillor, the material in Annexure A of Mr Matthews’ December 2010 Affidavit to other members of the Shire Council and to some Shire residents; and

    b)distributed the information in Annexure B of Mr Matthews’ December 2010 Affidavit to other Shire Councillors, including the President and Vice-President, to some Shire residents within Mr Hargreaves’ “electorate”, and, at least by way of oral discussion, and albeit not as a result of direct contact initiated by Mr Hargreaves, with certain members of the media.

11. The state of the evidence led does not allow a conclusion to be drawn as to specific persons to whom Mr Hargreaves disseminated the information, but it appears, that it was at least to all other Shire councillors, to as many as 50-60 residents of the Shire,[107] and to interested journalists on the local and State newspapers.

    [107] Transcript, 14 June 2011, pp.32.

Conclusion on direct discrimination

1. In the circumstances the Court has come to the view that Mr Hargreaves sought to directly discriminate by treating Mr Matthews less favourably than he would have treated another person in circumstances that are not materially different by disseminating information as to Mr Matthews’ Hepatitis C Information, because Mr Matthews had a disability, namely, Hepatitis C.

Indirect discrimination

1. The authorities indicate that direct discrimination and indirect discrimination are mutually exclusive, as “that which is direct cannot also be indirect”.[108] This does not, however, prevent an applicant from arguing that the same facts constitute direct and indirect discrimination in the alternative.[109]

   [108] Minns v State of NSW [2002] FMCA 60 at para.173 per Raphael FM (“Minns”) citing Waters and Australian Medical Council & Ors v Wilson& Ors (1996) 68 FCR 46.

   [109] Minns at para.245 per Raphael FM.

2. Indirect discrimination occurs on the ground of disability where:

   a)the discriminator requires, or proposes to require, the aggrieved person to comply with a requirement or condition;

   b)because of the disability, the aggrieved person does not or would not comply, or is not able or would not be able to comply, with the requirement or condition; and

   c)the requirement or condition has, or is likely to have, the effect of disadvantaging persons with the disability.[110]

   [110] DD Act, s.6(1).

3. A second type of indirect discrimination results from a failure to make “reasonable adjustments” in order to enable the aggrieved person to comply with a requirement or condition,[111] but that is not relevant to this case.

   [111] DD Act, s.6(2).

4. The focus of indirect discrimination is on the impact of requirements, conditions or practices, which although applied generally, may have a disproportionate impact in disadvantaging people with a disability. In The Secretary of the Department of Foreign Affairs & Trade v Styles & Anor,[112] indirect discrimination was referred to as “practices which are fair in form and intention but discriminatory in impact and outcome”.[113]

   [112] (1989) EOC 92-265 (“Styles”).

   [113] Styles at p.77,636.

5. Although Mr Matthews purported to rely upon s.6 of the DD Act the claim as made does not involve a case of indirect discrimination. There is no requirement by Mr Hargreaves for Mr Matthews to comply with a requirement or condition (even if this is sufficient to cover dismissal or resignation) which, because of Mr Matthews’ Hepatitis C, he does not, or would not, or is not able or would not be able to comply with. Rather, this is a case of direct discrimination, for reasons set out above. It is therefore unnecessary to consider the question of indirect discrimination further.

Discrimination in employment

1. Mr Matthews submitted that Mr Hargreaves:

   … has discriminated against me with a clear intent of obtaining information and circulating it by various means to the community, with the ultimate intent of harassing me and having me leave my employment, or having me dismissed.  He obtained information about a condition that I have and circulated and disseminated that information.[114]

   [114] Transcript, 15 June 2011, p.28.

2. Section 15(2) of the DD Act prohibits discrimination in employment as follows:

   (2)  It is unlawful for an employer or a person acting or purporting to act on behalf of an employer to discriminate against an employee on the ground of the employee's disability:

   (a)  in the terms or conditions of employment that the employer affords the employee; or

   (b)  by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or

    (c)  by dismissing the employee; or

   (d)  by subjecting the employee to any other detriment.

3. The relevant questions for the Court are:

   a)whether Mr Hargreaves is an “employer or a person acting or purporting to act on behalf of an employer”;

   b)whether Mr Matthews is an employee; and

   c)whether Mr Matthews has been discriminated against on the ground of his disability:

   i)in the terms or conditions of employment that he was afforded;

   ii)by the denial of access to any other benefits associated with his employment;

   iii)by his being dismissed; or

   iv)by his being subjected to any other detriment,

   by the employer or a person acting or purporting to act on behalf of the employer.

Employer or person acting on behalf of employer

1. Mr Matthews submitted that Mr Hargreaves was “an employer or a person acting or purporting to act on behalf of an employer”, because:

   a)Mr Hargreaves was a local government councillor, and the local government (the Shire) was a body corporate; and

   b)Mr Matthews was responsible as the CEO to the elected members of the Shire council for direction. All other employees of the Shire were responsible to Mr Matthews as CEO. The CEO was, therefore, the only employee of the Shire directly responsible through the contract of employment to the elected Shire Councillors.[115]

   [115] Transcript, 15 June 2011, p.29.

2. Annexed to Mr Matthews’ December 2010 Affidavit is an email by Mr Hargreaves dated 31 August 2009, which was addressed to the President of the Shire but sent to Mr Matthews and copied to others. Relevantly, it reads as follows:

   CEO

   Kelvin Matthews

   Shire of Shark Bay

   As Cnr. Hoult is not contactable by email and my phone messages go unanswered could you please hand this communication to him.

   Cnr. Hoult as President of the Shire of Shark Bay

   Sir,

   ....

   CEO’s behaviour

   I cannot address staff members direct.  Accordingly I advise you of the following.

   I have noticed that of late when Mr Matthews has addressed me he has taken to a strange contortioning of his facial muscles and attempts at much winking.

   I have 3 observations to make:

   He is an employee of this Council, and as such, I as one of the Councillors, his employer.  In the Army we called this sort of behaviour insubordination.

   I leave it to you to speak to the man.

   If he has some sort of yet another medical problem then that needs to be addressed.

   In the the (sic) Bible the Book of Proverbs (chapter 16 verse 30) depending on what translation you read warns of a man ‘…winking with eyes to devise froward things, his lips bringing wickedness to pass….

   Thank you,

   Tim Hargreaves[116]

   [116] Mr Matthews’ December 2010 Affidavit, Annexure A.

3. In April 2010 the Shire issued a “Statement of Regret” in relation to the dissemination of Mr Matthews Hepatitis C Information and criminal record by Mr Hargreaves, in which it asserted that Mr Hargreaves was not representing the Shire council in disseminating that information or when expressing his personal views about Mr Matthews.[117]

   [117] See also para. 33(b) above.

4. The question of whether Mr Hargreaves is an “employer or a person acting or purporting to act on behalf of an employer” for the purposes of s.15(2) of the DD Act is not however answered by the views of the parties, but, rather, requires the Court to determine that issue, having regard to the relevant law and all of the relevant facts. There is no doubt that the Shire was Mr Matthews’ employer as CEO of the Shire.[118] The question then becomes whether the actions of Mr Hargreaves, in his role as a councillor of the Shire, are the acts of the Shire as employer of Mr Matthews, or of a person acting or purporting to act on behalf of the Shire as employer of Mr Matthews.

   [118] LG Act, s.5.36(1)(a).

5. Section 123(2) of the DD Act provides as follows:

   (2) Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

6. Section 123(2) of the DD Act raises several questions, namely:

   a)whether Mr Hargreaves’ conduct was engaged in on behalf of the Shire;

   b)whether Mr Hargreaves is a director, servant or agent of the Shire;

   c)whether Mr Hargreaves’ conduct was within the scope of his actual or apparent authority as a councillor of the Shire; and

   d)finally, whether the Shire took reasonable precautions and exercised due diligence to avoid Mr Hargreaves’ conduct.

7. In order to answer these questions it is necessary to examine the structure and role of the Shire, as a council, and of Mr Hargreaves, as a councillor, under the LG Act.

8. Section 1.4 of the LG Act defines the following relevant terms:

   ….

   councillor means a person who holds the office of councillor on a council (including a person who holds another office under section 2.17(2)(a) or (b) as well as the office of councillor);

   ….

   employee means a person employed by a local government under section 5.36;

   ….

         member , in relation to the council of a local government, means — 

   (b)         a councillor on the council (including a councillor who holds another office under section 2.17(2)(a) or (b) as well as the office of councillor).

9. Section 2.6 of the LG Act provides that:

   (1)         Each local government is to have an elected council as its governing body.

   (2) …

   (3)         The offices on the council of the local government of a shire are those of the president, the deputy president and the councillors.

   (4) The Governor may, by order, appoint a person to be the commissioner of a local government until the offices of members of the council are filled for the first time and the council holds its first meeting.

10. Section 2.7 of the LG Act outlines the role of the council to:

    a)govern the local government’s affairs;

    b)be responsible for the performance of the local government’s functions;

    c)oversee the allocation of the local government’s finances and resources; and

    d)determine the local government’s policies.

11. Section 2.10 of the LG Act outlines the role of councillors to:

    a) represent the interests of electors, ratepayers and residents of the district;

    b) provide leadership and guidance to the community in the district;

    c) facilitate communication between the community and the council;

    d) participate in the local government’s decision-making processes at council and committee meetings; and

    e) perform such other functions as are given to a councillor by the Local Government Act or any other written law.

12. Section 2.26 of the LG Act establishes that the role of councillor and employee of the Shire are mutually exclusive:

    2.26      Election to council terminates employment with local government

            If a person who is employed by a local government is declared to be elected as a member of the local government’s council then, by operation of this section, the person’s employment with the local government ends when the person begins his or her term of office as a member.

13. Section 3.1 of the LG Act deals with the general function of a local government:

          (1)         The general function of a local government is to provide for the good government of persons in its district.

          (2)         The scope of the general function of a local government is to be construed in the context of its other functions under this Act or any other written law and any constraints imposed by this Act or any other written law on the performance of its functions.

          (3)         A liberal approach is to be taken to the construction of the scope of the general function of a local government.

14. Section 5.36 of the LG Act deals with employees of a local government:

    (1)         A local government is to employ — 

              (a)         a person to be the CEO of the local government; and

            (b)         such other persons as the council believes are necessary to enable the functions of the local government and the functions of the council to be performed.

          (2)         A person is not to be employed in the position of CEO unless the council — 

              (a)         believes that the person is suitably qualified for the position; and

             (b)         is satisfied* with the provisions of the proposed employment contract.

          * Absolute majority required.

         (3)         A person is not to be employed by a local government in any other position unless the CEO — 

               (a)         believes that the person is suitably qualified for the position; and

            (b)         is satisfied with the proposed arrangements relating to the person’s employment.

15. Section 5.40 of the LG Act deals with the principles affecting employment by local governments:

                  The following principles apply to a local government in respect of its employees — 

              (d)         there is to be no unlawful discrimination against employees or persons seeking employment by a local government on a ground referred to in the Equal Opportunity Act 1984 or on any other ground;

16. Section 5.41 of the LG Act deals with the functions of the CEO which are to:

              (a)         advise the council in relation to the functions of a local government under this Act and other written laws;

              (b)         ensure that advice and information is available to the council so that informed decisions can be made;

              (c)         cause council decisions to be implemented;

           (d)         manage the day to day operations of the local government;

           (e)         liaise with the mayor or president on the local government’s affairs and the performance of the local government’s functions;

        (f)         speak on behalf of the local government if the mayor or president agrees;

            (g)         be responsible for the employment, management supervision, direction and dismissal of other employees (subject to section 5.37(2) in relation to senior employees);

            (h)         ensure that records and documents of the local government are properly kept for the purposes of this Act and any other written law; and

              (i)         perform any other function specified or delegated by the local government or imposed under this Act or any other written law as a function to be performed by the CEO.

17. The first question which requires resolution is whether Mr Hargreaves is a “director, servant or agent” of the Shire. None of these terms is defined by the DD Act, save that s.123(8) of the DD Act provides that:

    A reference in this section to a director of a body corporate includes a reference to a constituent member of a body corporate incorporated for a public purpose by a law of the commonwealth, of a state or of a territory.

18. The Shire is a body corporate.[119] It is incorporated under a State law, namely the LG Act, for a public purpose, being the provision of a system of local government for the district covered by the Shire, and the carrying out of the various functions of a local government.[120]

    [119] LG Act, s.2.5.

    [120] LG Act, ss.1.3 and 2.7, and Part 3 – functions of local governments.

19. A councillor occupies the office of a member of the council of the Shire.[121] A councillor is therefore a constituent member of the body corporate incorporated by a law of the State, namely the LG Act. As the “primary meaning of incorporation is to constitute a legal artificial corporation,[122] the Shire is “a body corporate incorporated for a public purpose by a law … of a state …”.[123] A councillor is therefore a “director” for the purposes of s.123(2) of the DD Act. It follows that Mr Hargreaves as a councillor of the Shire was a “director” for the purposes of s.123(2) of the DD Act. It also follows, therefore, that Mr Hargreaves’ conduct if “engaged in on behalf of” the Shire, and if “within the scope of his … actual or apparent authority” is taken to be conduct engaged in by the Shire.

    [121] LG Act, ss.1.4 and 2.6(4).

    [122] Bryce v Curtis (1981) 51 ALR 73 at 75 per Burt CJ (finding that the then Commonwealth Trading Bank, established and continued as a “body corporate” under the Commonwealth Bank Act 1945 (Cth) and the Commonwealth Banks Act 1959 (Cth) respectively, was a body incorporated under a law of the Commonwealth).

    [123] DD Act, s.123(8).

20. It is convenient to look first at the question of actual or apparent authority. In general terms, the role of a councillor is to be construed within the overarching general function of a local government to provide good government for the persons in its district, with the scope of the general function to be construed in the context of constraints imposed by any other written law on the performance of its functions,[124] and the role of the council which is responsible for the performance of the local government’s functions.[125] In the context of good governance and the performance of the functions of the Shire, Mr Hargreaves as a councillor was responsible for representing the interests of the electors, ratepayers and residents.[126]

    [124] LG Act, s.3.1(1) and (2).

    [125] LG Act, s.2.7(1)(b).

    [126] LG Act, s.2.10(a).

21. The question of public health, and infectious or contagious diseases within a local government area, is a matter for which local government is, in part, responsible.

22. Section 286 of the Health Act provides that certain persons are to report the occurrence of infectious disease as follows:

    Upon the appearance of any epidemic, endemic or contagious disease, or of any indication thereof or of any peculiar circumstances or occurrences involving or affecting or likely to involve or affect the sanitary condition of any district, the local government of such district shall immediately report the same to the Executive Director, Public Health; and the report shall be accompanied by such remarks or information as such local government may possess in regard to the disease, locality, or other facts that may have come to its knowledge, and may tend or appear to tend towards the better and more full comprehension of the disease, indications, occurrences, or circumstances so reported.

23. Section 288 of the Health Act deals with monthly reports of infectious diseases as follows:

    Whenever any infectious or contagious disease exists in any district the local government shall, at least once in every month, and oftener if required, report thereon in the prescribed form to the Executive Director, Public Health.

24. Sections 286 and 288 of the Health Act makes it apparent that dealing with the reporting of infectious or contagious diseases is a matter for local government. Good governance requires the reporting of such diseases in the manner prescribed by ss.286 and 288 of the Health Act. To the extent that such issues, namely the appearance or existence of any infectious or contagious disease, arise within a local government area it is within the actual or apparent authority, therefore, of a Shire Councillor to raise that issue, and to represent the interest of electors, ratepayers and residents in relation thereto. The question which arises in this case is to what extent a Shire Councillor might raise the matter, or disseminate information, in relation to the matter, of an infectious or contagious disease in accordance with the obligation of good governance[127] and the role of representation of electors, ratepayers and residents of the Shire.[128]

    [127] LG Act, s.3.1(1).

    [128] LG Act, s.2.10(a).

25. Whether or not the conduct of Mr Hargreaves in raising the issue of Mr Matthews’ Hepatitis C, as an infectious or contagious disease, was “on behalf of” the Shire for the purposes of s.123(2) of the DD Act depends upon the meaning of the words “on behalf of”. In The Queen v Toohey & Anor; Ex parte The Attorney-General for the Northern Territory of Australia[129] the High Court stressed that the words “on behalf of” may be applied to many possible relationships, and said that:

    … it may be used in conjunction with a wide range of relationships, all however in some way concerned with the standing of one person as auxiliary to or representative of another person or thing.[130]

    [129] (1980) 145 CLR 374 (“Toohey”).

    [130] Toohey at 149 per Stephen, Mason, Murphy and Aickin JJ.

26. In Otzen v Beabout[131] it was said that the words “on behalf of”:

    Do not necessarily imply that the transaction was with the actual authority of the person represented.[132]

    [131] (1947) 75 CLR 116 (“Otzen”).

    [132] Otzen at 122 per Latham CJ, Dixon, McTiernan and Williams JJ.

27. In Trade Practices Commission v Tubemakers of Australia Ltd & Ors[133] the Federal Court, having cited Toohey and Otzen observed, in relation to the use of the phrase “on behalf of” in s.84(2) of the Trade Practices Act 1974 (Cth) that questions of liability dependant upon that phrase will depend upon the nature and scope of the authority of the representative, and therefore will depend upon the particular circumstances.[134]

    [133] (1983) 76 FLR 455 (“Tubemakers”).

    [134] Tubemakers (No. 2) at 475 per Toohey J.

28. In Trade Practices Commission v Queensland Aggregates Pty Ltd & Anor(No. 3)[135] the Federal Court found that in some contexts “on behalf of” means no more than “for” or “as agent for”.[136]

    [135] (1982) 44 ALR 391 (“Queensland Aggregates (No. 3)”).

    [136] Queensland Aggregates (No. 3) at 405 per Morling J.

29. In the circumstances of this case, the Court is of the view that Mr Hargreaves engaged in the relevant conduct “on behalf of” the Shire in his capacity as a Councillor, and consistent with his role as a Councillor, to raise issues associated with notification of infectious or contagious diseases, and, on the little available evidence, in so doing represent the interests of electors, ratepayers and residents. Once again, the issue in these proceedings is however the extent to which Mr Hargreaves took that obligation.

30. Having concluded that Mr Hargreaves, in his capacity as a Councillor, is a “director” for the purposes of s.123(2) of the DD Act, it is not necessary to deal with whether or not he was a “servant” or “agent” of the Shire for present purposes. It can however, be observed that the term “servant” usually applies to the relationship of employment, which this was not,[137] or the relationship between certain public officers and the Crown or public servants and the executive government, which again this was not. Rather, Mr Hargreaves was, as a Councillor, an elected representative for the Shire. For present purposes, Mr Hargreaves acting as a Councillor was not a “servant” for the purposes of s.123(2) of the DD Act. Nor was he an “agent”. An agent is a person “who is authorised to act for a principal and has agreed to so act, and who has the power to effect the legal relationship of his principal with a third party”.[138] Mr Hargreaves was not, on the evidence, an agent for the purposes of s.123(2) of the DD Act.

    [137] LG Act, s.2.26.

    [138] R v Foster & Ors; Ex parte Commonwealth Life (Amalgamated) Assurances Limited (1952) 85 CLR 138 at 151 per Dixon, Fullagar and Kitto JJ.

1. Paragraph G of the Background under the Deed is important as it makes it clear that it is not just claims made under the Application (being the application for a remedy in respect of unfair dismissal to Fair Work Australia referred to in Background clause E) that are being settled, but rather “all Claims howsoever arising, including those connected with the Employment [of Mr Matthews as CEO of the Shire] and Application.” The AHRC complaints referred to in Paragraph B of the Background under the Deed are complaints to which the Shire was respondent, and are different complaints to the AHRC Complaints.

2. Relevantly, the “Agreed terms” of the Deed provide as follows:

   1.     Defined terms and interpretation

   1.1    Defined terms

   In this deed:

   ……

   Application means the application referred to in Background clause E including the subject matter of that application and all matters arising out of or connected with that subject matter;

   Claim includes any complaint, action, suit, cause of action, application, arbitration, award, debt, due, cost, claim, demand, liability, right, verdict, judgment or order either at law or in equity or arising out of the provisions of any statute, award, order or determination and includes any General Protections Claim under Part 3-1 of the Fair Work Act 2009 (Cth) as amended from time to time (with the exception of the provisions of any statute, award, order or determination relating to workers’ compensation);

   …..

   Employment means the employment referred to in Background clause A;

   Related Entity has the meaning set out in section 9 of the Corporations Act 2001;

   …..

   Settlement Sum means the amount referred to in clause 2.1.

   1.2    Interpretation

   In this deed (including the background) unless the contrary intention appears:

   …..

   (x)     a reference to a matter connected with the Application includes a reference to all matters alleged in, connected with or arising out of the Application and all matters connected with matters alleged in the Application.

   2.     Settlement

   2.1    Settlement sum

   By executing this deed the Shire agrees to pay Matthews the gross sum (i.e. pre tax) of $5,000 in accordance with clause 2.2 of this deed.

   ……

   3.     Release and discharge

   3.1    Release

   In consideration of receipt of the Settlement Sum, each party:

   (a)    releases absolutely and forever discharges the other party and the other party’s employees, agents, servants and Related Entities from all Claims which the other party may have or but for this deed might have had against those persons arising out of, from, in, or in connection with the Employment or Resignation, including the Application; and

   (b)    agrees not to bring, commence, seek, enforce or continue any Claim against the other party, its employees, agents, servants, and any Related Entity arising out of, from, in, or in connection with the Employment or Resignation, including the Application.

   3.2    Bar

   This deed may be pleaded as a bar to any Claim now or in the future commenced or continued by or on behalf of Matthews, or any person claiming through Matthews arising out of, from, in, or in connection with the Employment or the Resignation, including the Application as set out in clause 3.1

   ……

   6.     Ongoing obligations

   6.1    Public statements

   Each party undertakes not to publicly denigrate, defame, bring into disrepute or engage in any conduct intended to offend or humiliate the other party or any Related Entity of the other party; or cause or incite any other person to do so in any forum or using any mode of communication whatsoever.

   …..

   8.     Further assurances

   Each party agrees to do everything reasonably necessary to give complete and prompt effect to the terms of this deed.

   9.     Entire agreement

   Subject to clause 6.2 this deed represents the entire agreement between the parties with respect to its subject matter.

Issues arising from the Deed

1. The Deed produced to the Court is undated. The Court accepts that the Deed must have been entered into some time after 28 May 2010, that being the last date referred to in past tense in the Deed.[168] Mr Matthews admitted in cross-examination that the Deed was effective from the time of execution, which was approximately the end of May 2010.[169]

   [168] Deed of Settlement, Background, cl.D.

   [169] Transcript, 14 June 2011, p.18

2. The questions for the Court are as follows:

   a)whether Mr Hargreaves, in his capacity as an elected Councillor in the Shire, is bound because the Shire is a party to the Deed;

   b)whether Mr Hargreaves, in his capacity as an elected Councillor in the Shire, is captured within the meaning of the Shire’s “employees, agents, servants and Related Entities” in clause 3.1 of the Deed;

   c)the effect of the Shire’s alleged breach of the ongoing obligations in respect of public statements; and

   d)whether the alleged disability discrimination of Mr Matthews falls within the ambit of this Deed.

3. Whether Mr Hargreaves as a Shire Councillor, is bound merely because the Shire is a party to the Deed is a matter which depends upon the nature of local governments and the councils of local governments, and the role of councillors in local governments, under the provisions of the LG Act.

4. Division 2 of Part 2 of the LG Act is headed “Local Governments and Councils of Local Governments”. Section 2.5 of the LG Act, which is the first section in Division 2 of Part 2 of the LG Act, is as follows:

         (1)         When an area of the State becomes a district, a local government is established for the district.

         (2)         The local government is a body corporate with perpetual succession and a common seal.

         (3)         The local government has the legal capacity of a natural person.

         (4)         The corporate name of the local government is the combination of the district’s designation and name.

         Example: City of (name of district)

         (5)         If the district’s name incorporates its designation, the designation is not repeated in the corporate name of the local government.

         Example:

         district’s name : Albany (Town)

         corporate name : Town of Albany

         (6)         Proceedings may be taken by or against the local government in its corporate name.

5. Section 2.6 of the LG Act, which is set out above,[170] provides that local governments are to be run by elected councillors. In particular, s.2.6(1) provides that:

   [170] See para.101 above.

   Each local government is to have an elected council as its governing body.

   The council govern the local government’s affairs.[171]

   [171] LG Act, s.2.7(1)(a).

6. The role of councillors is set out in s.2.10 of the LG Act, which is set out above.[172]

   [172] See para.103 above.

7. Councillors are elected to the office of member of the council at elections conducted in accordance with Part 4 of the LG Act.[173]

   [173] LG Act, ss.2.16 and 2.6(4).

8. The local government which is established for a district, in this case the Shire, is a body corporate with its own legal capacity. The elected council of the Shire is its governing body.

9. In this case, however, the difficulty arises that although Mr Hargreaves was, in the Court’s view, acting in his role as a Councillor in raising these issues, they have not been, on the evidence, the subject of any formal consideration by the Shire council itself. Rather, the matters appear to have been raised in an ad hoc manner, and not only within the Shire council, but also outside it with Shire ratepayers and residents, and the press. That, of course, does not answer the question as to whether Mr Hargreaves’ actions are bound up in the Shire’s settlement of the matter by way of the Deed.

10. In the circumstances, it appears that the LG Act draws a distinction between the Shire, as a local government corporate body, the governing body of that local government, namely the Shire council, and the councillor, to such an extent that it cannot be said that by merely acting out the role of councillor in the way that Mr Hargreaves did, that that was sufficient to overcome the distinction between the Shire, the council of the Shire, and the councillors, such as to extend the meaning of “Shire” in the Deed to include one of its councillors.

Employees, agents, servants and Related Entities

1. For reasons set out above,[174] Mr Hargreaves is not an employee, agent or servant of the Shire.

   [174] See para.122 above.

2. Is the position of “councillor” captured by the definition of “related entity”? Clause 1.1 of the Deed states that “related entity” has the meaning set out in s.9 of the Corporations Act 2001 (Cth).[175] Section 9 of the Corporations Act provides as follows:

   "related entity", in relation to a body corporate, means any of the following:

   (d)  a director or member of the body or of a related body corporate;

   [175] “Corporations Act”.

3. Relevantly, s.9 of the Corporations Act also defines the following terms:

   "body" means a body corporate or an unincorporated body and includes, for example, a society or association.

   "body corporate":

   (a)  includes a body corporate that is being wound up or has been dissolved; and

   (b) in this Chapter (except section 66A) and section 206E includes an unincorporated registrable body;

   "director":

   (a)  a person who:

   (i)  is appointed to the position of a director; or

   (ii)  is appointed to the position of an alternate director and is acting in that capacity;

   regardless of the name that is given to their position; and

   (b)  unless the contrary intention appears, a person who is not validly appointed as a director if:

   (i)  they act in the position of a director; or

   (ii)  the directors of the company or body are accustomed to act in accordance with the person's instructions or wishes.

   Subparagraph (b)(ii) does not apply merely because the directors act on advice given by the person in the proper performance of functions attaching to the person's professional capacity, or the person's business relationship with the directors or the company or body.

   “member”

   (a)  in relation to a managed investment scheme means a person who holds an interest in the scheme; or

   (e)  in relation to a company--a person who is a member under section 231.

4. Section.1.4 of the LG Act defines “member” as follows:

   member, in relation to the council of a local government, means — 

   (b)    a councillor on the council (including a councillor who holds another office under section 2.17(2)(a) or (b) as well as the office of councillor);

5. The Shire is a body corporate as defined in the Corporations Act. Mr Hargreaves is a “member” of the body corporate, being the Shire, by reason of s.1.4 of the LG Act.[176] It is unnecessary, in the circumstances, therefore, to determine whether or not Mr Hargreaves is also a director of the body corporate, being the Shire (notwithstanding that he is a director for the purposes of s.123(2) of the DD Act).

   [176] See also s.2.6(4) of the LG Act which speaks of the office of member of a council.

6. Because Mr Hargreaves is a member of the body corporate he is caught by the definition of related entity for the purposes of s.9 of the Corporation Act. Mr Hargreaves is, therefore, a person to whom the Deed applies. Consequently, to the extent that the Deed precludes Mr Hargreaves from making further claims, and taking action, or operates as a bar to proceedings in relation to “Claims” as defined in the Deed, it applies to any conduct of Mr Hargreaves prior to the time at which the Deed was signed, which was late May 2010, and which is within the scope of the Deed. The Court observes that there is no evidence sufficient to establish that there was conduct by Mr Hargreaves contrary to s.15(2)(d) of the DD Act after the Deed was signed.

Scope of the Deed

1. What then is the scope of the Deed?

2. Clause 3.1 of the Deed operates as an absolute release from any claims that Mr Matthews may have or but for the Deed would have had arising out of, from, in, or in connection with his employment as CEO of the Shire.[177] Further, Mr Matthews agrees not to bring, commence, seek, enforce or continue any claim arising out of, from, in, or in connection with his employment as CEO of the Shire.[178] The terms of the release are in very broad terms, and apply to the conduct in issue in these proceedings, which preceded Mr Matthews’ resignation as CEO of the Shire. Thus, for those to whom the Deed applies, they have been released from any liability, and are protected from any further action, and as a consequence of clause 3.2 of the Deed may plead the Deed in bar to any such claim, as Mr Hargreaves has done. Thus, there is no question in the Court’s view that the release applies to the type of conduct in question in these proceedings. The only question is whether the Deed applies to that type of conduct when carried out by Mr Hargreaves in his capacity as a councillor of the Shire. The answer is that it does because, as set out above,[179] Mr Hargreaves is a related entity for the purposes of the Deed.

   [177] Deed, cl.3.1(a).

   [178] Deed, cl.3.1(b).

   [179] See para.177 above.

3. The Court is also of the view that a reasonable person reading the Deed would take the view that it was intended by the parties, when the nature of the Deed is examined together with the surrounding circumstances, that Mr Hargreaves’ conduct was intended to be covered by the release provisions of the Deed.[180]

   [180] See Seidler v The University of New South Wales [2011] FCA 640 at paras.57-62 per Cowdroy J (and cases there cited).

Potential breach of ongoing obligations

1. Clause 6.1 of the Deed relates to ongoing obligations in respect of public statements.

2. Mr Matthews asserted, in cross-examining Mr Hargreaves, that he sent a letter to Mr Anderson, the current CEO of the Shire, outlining circumstances in which he would object to the Deed being used as a bar to further proceedings.[181] This letter is, however, not in evidence, and Mr Matthews gave no direct evidence about it. Mr Matthews states that in this letter he explained why the Deed has no validity because there were allegedly two schedules to the Deed which included an undertaking by the Shire to curtail Mr Hargreaves’ behaviour and that the Shire did not in fact do so.

   [181] Transcript, 14 June 2011, p.34.

3. The Court notes, however, that the validity of the Deed and its potential breach are separate issues. Moreover, the so-called “schedules” are not in evidence, nor does the Deed itself refer to those schedules. In fact, clause 9 of the Deed expressly states that the Deed constitutes the “entire agreement” between the parties, thereby denying the existence or the significance of the alleged “schedules”.

4. In any event, as the Court has observed above, there is no evidence in these proceedings of conduct by Mr Hargreaves which constitutes a breach of any undertaking by the Shire of the type asserted by Mr Matthews, as all of Mr Hargreaves’ conduct the subject of evidence in these proceedings precedes the date of the Deed.

Mr Hargreaves’ defences - State Acts

1. Mr Hargreaves raises various provisions of State Acts as a further defence to the Application. The State Acts were the LG Act, the Health Act and the PIDA Act. It is convenient to deal first with the Health Act.

Health Act 1911 (WA)

1. Mr Hargreaves submits that Mr Matthews has failed to disclose his Hepatitis C condition in accordance with obligations under the Health Act.

2. Mr Matthews submits that:

   a)he had no obligation to disclose his Hepatitis C condition;

   b)the only advice he has received from the medical profession in respect of his obligations to disclosure his Hepatitis C condition is that it is subject to the context and type of employment or activity engaged in, and that the obligation of disclosure arises where there is a danger of exposing others to risk;[182]

   c)to the best of Mr Matthews’ knowledge, Hepatitis C is a blood-borne contagion transmitted by blood to blood and possibly saliva and saliva only;[183] and

   d)he therefore used a mug which he always kept for himself and never shared, and only ate finger food in the Shire servery which did not require utensils.[184]

   [182] Transcript, 14 June 2011, p.19.

   [183] Transcript, 14 June 2011, pp.19 and 21.

   [184] Transcript, 14 June 2011, p.21.

Relevant provisions

1. The Health Act contains numerous provisions dealing with infectious diseases in Part IX of the Health Act. Those provisions include:

   a)section 248 which provides that the Governor may by notice in the Government Gazette declare any infectious disease to be a dangerous infectious disease;

   b)section 249 which provides for the making of local laws for the purpose of preventing or controlling the spread of an infectious disease;

   c)section 250 which provides that in order to check or prevent the spread of any infectious disease a local government may, either of its own motion, or shall when the Executive Director, Public Health so requires exercise any function or power conferred by the Health Act or the LG Act;[185]

   d)section 252 which provides that officers of local governments must co-operate and assist the Executive Director, Public Health in the exercise of functions and powers specially conferred upon the Executive Director, Public Health with respect to checking or preventing the spread of any dangerous infectious disease;

   e)section 254 which provides that a local government shall if requested by the Executive Director, Public Health exercise all or any of the functions and powers of the Executive Director, Public Health in relation to special powers authorised by the Minister under s.251 to check or prevent the spread of any dangerous infectious disease;

   f)section 255 which provides that it is an offence to obstruct or refuse to comply with directions given in relation to the checking and prevention of dangerous infectious diseases;

   g)section 263 which provides for the removal of persons suffering from an infectious disease to a hospital for treatment on the order of a medical officer;

   h)section 264 which provides as follows:

   [185] Health Act, s.250(1).

         (1)         Any person who —

             (a)         while affected with any infectious disease, wilfully exposes himself in any public house, or in any public place, or public vehicle without proper precautions against spreading the infection; or

             (b)         while affected as aforesaid, enters any public vehicle, without previously notifying to the owner, conductor, or driver thereof that he is so affected; or

             (c)         being in charge of any person so affected, so exposes such person or allows him to do anything in breach of this section,

                 commits an offence.

         (2)         Any person who, while affected with any infectious disease, enters any public vehicle without previously notifying to the owner or driver that he is so affected, shall, in addition, be ordered by the court of summary jurisdiction to pay such owner and driver the amount of any expense and loss they may respectively incur in carrying into effect the provisions of this Act with respect to disinfection of the conveyance:

                 Provided that no proceedings shall be taken against persons transmitting with proper precautions any bedding, clothing, or other things for the purpose of having the same disinfected.

   i)section 272 which provides that:

   In carrying out any work under the provisions of this Part, the local government shall do so to the satisfaction of the Executive Director, Public Health, and in conformity with any directions he may think fit to give; and if the local government fails or neglects so to do, the Executive Director, Public Health may cause the work to be done at the cost of the local government.

   j)section 282 which provides as follows:

         (1)         For the purposes of this Part the Executive Director, Public Health may, from time to time, issue orders, either generally or specifically, to such local governments as may be named in such orders; and the officers of such local governments shall observe and give effect to such orders.

         (2)         Any officer of a local government who neglects to observe and give effect to any order of the Executive Director, Public Health under this section commits an offence.

   k)section 286 of the Health Act provides that certain persons are to report the occurrence of infectious diseases and is set out above;[186]

   l)section 287 of the Health Act provides that certain persons are to report the occurrence of infectious diseases to the Executive Director, Public Health or the local government as follows:

       (1)         Whenever, in the opinion of the Executive Director, Public Health, any place in Western Australia is affected by any dangerous infectious or contagious disease, the Executive Director, Public Health may require all medical practitioners, deputy registrars, school teachers, and members of the police force residing in such place, and the occupier or person in charge of any house in which any case of such disease may occur, to report such occurrence by telegraph, or in case there is no telegraphic communication, by letter to the Executive Director, Public Health and the local government.

         (2)         Whenever it may be necessary to prove that any infectious or contagious disease exists in any place in Western Australia, a copy of a declaration by the Executive Director, Public Health that such disease exists in such place, purporting to be signed and certified to be a true copy by the clerk to the Executive Director, Public Health, shall be evidence, until the contrary be proved, of the existence of such disease.

   m)section 288 of the Health Act deals with monthly reports of infectious diseases, and is set out above;[187]

   n)section 3 of the Health Act defines “infectious disease” in terms set out above.[188] It also defines the “Executive Director, Public Health” to mean:

   … the person holding or acting in the office of Executive Director, Public Health and Scientific Support Services in the Department;

   [186] See para.114 above.

   [187] See para.115 above.

   [188] See para.147 above.

1. As set out above,[189] there is no evidence that Hepatitis C is an infectious disease within the meaning of the definition in s.3 of the Health Act. Therefore those provisions, which refer exclusively to infectious diseases do not, on the evidence in this case, have any application. Sections 286, 287 and 288 of the Health Act, however, refer to a “contagious disease”, and for reasons set out above[190] it appears that Hepatitis C would, at least, be a “contagious disease” for the purposes of ss.286, 287 and 288 of the Health Act.

   [189] See paras.148 above.

   [190] See paras.148 and 150 above.

2. Section 287 of the Health Act also does not apply here because there is no evidence of a requirement from the Executive Director, Public Health requiring any report to be made to local government or the Executive Director, Public Health as contemplated by s.287(1) of the Health Act.

3. Sections 286 and 288 of the Health Act fall into a different category. Both of those sections require the reporting of a contagious disease to the Executive Director, Public Health. Section 286 requires the Shire upon the appearance of a contagious disease, such as Hepatitis C, to “immediately report” its appearance to the Executive Director, Public Health. Section 288 of the Health Act requires the Shire, at least once in every month, to make a report of the existence of any contagious disease, such as Hepatitis C, to the Executive Director, Public Health.

4. There is no evidence before the Court that these provisions were complied with by the Shire. They may have been, but there is simply no evidence to that effect.

5. None of this, however, assists Mr Hargreaves. What Mr Hargreaves did was to disseminate Mr Matthews’ Hepatitis C Information, not only to his fellow Shire councillors, but to anyone else who was interested. Even if, as the Court has found, there was an obligation on the Shire to report as to the existence of Mr Matthews’ Hepatitis C, and the Shire failed to do so, that does not warrant further dissemination of Mr Matthews’ Hepatitis C Information beyond the Shire councillors. If, as is seemingly suggested by Mr Hargreaves’ submissions, but not proven (there being no records of Shire meetings, or Shire reports before the Court) the Shire, having been notified[191] of a “contagious disease”, failed to report it in accordance with ss.286 and 288 of the Health Act that is a matter able to be remediated by an administrative law action against the Shire. The Shire’s failure to report (supposing that to be the case) does not warrant Mr Hargreaves disseminating Mr Matthews’ Hepatitis C Information to Shire electors, residents and ratepayers, and the press, and nor is there any legal justification for so doing.

   [191] The Court notes that Mr Hargreaves also asserted that he had notified various local heath officials of Mr Matthews’ Hepatitis C.

6. In the circumstances, the provisions of the Health Act afford no defence to Mr Hargreaves in relation to this matter.

LG Act

1. The Shire has an obligation to provide good government to its electors, ratepayers and residents.[192] That obligation extends to councillors, including Mr Hargreaves.

   [192] LG Act, s.3.1(1).

2. Obligations of good governance do not, however, entitle Mr Hargreaves, in his capacity as councillor of the Shire, to disseminate all manner of information regarding Mr Matthews’ medical condition to the Shire’s electors, ratepayers and residents at large, or even because they have an interest.

3. The obligation is to govern, in accordance with the rule of law, not to engage in gossip or speculation, spurious or otherwise. It is the latter qualities which have infected Mr Hargreaves’ conduct in relation to the dissemination of Mr Matthews’ Hepatitis C Information in this case. If there was a serious concern with respect to Mr Matthews’ Hepatitis C obligations of good governance would have required Mr Hargreaves to:

   a)raise the matter formally at a meeting of the Shire (there is no evidence to indicate that this occurred); or

   b)arguably, advise the Executive Director, Public Health directly.

   In the event that no action was then taken, it would have been open to Mr Matthews to initiate an administrative law action to compel the Shire, and possibly the Executive Director, Public Health, to carry out any duty imposed upon them under the Health Act (or the LG Act to the extent that it is applicable). Furthermore, the obligations of good governance are required to be construed in the context of the LG Act or any other written law, which for present purposes must include the equal opportunity obligations required to be complied with under the LG Act,[193] and the obligations imposed under the DD Act. The obligations under the DD Act, as the Court has found, did not entitle Mr Hargreaves to engage in dissemination of Mr Matthews’ Hepatitis C Information to Shire electors, ratepayers and residents.

   [193] LG Act, s.5.40(d).

4. In the circumstances, Mr Hargreaves’ conduct in this matter was not in accordance with his obligations of good governance under the LG Act, for the reasons set immediately above, and this “defence” is not made out.

Vexatious litigation

1. Mr Hargreaves’ second ground of defence was a claim that the litigation was vexatious. But at hearing, Mr Hargreaves also put this ground in terms of duplicity and a lack of integrity and credibility on the part of Mr Matthews.

2. Mr Matthews submits that he has not been a vexatious litigant, and that he has pursued what he believed was his right, based upon the fundamental principle that it is unlawful to discriminate against others, especially in employment.

3. Mr Matthews was certainly not a vexatious litigant in the usual sense of a person who has brought ongoing unmeritorious litigation to a court or courts, or against particular respondents. All the evidence properly reveals is the settlement of complaints brought against the Shire in the AHRC and FWA, and this action. There was some suggestion of other complaints in relation to Mr Hargreaves involving the Local Government Standard Panel, but there was no specific evidence of Mr Matthews’ involvement in those, particularly his involvement as an applicant. In the circumstances the assertion that this litigation is vexatious, in the normal sense, is not made out.

4. The litigation may however be an abuse of process, brought contrary to the terms of the Deed. That issue, however, melds into the above consideration of the applicability of the Deed. To the extent that the action is an abuse of process because it is brought contrary to the terms of the Deed, that warrants the dismissal of the Application, but that takes the matter no further that the findings already reached with respect to the scope of the Deed.

Constitutional issues

1. Mr Hargreaves also raised as part of his defence, what appears to be from his point of view, some form of constitutional issue. The submissions on this issue are nigh on incomprehensible, and it was never apparent to the Court precisely what this issue was, as it was never properly put or particularised.

2. At hearing, Mr Hargreaves decided not to press, what he termed, his “constitutional ground of defence”. Hence, the Court determined that no proper constitutional issue was raised in these proceedings, and as such, no notices under s.78B of the Judiciary Act 1903 (Cth) were caused to be issued.

3. In closing submissions Mr Hargreaves did refer to the “invalidity” of the LG Act. To the extent that it is asserted that the LG Act is constitutionally invalid and that local government authorities in Western Australia are not properly constituted, this Court adopts the views expressed by the Western Australian Supreme Court Court of Appeal in Glew v Shire of Geenough,[194] and followed in Pennicuik v City of Gosnells,[195] which upheld the validity of the constitution of local government authorities under the LG Act in Western Australia.

   [194] [2006] WASCA 260.

   [195] [2011] WASC 63 at paras.18-19 per EM Heenan J.

Conclusions and order

1. The Court has concluded that:

   a)the Deed is binding on the parties to these proceedings, and as a consequence:

   i)all claims made by Mr Matthews have been compromised by that Deed; and

   ii)no further claims can be brought against the Shire or, and including, Mr Hargreaves, in relation to matters related to Mr Matthews’ employment;

   b)these proceedings were, as a consequence of the Deed, barred; and

   c)but for the existence of the Deed, the Court would have held, for reasons expressed above, that Mr Matthews had been discriminated against, on the basis of his disability, by Mr Hargreaves contrary to s.15(2)(d) of the DD Act.

2. The appropriate order in the circumstances is for dismissal of the application, and the Court so orders.

3. With respect to costs, the Court has made no order, as both parties were self-represented and incurred no professional costs in the conduct of the proceedings. If costs other than professional costs have been incurred then an appropriate application can be made in accordance with r.21.02(1)(b) of the Federal Magistrates Court Rules 2001 (Cth).

I certify that the preceding two hundred and eight (208) paragraphs are a true copy of the reasons for judgment of Lucev FM

Date:  11 January 2013

[5] Being Mr Matthews’ complaint to the Australian Human Rights Commission (“AHRC”).