Mt v AA (EOD)
[2010] NSWADTAP 19
•1 April 2010
Pending Appeal:
Appeal Panel - Internal
CITATION: MT v AA (EOD) [2010] NSWADTAP 19 PARTIES: APPELLANT
MTFIRST REPSONDENT
AASECOND RESPONDENT
THIRD RESPONDENT
BB
CCFILE NUMBER: 099071 HEARING DATES: 26 March 2010 SUBMISSIONS CLOSED: 26 March 2010
DATE OF DECISION:
1 April 2010BEFORE: Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Bolt M - Non-Judicial Member CATCHWORDS: EQUAL OPPORTUNITY – appeal – challenge to findings of fact and credibility – allegation of bias - appeal dismissed DECISION UNDER APPEAL: MT v AA [2009] NSWADT 268 FILE NUMBER UNDER APPEAL: 081100 DATE OF DECISION UNDER APPEAL: 10/15/2009 LEGISLATION CITED: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997CASES CITED: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Kioa v West (1985) 159 CLR 550
Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469
SZLPN v Minister for Immigration and Citizenship [2010] FCA 202
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139SZ
LGP v Minister for Immigration and Citizenship [2009] FCA 1470; 112 ALD 501
Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1; 168 ALR 407
Bruce v Cole (1998) 45 NSWLR 163
Ormwave Pty Ltd v Smith [2007] NSWCA 210
Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24REPRESENTATION: APPELLANT
RESPONDENT
I Chatterjee, solicitor
M Woodroofe, agent
A Hatzis, counselORDERS: Appeal dismissed.
REASONS FOR DECISION
Introduction
1 MT complained that during his employment as a barman at a hotel in a New South Wales country town during 2007 he was subjected to discrimination on the ground of disability and victimised in breach of the Anti-Discrimination Act 1977 (‘the AD Act’). The Tribunal dismissed each of his complaints. MT has appealed to the Appeal Panel against the Tribunal’s decision. The appeal relates to two allegations against the Second Respondent, who was the manager of the hotel. The first allegation was that the Second Respondent dismissed him on the ground that he is HIV positive: AD Act, s 49D(2)(c). The second allegation is a complaint against the Second Respondent of victimisation: AD Act, s 50. MT alleged that one of the reasons for being dismissed was that he wrote a letter on 30 October 2007 complaining about ‘discrimination’ and ‘harassment’.
2 MT’s appeal is on a question of law: s 113 and s 114 of Administrative Decisions Tribunal Act 1997 (ADT Act). The Appeal Panel’s role is to determine whether the appeal identifies a question of law and if so, whether any question of law has been erroneously answered. We have decided that MT has not identified a question of law or, if such a question has been identified, the Tribunal has not answered that question erroneously.
Grounds of appeal
3 The grounds of appeal are that:
1. The Tribunal’s decision was affected by apprehended bias.
2. The Tribunal made findings which were not reasonably available to it on the evidence.
3. The Tribunal misapplied s 50(1)(c) of the AD Act .
4 After some discussion during the hearing of the appeal, the Appeal Panel invited MT to withdraw his appeal on the first two grounds. That invitation was made because the Appeal Panel had come to the view that those grounds were so lacking in merit that they did not warrant the Appeal Panel’s consideration. MT declined to withdraw those grounds of appeal.
Ground 1 – apprehended bias
5 MT submitted that the fact that the Tribunal made various findings of fact and credibility gave rise to an apprehension of bias. Other than the fact that the Tribunal made those findings, MT did not point to any conduct of the Tribunal that could have led a fair-minded lay observer to apprehend that the Tribunal might not bring an impartial mind to the resolution of the question it was required to decide: Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344. MT was not able to identify any authority for the proposition that findings of fact and credibility in written reasons for decision could constitute such conduct. While conduct of a Tribunal member during the course of or separate from the proceedings may be conduct which might give rise to an apprehension of bias, the absence of any such conduct in this case is fatal to MT’s ground of appeal.
6 Although not identified as a separate ground of appeal, MT also submitted that the Tribunal had breached the rules of procedural fairness in relation to its finding as to MT’s credit. That finding appears at [61] and [62] of the Tribunal’s reasons for decision.
62 MT appeared to us to be particularly ready to interpret conduct by other people as trespassing on his rights and causing unjustified harm to him, and also to assume that the authors of any such harm were people whom he had already identified as hostile to him. These characteristics are clearly discernible in the text of his letter of 30 October 2007 complaining about the ‘Mr Important’ incident and in his assertion, advanced without any supporting evidence, that the reason why residents of the Town became generally more hostile to him after his dismissal from the Hotel was that the Second Respondent and the Third Respondent continued to tell people about his HIV status. We suspect that his recollection of the events of September and October 2007 was affected by these aspects of his personality.61 The two witnesses of prime importance in this case were MT and the Second Respondent. For different reasons, we consider that neither of them was a wholly reliable witness.
7 MT submitted that it was ‘not open’ to the Tribunal to form an opinion as to his general credit prior to the provision of his sworn testimony. This submission is not supported by any direct evidence, or any evidence from which an inference can be drawn, that the Tribunal in fact formed such a view prior to the hearing. This ground of appeal is rejected on that basis. In addition, procedural fairness does not require that a decision-maker give to a person who has been afforded an opportunity to present material a further opportunity in the form of advance notice of the decision-maker’s view that the material is insufficiently persuasive to warrant a decision in that person’s favour: Kioa v West (1985) 159 CLR 550 at 588 per Mason J. While procedural fairness requires a decision-maker to disclose the issues, it does not generally require the decision-maker to expose his or her conclusions for comment before making the decision: Ansett Transport Industries Ltd v Minister for Aviation (1987) 72 ALR 469 at 49. We agree with the Respondent’s submission at [17] that there is no obligation upon a decision maker, having heard the evidence of the various witnesses, to inform a party that he or she is minded to make adverse credit findings.
Ground 2 – making findings which were not reasonably available to it on the evidence
8 No question of law. The short answer to this ground of appeal is that it does not identify a question of law. MT cited Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41 and, in particular a passage referring to decisions which are ‘manifestly unreasonable’ in the sense stated by Lord Greene MR in Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223. MT relied on that decision for the proposition that the Tribunal had made an error of law. It has been clear since the decision in Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 (2003) ALR 59, that ‘Wednesbury unreasonableness’ does not apply to fact finding – it applies only to discretionary decisions.
9 Most questions in relation to factual findings do not constitute questions of law. Not even a perverse finding of fact gives rise to an error of law: Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139. It is only where a decision maker acts without any evidence or without probative evidence that a question of law arises: Bruce v Cole (1998) 45 NSWLR 163 per Spigelman CJ (Mason P agreeing) at 188-89. These principles were explained in Ormwave Pty Ltd v Smith [2007] NSWCA 210 at [14] per Beazley JA, with whom Santow and Ipp JJA agreed. Similarly, findings as to credibility are findings of fact, ‘par excellence’ and are entrusted to the Tribunal alone to make: SZLPN v Minister for Immigration and Citizenship [2010] FCA 202 per Flick J citing Re Minister for Immigration and Multicultural Affairs; Ex parte Durairajasingham [2000] HCA 1 at [67], 168 ALR 407 at 423; SZLGP v Minister for Immigration and Citizenship [2009] FCA 1470 at [34].
10 Incorrect assertions. As well as not identifying a question of law, this ground of appeal relies on incorrect assertions about the Tribunal’s findings. The first of those assertions is that:
The Tribunal made factual findings that MT had made exaggerated claims about his role at the hotel and that he had discouraged friends who had attended the ball with from going to the hotel after that function.
11 MT points to [81] of the Tribunal’s reasons in support of this assertion:
[81] We accept also her evidence that her dissatisfaction regarding (a) the exaggerated claims that he had made about his role at the Hotel and (b) his behaviour at the Ball contributed to her decision to dismiss him. According to the testimony of both parties, both of these matters were raised by her at the meeting as reasons for her being dissatisfied with him.
12 This paragraph does not support MT’s assertion. The Tribunal did not make a finding of fact that the events listed in (a) and (b) had occurred. The finding was that the Second Respondent’s dissatisfaction in relation to those matters contributed to her decision to dismiss MT. Regardless of whether MT in fact engaged in that conduct, the Tribunal was satisfied that it was the Second Respondent’s perception that he had done so and that contributed to her decision to dismiss him. There was no need for the Tribunal to make a finding as to whether those perceptions were well founded. We agree with the Respondent at [24] to [29] of their written submissions.
13 The second incorrect assertion is that:
The Tribunal made a finding that MT was likely to amplify or change his testimony or otherwise lie under oath and there was no evidence for that finding.
14 It is apparent from the decision that the Tribunal made no such finding.
15 MT was unable to identify any findings of fact made by the Tribunal for which there was ‘no evidence’. For example, MT asserted:
That there was ‘no evidence’ to support the finding that MT was particularly ready to interpret conduct by other people as trespassing on his rights and causing him unjustified harm.
16 Contrary to the claim that there was ‘no evidence’ supporting that finding, the Tribunal refers to the evidence at [62] of its reasons. MT also submitted that the Tribunal had made an error of law in making a finding as to the ‘psychological nature’ of MT, and submitted that that issue is a matter for expert evidence. The finding in question is not a finding as to the ‘psychological nature’ of MT. Rather, it is a finding about human nature about which no expertise is required. In Cross on Evidence, LexisNexis at [3265] the comment is made that:
. . . it is impossible to call “any individual to give what is in truth expert evidence as to human nature”: Bourne v Swan & Edgar Ltd [1903] 1 Ch 211 at 224; Royal Warrant Holders' Association v Edward Deane & Beal Ltd [1912] 1 Ch 10 at 14; Interlego AG v Croner Trading Pty Ltd (1992) 39 FCR 348 at 390.
17 It is entirely orthodox for a decision maker to form an impression that a witness’s perception of events may be unreliable because it is tainted by a particular pre-disposition or view. We agree with the Respondent at [19] to [21] of their written submissions to the effect that on a fair reading, the Tribunal has expressed its impressions of MT and the reliability of his evidence based upon the documentary material before it and the Member’s observations of him.
Ground 3 – misapplication of the law
18 Finally, MT submitted that the Tribunal had applied s 50 of the AD Act incorrectly when it found that a complaint alleging workplace harassment did not constitute a complaint alleging a contravention of the AD Act under s 50(1)(c). That provision states that:
or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.(1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has:
. . .
(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or
19 The Tribunal found that the allegation in the letter of 30 October 2007, that the Second Respondent had failed in her duty as an employer to protect MT against harassment by fellow employees, did not constitute an allegation that came within s 50(1)(c). One reason for coming to that view was that it was implicit in the 30 October letter that MT was alleging that employment law in general, rather than the AD Act, was the source of that obligation. In addition there was no indication in the letter that the alleged failure on the part of the Second Respondent to take any action was on the ground of MT’s HIV status. Discrimination on that ground, or some other contravention of the AD Act, is a necessary element for the allegation to amount to a contravention of AD Act: s 50(1)(c).
20 MT submitted that it was open to the Tribunal to find that this allegation did come within s 50(1)(c) and that it should have done so. MT’s characterisation of the Tribunal’s reasons was that the Tribunal made a distinction between harassment and discrimination in the workplace and that that was a narrow or technical reading of the AD Act. In our view, that was not the distinction the Tribunal made. A fair reading of the Tribunal’s decision indicates that the Tribunal was distinguishing between allegations of discrimination and harassment on the ground of HIV status (which would or could constitute a contravention of the AD Act) and other allegations of harassment unrelated to HIV status or any other ground of discrimination under the AD Act.
21 The Tribunal’s decision that the allegation would not amount to a contravention of the AD Act was supported by probative evidence. That evidence was the 30 October letter and MT’s admission in cross examination that the writing of the words ‘Mr Important’ on his time sheet which prompted the 30 October letter, did not amount to harassment on the grounds of homosexuality or HIV status. Rather, he said that this ‘defacement’ of the documents was ‘fraudulent’ and amounted to harassment in the sense of bullying. It follows that a complaint that the Second Respondent failed in her duty as an employer to protect MT against such bullying behaviour would not amount to a contravention of the AD Act.
22 The Tribunal also found that there was a ‘vague’ allegation in the 30 October letter that the Second Respondent had discriminated against him. The Tribunal concluded in relation to that allegation that since the Second Respondent did not dismiss MT on the ground that he made that allegation, there was no need to resolve the question of whether it constituted an allegation under s 50(1)(c). Because the Tribunal’s decision was based on the causation issue and not on whether the allegation came within s 50(1)(c), any error the Tribunal made would not have affected the ultimate decision.
23 Any application for costs should be filed and served within 21 days of the date of these reasons and any reply filed and served within a further 21 days. Any application will be determined ‘on the papers’ in accordance with s 76 of the ADT Act.
The appeal is dismissed.
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