Ramstrom v Courts Administration Authority - [2012] SAEOT 2

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
RAMSTROM v COURTS ADMINISTRATION AUTHORITY & ANOR
[2012] SAEOT 2
Judgment of Her Honour Judge Cole
8 August 2012
DISCRIMINATION LAW
Interlocutory application made on behalf of the first respondent for the dismissal of the complainant's claim against it - whether the first respondent could be liable for the behaviour of the second respondent under the Equal Opportunity Act 1984 - application for the dismissal of the complainant's claim against the first respondent is granted. The claim against the first respondent is dismissed.
Equal Opportunity Act 1984 (SA); Magistrates Act 1983 (SA); Courts Administration Act 1993 (SA), referred to.
Pazios & Anor v Pulteney Grammar School [2008] SAEOT 7; Ellson v PB Taxi Co. Pty Ltd & Anor [2008] SAEOT 6, considered.

RAMSTROM v COURTS ADMINISTRATION AUTHORITY & ANOR
[2012] SAEOT 2

This is a decision in relation to an interlocutory application made on behalf of the Courts Administration Authority (“the CAA”) in this matter.
The complainant, Ms Ramstrom, made a complaint to the Commissioner for Equal Opportunity against the CAA and Mr Baldino. Further particulars of that complaint were subsequently provided, by a document filed in the Equal Opportunity Tribunal (“the Tribunal”) on 11 April 2012 and by letter from Rossi Legal to Sykes Bidstrup dated 5 June 2012.[1] The initial complaint did not contain any direct allegations against the CAA. The further and better particulars provided on 11 April 2012 assert the following in relation to the CAA:
[1]    Annexure LJA1 to the affidavit of Linda Jane Applebee sworn on 5 June 2012
·that Mr Baldino was, at all material times, responsible to and subject to the direction of the Chief Magistrate.
·that the Chief Magistrate was, at all material times, a member of the State Courts Administration Council and, accordingly, a member of the CAA.
·that the complainant was an employee of the CAA, and was assigned to the role of Mr Baldino’s clerk.
·that the complainant reported her allegations to her manager in relation to Mr Baldino’s conduct towards her during a circuit in November 2008, and the CAA thereby became aware of those allegations.
·that “The Chief Magistrate, in her capacity as a member of the CAA, had the right to control Baldino in relation to his administrative duties, subject to direction by the Chief Justice of the Supreme Court of South Australia”.[2]
·“The CAA had the right to control Baldino’s discharge of administrative functions including decisions as to whom was allocated to Baldino as Magistrate’s clerk and by way of setting standards of behaviour by Magistrates such as Baldino towards clerks such as the Complainant.”[3]
·that Mr Baldino “was at all material times the agent of the CAA for the purposes of s 91 of the Equal Opportunity Act 1984”.[4]
·that the CAA failed to have in place an appropriate policy for the prevention of Mr Baldino’s conduct.
·that, after being made aware of some of the allegations against Mr Baldino by the complainant, the CAA failed to take appropriate action in relation to Mr Baldino’s conduct.
[2]    Paragraph 11 Further and Better Particulars of Complaint 11 April 2012
[3]    Paragraph 12 Further and Beter Particulars of Complaint 11 April 2012
[4]    Paragraphs 14 and 21 Further and Better Particulars of Complaint 11 April 2012
An application was made to the Tribunal on behalf of the CAA for the proceedings against the CAA to be dismissed.
The CAA’s argument
The Act provides, in s 96(2), that the Tribunal may, at any stage of proceedings under the Act, make an order dismissing the proceedings. Mr O’Leary, for the CAA, argued that the test to be applied by the Tribunal on an application for the dismissal of proceedings is that the Tribunal must be satisfied that there is no reasonable prospect of success of the complaint against the CAA.[5] I agree.
[5] See Pazios & Anor v Pulteney Grammar School [2008] SAEOT 7 at [10] and Ellson v PB Taxi Co Pty Ltd& Anor [2008] SAEOT 6 at [12].
There is no suggestion in the pleadings that the CAA, directly, has breached the Act. Implicitly, the suggestion is that the CAA is vicariously liable for the alleged behaviour of Mr Baldino.
The Act provides, in s 91(1), as follows:
Subject to this section, a person is, for the purposes of this Act, vicariously liable for a discriminatory or unlawful act of an agent or employee of the person committed while acting in the course of their agency or employment.
There is no doubt that Mr Baldino was a judicial officer at the time of the events the subject of the allegations. Pursuant to s 5 of the Act, “employee” expressly excludes judicial officers. The question, then, is whether Mr Baldino was the “agent” of the CAA at the relevant times.
The Magistrates Act 1983 provides, in s 7(1):
The Chief Magistrate is responsible, subject to the control and direction of the Chief Justice, for the administration of the magistracy.
The Magistrates Act 1983 provides, in s 8:
(1) A magistrate (being a stipendiary magistrate or an acting magistrate) is responsible to the Chief Magistrate in relation to administrative matters and, in particular, is subject to direction by the Chief Magistrate as to the duties to be performed by him and the times and places at which those duties are to be performed.
The Courts Administration Act 1993 provides, in s 7(1) and in s 4:
s 7     (1)     The Council consists of –
(a)    the Chief Justice of the Supreme Court; and
(b)    the Chief Judge of the District Court; and
(c)    the Chief Magistrate of the Magistrate’s Court.
s 4    “Council” means the State Courts Administration Council established under this Act.
The contention in the complainant’s pleadings that Mr Baldino was an agent of the CAA was expressly based on these statutory provisions. It was submitted on behalf of the CAA, however, that the provisions indicate precisely the opposite situation from that asserted on behalf of the complainant, and that the provisions describe a system in which the CAA has no ability to assert supervisory control over Magistrates. It was submitted that the Chief Magistrate (who, like all Magistrates, is not an employee of the CAA) has the power conferred by the Magistrates Act 1983 to assert control over Mr Baldino in an administrative sense, but the CAA has no such power, and in no sense was Mr Baldino ever acting as the agent of the CAA. It was submitted that the fact that the Chief Magistrate, at the same time as having administrative power in relation to Mr Baldino, is also a member of the State Courts Administration Council, does not create the legal relationship of agency between the CAA and Mr Baldino.
The complainant’s argument
Mr Apps, counsel for the complainant, asserted that the relationship of employer and employee between the CAA and the complainant gave rise to a non-delegable duty on the part of the CAA to take reasonable care for the safety of the complainant, and that this duty extended to a duty to ensure that the complainant was not subjected to sexual harassment. Mr Apps argued that the combination of the existence of this non-delegable duty, together with the administrative right of control conferred upon the Chief Magistrate under s 7(1) of the Magistrates Act 1983 and the membership of the Chief Magistrate of the State Courts Administration Council, bearing in mind the responsibilities of the Council pursuant to s 10 of the Courts Administration Act 1993, leads to the conclusion that the action against the CAA should not be dismissed at this time, prior to the hearing of the evidence, and that the claim against the CAA should be permitted to proceed to trial. In other words, it was submitted on behalf of the complainant that there is a realistic prospect, given the applicable statutory provisions, that the CAA may be found to be vicariously liable for the actions of Mr Baldino pursuant to the Equal Opportunity Act 1984.
Decision on the preliminary point
I reject the arguments on behalf of the complainant on the preliminary point. The question is not whether the CAA may be liable to the complainant in an action for workers compensation, or an action in tort (neither of which would be within the jurisdiction of this Tribunal). Liability under the Equal Opportunity Act 1984 is created by that legislation. In order for there to be vicariously liability under that Act, it is necessary to establish vicarious liability in accordance with the terms of that Act, and not under common law or under some other Act. The Equal Opportunity Act 1984 imposes vicarious liability in the circumstances set out in s 91 and not otherwise. A relationship of agency or employment must be found to exist between the CAA and Mr Baldino if the CAA is to be brought within s 91 of the Equal Opportunity Act 1984. The character of the relationship between the CAA and Mr Baldino is clear on the statutory provisions set out above. That relationship was not a relationship of agency or employment. The pleadings do not disclose any other basis for the allegation that there was a relationship of agency other than the statutory provisions from the Magistrates Act 1983 and the Courts Administration Act 1993 quoted above. There is therefore no prospect of the complainant succeeding in a claim under the Equal Opportunity Act 1984 against the CAA in relation to the alleged behaviour of Mr Baldino whilst he was a magistrate.
The application for the dismissal of the complainant’s claim against the CAA is granted. The claim against the CAA will be dismissed.