Pearson v Martin
[2015] VSC 696
•9 December 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 06677
| REVEREND LAURIE PEARSON AS PRESIDENT OF THE ASSOCIATION OF THE CANONICAL ADMINISTRATORS OF PADUA COLLEGE | Plaintiff |
| v | |
| JOHN MARTIN | Defendant |
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JUDGE: | GARDE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 9 November 2015 |
DATE OF JUDGMENT: | 9 December 2015 |
CASE MAY BE CITED AS: | Pearson v Martin |
MEDIUM NEUTRAL CITATION: | [2015] VSC 696 |
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EQUAL OPPORTUNITY – Discrimination in termination of employment – Attribute of lawful sexual activity – Dismissal of teacher – Whether lawful sexual activity substantial reason for termination – Boundary transgressions – Equal Opportunity Act 2010 (Vic) ss 8(2)(b) and 18(b).
APPEAL – Victorian Civil and Administrative Tribunal – Leave to appeal – Question of law – Whether open to Tribunal to arrive at the conclusion it did – Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 – Leave to appeal granted – Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Dr I Freckelton QC with Mr S McGregor | Minter Ellison |
| For the Defendant | Mr N Harrington | McGuiness & Hosking Pty |
HIS HONOUR:
Introduction
John Martin was a teacher at Padua College (‘the College’) until it terminated his employment on 5 June 2013.[1] In February 2014, he filed an application with the Victorian Civil and Administrative Tribunal (‘the Tribunal’) alleging that the College had discriminated against him in the termination of his employment contrary to s 18(b) of the Equal Opportunity Act 2010 (Vic) (‘the Act’). He alleged that the termination was direct discrimination by the College because a substantial reason for his dismissal was his sexual activity with Ms Samantha Anderson, a former student of the College. Discrimination based on lawful sexual activity is prohibited under s 6(g) of the Act.
[1]While the full description of the plaintiff is set out in the title to the proceeding it is convenient to describe the plaintiff as Padua College or simply the College. The description of the plaintiff is irrelevant to the issues in dispute.
In 2012, Ms Anderson turned eighteen years old and was a year 12 student at the College. Following a social gathering in late December 2012, she commenced an intimate relationship with Mr Martin. The two of them commenced living together in about March or April 2013.
The College’s defence was that the sexual activity between Mr Martin and Ms Anderson was not a substantial reason for the termination of his employment. It was accepted that the sexual activity between Mr Martin and Ms Anderson was lawful. The College did not rely on any of the exceptions relating to religious bodies or schools contained in Part 5 of the Act.[2]
[2]Sections 81-84 of the Act provide various exceptions for religious bodies and schools. See Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 (‘Christian Youth Camps’).
In its decision, the Tribunal found that the sexual activity between Mr Martin and Ms Anderson was a substantial reason for the termination of Mr Martin’s employment by the College. The Tribunal found that the College principal, Mr Houlihan treated Mr Martin unfavourably because of the attribute of lawful sexual activity with Ms Anderson. The Tribunal awarded compensation of $80,000.00 for past economic loss and $10,000.00 for pain and suffering.[3]
[3]Martin v Padua College (Human Rights) (Correction) [2014] VCAT 1652 (‘the reasons’). Two typographical corrections were made by order of the Tribunal dated 17 November 2015. They are immaterial to the current proceeding.
Draft notice of appeal
The College seeks leave to appeal from the Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘the VCAT Act’), relying on five questions of law and thirteen grounds of appeal.
The five questions of law are:
1.Whether a witness’ direct evidence as to the reasons for engaging in an action in a discrimination case can be rejected when that witness has not been the subject of an adverse credit finding and no contradictory direct evidence has been led.
2.Whether a plaintiff can satisfy the burden of proof in a discrimination action when the Tribunal has accepted that the allegations might have been sufficient to justify termination, and there was no direct contradictory evidence that the lawful sexual activity was a substantial reason for the decision made.
3.Whether, and in what circumstances, an inference can displace direct evidence when no contradictory direct evidence has been led.
4.Whether it is lawful (ie not discriminatory) for an employment decision-maker to take into account an attribute when such attribute tends to suggest a motive for the engagement in unprofessional conduct by an employee.
5.What constitutes the legitimate bases for the calculation of economic loss when a plaintiff in a discrimination matter has not adduced evidence of efforts to mitigate their loss?
Four of the questions relate to the Tribunal’s finding of discrimination. The fifth concerns the claim for past economic loss.
On 29 April 2015, Mukhtar AsJ directed that the application for leave to appeal in the proceeding be heard and determined by the Court, which if leave is granted, is to hear the appeal.
The factual background
Mr Martin commenced employment as a teacher with the College in January 1996. He met Ms Anderson in 2007 when she commenced her secondary studies at the Rosebud campus of the College as a year 7 student. Ms Anderson attended College classes taught by Mr Martin from 2008 until 2010, when she relocated to the College’s Mornington campus for her year 11 and 12 studies. During this time, Mr Martin continued to teach at the Rosebud campus.
Mr Martin was a member of a gymnasium at Hastings where he trained regularly, often up to four times a week. In about May 2012, Ms Anderson joined that gym. It was common for Mr Martin and Ms Anderson to train together and on occasion to communicate by text as to training times.[4]
[4]Reasons [11].
On 19 October 2012, Mr Houlihan was approached by a teacher at the Mornington campus, who was also the parent of a year 12 student, about an apparent association between Mr Martin and Ms Anderson. There were meetings between Mr Houlihan and Mr Martin at the Rosebud campus, and between the College’s pastoral associate and Ms Anderson at the Mornington campus.[5]
[5]Ibid [7]-[8].
In the course of his meeting with Mr Houlihan, Mr Martin emphatically denied that he was having a sexual relationship with Ms Anderson. This was accepted by Mr Houlihan at the time. However, Mr Houlihan formed the view that Mr Martin had blurred the boundaries of the teacher-student relationship. He directed Mr Martin to cease meeting with Ms Anderson outside school, to cease training at the public gymnasium with her and to cease any electronic communications. Mr Houlihan confirmed his direction in writing.[6]
[6]Ibid [13].
Ms Anderson completed her year 12 studies in late October 2012. The school year officially ended on 21 December 2012.[7]
[7]Ibid [15].
On 13 March 2013, Ms Anderson’s parents met with Mr Houlihan and advised him that Mr Martin was in a sexual relationship with Ms Anderson, which had started not long after she completed her year 12 studies. Mr & Mrs Anderson told Mr Houlihan that they had done a lot of research and believed that Mr Martin had used his position as a teacher to develop a special relationship with Ms Anderson. They believed that Mr Martin had ‘groomed’ Ms Anderson while she was a student at the school, with the intention of later entering into a sexual relationship with her.[8]
[8]Ibid [17].
On 14 March 2013, Mr Martin was stood down on current salary and conditions. He was not to attend the College or its campuses without explicit permission, not to have any communications with students, parents of students, or the staff of the College. He was not to contact Mr & Mrs Anderson.[9]
[9]Ibid [21].
Mr Houlihan obtained advice from the Manager of Industrial Relations at the Catholic Education Office at Melbourne. The College engaged a lawyer, Ms Alicia Dumais of Dumais Workplace Solutions, to undertake an independent investigation into Mr Martin’s conduct.[10]
[10]Ibid [20].
On or about 23 May 2013, Ms Dumais provided Mr Houlihan with her investigation report (‘the investigation report’). The investigation report upheld 22 of 25 allegations made against Mr Martin. In particular, it found that the ‘head allegation’ that Mr Martin had groomed Ms Anderson was substantiated. Ms Dumais stated that in coming to this conclusion she had applied the test in Briginshaw v Briginshaw,[11] at least in relation to the allegation of grooming.[12]
[11](1938) 60 CLR 336.
[12]Reasons [25].
Ms Dumais forwarded a copy of the investigation report to Mr Martin and sought his written response. The investigation report was accompanied by a statement of the allegations, an analysis of the evidence, an executive summary and a number of anonymised witness statements.[13]
[13]Ibid [26].
On 31 May 2013, Mr Houlihan wrote to Mr Martin advising that he proposed to terminate Mr Martin’s employment summarily, and seeking a response.[14]
[14]Ibid [31].
A union representative responded on Mr Martin’s behalf. Having considered this response, Mr Houlihan proceeded to terminate Mr Martin’s employment.[15]
[15]Ibid [34].
The Tribunal hearing
The Tribunal hearing was conducted over two days. Both Mr Martin and Ms Anderson gave evidence. Ms Anderson denied that she was groomed by Mr Martin while she was a student at the College. She also categorically rejected any suggestion that, while a student of the College, she was physically touched in an inappropriate or sexual way, felt emotionally manipulated by Mr Martin, or that he had behaved in a manner that made her feel uncomfortable.[16] Most of her evidence was not challenged.[17]
[16]Ibid [45].
[17]Ibid [46].
Mr Martin provided a written statement setting out the history of his employment at the College. He said that his intimate relationship with Ms Anderson commenced on 27 December 2012.[18]
[18]Ibid [47].
Mr Houlihan made a comprehensive statement describing how he had handled the matter on behalf of the College. Ms Anderson’s school reports, the investigation report prepared by Ms Dumais, and relevant emails were all produced. [19]
[19]Ibid [48].
The Tribunal summarised Mr Houlihan’s evidence in cross-examination in the following terms:
In cross-examination, Mr Houlihan was asked about his motivation in terminating Mr Martin’s employment and about the details of his meeting with Mr and Mrs Anderson in March 2013. It was put to him that the sexual relationship was at the forefront of their discussions; Mr Houlihan explained that when the Andersons came to him they said they had heard from another parent that Mr Martin was in a sexual relationship with their daughter, as distinct from stating the relationship existed. He told the Tribunal that the parents’ complaint was that the school environment had allowed boundary transgressions that then created a trusting intimate relationship with their daughter. He said that ’they came to me with a concern of, in their words, grooming‘. Further they said they were concerned that the sexual relationship might be the outcome of a transgression of boundaries over a number of years.
It was put to him that the sexual relationship was what was vexing the Andersons most and his response was as follows:
No, they were really concerned that an environment had been allowed to enhance a relationship between the teacher and their daughter. They were really concerned at the meeting about how this could happen, how their daughter could have been taken into a trusting relationship with a teacher who was supposed to be friendly, but not their friend. And, again as I said to them I didn’t have any knowledge of a sexual relationship at that stage. They were acting on a tip-off from another person. My consequence at that meeting was really to deal with the professional misconduct and the alleged transgressions of boundaries that they said had happened. And they’d obviously taken some advice, I don’t know from whom. They came in with an extreme amount of information.[20]
[20]Ibid [53]-[54].
The Tribunal’s findings
In its findings, the Tribunal assessed at some length the significance of the sexual relationship between Mr Martin and Ms Anderson in the decision to terminate Mr Martin’s employment:
Both counsel made submissions about the allegation of grooming. I accept … that the issue of grooming was front and centre of the report and permeated the process from the minute it was alleged by the parents. It was a serious allegation and led to serious findings. Again, without alluding to all of the individual findings of the report, the first (and I would say major) finding in the executive summary was that Mr Martin had engaged in grooming conduct.
Dr Freckleton submitted that the issue of grooming and the lawful sexual activity were two entirely different matters but, in this case that allocation is easier said than done. My view is that Mr Harrington described it accurately when he proposed that the report had worked backwards from the sexual relationship and viewed all the retrospective evidence through the lens of grooming. He submitted that the Dumais report started with the sexual relationship and worked backwards in time to attack the bona fides of an existing supportive and non-sexual relationship between a student and teacher.
… [I]t strikes me that taken in context with this matter, the constant mention of grooming carries with it the notion of an inevitable end result of sexual conduct. It is not suggested that grooming in this context relates to anyone’s personal appearance, rather, used in this sense it carries with it a clear suggestion of action deliberately undertaken with the aim of establishing some emotional attachment so as to enable ultimate exploitation, usually sexual. The fact that the term is often associated with child sexual abuse or paedophilia adds to the unpleasant aura that surrounds the word and the inevitable sexual innuendo that accompanies it.
The letter from Mr and Mrs Anderson to Mr Houlihan on 13 March complains, inter alia, of grooming patterns and the exploitation of adult/child power balance. But the letter commences with the assertion that ’as you are now aware we came to speak to you with the information that John Martin… is in a sexual relationship with our daughter‘. [my underlining]
Mr Houlihan’s handwritten note of the meeting (13.3.2013) commenced with the statement that ’parent (chooses not to tell) rang Mary on Thursday night to inform that there is a sexual relationship [my underlining] between Samantha and John M. Sam is living at John Martins’.
Paragraph 30 of Mr Houlihan’s statement echoes this focus. He stated -
’I met with Peter and Mary later that day and they immediately informed me that John was in a sexual relationship [my underlining] with Samantha which had started not long after Samantha finished her year 12 studies at Padua.’
When it was put to him that the sexual relationship was at the forefront of what the Andersons complained of, Mr Houlihan responded that ’they clearly stated their concern that the grooming relationship between teacher and student had happened over a number of years and they wanted it investigated.’
…
[I]t lacks all credibility for Mr Houlihan to assert that he paid little or no regard to the sexual relationship between Mr Martin and Ms Anderson in reaching the decision to dismiss. Counsel submitted it was a substantial consideration arising from the manner in which the report was constructed and reasoned. He put it that the lens through which the investigation occurred was a grooming one and that became a central allegation. He also posited that the attempt by the respondent to quarantine the lawful sexual activity which actuated the investigation and report was entirely artificial.
It may well be that the Andersons were less concerned about the sexual relationship and more concerned about the school environment however they were not called; but the fact of the sexual relationship was the primary focus in their correspondence. It featured in the first sentence of Mr Houlihan’s notes and in paragraph 30 of his witness statement he attested to the fact that when he met with them they ’immediately informed [him] that John was in a sexual relationship with Samantha‘.[21]
[21]Ibid [71]-[79] (footnotes omitted).
The Tribunal concluded:
I accept … that when Mr Houlihan received an oral, and then formal written complaint from Mr and Mrs Anderson, its motivation, framing and leading accusation was the fact of the admitted lawful sexual activity that had commenced between the applicant and Ms Anderson. It was a matter of substance.
As I have already set out, the correspondence, the handwritten note and Mr Houlihan’s statement all point to this factor; the sexual activity was not just mentioned en passant; it was at the forefront of the complaint and its aftermath. Of course it is not beyond imagination to infer (albeit gratuitously on my part) that the complaint Mr Houlihan received from Mr and Mrs Anderson would have been the epitome of any principal’s worst nightmare - and not just a principal as thoughtful and articulate as Mr Houlihan.
Notwithstanding, it beggars belief to conclude that he put the lawful sexual activity to the back of his mind and concentrated solely or emphatically on all the other issues.
I accept that the 22 allegations found proved by Ms Dumais might have been sufficient to warrant termination but conversely, were there to be a proper scrutiny of the investigation process, they might not.
True it is that much of the evidence is circumstantial and I am thus required to draw inferences about what drove Mr Houlihan’s decision to terminate Mr Martin’s employment. Although Mr Houlihan was a polished witness, I found his denials that the lawful sexual activity was not part of his reasoning and subsequent decision unconvincing, particularly given the strength of the early accusations and the atmosphere that permeated the subsequent events.
…
I find that in standing Mr Martin down and then dismissing him, Mr Houlihan directly discriminated against Mr Martin by treating him unfavourably because of his lawful sexual activity with Ms Anderson.
I accept that the reasons for dismissal were multi-faceted but the lawful sexual activity was a substantial reason for the decision and I so find.[22]
[22]Ibid [88]-[92], [94]-[95].
The College’s submissions
The College principally submitted that the Tribunal made an error of law in determining whether the particular circumstances fell within the relevant statutory description, by arriving at a conclusion which was simply not open to it.[23]
[23]Relying on S v Crimes Compensation Tribunal [1998] 1 VR 83, 88-89; Collector ofCustoms v Agfa‑Gevaert Ltd (1996) 186 CLR 389; and Collector of Customs v Pozzolanic (1993) 43 FCR 280. Applicant’s Outline of Submissions on Leave to Appeal dated 26 February 2015 (‘applicant’s outline’) [7].
It submitted, in substance, that the Tribunal had erred both in its findings and reasoning and when it made an adverse finding in respect of Mr Houlihan’s credibility. [24] Specifically, the Tribunal erred:
[24]Applicant’s outline [9].
(1) when it failed to accept the uncontradicted evidence of Mr Houlihan that his reason for terminating Mr Martin’s employment was that he was satisfied that Mr Martin had engaged in multiple acts of boundary transgression with Ms Anderson while she was a student, and not because Mr Martin had subsequently entered into a sexual relationship with Ms Anderson;
(2) when it found that there was a sufficient basis to draw an inference that Mr Houlihan had had substantial regard to the fact of a lawful sexual relationship between Mr Martin and Ms Anderson;
(3) when it rejected the evidence of Mr Houlihan as to the basis of his termination of Mr Martin’s employment;
(4) when it found that ‘it lacks all credibility for Mr Houlihan to assert that he paid little or no regard to the sexual relationship between Mr Martin and Ms Anderson in reaching the decision to dismiss’;
(5) when it failed to take into account Mr Houlihan’s evidence that the fact of the subsequent relationship simply added weight to his conclusion that the multiple boundary transgressions justified termination;
(6) by failing to accept the evidence of Mr Houlihan that the sole relevance of the lawful sexual relationship between Mr Martin and Ms Anderson in his decision to terminate was that in his view it suggested a motive for the boundary transgressions earlier engaged in by Mr Martin with Ms Anderson while she was his student;
(7) by taking into account an irrelevant consideration by relying on ‘the strength of the earlier accusations’ when Mr Martin took no action in October 2012 beyond issuing a warning to Mr Martin because at that time he accepted his denials as to having engaged in boundary transgressions;
(8) by misapplying the burden of proof when it accepted that the allegations might have been enough to justify termination, but decided against the College without any directly contradictory evidence.[25]
[25]Applicant’s outline [12]-[20].
(9) by failing to distinguish between:
(a)the reasons for the complaint made by Mr and Mrs Anderson and the reasons why Mr Houlihan terminated Mr Martin’s employment; and
(b)the findings of the investigator and the reasons why Mr Houlihan terminated Mr Martin’s employment; and
(c)the reasons for Mr Houlihan’s decision to stand down Mr Martin and the reasons why Mr Houlihan terminated Mr Martin’s employment.[26]
[26]Ibid [26]-[34].
The College said that the errors of law arose from the findings that the Tribunal made on the facts of the case. It did not submit that the Tribunal misconstrued any provision of the Act, or misunderstood or misapplied the legal test under s 8(2)(b) or s 18(b) of the Act. It did not say that the Tribunal had misdirected itself as to the meaning of the expression ‘substantial reason’, which is found in s 8(2)(b) of the Act.
Mr Martin’s submissions
Counsel for Mr Martin submitted:
(1) the reasons make clear findings of fact and a clear adverse finding of credit in respect of Mr Houlihan. The Court should not entertain a challenge to the Tribunal’s findings of fact and credit;
(2) the Tribunal’s findings were not glaringly improbable. The difficulty in challenging detailed findings of fact based on credibility cannot be gainsaid;[27]
[27]Relying on Fox v Percy (2003) 214 CLR 118, 127-8 [26]-[72], and Shea v Energy Australia Services Pty Ltd (No 2) [2015] FCAFC 14 [5].
(3) Mr Houlihan made a detailed witness statement attaching the investigation report. He accepted its finding on the head allegation of grooming. That finding was premised on a lawful sexual relationship;
(4) the denial by Mr Houlihan that he considered the lawful sexual activity was contradicted by the surrounding circumstances,[28] all of which were unchallenged findings of fact by the Tribunal. An assessment of surrounding circumstances is critical to the proper assessment of a denial of unlawful conduct by a decision maker. This is particularly so when there is a question as to reliability;[29]
[28]Relying on the reasons [71]-[79].
[29]Relying on Board of Bendigo Regional Institute of Technical and Further Education v Barclay (‘Barclay’) (2012) 248 CLR 500, 517 [44]-[45].
(5) a denial by the decision maker is not determinative. It is both permissible and necessary to look at the circumstances surrounding the decision and reason for conduct and its actuation.[30]
[30]Referring to Ermel v Duluxgroup (Australia) Pty Ltd (No 2) [2015] FCA 17 [61].
(6) in determining to dismiss Mr Martin, Mr Houlihan may also have been actuated by boundary transgressions. This does not mean that lawful sexual activity was not a substantial reason for the dismissal;
(7) the Tribunal made a finding as to Mr Houlihan’s credit. He was unconvincing in his denials. His denials beggared belief;
(8) it is manifestly wrong to say that if a decision maker is called upon to give evidence as to his actuation, and denies the alleged unlawful actuation, he must be believed and the plaintiff must fail;[31]
[31]Relying on the High Court decisions of Purvis v New South Wales (‘Purvis’) (2003) 217 CLR 92; and Barclay (2012) 248 CLR 500.
(9) the Tribunal assessed the surrounding evidence and made a clearly reasoned finding as to what motivated Mr Houlihan. The Tribunal did not experience actual persuasion after hearing Mr Houlihan’s evidence;[32]
[32]Compare Henderson v Queensland (2014) 315 ALR 188, 197-8 [33].
(10) Mr Houlihan’s motive is irrelevant. The task is to determine the true basis for the decision to terminate;[33]
[33]Act s 10; Australian Iron & Steele v Banovic (‘Banovic’) (1989) 168 CLR 165, 176.
(11) there is an important distinction between motive and actuation. Actuation requires a close analysis both of the stated reason by the decision maker and the surrounding circumstances in which the conduct took place;
(12) there was ample direct evidence of Mr Houlihan’s consideration of the lawful sexual relationship. The report was central to Mr Houlihan’s decision to dismiss Mr Martin. The report addressed what took place through the lens of grooming and the ultimate fact of lawful sexual activity. This established a foundation for Mr Houlihan’s decision making, and
(13) as a result, the findings of fact made by the Tribunal were open.[34]
[34]Defendant’s outline of submissions on leave to appeal dated 6 March 2015 [8]-[50] and Defendant’s submissions on appeal dated 31 August 2015 [4]-[9].
Relevant authorities
In Barclay, the High Court considered a provision of the Fair Work Act 2009 (Cth) prohibiting a person from taking adverse action against another person for a particular reason. A person took action for a particular reason if the reasons for the action included that reason. French CJ and Crennan J said:
There is no warrant to be derived from the text of the relevant provisions of the Fair Work Act for treating the statutory expression ’because‘ in s 346, or the statutory presumption in s 361, as requiring only an objective inquiry into a defendant employer’s reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains ’why was the adverse action taken?’
This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker’s evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[35]
[35]Barclay (2012) 248 CLR 500, 517 [44]-[45] (citations omitted).
In Christian Youth Camps,[36] Maxwell P considered a finding made by the Tribunal as to the reason for refusing an application for accommodation, and said:
As the applicants themselves pointed out on the appeal, her Honour’s task was to identify ‘the true characterisation of the reason for [Mr Rowe’s] conduct’. Successive decisions of the High Court have made clear that the task of the fact-finder in such a case is to determine why the impugned conduct took place, to determine the ‘true basis’ for the act or decision. The explanation or justification given by the decision-maker is relevant but not determinative.[37]
[36][2014] VSCA 75.
[37]Ibid [58].
The High Court in Purvis[38] considered the issue whether a person treated a disabled person less favourably than a person without the disability because of the disability. McHugh and Kirby JJ said:
[38](2003) 217 CLR 92.
In Chief Constable of the West Yorkshire Police v Khan Lord Nicholls again rejected the ’but for‘ test. He said:
For the reasons I sought to explain in Nagarajan v London Regional Transport ... a causation exercise of this type is not required ... The phrases 'on racial grounds' and 'by reason that' denote a different exercise: why did the alleged discriminator act as he did? What, consciously or unconsciously, was his reason? Unlike causation, this is a subjective test. Causation is a legal conclusion. The reason why a person acted as he did is a question of fact.
The House of Lords recently affirmed these principles in Shamoon v Chief Constable of the Royal Ulster Constabulary. Lord Hope of Craighead said that in most cases ’the reason why‘ will call for some consideration of the mental processes of the alleged discriminator.
These more recent English authorities are consistent with the approach taken by the Australian courts. In Australian Iron & Steel Pty Ltd v Banovic, Deane and Gaudron JJ said that it is necessary to determine the ’true basis‘ for the act or decision. This indicates that it is the reason for the decision that must be considered. Their Honours referred with approval to Lord Goff's statement in [Birmingham City Council v Equal Opportunities Commission] regarding motive and intent to discriminate. They accepted that genuinely assigned reasons may in fact mask the true basis for the decision. Dawson J also said that the test is not subjective — the mere assertion of a ground that is not sex will not prevent the act from being discriminatory if the ’true basis‘ for the act in question is in fact sex.
In Waters v Public Transport Corporation, Mason CJ and Gaudron J (Deane J agreeing) approved the view of Deane and Gaudron JJ in Banovic that motive or intention to discriminate is not required. Their Honours said that it is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.
…
The reasoning in discrimination cases in this Court is consistent with the view that, while it is necessary to consider the reason why the discriminator acted as he or she did, it is not necessary for the discriminator to have acted with a discriminatory motive. Motive is ordinarily the reason for achieving an object. But one can have a reason for doing something without necessarily having any particular object in mind.[39]
[39]Ibid 141-3 [155]-[158], [160] (citations omitted).
In reviewing the cases, it must be borne in mind that the language of the particular statutory provision under consideration is of the utmost importance. As the Tribunal correctly held,[40] it is irrelevant that there may have been other reasons for the termination, for example boundary transgressions, provided that the attribute of lawful sexual activity was amongst the reasons, and that it was a substantial reason.[41]
[40]Reasons [95].
[41]Act s 8(2)(b).
In addition, in determining whether the decision to terminate Mr Martin was discriminatory, Mr Houlihan’s motive is irrelevant.[42] In Banovic,[43] an earlier High Court decision dealing with discrimination on the grounds of sex, Deane and Gaudron JJ explained how an act or decision may be discriminatory even though the act or decision was not actuated by a motive to discriminate:
One need go no further by way of example than an act or decision — as in the past frequently happened — denying women certain opportunities by reference to the inadequacy of toilet facilities. And in that situation it is possible that ’consciousness‘ may extend only to the inadequacy of toilet facilities without a full appreciation that that consideration is but an aspect of a characteristic that appertains generally or is generally imputed to women. And there may be other situations in which habits of thought and preconceptions may so affect an individual’s perception of persons with particular characteristics that genuinely assigned reasons for an act or decision may, in fact, mask the true basis for that act or decision. Thus, in the ascertainment of the true basis of an act or decision it may well be significant that there is some factor, other than the ground assigned, which is common to all who are adversely affected by that act or decision. In certain situations that common factor may well be seen to be the true basis of the act or decision. And that may also be the case where some factor is identified as common to a significant proportion of those adversely affected.[44]
[42]Act s 10.
[43](1989) 168 CLR 165.
[44]Ibid 176-7.
The evidence before the Tribunal
The investigation report contained a number of references to the intimate relationship and sexual activity between Mr Martin and Ms Anderson after Ms Anderson finished as a student at the College. The investigation report defined ‘grooming’ in the following manner:
Broadly speaking, ’grooming‘ is conduct engaged in to establish an emotional connection with a person (usually someone with less power in the relationship) to prepare the person for a sexual relationship or sexual acts in the future. There is not a legal definition of grooming under Victorian law.[45]
[45]Investigation report [1.11].
As to the grooming allegation, the executive summary of the investigation report stated:
It is not contested that Mr Martin and Samantha commenced a sexual relationship in January 2013 or that she commenced living with him around two months ago. The College has no jurisdiction to take any disciplinary action against Mr Martin for his conduct towards Samantha after she ceased being a student of the College. However, the College is entitled to consider Mr Martin’s conduct towards Samantha during the period when she was a student at the College and make adverse findings (if supported by evidence) and take appropriate disciplinary action.[46]
[46]Ibid [1.2]
As to the sexual relationship between Mr Martin and Ms Anderson, the investigation report found:
…
It is noted that this is not a specific particular upon which disciplinary action can be taken against Mr Martin. Rather, it is a relevant finding of fact in relation to the question of whether Mr Martin groomed Samantha.
…
In his Second Response, Mr Martin confirmed that his relationship with Samantha ’changed‘ in January 2013. At interview, he confirmed that this meant that it became a sexual relationship.
…
Witness A recalls that in early 2013, around the time she went with Samantha to Mr Martin’s house, Samantha told her that she and Mr Martin had had sex.
…
Witness B has also given evidence that during a conversation with Mr Martin on 8 March 2013, he told her that he loved Samantha and that they had a ‘special love’.
…
The College has no technical jurisdiction to consider Mr Martin’s conduct towards Samantha when she finished Year 12. However, it is relevant to make a finding of fact regarding when the relationship did become sexual, as it is a relevant consideration in determining whether or not Mr Martin groomed Samantha when she was a student at the College.
Based on Mr Martin’s own admission, it is determined that Mr Martin’s relationship with Samantha became sexual in January 2013. Witness A’s evidence supports this view.
Further, based on the Witness A’s evidence it is determined that Mr Martin and Samantha were kissing and hugging each other from as early as late December 2012 (after Christmas).[47]
[47]Ibid pages 41-42 [6.217] – [6.225].
In his witness statement, Mr Houlihan said that he formed the view that the investigation had been undertaken carefully, fairly and soundly. He also said that after careful consideration he accepted the proposition that 23 of the 25 particulars were substantiated and considered that this had a sound base in the statements that had been taken. He concluded that ‘in respect of each of the 23 proven particulars, John had associated with Samantha in a manner that was not appropriate for a teacher-student relationship and had transgressed professional boundaries in a continuing and unacceptable way’.[48]
[48]Witness statement of Christopher John Houlihan, 12 August 2014, (‘Mr Houlihan’s statement’) [54].
In a subsequent paragraph, Mr Houlihan said that he
did not make the decision to terminate John on the basis of his having entered into a sexual relationship with Samantha. The issue for me was that he had engaged in a significant number of acts of boundary blurring that were unacceptable for a teacher and in breach of his ethical obligations. [49]
[49]Ibid [55].
The Tribunal did not accept his evidence that the sexual relationship, admitted by Mr Martin and accepted as a fact in the investigation report, did not form a substantial reason for the termination even if the decision to terminate was multi-faceted.[50]
[50]Reasons [95].
Later again in his witness statement, Mr Houlihan made explicit reference to the sexual relationship and to his determination that the head allegation (as he put it) of grooming had been substantiated:
In addition, it seemed to me that a fair characterisation of the number and nature of the acts was that they had been engaged in by John for an improper purpose, which facilitated the later relationship that he formed with Samantha. Thus, it was not the later relationship with Samantha itself, but the conduct and the pattern and characteristics of John’s conduct in his capacity as a teacher that led me to make my decision in respect of John’s position at the school.
On the basis of my determination that the 23 particulars were proven, I determined that John had taken advantage of his position as a teacher and authority figure to establish a special relationship with Samantha which had ultimately prepared her for a sexual relationship with him. I therefore determined that the head allegation of grooming had been substantiated.[51]
[51]Mr Houlihan’s statement [56]-[57].
In cross-examination, a number of exchanges took place between Mr Houlihan and counsel as to the role that the sexual relationship played in his decision making:
Q. What role, if any, do you say that the fact that Mr Martin was in a sexual relationship with his former pupil had on your decision making process?
A.As the Dumais report also indicated, the fact that there had been an admission of a sexual relationship between John Martin and Samantha Anderson probably lent some weight to the propositions which in themselves I believed were a number of allegations that were proven to be of serious misconduct and misbehaviour, that all teachers would be aware in terms of boundary transgressions and blurring the boundaries.[52]
[52]Transcript of proceedings John Martin v Reverend Laurie Pearson Victorian Civil and Administrative Tribunal, proceeding no H47/2014, SM Megay, 2 September 2014 (‘Transcript’) 70.25 – 71.4.
Mr Houlihan said of the weight given by him to the admitted sexual relationship between Mr Martin and Ms Anderson:
Q:What role, if any, did that knowledge have in your decision to terminate the employment?
A:Again, the decision to terminate the employment was based on the transgressions of the boundaries between a teacher and a student in terms of the safety of all students in the school. As I said before, the fact that there had been an admitted sexual relationship which occurred only a couple of weeks after the formal end of the schooling year for Samantha indicated to me that there was some – more weight given to those allegations that have been – I believe proven.[53]
[53]Transcript 71.21–71.30.
Later in cross-examination, Mr Houlihan said as to the allegation of grooming:
Q.Mr Houlihan, after you completed your first read through of the final investigation report delivered to you by Ms Dumais, you reached a conclusion, didn’t you, that Mr Martin had engaged in grooming?
A.After I read through Ms Dumais’s report, I considered that the 22 of the 25 propositions that she presented had been proven, which indicated that there had been serious misconduct, because of boundary transgressions. And I agreed with her finding that it – agreed with the head leading statement that – of grooming.
Q.Yes and that that grooming was engaged in, in order to enter into a sexual relationship with Ms Anderson. You also reached that conclusion, didn’t you?
A.After reflecting on the report and considering it’s veracity and its logical presentation, I did believe that the – either consciously or subconsciously, that Mr Martin had in fact led that relationship to its natural conclusion.[54]
[54]Transcript 107.3–107.19.
Pressed by cross-examining counsel as to what he meant by his evidence that Mr Martin had ‘led that relationship to its natural conclusion’, and as to whether he had taken the sexual relationship between Mr Martin and Ms Anderson into account, Mr Houlihan said:
Q. What does that mean, led that relationship to its natural conclusion?
A.That in their situation, on admission from Mr Martin that a sexual relationship had commenced shortly after Samantha completed her schooling at Padua College.
Q.Yes. And you took into account the fact that that sexual relationship had commenced in reaching your opinion that grooming had occurred, didn’t you?
A.As I said yesterday, I believe that the admission of a sexual relationship lent weight to the various propositions that had been, I believed, proven by Ms Dumais.
Q.But you took it into account, didn’t you, Mr Houlihan?
A.I would certainly have taken that into account, because I do believe it led weight to the serious misconduct of the transgression.
Q.You said I certainly would have. I’m putting to you that you did?
A.I certainly did.[55]
[55]Transcript 107.20–108.50.
Mr Houlihan then responded:
Q.You have given evidence that it was your opinion that grooming had occurred?
A.Yes.
Q.Yes. You have given evidence that the grooming led to a sexual relationship, is that right?
A.I believe that the professional misconduct of the grooming behaviours was a boundary transgression and that led me to decide to terminate the employment.[56]
[56]Transcript 108.12–108.18.
Next, Mr Houlihan said:
Q.You reached the conclusion on what you had read that grooming had occurred. You’ve agreed with that proposition haven’t you?
A.Yes.
Q.You also have agreed earlier, the last few minutes, to the proposition that the grooming resulted in the sexual relationship between Mr Martin and Ms Anderson?
A.I believe consciously or subconsciously that it may have led to the sexual relationship.
Q.Yes. You’ve agreed that those factors, grooming, sexual relationship, form part of your reasoning for the dismissal of Mr Martin from his employment?
A.Well, I maintain that I dismissed Mr Martin from Padua College because he had transgressed boundaries on numerous occasions and that, in itself, was sufficient for his employment in the Catholic school of Padua College to be terminated.
Q.What was the effect of his transgression of those boundaries? Where did it end up (indistinct)?
A.Well, on his admission, it has ended up in a sexual relationship.
Q.Yes. And that sexual relationship took place after the student, Ms Anderson, had finished school, is that right?
A.Well, on Mr Martin’s admission it has.[57]
[57]Transcript 108.22-109.12.
Finally, as to whether he took the sexual relationship into account in his decision to terminate Mr Martin, Mr Houlihan said:
Q. Yes and what gave them the gravitas or a significance was the fact that there was a sexual relationship at the end of those events, wasn’t it?
A.Well, what I said all along is that the 22 particulars which I deemed to be proven in themselves, warranted me to terminate the employment. The sexual relationship which was admitted by John Martin later certainly lent weight to those propositions as an entirety.[58]
[58]Transcript 135.27–136.3.
There could be no doubt about the significance of the investigation report. Senior counsel for the College before the Tribunal described Mr Houlihan as significantly relying on it in reaching his decision.[59] He referred to the fact that ‘the reasoning process in which Mr Houlihan ultimately engaged was a product of all that information which was given to him’.[60] In cross-examination, Mr Houlihan answered questions as to the significance of the investigation report, the weight he gave to the findings of grooming and the existence of the sexual relationship between Mr Martin and Ms Anderson. Mr Houlihan acknowledged that the report formed the majority of his basis for believing that Mr Martin had transgressed boundaries, and that he had read the entirety of the investigation report without leaving anything out.[61] Having reflected on its contents and received advice from the Industrial Relations Unit, he was happy to accept the conclusions in the investigation report.[62]
[59]Transcript 73.4-5.
[60]Transcript 73.14-15.
[61]Transcript 111.5-6, 117.24-26..
[62]Transcript 137.27-28.
Mr Houlihan said that he took into account an opinion in the investigation report that the fact that the relationship became sexual so soon after Ms Anderson finished year 12, taken together with the factual findings in the report, was, itself, relevant and compelling evidence supporting a finding that grooming had taken place.[63] Mr Houlihan considered that it was ‘a very reasonable statement’ for the investigation report to make.[64]
[63]Transcript 139.30 - 140.9 referring to [1.15] of the Report.
[64]Transcript 140.7-9, 140.14-20.
Mr Houlihan’s deliberations leading to his decision to terminate Mr Martin took place against the background of the complaint by Mr & Mrs Anderson that their daughter was in a sexual relationship with Mr Martin.[65] This was the first thing that they had raised with Mr Houlihan in their meeting on 13 March 2013.[66] They confirmed their concern that ‘John Martin, teacher at Rosebud Padua is in a sexual relationship with our daughter Samantha Anderson’ at the head of a letter of the same date to Mr Houlihan and the College.[67] They complained about grooming and their belief or fear that a sexual relationship was taking place. While the Andersons did not want their concern treated as a formal complaint, Mr Houlihan took it to be such.[68]
[65]Mr Houlihan’s statement [30]; Transcript 120.1-12.
[66]Transcript 120.8-18.
[67]Letter from Mr and Mrs Anderson dated 13 March 2013 exhibit CH-7.
[68]Transcript 126.1-20.
The role of an appellate court
The role that I have in reviewing a decision of the Tribunal on the basis that it arrived at a factual finding or conclusion that is said to not have been open to it, is significantly different from that of an appellate court reviewing the factual findings and conclusions made by a court below. Nonetheless, it is instructive to commence with a review of the role of an appellate court in those circumstances.
In Fox v Percy,[69] three members of the High Court noted the constraints that apply to an appellate court, depending as it must upon the record of what transpired below:
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to ’give the judgment which in its opinion ought to have been given in the first instance‘. On the other, it must, of necessity, observe the ’natural limitations‘ that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the ’feeling‘ of a case which an appellate court, reading the transcript, cannot always fully share. Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial. Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.[70]
[69](2003) 214 CLR 118.
[70]Ibid 125-6 [23] (Gleeson CJ, Gummow and Kirby JJ) (citations omitted).
Nonetheless, the majority of the Court noted that a trial judge may make mistakes, including serious mistakes, in the comprehension, recollection and evaluation of evidence, and that within the constraints marked out by the appellate process, the appellate court is obliged to conduct a real review of the trial and, where the trial is conducted before a judge sitting alone, of the judge’s reasons.[71]
[71]Ibid 125-6 [24]-[25].
The same members of the High Court said, in an often quoted passage:
However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being ’incontrovertible‘, an appellate conclusion may be reached that the decision at trial is ’glaringly improbable‘ or ’contrary to compelling inferences‘ in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must ’not shrink from giving effect to‘ its own conclusion.[72]
[72]Ibid 128 [28]-[29].
The Victorian Court of Appeal has subsequently given extensive consideration to this reasoning. In Kelso v Tatiara Meat Co, [73] Dodds-Streeton JA described Fox v Percy as extending ‘the eclipse of “judicial restraint”’,[74] but a year later, in Argot v National Mutual, [75] the Court of Appeal made it clear that while
in Fox v Percy and CSR Ltd v Della Maddalena, the High Court warned against according undue deference to a trial judge’s advantage in observing a witness, it did so in the context of reaffirming the legitimacy of that advantage in the ordinary course. … This is not a case where, as in Fox v Percy, the trial judge’s findings on credit were inconsistent with incontrovertible facts or evidence, glaringly improbable, or contrary to compelling influences.[76]
[73](2007) 17 VR 592 (‘Kelso’).
[74]Ibid 607 [84] (Dodds-Streeton JA, Buchanan, Nettle, Ashley and Kellam JJA agreeing.)
[75](2008) 21 VR 351.
[76]Ibid 372 [86] (the Court, being Buchanan, Nettle and Dodds-Streeton JJA).
In Harrison v Harrison,[77] the Court of Appeal summarised the state of the current law in Victoria. Having repeated the remarks in Fox v Percy regarding the disadvantages faced by an appellate court in fulfilling its duty to ‘give the judgment which in its opinion ought to have been given in the first instance’,[78] it continues:
[77][2013] VSCA 170.
[78]Ibid [48].-[49].
Of the task of the appellate court, the same judges of the High Court said in Fox v Percy:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge's reasons. Appellate courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’. In Warren v Coombes, the majority of this Court reiterated the rule that:
[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.
In [Kelso], a five member bench of this court reviewed the majority judgment of the High Court in Warren v Coombes, and earlier High Court decisions, and the decisions of Powell v Streatham Manor Nursing Home and Benmax v Austin Motor Co Ltd, before concluding as to the majority judgment in Fox v Percy that:
They recognised that the appellate court was required to weigh conflicting evidence and draw its own inferences and conclusions, which, as Warren v Coombes made clear, it could be as well placed as the primary judge to do where the facts were undisputed. Although, following Warren v Coombes, a trilogy of High Court cases (Jones v Hyde; Abalos v Australian Postal Commission and Devries v Australian National Railways Commission), had expressed a ‘corrective’, reiterating the traditional requirement to respect the advantages of the trial judge, especially where his or her decisions might be affected by the credibility of witnesses, their Honours made clear that a ‘ritual incantation’ about a witness’s credibility did not excuse the appellate court from making its own assessment and forming its own conclusions, particularly where there were ‘incontrovertible’ facts to the contrary, and even, ‘in some, quite rare cases’, where there were facts falling short of ‘incontrovertible’.
The majority in Fox v Percy did not, in terms, question the validity of the trilogy of cases reaffirming the need to respect the trial judge’s advantages in relation to credit and seeing witnesses, and to make proper allowance for them. Indeed, they referred to many examples of such advantages (not confined to seeing witnesses) and concluded that it was only if, after having made allowance for them, that the appeal court may ‘conclude that an error has been shown, [and] they are authorised, and obliged, to discharge their appellate duties in accordance with the statute’. [79]
[79]Ibid [50]-[51] (citations omitted).
The High Court has continued to routinely apply the principles in Fox v Percy.[80] Notably, the High Court recently said in Minister for Immigration and Border Protection v WZARH[81]:
The benefit to a decision-maker of seeing a witness advance his or her case should not be exaggerated, but for the reasons already mentioned neither should it be dismissed as illusory.[82]
[80]ACCC v TPG Internet (2013) 250 CLR 640; Henderson v Queensland (2014) 89 ALJR 162; Fuller-Lyons v New South Wales (2015) 89 ALJR 824.
[81][2015] HCA 40.
[82]Ibid [47].
The role of the Court in reviewing facts found by a VCAT member
It is important to bear in mind that when reviewing the facts found by a member of VCAT in the context of an appeal under s 148 of the VCAT Act, the role of the Court is more limited than that of an appellate court reviewing the decision of a trial judge.
Section 148 of the VCAT Act was discussed by the High Court in Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic).[83] There, the majority identified the purpose of the provision and the means by which it operates:
S148 of the VCAT Act is concerned with the invocation of judicial power to examine for legal error what has been done in an administrative tribunal. Although s148 uses the word ’appeal‘, it is clear that the Supreme Court is asked to exercise original, not appellate, jurisdiction and to do so in proceedings which are in the nature of judicial review. That is not to say that there are no other avenues for judicial review. … Nevertheless, it is important to recognise that the essential character of s148 is that it provides for the institution of proceedings in the Supreme Court, by leave, in which the legal correctness of what the Tribunal has done can be challenged.[84]
[83](2001) 207 CLR 72.
[84]Ibid 79-80 [15] (Gaudron, Gummow, Hayne and Callinan JJ).
The High Court’s emphasis on the limited nature of appeals under s 148 have been repeated in subsequent consideration of the provision.[85]
[85]See, for example, Osland v Secretary, Department of Justice (No 2) (2010) 241 CLR 320 (‘Osland No. 2’), 331-2 [18]-[19] (French CJ, Gummow and Bell JJ), 351 [71] (Hayne and Keifel JJ, Heydon J concurring on this point.)
What might the scope of this limited form of review be? An important consideration in answering this question is the role to be played by the ‘question of law’ that the section refers to. As noted by the High Court in Osland No. 2, the identification of a question of law is not merely a precondition to the exercise of a right to appeal, but the subject matter of the appeal itself.[86] It is not sufficient for the parties to identify a point of law between them on appeal that was not raised by the Tribunal. In Transport Accident Commission v Hoffman[87] Young CJ and McGarvie J said, of the predecessor provision to s 148:
How then is it to be construed? It is not to be construed as limited to an appeal from a decision of the Tribunal on a question of law. Nor is it to be construed as granting an appeal from any decision which involves a question of law. The via media we think is to construe the section as granting a right of appeal from any decision of a Tribunal on a question of law which is involved in the Tribunal's decision.[88]
[86]Ibid 333 [21].
[87][1989] VR 197 (‘Hoffman’).
[88]Ibid 199 (citations omitted). This point was reiterated in Ovidio Carrideo Nominees Pty Ltd v the Dog Depot [2006] VSCA 6 [57] (Ashley JA).
The interpretation adopted by the Full Court in Hoffman’s case has been accepted and applied in many subsequent cases.[89] As for what kind of mistakes might constitute errors of law, the four examples given by the Court of Appeal in Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd[90] provide an archetypal, although non-exhaustive, list:
·whether the tribunal has identified the relevant legal test;
·whether the tribunal applied the correct legal test;
·whether there is any evidence to support a finding by the tribunal of a particular fact; and
·whether the facts found fall within a statute properly construed.[91]
[89]Including May v Transport Accident Commission [1989] VR 981, 984; Savage v Crimes Compensation Tribunal [1990] VR 96; Abbott v Transport Accident Commission [1991] 2 VR 116; and Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176 (‘Karakatsanis’), 186 [22].
[90][2014] VSCA 353.
[91]Ibid [49] (Warren CJ), [167] (Whelan JA, Santamaria JA agreeing.)
It is the third of these examples that is the most directly relevant to this part of the appeal.
When is a matter not open on the evidence?
This type of error was discussed in Hoffman. There, the Chief Justice and McGarvie J noted that the section, as they had constructed it,
would exclude an appeal upon such question as whether a particular decision was against the evidence and the weight of evidence … . It would, however, allow an appeal upon the question whether there was any evidence upon which the Tribunal could have reached the decision which it did reach. In Blackwood Hodge (Australia) Pty Ltd v Collector of Customs (NSW) (No 2) the Full Court of the Federal Court held that in order to succeed, an appellant would have to show that there was no basis on which the Tribunal could reach the conclusion which it came to … .[92]
[92]Hoffman [1989] VR 197, 199 (citations omitted).
In Rugolino v Howard[93] Bell J set out the principles applied when investigating a finding of fact for legal error:
These principles [of judicial decision making] have been established in the decided cases, usually in the context of defining the proper role of a judge on appeal. So in Roads Corporation v Dacakis, Batt J held ‘the question whether there is any evidence of a particular fact is a question of law.’ Therefore a finding of fact is open to challenge as ‘erroneous in law’, but only if ‘there is no probative evidence to support it’. Similarly, in S v Crimes Compensation Tribunal, Phillips JA said making a finding of fact would ordinarily give rise to an error of law only if ‘it is shown that the fact-finding tribunal arrived at a finding that was simply not open to it.’ His Honour emphasised that the question was not whether the finding was ‘reasonably open’, for that implied the court on appeal could test the finding against a reasonableness standard, but whether the finding was open at all.
S v Crimes Compensation Tribunal has been followed and explained by the Court of Appeal. In Myers v Medical Practitioners’ Board of Victoria, Warren CJ (Chernov JA and Bell AJA agreeing) held there was no error of law in making a finding of fact unless the finding was ‘not open’. After endorsing the decision of Phillips JA in S v Crimes Compensation Tribunal, the Chief Justice approved the statement of Kirby P in Azzopardi v Tasman UEB Industries that it was ‘critical’ to making findings of fact that they be based on the evidence, but there would be no error of law ‘unless it can be shown that there was no evidence’ to support the finding. The decision of Phillips JA in S v Crimes Compensation Tribunal was also followed in ISPT Pty Ltd v Melbourne City Council. After approving the ‘not open’ test, Warren CJ, Kellam JA and Osborn AJA referred to Transport Accident Commission v Hoffman where Young CJ and McGarvie J said an appeal court, when determining whether a finding of fact was made in error of law, had to determine whether there was ‘any evidence’ to support it.
In Victoria v Subramanian, Cavanough J examined these and other authorities. As his Honour held, whether a finding was open on the evidence, or whether there was any or some evidence to support it, are different ways of expressing the same test.[94]
[93][2010] VSC 590.
[94]Ibid [10]-[12] (citations omitted).
Although his Honour was there considering an appeal from the Magistrates’ Court, the same principles apply in the case of appeals from the Tribunal under s 148.[95] While other formulations have been given in the decided cases,[96] they amount to the same test. In particular, any requirement that a finding be ‘reasonably open’ instead of simply ‘open’ has been repeatedly disclaimed.[97]
[95]Director of Liquor Licensing v Kordister [2011] VSC 207 [247]; Advaland Pty Ltd v Bitcon [2015] VSC 235 [75].
[96]For example, Catch the Fire Ministries Inc v Islamic Council of Victoria (2006) 15 VR 207, 261 [193] (Ashley JA): ‘not open on the evidence, or … unreasonable or perverse’.
[97]S v Crimes Compensation Tribunal [1998] 1 VR 83, 90-91 (Phillips JA), where it was described as a ‘distraction’; Janusauskas v Director of Housing [2014] VSCA 650 [36]; Karakatsanis (2013) 42 VR 176, 189 [40] (Osborne JA, Beach JA agreeing); although compare Christian Youth Camps [2014] VSCA 75 [8] (Maxwell P): ‘whether it was reasonably open’; Hoser v Department of Sustainability and Environment [2014] VSCA 206 [29] (Redlich, Tate and Santamaria JJA): ‘either no evidence to support the impugned finding or that the finding was not reasonably open’.
A final consideration is that the question whether a finding is open to VCAT is to be decided on the basis of the evidence and inferences most favourable to the respondent.[98] This is important where there is a range of evidence and a number of possible inferences may be open.
[98]Karakatsanis 186 [24], relying on ISPT Pty Ltd v Melbourne City Council (2008) 20 VR 447, 464-5 [66]-[69].
The finding was open to the Tribunal
I am of the opinion that the finding by the Tribunal that ‘Mr Martin’s lawful sexual activity with Ms Anderson was a substantial reason for the termination of his employment with the College’ was a finding that was open, or reasonably open, to the Tribunal.
I have reached this conclusion because:
(1) on any view, the existence of lawful sexual activity formed part of the chain of reasoning which led Mr Houlihan to terminate the employment of Mr Martin. It loomed large and was a positive finding made in the investigation report.
(2) the sexual activity between Mr Martin and Ms Anderson was described by Mr Houlihan in evidence as the ‘natural conclusion’ of the relationship that had arisen between Mr Martin and Ms Anderson;
(3) Mr Houlihan accepted the allegation of grooming as found in the investigation report ‘to the Briginshaw standard’. The investigation report described ‘grooming’ as conduct engaged in establishing an emotional connection with a person to prepare the person for a sexual relationship or sexual acts in the future. Mr Houlihan accepted that grooming was the head or leading allegation;[99]
[99]See [45] above.
(4) Mr Houlihan in his evidence referred to the sexual relationship and stated that he probably gave it some weight at least in the context of forming his view that grooming had occurred;[100]
[100]See [43] above.
(5) Mr Houlihan acknowledged that the fact that the relationship between Mr Martin and Ms Anderson became sexual so soon after she finished school was something both taken into account by him, and compelling evidence to support the finding of grooming;[101]
[101]See [51] above.
(6) it was open in the circumstances for the Tribunal to take the view that the sexual relationship was much more than a background fact in the matrix of facts surrounding the termination of Mr Martin’s employment, but was a moving or decisive factor in the termination of employment;
(7) as the Tribunal observed, the reasons for the termination of employment may be multi-faceted. This is consistent with a finding that lawful sexual activity is a substantial reason for termination;
(8) the Tribunal was not obliged to answer whether the boundary transgressions were the reason for termination, as Mr Houlihan contended, or whether the lawful sexual activity was the reason for termination. It was entirely possible and open to conclude that both were contributing and substantial reasons for termination;
(9) while the motives and the actions of the Andersons cannot necessarily be imparted to Mr Houlihan, the immediate context of his decision to terminate Mr Martin was their complaint that their daughter had entered into a sexual relationship with Mr Martin and was living with him.
Importantly, the Tribunal had the opportunity over a two day hearing to observe the witnesses who were called to give evidence, particularly Mr Houlihan. This Court does not have that opportunity. The Tribunal saw the witnesses – a benefit that, as described above, should not be exaggerated but is equally not illusory. The Tribunal came to a view about the moving reason or reasons for the decision to terminate Mr Martin. It did so logically and clearly setting out its findings and conclusions in the reasons.
It is not apparent or demonstrable that the Tribunal’s findings of fact are incorrect or erroneous, or, to adopt the language used in Fox v Percy, ‘glaringly improbable’, or ‘contrary to the compelling inferences’. To the contrary, it is apparent from the evidence that the Tribunal’s findings were open and available to it having regard to the facts and the evidence before the Tribunal.
In response to the submissions made on behalf of the College:
(1) it was pivotal for the Tribunal to carefully consider and determine whether the boundary transgressions were the sole reason for termination of employment, or whether the sexual activity between Mr Martin and Ms Anderson was also a substantial reason. The Tribunal addressed this question on the evidence, and came to the conclusion that it was;
(2) Mr Houlihan acknowledged that he did have regard to the sexual relationship, at least in the context of grooming, which is to say, the alleged pattern of boundary violation;
(3) while Mr Houlihan did hold the view that there had been multiple boundary transgressions by Mr Martin, this does not mean that the existence of an ongoing sexual relationship between Mr Martin and Ms Anderson was not also a substantial reason for the termination of employment;
(4) the circumstances surrounding the October 2012 interview and warning, and the nature of the allegations made by the Andersons were part of the matrix of facts which it was permissible for the Tribunal to consider;
(5) the Tribunal did not misapply the burden of proof – it was for Mr Martin to demonstrate his case on the balance of probabilities; and
(6) it is not apparent that the Tribunal confused or misunderstood the significant reasons for complaint by the Andersons, the findings of the investigation, the reasons for Mr Houlihan’s decision to stand down Mr Martin or Mr Houlihan’s later decision to terminate his employment.
As a result, the grounds relating to questions 1 to 4 in the proposed notice of appeal must fail.
Award of $80,000.00 for economic loss
The College raises one further suggested question and ground in its proposed notice of appeal. The question relates to the basis for calculating economic loss in a discrimination case.
The ground of appeal relied on is:
The Tribunal erred in law by awarding … the sum of $80,000 for past economic loss in spite of the fact that it accepted that the lawful sexual activity was not the sole reason for his being dismissed and that there was no evidence of any efforts that he made to obtain employment other than as a teacher.
In support of this ground, the College submits:
(1) the evidence of lack of capacity to work was limited to a single medical certificate. The evidence of the general practitioner, psychologist and counsellor was not such as to support a conclusion that there was any greater incapacity;
(2) the basis for the calculation of quantum is not apparent;
(3) it was a live issue as to whether Mr Martin had more than a modest claim for past economic loss; and
(4) the Tribunal erred by awarding Mr Martin the sum of $80,000.00 for past economic loss in spite of the fact that it accepted that the lawful sexual activity was not the sole reason or his dismissal and there was no evidence of any efforts that he made to obtain employment other than as a teacher.
The Tribunal made the following findings as to the claim for economic loss:
In relation to past economic loss, counsel submitted that, on the basis of the applicant’s annual salary of $87,000.00, the claim for $108,750.00 represented a 15 month period from the date of termination to the date of commencement of this action.
Dr Freckleton submitted that in considering section 125 and the question of whether relief should be granted, it is necessary for the Tribunal to have regard to the full context of what took place. He submitted that, were the Tribunal to consider a substantial contribution, it should at least factor in the other very significant contributions which he would say were at least dominant and substantial.
There is much in what he submits and in any event, the Tribunal heard no evidence about Mr Martin’s attempts to gain alternate work were any such attempts made. Certainly he could not gain work as a teacher but that would not have precluded him from other endeavours for which he might have been suitably qualified.
Doing my best with the evidence I have concluded the award for past economic loss should be fixed at $80,000. In arriving at this figure I have taken into account the fact that the lawful sexual activity was not the sole reason for dismissal as well as the absence of any evidence indicating any attempts to obtain alternative employment.[102]
[102]Reasons [97]-[100].
In his witness statement, Mr Martin referred to his dismissal from employment for serious misconduct by letter dated 5 June 2013, and said:
I provided a medical certificate to Houlihan and Padua College dated 27 May 2013 evidencing my diagnosed illness. I was suffering clinical depression and was under the care of a GP and psychologist. I rarely left the house. I was unable to function. This condition came about because of my treatment by Padua College.
During the period of my medical incapacity, Padua College terminated my employment.
I suffered considerable depression after the termination of my employment. I have recently looked for work. I have been unemployed since 5 June 2013.
I am now facing action by the Victorian Institute of Teachers (VIT). The VIT is investigating me with a view to cancelling my registration. I understand that Padua College reported me to the VIT.
I wish to return to my teaching duties at Padua College.[103]
[103]Witness statement of John Martin, 21 July 2014, 6 [39]-[43].
Mr Martin was not challenged as to his evidence that he was suffering from considerable depression after the termination of his employment and that he had recently been looking for work. There was no challenge to his evidence that he had been unemployed since 5 June 2013.
Under s 125(a)(ii) of the Act, the Tribunal may make orders for compensation as it thinks fit to compensate an applicant for loss, damage or injury suffered in consequence of the contravention.
The principles which apply to the award of damages have been discussed in a number of leading cases.[104] Here the amount to be awarded is an amount the Tribunal thinks fit to compensate Mr Martin for the loss, damage or injury suffered in consequence of the contravention.
[104]Wardley Australia Ltd v Western Australia (1992) 175 CLR 514; Como Investments Pty Ltd (in liq) v YenaldNominees Pty Ltd (1997) ATPR 41-550, 43,619; Henville v Walker (2001) 206 CLR 459.
In I & L Securities Pty Ltd v HTW Valuers (Brisbane) Pty Ltd,[105] three judges of the High Court said, as to the award of damages under a different statutory provision:[106]
There may be many acts or omissions that could be said to have contributed to the happening of an event. As has often been mentioned in learned articles on the subject of causation, the decision of a tortfeasor's great-great grandmother to have children can be identified as one factual cause for an event which is the subject of litigation. To search for the single cause of an event is, therefore, to pursue an illusion. And, much more often than not, to speak of the ’effective cause‘ or the ’proximate cause‘ (or to use some similar expression) is to hide important assumptions that are made, or conclusions that are reached, about the attribution of responsibility for particular kinds of act or omission. That is why it is necessary to understand the purpose for making some inquiry about causation. Only when the purpose of the inquiry is known is it possible to identify and articulate how and why some circumstances are extracted ’out of the whole complex of antecedent conditions of an event‘ and identified by the law as a cause of it.
In light of these considerations, it is hardly surprising that it is now well established that the question presented by s 82 of the Act is not what was the (sole) cause of the loss or damage which has allegedly been sustained. It is enough to demonstrate that contravention of a relevant provision of the Act was a cause of the loss or damage sustained.[107]
[105](2002) 210 CLR 109 (‘I & L Securities’).
[106]Trade Practices Act 1974 (Cth) s 82.
[107]I & L Securities (2002) 210 CLR 109, 128 [56]-[57] (Gaudron, Gummow and Hayne JJ) (citations omitted).
Mr Martin proved that he had suffered economic loss. Following the termination, he was not in employment for a lengthy period. Initially he suffered from depression and in his witness statement he said that he had recently been looking for work. For the purposes of compensation, it is sufficient if he shows that the contravention was a cause of the economic loss. The issue of past economic loss attracts little attention in the evidence before the Tribunal. This is not altogether surprising in the circumstances.
In my view, it was open to the Tribunal to form the view on the evidence that he should be compensated for past economic loss in the amount of $80,000.00. This represented a significant discount from the claim of $108,750.00 on the basis of an annual salary of $87,000.00. The Tribunal stated that it had taken into account the fact that the lawful sexual activity was not the sole reason for dismissal as well as the absence of any evidence indicating any attempts to obtain alternative employment at least until more recent times.
The ground of appeal relating to economic loss will be dismissed.
Conclusion
Having regard to the issues in this case, it is appropriate that leave to appeal be granted. However, having reached the conclusion that the grounds of appeal are not sustained, the appeal fails and will be dismissed.
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