NSW Breeding & Racing v Administrative Decisions Tribunal

[2001] NSWSC 494

Reported Decision: 53 NSWLR 559

New South Wales

Supreme Court

CITATION:	NSW Breeding & Racing v Administrative Decisions Tribunal [2001] NSWSC 494
CURRENT JURISDICTION:	Common Law Division Administrative Law List
FILE NUMBER(S):	SC 30068/00
HEARING DATE(S):	06/06/01
JUDGMENT DATE:	18 June 2001
PARTIES :	NSW Breeding & Racing Stables Pty Ltd - Plaintiff X and Y - First and Second Defendants Administrative Decisions Tribunal of New South Wales - Third Defendant
JUDGMENT OF:	Barrett J

LOWER COURT JURISDICTION :	Administrative Decisions Tribunal of New South Wales
LOWER COURT FILE NUMBER(S) :	[2000] NSWADT 121 and 122
LOWER COURT JUDICIAL OFFICER :	Tribunal

COUNSEL :	Mr K. Roser - Plaintiff Ms A. Healey - First and Second Defendants
SOLICITORS:	Kreutzer & Simpson - Plaintiff MBT Lawyers - First and Second Defendants Submitting appearance - Third Defendant
CATCHWORDS:	ADMINISTRATIVE LAW - Judicial review at common law - whether Court should refuse judicial review because Act makes adequate provision for alternative review - discretionary nature of jurisdiction - factors to be considered
LEGISLATION CITED:	Supreme Court Act 1970 Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Weinel v Judge Parsons (1994) 62 SASR 501 Ex parte Waldron [1986] QB 824 Re Preston [1985] AC 835 R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424 Ultra Tune (Aust) Pty Ltd v Swann (1983) 8 IR 122 Ballam v Higgins (1986) 17 IR 131 Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68 Mishra v University of Technology, Sydney [1999] NSWSC 1324 and on appeal [2000] NSWCA 310 Sullivan v Administrative Decisions Tribunal [2000] NSWSC 386 Shellharbour Golf Club Ltd v Wheeler (1999) 46 NSWLR 346 Hill v Water Resources Commission (1985) 14 IR 158 Mount Isa Mines Ltd v Hooper [1998] QSC 287 Turner v Valuers Registration Committee of Queensland [2000] QSC 94 Daykin v SAS Trustee Corporation [2001] NSWSC 58 Commissioner of Police v Toleafoa [1999] NSWADTAP 9 Rittau v Commissioner of Police [2000] NSWADT 186 Re Ganchov and Comcare (1990) 11 AAR 468
DECISION:	Application for judicial review refused

30

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST
BARRETT J

MONDAY, 18 JUNE 2001

30068/2000 - NSW BREEDING & RACING STABLES PTY LTD v ADMINISTRATIVE DECISIONS TRIBUNAL OF NEW SOUTH WALES & ORS

JUDGMENT

HIS HONOUR:

Background

1 The plaintiff seeks judicial review of two decisions of the third defendant, Administrative Decisions Tribunal of New South Wales (“the Tribunal”), which has filed a submitting appearance. The plaintiff thus invokes the original jurisdiction of the Court, whether that be regarded as statutory jurisdiction conferred by s.23 of the Supreme Court Act 1970 or as an inherent jurisdiction.

2 The decisions of the Tribunal were given on 1 September 2000. They followed inquiries under the Anti-Discrimination Act 1977 into complaints by the first and second defendants. The complaints were heard together. Each complaint involved allegations that the defendant in question had been discriminated against on the ground of her sex by reason of sexual harassment in 1996 at business premises of the plaintiff. Each defendant was an employee of the plaintiff, as was the person who engaged in the conduct amounting to sexual harassment. That person was the second respondent before the Tribunal, the plaintiff being the first respondent. In each case, the complaint was upheld, with the first respondent (the plaintiff) and the second respondent (the perpetrator) being required to pay a specified sum of money to the complainant. There was a direction as follows:

“The liability of the First and Second Respondents to pay the amount … is joint and several. The Applicant is entitled to recover the full amount awarded from either respondent. The Tribunal will assess the respective contributions to be made between the respondents after application by either respondent to the Registrar to fix a date for hearing the application.”

3    It is in relation to these decisions that the plaintiff asserts in its Amended Grounds of Appeal filed on 25 May 2001 a number of errors of law. The alleged errors affect the findings that the plaintiff was vicariously responsible for the conduct of its employee who actually engaged in the acts of sexual harassment and that there might be allocation of responsibility for separate parts of the sum awarded. The alleged errors are that:

(a) the Tribunal erred in law by finding that the plaintiff had authorised and was vicariously liable for sexual harassment of the first and second defendants by an employee when there was no probative evidence to support that finding;
(b) the Tribunal erred in law in taking into account irrelevant considerations that were not probative of any relevant fault on the plaintiff’s part;
(c) the Tribunal misunderstood and misapplied the provisions of ss.24, 25, 52, 53 and 113 of the Anti-Discrimination Act 1977;
(d) the Tribunal misdirected itself in law by applying, for the purposes of s.53, the wrong test i.e. did the plaintiff take all reasonable steps rather than was there any evidence of conduct on the plaintiff’s part during the first and second defendants’ employment that constituted actual or implicit authority or permission;
(e) the Tribunal erred in law by failing to consider the requisite mental element for a finding of authority or permission for the purposes of s.53; and
(f) the Tribunal erred in purporting to have power to “assess the respective contributions to be made between the respondents”.

The question for decision

4    When this matter came on for hearing on 6 June 2001, argument was, by consent, confined to the preliminary question whether the Court should decide the plaintiff’s application which, as I have said, seeks judicial review in exercise of the Court’s original jurisdiction. This was partly for the practical reason that the plaintiff’s Amended Grounds of Appeal had been filed only as recently as 25 May 2001 and had reached Ms Healey, counsel for the first and second defendants, only two days before that. The Amended Grounds of Appeal raised several substantive issues of which Ms Healey and her clients had not previously had notice. Not unreasonably, she took the view that her clients would be prejudiced by having to deal with those matters on 6 June 2001. Mr Roser, counsel for the plaintiff, accepted this.

5    Mr Roser contends, naturally enough, that the Court should in due course hear and determine the application for judicial review by reference to all six errors of law which have been asserted. The position of the first and second defendants is that that this Court is not the appropriate forum in which to determine the proceedings in the form in which the plaintiff now seeks to bring them. Ms Healey submits that the issues the plaintiff wishes to ventilate should be pursued through the appeal process made available by the legislation applying to the Tribunal.

The statutory provisions

6 The preliminary question whether the Court should proceed to hear and determine the plaintiff’s claims was fully argued before me. It turns largely on provisions of the statutes under which the complaints of the first and second defendants were made and the proceedings of the Tribunal were conducted. The Tribunal conducted an inquiry pursuant to ss.96 and 97 of the Anti-Discrimination Act 1977 in relation to each complaint. The jurisdiction the Tribunal exercised in making its decisions was that conferred by s.113 of that Act. Appeals from decisions of the Tribunal under the Anti-Discrimination Act are dealt with by s.118 in the following terms:

“An order or other decision made by the Tribunal under this Act may be appealed to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 by a party to the proceedings in which the order or decision is made.”

7 This provision of the Anti-Discrimination Act causes an order or other decision made by the Tribunal under that Act to be an “appealable decision” as referred to in s.112 of the Administrative Decisions Tribunal Act 1997 (“ADT Act”). This is the effect of s.112(1)(a) of the latter Act. Section 113(1) then becomes relevant. It is in the following terms:

“A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel.”

8 An Appeal Panel of the Tribunal is a panel of at least three Tribunal members constituted in accordance with s. 24 of the ADT Act. Section 113(1), just quoted, appears to create a right of appeal to such an Appeal Panel additional to that created by s.118 of the Anti-Discrimination Act, although I do not think that anything turns upon that. The structure of the legislation, it seems to me, is such that the succeeding sub-sections of s.113 of the ADT Act apply to every appeal to an Appeal Panel, whether the authority for the appeal derives solely from s.113(1) or comes also from a separate enactment.

9 Nothing is said in the Anti-Discrimination Act about decisions made by the Tribunal under that Act being taken direct to this Court. That possibility is, however, recognised in Part 3 of Chapter 7 of the ADT Act headed “Inter-relationship Between Supreme Court and Tribunal”. Part 3 contains two sections. Section 122 is as follows:

“Nothing in this Act (except section 123) affects the power of the Supreme Court, in the exercise of its original jurisdiction, to review the decisions of the Tribunal.”

Section 123 then empowers the Court to refuse to grant applications for the review of decisions of the Tribunal according to criteria which are expressly stated and by reference to particular matters which are enumerated. It will be necessary to return to these in due course.

10 The reason the exercise of the Court’s original jurisdiction in relation to decisions of the Tribunal has been made the subject of this express statutory treatment is, to my mind, clear. The Court plays a well defined role in the review process created by Chapter 7 of the ADT Act itself and employed by other provisions which, as it were, feed into Part 1 of Chapter 7, such as s. 118 of the Anti-Discrimination Act to which I have already referred, s.109ZC of the Environmental Planning and Assessment Act 1979, s.171F of the Legal Profession Act 1987, s.56 of the Privacy and Personal Information Protection Act 1998, s.77 of the Retail Leases Act 1994 and s.34 of the Veterinary Surgeons Act 1986.

11 The first step in the review processes created by the ADT Act is found in s.113. Under that section an appeal in relation to any decision of the Tribunal lies to an Appeal Panel as of right on any question of law and, with the leave of the Appeal Panel, may extend to a merits review. The powers of the Appeal Panel with respect to appeals on questions of law and appeals on merits are set out in ss.114 and 115 respectively.

12 The role of this Court in the ADT Act’s review structure centred upon the Appeal Panel emerges in part from s.118 (the concluding section of Part 1 of Chapter 7) and in part from Part 2 of Chapter 7. Section 118 empowers an Appeal Panel determining an appeal under Part 1 of Chapter 7 to refer a question of law to the Court. It may do so of its own motion or at the request of a party. Section 118 also confers upon the Court jurisdiction to hear and determine any question of law so referred. Part 2 of Chapter 7 creates a right for a party to proceedings before an Appeal Panel to appeal to the Court, on a question of law, against any decision of the Appeal Panel in those proceedings. This is provided for in s.119. The Court is empowered to hear and determine every such appeal and may make such orders as it thinks appropriate in light of its decision.

13 The whole tenor of the ADT Act, as well as that of the various provisions such as s.118 of the Anti-Discrimination Act which feed into Part 1 of Chapter 7, seems to me to be that, in the ordinary course of events, someone dissatisfied with a decision of the Tribunal will, in the first instance, seek redress through appeal to an Appeal Panel. A decision at Appeal Panel level will, in ordinary circumstances, be a prerequisite to further review by way of appeal to the Court or referral of a question of law to the Court. The fact that there is an appeal to the Appeal Panel as of right on any question of law means that the Appeal Panel, like the Court, has jurisdiction in relation to error of law. But the two jurisdictions are by no means the same and, to the extent that the matters with which they are concerned overlap, they must be considered in the light of s.123 of the ADT Act which regulates, according to the circumstances of a particular case, the priority to be afforded to one jurisdiction over the other.

The s.123 discretion

14 Section 123 grants an express permission for the Court to decline to adjudicate in exercise of its original jurisdiction where circumstances stated in the section exist, thus stating (or confirming) that the judicial review jurisdiction is discretionary in those circumstances. The circumstances are related to the availability and adequacy of some other avenue of review provided by the ADT Act itself. In the present case, the only avenue of review that could possibly be relevant is the Appeal Panel process under Part 1 of Chapter 7 viewed, of course, in the light of the way in which appeal under that process may lead under Part 2 to further appeal to the Court.

15 Recognising the way in which exercise of the Court’s original jurisdiction is thus made or confirmed to be discretionary (but also remembering that the discretion is controlled by the terms of s. 123), it is useful to look at general principles as to the discretionary nature of administrative law jurisdiction in circumstances where an alternative review or appeal mechanism is available. Guidance area is provided by the judgment of Kirby P in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 and the decision of the Full Court of the Supreme Court of South Australia in Weinel v Judge Parsons (1994) 62 SASR 501.

16 The Boral case concerned an application for judicial review by way of prerogative relief in respect of a decision of a judge of the Industrial Court of New South Wales in circumstances where remedies available to the applicant by way of appeal to the Full Industrial Court constituted by three judges had not been sought. Kirby P surveyed treatment of the subject in the English Court of Appeal and the House of Lords, including Ex parte Waldron [1986] QB 824, Re Preston [1985] AC 835 and R v Chief Constable of the Merseyside Police; Ex parte Calveley [1986] QB 424. The message from those sources was consistent, namely, that ordinarily the judicial review jurisdiction will not be exercised where there is an alternative remedy by way of appeal; and that that general rule will be displaced only by “exceptional circumstances”. It was emphasised, however, that the judgment is one which must be made according to the circumstances of each case and that what I have termed the “general rule” should not be approached as if it were a statutory prescription.

17 Kirby P then turned to the position in New South Wales, drawing particular attention to the judgments of Hutley JA in Ultra Tune (Aust) Pty Ltd v Swann (1983) 8 IR 122 and McHugh JA in Ballam v Higgins (1986) 17 IR 131. In each case, there was acceptance of the general approach taken in the English cases. The considerations supporting that approach were stated by Kirby P himself in Ballam as follows:

“1. It recognises and gives effect to the legislative scheme provided by Parliament for internal appeals …
2. It affords a proper place to the specialised tribunal which may have a superior advantage in ready knowledge of the developments of jurisprudence under scrutiny which this Court does not initially enjoy. Furthermore, that tribunal frequently has a superior armoury of remedies at its disposal than this Court can offer;
3. Whilst it may involve the possibility of additional cost or delay, it affords this Court the advantage of having the opinion of the appellate tribunal should the tribunal determine the question of jurisdiction and should it still be the intention of a party to challenge jurisdiction;
4. It allows complete exhaustion of any additional factual issues which may be relevant to establishing the facts said to ground jurisdiction, which facts may more readily be determined below than in this Court; and
5. It conserves to cases where no other remedy exists, the discretionary and exceptional remedies provided by writs in the nature of prerogative writs and recognises the pressure of business in this Court, including in the exercise of its general supervisory jurisdiction.”

18    In Weinel’s case, King CJ (with whom Prior and Perry JJ agreed) said:

“Remedies by way of judicial review are discretionary. They are generally not granted where there is another equally effective and convenient remedy: R v Hillingdon London Borough Council; Ex parte Royco Homes Ltd [1974] QB 720, per Lord Widgery (at 728). Judicial Review should not be used as an alternative to the exercise of a right of appeal and the discretion may be exercised to discourage the procedure from being so used: R v Ross-Jones; Ex parte Green (1984) 156 CLR 185, per Wilson and Dawson JJ (at 214).”

19    King CJ also referred to one particular and important instance where the general rule might be ignored in favour of the Supreme Court’s entertaining and determining an application for judicial review even though avenues of appeal have not been exhausted:

“I envisage that if this Court felt that an erroneous decision in the Industrial Court on an important question of principle, not being in excess or want of jurisdiction, required correction, it might be inclined to review the decision notwithstanding that appellate rights within the Industrial Court had not been exhausted. Such an exercise of discretion would be more likely if previous decisions of the Full Industrial Court were to indicate that correction of the error was unlikely in that Court.”

20 Section 123 of the ADT Act should be approached and applied against the background of the principles just discussed. Clearly, those principles do not modify the terms of the section itself. But they can and should be used by way of guidance in making a decision under the section.

Judicial comment on s.123

21 Before turning to the reasons why the plaintiff contends that judicial review is appropriate at this stage, I should mention comment in this Court about ss.122 and 123 of the ADT Act. I refer to it as “comment” because the matter has been dealt with only briefly and without detailed analysis, which is perhaps not surprising when it is remembered that the Tribunal has been in operation for less than three years. There are three relevant cases: Lloyd v Veterinary Surgeons Investigating Committee [1999] NSWCA 68, Mishra v University of Technology, Sydney [1999] NSWSC 1324 and Sullivan v Administrative Decisions Tribunal [2000] NSWSC 386. (An appeal in Mishra [2000] NSWCA 310 involved unrelated issues.)

22 In Lloyd, the claimant in the Court of Appeal to which the proceedings had been removed under s.51(1)(b) of the Supreme Court Act sought relief in the nature of prerogative relief under s.69 of that Act in respect of a decision of the Tribunal susceptible to appeal under Part 1 of Chapter 7 of the ADT Act. Priestley JA referred to the Court’s general disinclination to provide such relief where an opportunity of internal appeal is available and has not been utilised. His Honour expressed the view that, as the case then stood, the appeal procedures in the Tribunal should be followed through before the Court exercised its original jurisdiction referred to in s.122 of the ADT Act and provided for in s.69 of the Supreme Court Act. Part 1 of Chapter 7 of the ADT Act was seen as making adequate provision for alternative review. Mason P and Stein JA agreed with Priestley JA.

23    In Mishra, there is reference in the judgment of Kirby J to statements made by Dunford J at an interlocutory stage, including the following:

“Another difficulty is the precise effect of s.122. My preliminary view is that, without, as I say, having heard full arguments, it would only be available in circumstances where there are grounds for prerogative relief although I note the word ‘review’ is defined widely as including ‘reconsideration, re-hearing, and appeal’ as well was prerogative relief. I find it difficult to accept that Parliament in setting up an Appeal panel to review Administrative decisions should also have intended that there should be a right of appeal by way of re-hearing to this court when none had existed before. But, as I say, without full argument I am reluctant to embark on a detailed construction of s.122 and s.123.”

It is not suggested in any of the other cases, nor was it argued in this case, that s.122 creates a right of appeal by way of rehearing. The present plaintiff seeks the essentially negative remedy of judicial review by reference to error of law only.

24 Kirby J himself noted that, because the case before him was argued by a litigant in person, the argument on ss.122 and 123 was limited and one sided. He also said:

“To dispose of the appeal upon the basis that Mr Mishra should have first gone to the Appeal Panel leaves me with a sense of injustice.”

25    This reaction was prompted by three factors, First, Mishra, who had no legal representation, had been inadvertently misled by an officer of the Court as to the appropriate avenue of appeal. Second, the fact that he was unrepresented had made it necessary for the Judge to sift through the material so as to assist Mishra in the appropriate way, thereby familiarising himself with the merits to an extent that would otherwise not have occurred. Third, time had been lost:

“To refuse to deal with the matter on the basis of jurisdiction, and send Mr Mishra back to the Appeal Panel, there to seek an extension of time, will doubtless add to Mr Mishra’s impatience and sense of injustice.”

His Honour concluded:

“Since I have before me the material which is said to demonstrate the validity of Mr Mishra’s complaint of racial discrimination, as well as the material in respect of the hearing before the Equal Opportunity Tribunal, it is plainly convenient that I should examine that material.”

26    This was after he had expressed the following opinion:

“It would plainly have been better had Mr Mishra appealed to the Appeal Panel, as s.118 of the Anti Discrimination Act , in its amended form, contemplates. Such an appeal is likely to have been cheaper, more expeditious and (with leave) may have included an examination of the merits.”

27 In Sullivan’s case, Windeyer J reviewed ss.122 and 123 and said:

“I have come to the conclusion that the court should proceed with this matter. The main reason for doing so is that while there was no attention given by counsel for the plaintiff or by me to this matter when it first came before the court, the fact is that it is, in reality, part heard before me; the reason for making the interlocutory order was that I required further argument on certain aspects of the matter at that stage. The second reason for taking that view is that there can be no doubt that the determination of this matter by me now would be a far quicker and cheaper determination than would be required if the matter had to go to an appeal panel. The third reason, although perhaps it is not of great significance, is that the transcript of proceedings indicates it was envisaged by both the Presiding Member and by counsel for the plaintiff when the decision refusing disqualification was handed on 19 April 2000, that the next step would be to bring the matter to this court. In light of those matters, it seems to me that I should deal with the application rather than decline to deal with it and I thus proceed to do so.”

28    Neither Mishra nor Sullivan involved the calculated decision to resort to the original jurisdiction of the Court instead of an Appeal Panel which the present plaintiff has made in a fully informed way. Unlike Kirby J and Windeyer J, I am not seised of the full details of the parties’ contentions about the alleged errors of law, given that argument before me has been confined to the preliminary question whether the matter should be dealt with here or in an Appeal Panel. There has been no occasion for me to sift through the papers, since both the plaintiff and the first and second defendants are represented by counsel. The plaintiff has not come to court under some jurisdictional misapprehension. Nor has it been suggested that the Tribunal itself expressed an expectation that the matter would be brought to the Court. I can therefore lay to one side the considerations which influenced Kirby J and Windeyer J, reminding myself as I do so that the course which the former considered “would plainly have been better” is the course which the Court of Appeal compelled in Lloyd.

The submissions

29 It is against this general background that I consider the reasons why the plaintiff contends that the substance of its claims should be dealt with here rather than before an Appeal Panel. I do so in order to examine those reasons against the content of s.123 as understood in the light of the general principles to which I have referred.

30    Written submissions by Mr Roser, counsel for the plaintiff, state three reasons why, in the interests of justice, the Court should proceed to determine the plaintiff’s application for judicial review, rather than compelling the plaintiff to resort to an Appeal Panel. The reasons are stated in the written submissions in the following way:

“4.1 The 3rd defendant clearly experienced difficulty in responding to and ruling upon the plaintiff’s submissions of law which remain unsolved.
4.2 The plaintiff submits that the points of law raised in these proceedings are of general importance and require clarification or resolution by the Court:

· Is discrimination a statutory tort or statutory offence?

vicarious liability (s.53 Anti-Discrimination Act 1977); and

accessorial liability (s.52 Anti-Discrimination Act 1977)

for the purposes of employment related breaches of the Anti-Discrimination Act?

· Is there, for the purposes of employment-related breaches of the Anti-Discrimination Act, an available defence of honest and reasonable but mistaken belief?

· Does the ADT have power, or is it under a duty, to ‘assess contributions’ between offending discriminators? and,

4.3 The relief sought by the plaintiff represents the most efficient remedy available to the parties. For example, had the plaintiff appealed to the Appeal Panel of the Tribunal (‘APT’) it may have been in no better position than was the Tribunal to determine the plaintiff’s submissions. An appeal from the APT or its reference of questions of law to this Court (s.118 Administrative Decisions Tribunal Act 1997) may well have imposed upon the plaintiff further significant expense and delay.”

31    Mr Roser supplemented the written submissions in the course of argument. He said that the plaintiff should not have to go to an Appeal Panel because the original decision is not fair and because the relevant areas of law are not clear and need to be clarified by higher authority. An Appeal Panel, he said, may come to the conclusion that it cannot make an authoritative decision because of the uncertain state of the law, in which event it may well refer questions of law to the Court, whereupon the matter will end up in the Court anyway.

32 Mr Roser then pointed to what he regarded as errors in the approach the Tribunal took on the question of vicarious responsibility of the plaintiff for the actions of its employee, referring to decisions such as Shellharbour Golf Club Ltd v Wheeler (1999) 46 NSWLR 346 and Hill v Water Resources Commission (1985) 14 IR 158 as illustrating the principles that should be applied. He then made what I consider to be the somewhat curious submission that the Tribunal might be regarded as being possessed of a sense of purpose to provide a remedy to victims of sexual harassment and to interpret the legislation in a way which enables that purpose to be achieved - and that an Appeal Panel, being part of the Tribunal, would be similarly predisposed. This, he said, was contrary to the “level playing field” envisaged by s.3(b) of the ADT Act which states, as one of the objects of the Act,

“to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair.”

33 Mr Roser next dealt with that part of the Tribunal’s decision which awards a particular sum of money to each of the first and second defendants in the context of statements that the liability for payment is a joint and several liability of the plaintiff as employer and the perpetrator, yet that the relevant defendant may go back to the Tribunal to have it determine the proportions in which the plaintiff and the perpetrator are to pay. On this, Mr Roser, submitted that where an employer is found to be liable by reason of an act or omission of an employee, the liability is, according to the statutory scheme (s.53(2) of the Anti-Discrimination Act), joint and several and there is no statutory warrant for allocating to each of them sole responsibility for some part of that liability. In this connection, he pointed to the decision of the Supreme Court of Queensland on analogous legislation of that State in Mount Isa Mines Ltd v Hooper [1998] QSC 287. This error, he said, cannot be put right by an Appeal Panel without the intervening and unnecessary step of going back to the Tribunal itself and obtaining from it a decision as to the respective portions of the liability to be borne by the two parties, just for the purpose of allowing that then to be the subject of an appeal to the Appeal Panel.

34    Ms Healey said in her written submissions:

“It is submitted that there has been no miscarriage of justice in the Tribunal’s decision and any review of the decision, whether by the Appeal Panel or the Supreme Court, should be confined to the issue whether the Tribunal erred in law in its finding that the company NSW Breeding & Racing Stables Pty Ltd was vicariously liable by operation of sections 52 &I 53 of the Anti-Discrimination Act 1977, as it then was during the relevant period. It should be noted that these sections were subsequently amended and therefore the points of law raised by the plaintiff are not of general importance requiring clarification or resolution by the Court.”

35 This last point refers to amendment of s.53 whereby sub-ss.(3) and (4) were added in 1997, that is, after the events involved in this case. Sub-section (3) introduced what is, in concept, a substantial defence on the part of a principal or employer against whom a case of vicarious responsibility is asserted. The defence is that the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. I agree that this significantly altered the complexion of the vicarious responsibility regime.

Examination of s.123 criteria

36 Because the Tribunal’s decision is an “original decision” (see s.7) and no application for review has at this point been lodged with an “alternative reviewer”, the first matter to which s.123 directs attention is that specified in s.123(1)(a): is adequate provision made under the Act for the plaintiff to seek an alternative review of the Tribunal’s decision? Subject to one possible qualification, the answer is clearly “yes”. The availability of appeal to an Appeal Panel under Part 1 of Chapter 7, being an “alternative review” as defined by s.123(3), compels this answer.

37 The possible qualification comes from Mr Roser’s submission that an Appeal Panel cannot set right what he regards as the legally impermissible apportionment between the two parties of what is, under this Act, a joint and several liability. This is because the Tribunal has not yet made a substantive determination of apportionment. I do not think this is correct. The Tribunal has, as part of its existing decision, stated that the Tribunal “will assess the respective contributions” if and when submissions on the matter are made. The existing decision thus contains a statement that the Tribunal possesses power to apportion. That part of the existing decision is capable of being appealed to an Appeal Panel in the same way as any other part of that decision. In the end, therefore, the positive answer to the question posed by s.123(1)(a) is unqualified: cf Turner v Valuers Registration Committee of Queensland [2000] QSC 94.

38 Once that point is reached, I must pay attention to the matters listed in s.123(2), given the Court’s power to take into account any one or more of them. The five matters to which the Court is to turn its mind under paras (a) to (e) are followed by a catch-all in para (f): “any other matter it considers relevant”.

39 The matter addressed by para (a) is the plaintiff’s eligibility for alternative review by way of appeal under Part 1 of Chapter 7. In light of the right of appeal conferred by s.113(1), eligibility exists. It is true that, under s.113(3), an appeal must normally be made within twenty eight days after the Tribunal gives written reasons for the relevant decision, but there is in s.113(3)(b) a power for an Appeal Panel to extend that time. It is, to my mind, virtually certain that an Appeal Panel would extend time in a case where an appellant had acted promptly and responsibly in pursuing an application for judicial review in the first instance and had, as it were, been sent by the Court to an Appeal Panel. Ms Healey, as I understood her submissions, conceded this. The eligibility with which s.123(2)(a) is concerned should therefore be regarded as existing.

40    Para (b) directs attention to the question whether an Appeal Panel is likely to deal with the matter more expeditiously and cheaply than the Court. As to cost and speed, I do not have material before me which allows for the necessary comparison to be made. The likelihood on cost is that there would be little, if any, difference. As to timing, I cannot speculate.

41    Under para (c), the question is whether a favourable determination of the application by the Court would be likely to resolve the issues in dispute. All the Court could do, upon an application for judicial review, would be to set aside the Tribunal’s decision for error, as to either or both of the finding of vicarious responsibility and the finding that financial liability can be apportioned by the Tribunal. Such an outcome would resolve the legal issues in dispute, although whether it would appropriately end the matter as a whole is a question which flows into consideration of the next aspect.

42    Para (d) poses the question whether an Appeal Panel would be able to give the applicant an appropriate remedy. The answer is clearly “yes”. The jurisdiction upon an appeal to an Appeal Panel confined to questions of law is not restricted to affirming or setting aside the Tribunal’s decisions or remitting the matter for rehearing. The Appeal Panel is also empowered to substitute an order of its own for an order of the Tribunal and may decide, if a party so wishes, to review merits. The jurisdiction is therefore more flexible and potentially more creative in the interests of effective dispute resolution than the Court’s essentially negative jurisdiction upon judicial review.

43    Para (e) directs attention to the issue of hardship upon the applicant. On this, I cannot see any possibility of hardship in a comparison of the two appeal avenues, subject to one comment about jurisdiction of the Court of Appeal.

44 If the plaintiff’s complaints about the Tribunal’s decision are litigated by way of judicial review in the Court’s original jurisdiction, the decision of a single Judge in the Administrative Law List will be susceptible to appeal to the Court of Appeal. If the complaints are instead reviewed by an Appeal Panel, any subsequent consideration by the Court will be by way of either reference under s.118 of the ADT Act or appeal under Part 2 of Chapter 7. As is confirmed by the decision of Dunford J in Daykin v SAS Trustee Corporation [2001] NSWSC 58, an appeal under Part 2 of Chapter 7 will be heard by the Court of Appeal if the several Tribunal members who make up the Appeal Panel include a member who is a Judge of the District Court but otherwise will be heard by a single Judge in the Administrative Law List with the consequent possibility of further appeal to the Court of Appeal. This is the effect of s.48(1) of the Supreme Court Act. These differentiated appeal avenues cannot be regarded as mere accident. Exactly the same differentiation is expressly created in Victoria by the legislation governing the Victorian Civil and Administrative Tribunal: Victorian Civil and Administrative Tribunal Act, s.148.

45    Ms Healey said that a Tribunal member who is a Judge of the District Court almost always presides at an Appeal Panel. An inspection of published Appeal Panel decisions for 2000 and 2001 would suggest that this has been so in roughly seventy per cent of cases. There may thus be some expectation that ultimate authoritative resolution in case of appeal to the Appeal Panel would be unlikely to involve an additional layer of proceedings, compared with resolution by this Court upon judicial review. It is important, however, not to make too much of these matters which are to a large extent speculation. Issues of this kind should not be decided by reference to the shortest route to ultimate authoritative determination. Otherwise, measures intended to keep administrative proceedings of various kinds within particular channels could be side-stepped by the earliest possible resort to judicial review by the Supreme Court.

“Any other matter it considers relevant”

46    That brings me to para (f) - any other matter the Court considers relevant. It is here that the statute allows me to pay attention to the general principles derived from decisions about the discretionary nature of judicial review. I refer in particular to the five principles stated by Kirby P in Ballam v Higgins (above).

47 The Appeal Panel operates as a review body within a system of administrative law recently created by Parliament to meet a particular need in today’s society. Appeal Panel decisions have, in the space of less than three years, come to occupy a position of persuasive influence within the Tribunal. Principles of importance enunciated by an Appeal Panel in Commissioner of Police v Toleafoa [1999] NSWADTAP 9 on matters unrelated to those in issue here have already been acted upon and applied in no less than seven Tribunal decisions. In Rittau v Commissioner of Police [2000] NSWADT 186, Judicial Member Robinson stated cogent reasons why members of the Tribunal should in general follow decisions of the Appeal Panel even though no principle of stare decisis requires them to do so. He said:

“The reasons why these decisions should be followed is because they are authoritative and they go some way to seeking to ensure consistency in the Tribunal’s decision-making. Achieving that objective would constitute a significant step towards the Tribunal fulfilling its promotion and education role suggested in s.3(g) of the ADT Act which provides that the objects of the ADT Act are
‘to provide and effect compliance by administrators with legislation enacted by Parliament for the benefit of the citizens of New South Wales’.
In my view, consistent decisions of the Tribunal go some way to promote and effect that compliance.”

48 As Judicial Member Robinson noted, a similar approach is taken in the Commonwealth Administrative Appeals Tribunal: see Re Ganchov and Comcare (1990) 11 AAR 468.

49    Appeal to an Appeal Panel in the present case represents a remedy for the plaintiff at least as effective and convenient as judicial review by this Court and arguably more so, given the limitations upon the judicial review jurisdiction and the capacity of an Appeal Panel to make orders in substitution for those of the Tribunal and, if it is so minded (and requested), to review merits. I reject the suggestion of Mr Roser to the effect that the Appeal Panel should be by-passed because, as part of the Tribunal, it may be regarded as being possessed of a sense of purpose to provide a remedy to victims of sexual harassment and to interpret the legislation in a way which enables that purpose to be achieved. The duty of the Tribunal, including an Appeal Panel, is to do right and there is no basis whatsoever upon which it can be said that an Appeal Panel would not do right in this case.

50 It is true that the plaintiff’s concerns involve questions of law and that, as King CJ observed in Weinel v Judge Parsons (above), a court with a discretion whether to hear a matter or to require that it go instead to some alternative appeal body might well favour the former course where an important question of legal principle is at stake. To this, however, two responses may be made. First and as Ms Healey pointed out, there has been a not insignificant change to the statutory landscape (by way of the introduction of s.53(3) of the Anti-Discrimination Act) which limits the ongoing relevance of one of the legal issues. Second and as King CJ observed, the tendency of a court to wish to exercise jurisdiction would be more pronounced if previous decisions of an alternative appeal body indicated that correction of error by that body was unlikely. That is not the case here. The fact that a point is novel and has not previously been considered by an alternative appeal body cannot of itself justify the by-passing of such a body. (I note here the possibility briefly mentioned by Adams J in Fraser v Anti-Discrimination Board [1999] NSWSC 1229 that “the general law relating to ancillary liability for unlawful acts” may operate in situations such as the present, in addition to s.53.)

51    Arguments about the shortest route to authoritative decision (ultimately, I suppose, the High Court) are not particularly productive. Each decision maker in a given context has a particular role to play in achieving a final result. It would be as short-sighted as it would be at odds with statutory expectations about the roles and functions of particular bodies for a court always to prefer an outcome which entails the shortest path to the tribunal of final appeal. This is illustrated in particular by the Court of Appeal’s decision in Lloyd v Veterinary Surgeons Investigating Committee (above).

52    Finally, I note the significance attached by Kirby P in Ballam v Higgins to an approach which restricts judicial review remedies mainly to cases where no other remedy exists, thus recognising the pressure of business in the Court, including in the exercise of its general supervisory jurisdiction.

Conclusion and decision

53 I am satisfied that, in all the circumstances of the present case, adequate provision is made under Chapter 7 of the ADT Act for the plaintiff to seek alternative review of each of the decisions of the Tribunal given on 1 September 2000 by way of an appeal to an Appeal Panel. The plaintiff’s application for judicial review of each such decision is refused. The plaintiff will pay the defendants’ costs of these proceedings.

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Last Modified: 06/19/2001