Re McIntyre - [1999] QSC 121

IN THE SUPREME COURT
OF QUEENSLAND

OS No.9739 of 1998

Brisbane
[Re McIntyre & Anor]
IN THE MATTER of an appeal from the Anti‑Discrimination Tribunal pursuant to Section 217 of the Anti-Discrimination Act 1991

- and -

KEVIN MCINTYRE and MANMAC HOLDINGS PTY LTD (appellants/respondents)

- and -

GEOFFREY THOMAS TULLY
respondent/complainant

CATCHWORDS: ADMINISTRATIVE LAW - anti-discrimination - appeal from decision of Anti-Discrimination Tribunal

DISCRIMINATION LAW - discrimination because of age - whether plaintiff refused employment because of his age - s.7(1)(f) and s.14(1)(b) of the Anti-Discrimination Act 1991
PRACTICE AND PROCEDURE - damages - whether global award open to Tribunal - whether damages for distress caused by cross‑examination permitted by Act - whether damages manifestly excessive

Counsel:J F Curran for the appellant
S J Armitage for the respondent

Solicitors:Tunns Lawyers as town agents for Donald Dickie Solicitors for the appellant

Hearing date: 11 December 1998
REASONS FOR JUDGMENT - ATKINSON J

Judgment delivered on 7 June 1999

In about February 1997 Geoffrey Tully[1] read an advertisement inserted in the “Gold Coast Bulletin” by GTA Human Resources (“GTA”) which sought a person for photocopier and technology sales. The advertisement read:
“Hungry to prove yourself ... want to earn what your [sic] worth? Photocopier and technology sales. Full time. On job training provided. Wage and bonus system.
Are you a real communicator ... a great people person? Are you motivated with a real fire to succeed? Do you have the courage to cold call? Then consider this.... We need a motivated person to sell copiers for the industry leader. We demand high standards of presentation, dedication and work ethic.
Simply we need you if you can listen to customers needs and creatively solve their problems. No prior sales experience is OK. We will train you in REAL sales, teach you the skills you need to succeed. Your training will lead to a nationally recognised qualification.
To apply, register your interest between 9am and 11am Monday on 07 5574 2674.”
Mr Tully, who had many years of experience in selling business equipment, responded to the advertisement and was granted an interview with GTA who told him that the position was marketing Nashuatec photocopiers which Mr Tully believed to be well within his experience and ability.
[1]The complainant and the respondent to this appeal.
After the interview, Mr Campbell from GTA called him aside and said he did not think he would be suitable for the position because it was a position for a trainee and he was a “little bit too old”. Mr Tully said he did not mind undertaking any training required in order to prove himself. Mr Campbell requested Mr Tully to write papers that he could use in his position as sales trainer and suggested to Mr Tully that he contact Mr McIntyre at Nashuatec as Mr Campbell thought that with Mr Tully’s experience, there would probably be another position available at Nashuatec where he could assist, particularly in the training of staff. Mr Tully subsequently faxed his resumé on more than one occasion to Mr McIntyre. He replied to a message on his answering machine to telephone Nashuatec with regard to an appointment with Mr McIntyre.
Mr McIntyre’s first words to Mr Tully after the call was put through to him were:
“What’s this, Tully, can’t you get a fucking job anywhere? I must admire your persistence though. How old are you?”
Mr Tully did not reveal his age but rather replied with the quip:
“As old as my tongue and a little older than my teeth.”
He asked Mr McIntyre why he wanted to know and he replied:
“Nah, we’ve only got a bunch of young blokes here, so how old are you?”
Mr Tully again asked Mr McIntyre why he wanted to know and asked Mr McIntyre how old he was. Mr McIntyre responded that he was 58 and that he even asked his customers how old they were. Mr Tully told Mr McIntyre that he was younger than Mr McIntyre. Mr McIntyre persisted in asking Mr Tully how old he was and Mr Tully replied that he would tell him when he saw him. Mr McIntyre’s response was:
“Nah, if you won’t tell me how old you are we’ll call it quits right now.”
When Mr Tully responded: “Ok”, Mr McIntyre said: “Piss off” and hung up. Mr McIntyre, while denying a large part of the conversation, admitted that the conversation “got a bit fiery” towards the end.
The learned tribunal member accepted Mr Tully’s evidence as to the contents of the telephone conversation and rejected Mr McIntyre’s conflicting evidence. There is no appeal from that finding.
Mr Tully’s evidence was that he was upset by the conversation and telephoned the CES who told him to make a note of the conversation and to contact the Anti-Discrimination Commission. His complaint could not be resolved by conciliation and so was referred to the Anti‑Discrimination Tribunal (“the Tribunal”).
The Tribunal held that Mr McIntyre discriminated on the basis of age in deciding if Mr Tully would be offered work contrary to ss7(1)(f) and 14(1)(b) of the Anti-Discrimination Act 1991 (“the Act”). The Tribunal awarded $11,000.00 damages under s.209(1)(b) of the Act as compensation for the discrimination committed by Mr McIntyre including the offence and humiliation occasioned by the manner in which Mr McIntyre dealt with Mr Tully’s enquiry.
In arriving at the amount awarded for compensation, the Tribunal took into consideration its observation of the obvious distress suffered by Mr Tully whilst he gave evidence and in particular whilst he was cross-examined. The Tribunal had an advantage not afforded to the Court of seeing and hearing the parties and therefore of being able in this case to observe the distress caused to Mr Tully by Mr McIntyre’s questioning.[2] In particular, during cross‑examination Mr McIntyre suggested to Mr Tully that he was “looking for money because” Mr Tully was “out of work”. The Tribunal found that the suggestion was insulting and attracted an award of aggravated compensatory damages. Mr McIntyre appeared for himself in the Tribunal but during the hearing said he would prefer to obtain legal representation. As he put it:
“I’d like to get an aggressive barrister to bring the truth out because I’ve been charged with a charge that I’m not guilty of and I want to take an aggressive attitude to crack this bloke and get the truth out and I’m prepared to spend money on a top line barrister to prove I’m right.”
The application for an adjournment was refused by the Tribunal as Mr McIntyre had had ample opportunity to obtain legal representation prior to the date set down for hearing.
[2]Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479.
In addition to damages for humiliation and offence the Tribunal held that Mr Tully should be compensated for the loss of the chance of employment with Manmac Holdings Pty Ltd, Mr McIntyre’s company which trades as Nashuatec Gold Coast, because of the discrimination.
The appellant sought to have the orders made by the Tribunal overturned or, in the alternative, the substitution of an award of damages or remittal of the matter to the Tribunal. The grounds of the appeal were that the evidence did not disclose a contravention of s.7(1)(f) or s.14(1)(b) of the Act, and that the Tribunal erred in law in awarding:
(a)damages when the contravention alleged was not proved by the evidence;
(b)damages for alleged distress suffered by the complainant whilst being cross-examined when no such award was permitted by the Act;
(c)a global award;
(d)damages in the absence of evidence to prove same; and
that further, the damages awarded was manifestly excessive.
Mr Tully’s evidence as to economic loss was that if he had been awarded the position as a trainee he would have expected to make about $70,000 per annum as well as a company car. This evidence was disputed by the appellant and was not the subject of a specific finding by the Tribunal.
The Anti-Discrimination Act
One of the purposes of the Act as set out in subs.6(1) is:
“... to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.”
The purpose is to be achieved by prohibiting discrimination on certain grounds set out in Part 2 of the Act, of the type set out in Part 3, in an area of activity set out in Part 4, unless an exemption in Part 4 or Part 5 applies.
Part 2 of the Act provides that one of the prohibited grounds of discrimination is discrimination on the basis of age.[3] The prohibition of discrimination on the ground of age is to prevent decisions being made on arbitrary or stereotyped grounds.[4] It is accorded equal status in the Act with other perhaps more familiar prohibited grounds of discrimination such as sex and race.[5] The published research [6]on the diminished job opportunities for older job seekers is justification, should one be needed, for the prohibition of this ground of discrimination. Two‑thirds of unemployed job seekers aged over 55 report that the most difficult problem they face in finding work is being considered “too old” by employers.[7]
[3]See subsection 7(1)(f); see also Workplace Relations Act 1996 (Cth); Anti-Discrimination Act 1977 (NSW) Part 4G; Equal Opportunity Act 1995 (Vic) s.6(a); Equal Opportunity Act 1984 (SA) s.85a; Equal Opportunity Act 1984 (WA) Part IVB; Discrimination Act 1991 (ACT) s.7(ib); Anti-Discrimination Act 1992 (NT) s.19(1)(d); Human Rights Act 1993 (NZ) s.29(1)(i).
[4]Qantas Airways Ltd v Christie (1998) 72 ALJR 634 at 669 by Kirby J.
[5]Qantas Airways Ltd v Christie (supra) at 663.
[6]Steinberg, M., “Attitudes and practices of employers and employees toward older workers in a climate of anti‑discrimination” Department of Social and Preventative Medicine, University of Queensland, July 1994, pp.49-50, 70; “Human Rights and Equal Opportunity Commission: Age Matters?” a discussion paper on age discrimination, April 1999, pp.14-16.
[7]Australian Bureau of Statistics, Job Search Experience of Unemployed Person, AGPS, July 1998, p.17.
Under Part 3 of the Act, direct and indirect discrimination is prohibited. Direct discrimination occurs if a person treats or proposes to treat a person of one age less favourably than another person of a different age would be treated in circumstances that are the same or not materially different. Part 4 of the Act provides that such discrimination is prohibited in the arrangements made for deciding who should be offered work and in deciding who should be offered work.[8] Section 14 prohibits discrimination in the pre-work area. “Work” is defined in s.4 to include work remunerated in whole or in part on a commission basis.
[8]Subsection 14 (1)(a)and (b) of the Act.
Parts 4 and 5 of the Act provide a number of exemptions for discrimination so that behaviour that would otherwise be discriminatory is not unlawful. If an exemption is claimed, the onus is on the respondent to prove on the balance of probabilities that the exemption properly applies.[9] In this case no exemption was claimed and the case essentially involved an assessment of credit. That depends on findings of fact that display no error of law as they were findings open to the Tribunal.[10]
[9]Section 206 of the Act.
[10]Brown v Moore (1996) EOC ¶ 92-835 at p.79,181.
Accordingly the first ground of appeal that the evidence did not disclose a contravention of subs.7(1)(f) or subs.14(1)(b) of the Act cannot be sustained. Neither can the ground of appeal that the Tribunal erred in law in awarding damages when the contravention alleged was not proved by the evidence. There is no merit in the argument that there was no unlawful discrimination in the process of deciding who should be offered work.[11] It was clearly open to the Tribunal to find that by his own words and actions, Mr McIntyre decided to exclude Mr Tully from any offer of work because of Mr Tully’s age.
[11]Cf subs.14(1)(d) of the Act: University of Ballarat v Bridges [1995] 2 VR 418.
The question remains as to whether the quantum of damages awarded constitutes an error of law.
A party to a proceeding before the Tribunal may appeal to the Supreme Court[12] against a Tribunal decision on a question of law.[13] The law with regard to the assessment of damages in the Tribunal has been conveniently set out by White J in Brown v Moore[14] where her Honour said:
[12]Section 217(1).
[13]The Commissioner of Fire Service v Seaton (1996) QADR 268 at 269; Brown v Moore (supra) at p.79,185.
[14](supra) at 79,185.
“An award of damages pursuant to s.209(1)(b) of the Act is an exercise of discretion. In Calder v Boyne Smelters Limited [1991] 1 QdR 325 Cooper J said at pp.347-348:
‘When an appeal is brought against the exercise of a judicial discretionary judgment “the existence of an error, whether of law or of fact, on the part of the court at first instance is an indispensable condition of a successful appeal” (per Mason and Deane JJ in Norbis v Norbis (1986) 161 CLR 513 at 519; see also Wilson and Dawson JJ at 535 and Brennan J at 541). The error must be one that vitiates the original decision (Minister for Aboriginal Affairs v Peko-Wallsend at 48 per Mason J with whom Gibbs CJ and Dawson J agreed). That is, the discretionary judgment must be shown to be wrong. This means “in the ultimate analysis and in the absence of any identifiable error of fact or positive law, the appellate court must be persuaded that the order stands outside the limits of a sound discretionary judgment before it intervenes” (Norbis v Norbis at 520).
...
The settled rule, as enunciated by Mason J in Wilson v Peisley, has three parts:
i)the application of a wrong principle of law; or
ii)a misapprehension of the facts; or
iii)an award which is so inordinately low or so inordinately high as to be a wholly erroneous estimate of the damage suffered.’
This is an appeal on a question of law only and it must be demonstrated that the Tribunal acted on a wrong principle of law which has led to an award of damages which is beyond the limits of what the exercise of a sound discretionary judgment could reasonably adopt.”
Her Honour in that case noted that the damages in sexual harassment decisions exhibited a wide range for general damages but that modest awards appear to be a consistent feature. There is of course no reason in law why awards need be modest. The requirement of the Act is that the damages be compensatory.
The award of damages by the Tribunal is governed by s.209(1)(b) of the Act which provides that if the Tribunal decides that the respondent contravened the Act, the Tribunal may make an order requiring the respondent to pay to the complainant within a specified period an amount the Tribunal considers appropriate as compensation for the loss or damage caused by the contravention. Section 209(6) provides that “damage” includes “the offence, embarrassment, humiliation, and intimidation suffered by the person”. This means that the Tribunal must assess the damage suffered by the individual complainant.[15]
[15]Bennett v Everitt (1988) EOC ¶ 92-244 at pp.77,282 - 77,283 per Einfeld J.
As French J held in Hall v Sheiban,[16] the question to be addressed so far as injury to feelings and humiliation is concerned is a factual one:
“What was the effect on the complainant of the conduct complained of? There is no general principle of ‘reasonableness’ by which the existence of loss or damage is to be judged.”[17]
[16](1989) 85 ALR 503 at 570.
[17]See also White v Moore (supra) at 79,186.
The reference to compensatory damages means that the measure of damages for unlawful discrimination is similar to the measure of damages in tort.[18] In Haines v Bendall,[19] the High Court held that:
“The settled principle governing the assessment of compensatory damages, whether in actions of tort or contract, is that the injured party should receive compensation in a sum which, so far as money can do, will put that party in the same position as he or she would have been in if the contract had been performed or the tort had not been committed: Butler v Egg and Egg Pulp Marketing Board (1966) 114 CLR 185 at 191; Todorovic v Waller (1981) 150 CLR 402 at 412; Redding v Lee (1983) 151 CLR 117 at 133; Johnson v Perez (1988) 166 CLR 351 at 355, 386; MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657; Livingstone v Rawyards Coal Co (1880) 5 App.Cas. 25 at 39; British Transport Commission v Gourley [1956] AC 185 at 197, 212. Compensation is the cardinal concept. It is the ‘one principle that is absolutely firm, and which must control all else’: Skelton v Collins (1966) 115 CLR 94 at 128, per Windeyer J.”
Damages under the Act should be decided according to the principles laid down by the High Court in Haines v Bendall,[20] that is the complainant should be put in the position so far as damages can do it that he or she would have been in if the act of discrimination had not occurred.
[18]Hopper v Mt Isa Mines (unreported, Queensland Anti-Discrimination Tribunal, Atkinson P, 29 January 1997) at p.41.
[19](1991) 172 CLR 60 at 63.
[20](supra); see also O’Neill v Steiler (1994) 1 QADR 36 at 39.
This is consistent with the principles which the Full Court of the Federal Court has held apply to the assessment of damages under the Sex Discrimination Act (Cth).[21] Lockhart J in Hall v Sheiban[22] held that the closest analogy was the general principles respecting the measure of damages in tort and the correct way to approach the assessment of damages under the Sex Discrimination Act was to compare the position in which the complainant might have been expected to be if the discriminatory conduct had not occurred with the situation in which he or she was placed by reason of the conduct of the respondent. Wilcox J[23] described a claim under the Sex Discrimination Act as a claim for a statutory tort and that the relief must include appropriate compensation for that damage. The same view has been taken with regard to the nature of the action under the New South Wales Anti-Discrimination Act 1977.[24]
[21]Bennett v Everitt (supra) at pp.77,280 - 77,284 per Einfeld J.
[22](supra) at 522.
[23](supra) at 548.
[24]See Australian Postal Commission v Dao (1985) 3 NSWLR 565 at 604-605 per McHugh JA; Allders International Pty Ltd v Anstee (1986) 5 NSWLR 47 at 65 per Lee J.
One of the grounds of appeal was that the Tribunal erred in awarding damages for alleged distress suffered by the complainant whilst being cross-examined when no such award was permitted by the Act. As I have already said, the assessment of whether or not distress was suffered by reason of the cross-examination was a matter for the Tribunal member and was a finding of fact reasonably open to him. Whether such an award is allowed by law is another question.
It has been recognised that in those category of cases where damages are awarded for hurt and humiliation, aggravated damages may be awarded because of the defendant’s conduct of the case. Aggravated damages are compensatory in nature being awarded for injury to the plaintiff’s feelings caused by insult, humiliation and the like.[25] Such injury may be exacerbated by the defendant’s conduct of the case. In John v MGN Ltd,[26] Bingham MR held that the fact that the plaintiff had been cross-examined in a wounding and insulting way could be taken into account in the assessment of damages. In false imprisonment cases, damages for an initial false imprisonment may be aggravated by persistence with the assertion of facts alleged to justify the imprisonment up to the moment when damages are assessed which continue the slur on the plaintiff’s reputation.[27]
[25]Lamb v Cotogno (1987) 164 CLR 1 at 8; Mafo v Adams [1970] 1 QB 548 at 558.
[26][1997] QB 586 at 608.
[27]Spautz v Butterworth (1996) 41 NSWLR 1 at 14; Myer Stores Ltd v Soo [1991] 2 VR 597 at 603, 606; Walter v Alltools (1944) 61 TLR 39 at 40; Warwick v Foulkes (1844) 12 M&W 507; 152 ER 1298.

There is no reason in principle why this head of damages should not be awarded in appropriate cases for unlawful discrimination when damages are awarded for distress, loss of dignity and injury to feelings.[28]
[28]See O’Neill v Steiler (supra) at 40; Whittle v Paulette (1994) EOC ¶ 92-621 at p.77,306; McNeill v Commonwealth of Australia (1995) EOC ¶ 92-714 at pp.78,369 - 78,370; W v Abrop Pty Ltd (1996) EOC ¶ 92-858 at p.79,369.
Similarly there is no reason in principle why an allowance should not be made in the assessment of compensatory damages for the loss of chance[29] caused by unlawful discrimination. Such orders have been made in discrimination cases.[30]
[29]Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 at 640, 643.
[30]Siddiqui v Australian Medical Council (1995) EOC ¶ 92-730 at p.78,461.
Another ground of appeal was that there should not have been a global award. Even if damages had not been assessed with reference to a global award, the appellant has failed to show that there would have been any less awarded than was awarded. It is common to make global awards[31] particularly in personal injury actions[32] and other matters[33] where it is difficult to be precise in calculation and the same procedure has been followed in a number of discrimination cases.[34] While it might have been preferable to break the award down into specific amounts for the heads of damage[35] to which the Tribunal member referred, the failure to do so where the amounts allowed for damages apart from offence and humiliation were clearly quite small, does not give rise to an error of law.
[31]Byrne, “Total Costs and Global Claims” (1995) 11 BCL 397.
[32]Nikolaou v Papasavas, Phillips & Co (1989) 166 CLR 394 at 406.
[33]Gould v Vaggelas (1985) 157 CLR 215 at 272.
[34]Hall v Naismith (unreported, Human Rights and Equal Opportunity Commission, H93/013, 16 November 1993, Susan Crennan QC) at p.5; Lowe v Staples (unreported, Human Rights and Equal Opportunity Commission, H94/007, 8 July 1994, Sir Ronald Wilson, President) at p.11; Daniels v Queensland Nursing Homes Pty Ltd (unreported, Human Rights and Equal Opportunity Commission, H94/009, 24 January 1995, PM Wolfe) at p.23; Ssali v Commonwealth Scientific and Industrial Research Organisation (unreported, Human Rights and Equal Opportunity Commission, H93/036, 8 February 1995, Susan Crennan QC) at p.4; Tulk v Moore (1996) 1 QADC 382 at 398; Strong v Curran (1996) 1 QADR 449 at 506.
[35]Bresatz v Przibilla (1962) 108 CLR 541 at 543; CSR Readymix (Australia) Pty Ltd v Payne [1998] 2 VR 505 at 508-509.
It has not been demonstrated that the Tribunal acted on a wrong principle of law[36] which has led to an award of damages which is beyond the limits of what the exercise of a sound discretionary judgment could reasonably adopt. It is not to the point that if the Court had been rehearing the matter it might have reached a different conclusion as to the proper quantum of damages.[37] I am not persuaded that the award of damages to Mr Tully was so high as to constitute an error of law. Accordingly the appeal should be dismissed with costs and the decision of the Anti-Discrimination Tribunal affirmed.
[36]CSR Readymix (Australia) Pty Ltd v Payne (supra) at 508.
[37]The Commissioner of Fire Service v Seaton (supra); Haines v Leves (1987) 8 NSWLR 442 at 469-470.