O'Sullivan v Central Sydney Area Health Service (No 2)

[2005] NSWADT 136

CITATION:	O'Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Dr Brendan O'Sullivan RESPONDENT Central Sydney Area Health Service
FILE NUMBER:	031122
HEARING DATES:	8/11/2004, 10/11/2004, 3/04/2005-5/04/2005
SUBMISSIONS CLOSED:	04/05/2005
DATE OF DECISION:	06/16/2005
BEFORE:	Grotte E - Judicial Member; Bolt M - Non Judicial Member; Nemeth de Bikal L - Non Judicial Member
APPLICATION:	summons - application for issue of
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	Attorney-General v Radloff (1854) 10 Ex 84 [42 ER 366] Australian Postal Commission v Dao (No.2) 1986 6 NSWLR 497 Ex parte Fernandez (1861) 10CB (NS) 3 [156 ER 349] Paula Jones v Clinton 520 US 681 (1997) Regina v Bartle and the Commissioner of Police (ex parte Pinochet, 25 November 1998) Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd trading as Café Tiffany [2005] NSWADTAP 9
REPRESENTATION:	APPLICANT In person but assisted by C Murtogh, Counsel on a Direct Access basis RESPONDENT A Moses, Counsel HER EXCELLENCY, the GOVERNOR OF NEW SOUTH WALES M Sexton, Solicitor-General, NSW
ORDERS:	Leave to issue a summons to Professor Marie Bashir, Her Excellency the Governor of New South Wales is refused

Introduction

1 On 18 October 2002 Dr Brendan O’Sullivan (the Applicant) lodged a complaint with the Anti-Discrimination Board against the Central Sydney Area Health Service (CSAHS) (the Respondent). Dr O’Sullivan alleged that he had been discriminated against during his employment with the Respondent in that he had been forced to resign at a time of documented illness. Dr O’Sullivan claimed that the Respondent sequestered over $77000 of sick leave and long service entitlements during the same period of illness. Dr O’Sullivan claimed that the acts of discrimination were committed from 4 June 2000 to 3 October 2002 when he claims that the final refusal to reconsider his ongoing appeals occurred.

2 The complaint referred to the Tribunal by the Anti Discrimination Board (ADB) concerns alleged acts of discrimination between 4 June 2000 and 3 October 2002. It is with respect to this complaint that the Tribunal has jurisdiction.

This Application

3 The Applicant in these proceedings requests that leave be granted for the issue of a summons requiring the attendance of Professor Marie Bashir, Her Excellency, the Governor of New South Wales.

4 It was submitted by Counsel for Dr O’Sullivan that the evidence of Professor Bashir is material to the Applicant’s case because Professor Bashir was closely involved professionally with Dr O’Sullivan from about 17 July 1994 when he was admitted to the St John of God Hospital while he was employed by the Respondent. It was submitted that Professor Bashir had intimate knowledge of Dr O’Sullivan’s medical condition of depressive bipolar disorder in the period from about 17 July 1994 up to and including the date that Professor Bashir ceased being the Director of the Respondent. It was submitted that Professor Bashir had dealings with Dr O’Sullivan as his superior and that he told her about his medical condition as a result of which Professor Bashir organised medical reports from Professor Beverley Raphael in 1995 and spoke with Dr Stella Dalton, the Applicant’s treating psychiatrist at various times between 1995 and 2000. It was submitted that Dr O’Sullivan had to deal with Professor Bashir in relation to variations to his employment contract and that Dr O’Sullivan wrote to Professor Bashir on 7 March 2000 and 11 May 2000 seeking to have his part-time fractional agreement with the Respondent varied. It was submitted that Professor Bashir was present at the meeting at which a threat was made to refer a complaint to the Independent Commission Against Corruption (ICAC) concerning Dr O’Sullivan and that she was a party to those threats and that, as a result, Dr O’Sullivan resigned, agreed to pay $77000 back to the Respondent and was constructively dismissed from his employment with the Respondent.

5 It was submitted by Counsel for the Respondent that there is no forensic utility in summonsing Professor Bashir for the following reasons:

(i) That paragraph 4 of the Points of Claim pleads that “from on or about May 1995 the Respondent had knowledge of the Applicant’s illness”. Points of Defence were filed on 16 September 2004 in which the respondent admitted paragraph 4 of the Points of Claim.

(ii) The supplementary statement of Dr O’Sullivan (Exhibit D) refers to paragraph 22 to a discussion alleged to have taken place between Professor Bashir and Dr O’Sullivan some days or a week or two before the 2 June meeting with Mr Wallace. It was submitted therefore that evidence of this discussion is before the Tribunal and there is no need to call Professor Bashir to make good the assertion as to what is alleged to have been said at that meeting.

(iii) The supplementary statement of Dr O’Sullivan (Exhibit D) refers to a document completed by Dr O’Sullivan purported to set out the hours of work he was undertaking for the Respondent. Dr O’Sullivan has given evidence that Professor Bashir informed him that there was only a need to fill out the form setting out the hours of work that were being undertaken for the Respondent and that he obtained this understanding from Professor Bashir. It was submitted therefore that if this evidence from Dr O’Sullivan is accepted there is no need for Professor Bashir to be called in order to make good that aspect of Dr O’Sullivan’s case.

(iv) Dr O’Sullivan has given evidence about Professor Bashir’s alleged knowledge of his illness and if that evidence is accepted and it is deemed relevant, then there is no need to call Professor Bashir.

(v) Dr O’Sullivan has asserted in evidence to the Tribunal that Mr Wallace made reference to a potential complaint to ICAC in a meeting on 5 June 2000. Dr Stewart’s statement filed with the Tribunal asserts that it was Mr Wallace who uttered the words to that effect as does Mr Meade, a witness for Dr O’Sullivan. Mr Wallace asserts in his statement that it was either Professor Bashir, Dr Stewart or himself who used the relevant words. It was submitted that there is no forensic utility in calling Professor Bashir in order to ascertain who uttered those words given that Dr O’Sullivan, Mr Meade and Dr Stewart assert it was Mr Wallace.

(vi) It was submitted therefore that the Tribunal has already granted leave that a summons be issued to Dr Horvath, the current Chief Executive Officer of the Respondent and that there is no missing piece of the puzzle which Professor Bashir could usefully provide.

6 The Tribunal has given careful consideration to the question of the forensic value of any evidence Professor Bashir could give in these proceedings.

7 It is common ground that Professor Bashir was Dr O’Sullivan’s superior from at least 1995 to 5 June 2000. It is alleged by Dr O’Sullivan that Professor Bashir was closely involved with his employment arrangements with the Respondent and was aware of the variations and changes to his employment contract with the Respondent. Dr O’Sullivan has alleged that he had a conversation with Professor Bashir regarding the number of hours he was working pursuant to his contract with the Respondent shortly before the 5 June 2000 meeting. He has alleged that Professor Bashir said, upon receiving his form in which he set out his hours worked, words to the effect “I don’t like this, this makes me look corrupt and it makes you look corrupt” (T60 4 April 2005). Following this meeting, the crucial 5 June 2000 meeting takes place at which the question of a possible referral to ICAC is raised with Dr O’Sullivan regarding his conduct with respect to his alleged failure to work the required number of hours for the Respondent pursuant to his employment contract.

8 It appears from the evidence thus far before the Tribunal that the grievance procedure set out in Dr O’Sullivan’s enterprise agreement with the Respondent was not implemented despite there being an apparent problem regarding the number of hours he was working pursuant to his contract (T61 5 April 2005). The relevant part of the enterprise agreement states that “if there are any disputes mediation should occur in order to resolve any disputes that arise, and if mediation is not possible within the hospital then an external mediator may be appointed.” According to Dr O’Sullivan’s evidence to the Tribunal neither Professor Bashir nor anyone else at the Respondent informed him that he could avail himself of the dispute resolution process once it was apparent that there was a problem (T66 5 April 2005).

9 The Tribunal is of the view that Professor Bashir, having been personally involved with Dr O’Sullivan’s employment arrangements and having had personal and professional knowledge of his illness would be able to provide important and relevant evidence to the Tribunal regarding the events leading up to the 5 June 2000 meeting and the reasons the meeting was conducted in the way that it was. It appears to the Tribunal that Professor Bashir was a key player in those events and the Tribunal believes that Professor Bashir could provide important information which will not be provided by any other witness who will be appearing before the Tribunal.

10 Having determined that the evidence of Professor Bashir has forensic utility to the current proceedings before the Tribunal, the question arises – is the Governor of New South Wales a compellable witness?

11 It was submitted on behalf of the Governor as follows:

(i) Section 15(1) of the Evidence Act 1995 (the Act) provides that various persons including the Sovereign and the Governor are not compellable to give evidence.

(ii) This provision is not applied directly to the Tribunal because section 4(1) of the Act operates “in relation to all proceedings in a NSW Court”. The term “NSW Court” in the Act’s Dictionary means:

(a) the Supreme Court, or

(b) any other court created by Parliament, (including such a court exercising federal jurisdiction) and includes any person or body (other than a court) that, in exercising a function under the law of the State, is required to apply the laws of evidence.

(iii) Section 73(2) of the Administrative Decisions Tribunal Act 1997 (ADT Act) stipulates that the Tribunal is not required to apply the rules of evidence.

(iv) Accordingly, it was submitted that section 15(1) of the Act is not applicable to the Tribunal.

(v) It was submitted that it would be a curious result if the Governor were not compellable to give evidence before a court or a Tribunal that was required to apply the laws of evidence, but were compellable before other less formal bodies such as the Administrative Decisions Tribunal.

(vi) It was submitted that the Tribunal must therefore consider the position at common law in relation to whether or not the Governor would be a compellable witness. It was submitted that the Governor-General at the Federal level and Governors of each State are not compellable. Reference was made in this regard to the NSW Law Reform Commission’s Discussion Paper on Competence and Compellability (No: 7: 1980) in which it is stated that the Sovereign was a competent but not compellable witness and that this rule was justified by the special respect due to the office of the Sovereign, the Governor-General and the Governor.

(vii) Reference was also made to the Australian Law Reform Commission’s (ALRC) Research Paper on Competence and Compellability of Witnesses (No.5: 1981) which sets out the same rule and the ALRC Interim Report on Evidence (No; 26: 1985) and the ALRC Final Report on Evidence (No.38: 1987).

(viii) It was submitted that there is little caselaw on the subject because in the course of English history there have been few attempts to call the Sovereign to give evidence. Baron Park in Attorney-General v Radloff (19854) 10Ex 84 [42 ER 366] stated:

It is clear that the Sovereign cannot be a witness, because there is no means of compelling her attendance.
(ix) Wills J in ex parte Fernandez (1861) 10CB (NS) 3 [156 ER 349] stated at 39:
Every person in the kingdom, except the Sovereign, may be called upon, and is bound to give evidence to the best of his knowledge upon, any question of fact, material and relevant to an issue tried in any of the Queens’ courts unless he can shew some exception in his favour…
(x) It was submitted that these authorities are reflected in the relevant texts. In Best, “Principles of the Law of Evidence” (11th Edition 1991) it is said that all person are generally compellable as witnesses but that an exception existed in the case of the Sovereign “against whom, of course, no compulsory process of any kind can be used”.

(xi) It was submitted that a reference to the Sovereign in the English authorities would include the Governor-General at the Federal level and the Governor of a State in the Australian context given that they are the representatives of the Sovereign.

12 It was submitted on behalf of Dr O’Sullivan that the Governor ought to be compelled to give evidence for the following reasons:

(i) Section 15 of the Act does not apply as the applicability of the provisions of the Act have been specifically excluded by the ADT Act so that matters can be dealt with expeditiously on an inquisitorial basis and the requirements of natural justice/procedural fairness are fundamental to the functioning of the Tribunal.

(ii) The matters in respect of which the evidence of Her Excellency is sought do not relate to the affairs of state of Her Excellency. Evidence is sought with respect to matters which predate Her Excellency’s Vice Regal appointment which commenced on 1 March 2001.

(iii) The ALRC reports do not form any part of judicial precedent and should not be relied upon to make any substantive decision.

(iv) Reliance was placed on the decisions of Regina v Bartle and the Commissioner of Police (ex parte Pinochet decision of Lord Slynn of Hadley 25 November 1998) and Paula Jones v Clinton 520 US 681 (1997).

(v) It was submitted that in the Clinton decision Justice Stevens stated:

The President submits that in all but the most exceptional cases the Constitution requires Federal Courts to defer such litigation until his term ends and that, in any event, respect for the office warrants such a stay. Despite the force of arguments supporting the President’s submissions we conclude that they must be rejected.
(vi) It was submitted on behalf of Dr O’Sullivan that the Pinochet case provides authority for the proposition that sovereign immunity claims are not sustainable or maintainable at common law or at least in terms of the provisions of any United Kingdom statute in relation to acts of criminality and that sovereign immunity claims are not sustainable or maintainable at least in terms of the provisions of any United Kingdom statute which do not involve an act of the Sovereign or other Head of State in his public capacity.

13 Section 4(1) of the Evidence Act 1995 provides that the Evidence Act 1995 applies in relation to all proceedings in a NSW Court. “NSW Court” is defined in that Act to mean the Supreme Court or any other court created by Parliament including any person or body (other than a court) that in the exercising a function under a law of a State is “required to apply the laws of evidence”.

14 It is noted that there is authority for the proposition that a hybrid body such as this Tribunal which is created by State law and which to a significant degree exercises both judicial power (in determining civil claims such as in the Equal Opportunity Division) and non-judicial power (in conducting merits reviews of administrative decisions) may be a court (Australian Postal Commission v Dao (No2.) 1986 6 NSWLR 497). In Dao’s case McHugh JA stated at page 515:

In ordinary usage the word “court” has many meanings…Legal usage also gives the word many meanings. Thus a “court” may refer to a body exercising judicial power as in the Constitution, Ch III or to a body exercising non-judicial power such as the Coroner’s Court or to a court of petty sessions hearing committal proceedings…There is no a priori reason which prevents a body which determines rights and is presided over by a District Court Judge from being a “court” even though it is not called a court and has lay members. Function and purposes, not labels should be our guides.

15 As stated by the Appeal Panel of this Tribunal in Trust Company of Australia Ltd (Stockland Property Management Ltd) v Skiwing Pty Ltd trading as Café Tiffany’s (RLD)(2) [2005] NSWADT AP 9:

These dicta from Dao (No.2) clearly allow for the possibility that a single body which exercises both judicial power and non-judicial power may be a “court” as defined in one statute, State or Commonwealth, but not a “court” for the purposes of another statute. What matters is solely whether, having regard to the language and purpose of the statute under consideration, the body falls within the definition of “court” contained in the statute.

16 The Tribunal in the Equal Opportunity Division exercises judicial power and therefore could be a “court”. As stated by the High Court in Rola Co (Australia) Pty Ltd v The Commonwealth (1944) 69 CLR 185 at 189 “the power to find any fact that is fundamental to a legal liability is part of the judicial power. Where the finding amounts to a binding determination as between parties, the tribunal empowered to make the finding necessarily exercises judicial power” (see also Dao’s case at page 512).

17 It is noted that section 73(2) of the ADT Act specifically states that the Tribunal is “not bound by the rules of evidence”, that is “it is not required to apply the rules of evidence” in its proceedings including in the Equal Opportunity Division but it may do so if it wishes as the Tribunal is able to determine its own procedure (section 73(1) of the ADT Act). Indeed the Tribunal often uses the rules of evidence as a guide in the determination of matters before it. Accordingly, the Tribunal is of the view that, having regard to the function and purpose of the Anti-Discrimination Act 1977 (ADA), the Tribunal sitting in the Equal Opportunity Division is a “court” created by statute for the purposes of the Evidence Act 1995 as it satisfies the definition of “NSW court” as set out in the Evidence Act 1995, that is “ a court created by Parliament”. Accordingly, section 15 of the Evidence Act 1995 applies and the Governor is not a compellable witness in these proceedings.

18 Further to that, the Tribunal has also considered the common law position with respect to whether or not the Governor is a compellable witness. Generally speaking most people are competent to give evidence and in general, are compellable to do so if they can be lawfully required to do so. The English authorities are clear that the Sovereign cannot be a witness because the Sovereign cannot be compelled to give evidence. No distinction is drawn in the authorities as to whether the Sovereign is compellable with respect to personal/private matters as opposed to acts related to the position of Sovereign. Sovereign immunity extends to the Governor-General at the Federal level in Australia and the Governor of each State as the Sovereign’s representative in Australia and in each State. It appears that the purpose of Sovereign immunity is to protect the Sovereign and therefore the Governor-General and the Governor from being drawn into litigation and suit. It is for this reason that the immunity is enshrined in the Evidence Act 1995. It is the Tribunal’s view that the immunity attaches to the position of Sovereign, Governor-General and Governor and not to the person holding that position. While Professor Bashir holds the position of Governor, she is able to claim Sovereign immunity and she is not compellable both in relation to her official acts and also personal acts that may have pre-dated her appointment.

19 The Tribunal has considered the cases of ex parte Pinochet and the Clinton decision. However these cases do not assist the Tribunal in making its decision on whether or not Her Excellency, the Governor, is compellable. Ex parte Pinochet concerns the extradition of General Pinochet from the United Kingdom to Spain for crimes against humanity committed during his time as Head of State of Chile. It was held by the House of Lords that Sovereign immunity was available in respect of official functions but did not extend to acts of torture during his leadership because acts of torture were not an official function of a Head of State and that he could therefore be extradited for acts of torture committed after 1998 when England introduced a statutory crime of extraterritorial torture. In that case General Pinochet was the defendant accused of extremely heinous crimes. It bears no resemblance to the question before this Tribunal. It is understood that the Dr O’Sullivan’s Counsel argues that this case is authority for the proposition that Sovereign immunity is only available in respect of official functions of a Head of State. However the decision of the House of Lords must be seen in its context, which is concerned with a Head of State who is a potential defendant in proposed criminal proceedings. The Pinochet case is qualitatively different from the case before the Tribunal in which it is sought to call Professor Bashir. In the case before the Tribunal the Governor is not a party to the proceedings but merely a witness.

20 The Tribunal has also considered Clinton’s case. That case concerned the question of whether a person serving as President of the United States of America was entitled to immunity from civil liability for unofficial acts, that is, acts committed by the President in his personal capacity rather than in his capacity as President. Paula Jones brought proceedings against President Clinton for acts allegedly committed while he was the Governor of Arkansas. The District Court rejected the application of absolute immunity but found that the President was entitled to a temporary immunity from trial. President Clinton appealed that decision seeking an order to dismiss Mrs Jones’ action in its entirety. The Appeals Court held that the President was not entitled to immunity for as long as he is President from civil suits alleging actionable behaviour in his private capacity rather than in his official capacity as President. It was held that the President was not immune from suits for his unofficial acts and that the privilege of immunity did not extend to alleged acts taking place prior to the President assuming office. Again the Tribunal is not assisted by this decision because in those proceedings President Clinton was the defendant in the civil suit brought against him by Paula Jones and the question was whether he could have some immunity from civil suits against him personally in which he was the defendant during the period of his Presidency. Again the Tribunal is of the view that this decision is qualitatively different from the matter for consideration by this Tribunal.

21 The Tribunal finds therefore that Professor Bashir, Her Excellency the Governor of New South Wales, is able to avail herself of Sovereign immunity while she holds her appointment as Governor of New South Wales and is not compellable in these proceedings.

Order

Leave to issue a summons to Professor Marie Bashir, Her Excellency the Governor of New South Wales is refused.

16/06/2005 - To correct date - Paragraph(s) 9