Re the Queensland Anti-Discrimination Act 1991

[1997] QSC 71

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No. 1818 of 1997

[Re The Queensland Anti-Discrimination Act 1991]

IN THE MATTER of The Queensland Anti-Discrimination Act 1991

- and -

IN THE MATTER of the decision of the Anti-Discrimination Tribunal in Complaint No. H99 of 1996 between Paul Ivory, Complainant  and Griffith University, Respondent

- and -

IN THE MATTER of an Appeal by Griffith University against the decision of the Tribunal 

REASONS FOR JUDGMENT - THOMAS J.

Delivered 29 April 1997

CATCHWORDS: INFERIOR TRIBUNALS - Anti-discrimination Tribunal - Appeal under s.217 of the Anti-Discrimination Act 1991 from decision of Tribunal - Finding of discrimination on basis of age - Whether Tribunal erred in law

CONTRACT LAW - Fixed term contract of employment - Whether right to terminate contract at age 65 waived - Waiver by election - Whether choice made between mutually exclusive courses of action - Estoppel - Detriment - Whether unequivocal - Whether choice made between alternative inconsistent rights.

Immer (No. 145) Pty Ltd v. Uniting Church in Australia Property Trust (NSW) (1992-1993) 182 CLR 26 applied.

Anti-Discrimination Act 1991, ss. 32, 217 and 268.

Counsel:Mr P.A. Keane QC and Mr L.F. Kelly for the Appellants

Mr M.P. Amerena for the Respondents

Solicitors:Minter Ellison for the Appellants

Nall Payne for the Respondents  

Hearing date:               15 April 1997

IN THE SUPREME COURT

OF QUEENSLAND

Brisbane  No. 1818 of 1997

[Re The Queensland Anti-Discrimination Act 1991]

IN THE MATTER of The Queensland Anti-Discrimination Act 1991

- and -

IN THE MATTER of the decision of the Anti-Discrimination Tribunal in Complaint No. H99 of 1996 between Paul Ivory, Complainant  and Griffith University, Respondent

- and -

IN THE MATTER of an Appeal by Griffith University against the decision of the Tribunal 

REASONS FOR JUDGMENT - THOMAS J.

Judgment delivered 29 April 1997

This is an appeal under s.217 of the Anti-Discrimination Act 1991. An appeal lies to this Court on the ground of error of law on the part of the Tribunal.
           The President of the Tribunal found that the appellant (Griffith University) had discriminated against the respondent (Dr Ivory) by insisting upon a compulsory retirement age (65) for him.  The relevant contract (made in 1977) specifically provided that the appointment would terminate at age 65.  There is no doubt that the University's right to rely on that contract was preserved by the Anti-Discrimination Amendment Act of 1994, notwithstanding the general requirements of the Anti-Discrimination Act that forbid discrimination on the basis of age.  The finding of discrimination rests upon the Tribunal's finding that the University waived its right to rely upon the relevant contract.

The Tribunal ordered:

(a)that the appellant refrain from imposing a requirement on the respondent that he retire;

(b)that the respondent be awarded $5000 damages for pain and suffering;

(c)that the appellant pay the respondent's costs.

Dr Ivory commenced employment with the University in May 1977 as a lecturer in the School of Modern Asian Studies.  Clause 4.2 of the contract provided that the appointment would terminate upon his reaching the age of 65 years.  Although clause 4.3 provided that the service was subject to six months' notice in writing on either side, clause 4.4 went on to bind the University not to give notice of termination except upon prescribed grounds such as "sufficient cause".  It might therefore be said that the contract gave Dr Ivory tenure up to age 65.
           In about April 1993 the University published an amendment to its standard conditions of employment in the staff handbook.  It provided that, subject to relevant legislation, only the University Vice-Chancellor or the Director of Human Resource Management could "commit" the University.
           On 1 July 1994 the Director of Human Resource Management wrote a general memo which was sent to all staff members.  It stated:

"1.0As the result of recent legislative changes, retirement on the basis of age is no longer compulsory.

2.0Staff members (academic and general) holding tenured appointments may continue employment beyond the age of 65, subject to satisfactory levels of performance and productivity.  The university is considering a number of optional, flexible employment agreements which will be available to older staff members who wish to continue their participation in the university's employ but, at the same time, phase into retirement . . ."

(The seven following paragraphs are not sufficiently material to require quotation.)

Curiously, this memo was sent on the same day as that upon which the 1994 amendments to the Anti-Discrimination Act came into force.  The original Anti-Discrimination Act, which was brought into operation during 1991 and 1992, has at all material times provided that discrimination on the basis of age is prohibited (s.7.1(f)). However s.32 of the Act, which commenced on 30 June 1992, relevantly provided:

"32.(1)       A person may set an age for the compulsory retirement of people of a particular sex or a particular category or type of position.

(2)Subsection (1) applies for only 2 years after the commencement of this section."

The 1994 amendment (Anti-Discrimination Act (Amendment Act) 1994), which commenced on 1 July 1994, amended the principal Act inter alia by inserting a new s.268 which relevantly provided:

"268(2) [Previous agreements]  If a compulsory retirement age is:

(a)set for a person on or before 30 June 1994 under Section 32(1) (Compulsory retirement age) as in force on that day; or

(b)specified under a previous agreement;

then, by force of this subsection, the person is required, and is taken always to have been required, to retire in accordance with the compulsory retirement age set or specified unless the compulsory retirement age is subsequently waived by the relevant parties.

. . .

268(6) [Interpretation]  In this section -

'previous agreement' means any agreement in existence on 30 June 1994 other than a previous industrial agreement . . .."

The memorandum of 1 July 1994 was circulated in apparent ignorance of the effect of the new s.268(2) which preserved compulsory retirement under agreements with staff entered into before 30 June 1994 (subject to waiver by the parties).
           On 30 November 1994 the University's Director of Human Resource Management wrote a further memorandum which apparently attempted to retrieve the position stated in the earlier memorandum.  It stated:

"In my memorandum to staff of 1 July 1994 I advised that, from 1 July 1994, retirement on the basis of age was no longer compulsory. This advice has been superseded by the provisions of the Anti-Discrimination Act 1994. The University was not made aware of the Government's intention to amend the Anti-Discrimination Act, and only received advice of its passage through Parliament in late July. The University has had to reconsider its position on compulsory age retirement in the light of the Amendment Act changes. The principal relevant change created by the Amendment Act is to preserve compulsory retirement for staff appointed prior to 30 June 1994."

It continued:

"Staff members (academic and general) appointed to a tenure position prior to 30 June 1994 will be required to retire at age 65. Retirement at that age is a term of the employment contract provided by subsection 268(2) of the Anti-Discrimination Amendment Act 1994."

It was accepted by the Tribunal that the University published the memorandum without knowing what its legal rights were.
           On 7 December 1994 the University's Director of Human Resource Management wrote to Dr Ivory telling him that the University required him to retire on his sixty-fifth birthday, namely on 28 June 1996.
           The Tribunal concluded that the University had elected to waive its rights.  It found however that there was no sufficient evidence of reliance by Dr Ivory upon the memorandum of 1 July 1994, or of detriment suffered by him, to form the basis of any estoppel.  This latter conclusion was challenged on Dr Ivory's behalf during the appeal, and I was asked, in effect as upon a cross-appeal, to conclude either that there was sufficient evidence of reliance and detriment, or alternatively to send the matter back to the Tribunal or to another Tribunal member for further determination.  For reasons which will be mentioned later I consider that the President was correct in ruling that there was not sufficient evidence of reliance or detriment to form the basis of any estoppel.  I shall therefore proceed to discuss the issue on the basis that the only way in which the University may have lost its rights is on the basis of what has been called waiver by election.  That was the basis of the President's finding and of the arguments presented to me.
           The appellant does not seek to reverse any findings of fact.  Its challenge is to the legal conclusion that the above facts amount to a binding waiver of the University's legal rights.

Waiver by election

The Tribunal's ultimate finding is encapsulated in the following statement:

"Accordingly, I hold that the compulsory retirement age created in Dr Ivory's contract in 1977 was waived by the University by its memorandum of 1 July 1994.  It chose between two inconsistent rights - the right to insist, or not to insist, on compulsory retirement."

Considerable difficulty exists in articulating the law in relation to waiver by reference to The Commonwealth v. Verwayen (1990) 170 CLR 394, in which three of the Judges (Mason CJ, Brennan J and McHugh J) were of the view that neither waiver nor estoppel precluded the Commonwealth from relying upon its rights; and where, of the other four Justices, Deane and Dawson JJ considered that the Commonwealth was estopped from relying upon the right in question; and Toohey and Gaudron JJ considered that the Commonwealth had waived the right in question. However, in the later case of Immer (No. 145) Pty Ltd v. Uniting Church in Australia Property Trust (NSW) (1992-1993) 182 CLR 26, a more concise and united expression is given of principles relevant to waiver by election.

"          The true nature of election is brought out in this sentence from the seminal work of Spencer Bower and Turner, The Law Relating to Estoppel by Representation (44):  'It is of the essence of election that the party electing shall be "confronted" with two mutually exclusive courses of action between which he must, in fairness to the other party, make his choice.'"

(Immer above, at p.41 per Deane, Toohey, Gaudron and McHugh JJ)

The critical question which Their Honours posed was -

"Can it be said that Immer was then confronted with two mutually exclusively courses of action between which it must choose?"

Their Honours went on to observe:

"At the heart of election is the idea of confrontation which in turn produces the necessity of making a choice.  But in a case such as the present one, the choice is not merely one of affirming the agreement;  it involves as well the abandonment of the right to rescind.  Abandonment is more readily inferred in some circumstances, for instance where the choice arises once and for all."

(Ibid, p.42)

The submission for the University is that as at 2 July 1994 it was not confronted with a situation where it had to make a choice one way or the other in relation to the tenure of Dr Ivory.  Leaving aside estoppel, it submits that such a choice would only arise when the respondent in fact attained the age of 65.  As Brennan J observed in Verwayen, a mere statement of intention not to exercise a right is not immediately effective to divest or sterilise that right, as the right is waived only when the time comes for its exercise and the party for whose sole benefit it has been introduced knowingly abstains from exercising it.  However, the nature of the right in issue in Verwayen tends to produce difficulty in transposing such observations directly to a situation such as the present.  As I indicated to Mr Keane QC (for the University) during argument, I do not accept the general submission that a party cannot act so as to create a waiver by election until such time as the time for enforcement of the right has arrived. 
           Mr Keane submitted that the University would not be bound by any so-called election unless it had abandoned its rights in a situation where it was confronted with a choice in a situation where it could not keep both options open.  He further submitted that the memo, fairly read and construed, is a mere statement of intention, prefaced by the plainly erroneous statement of law that "as the result of recent legislative changes, retirement on the basis of age is no longer compulsory".  The expression of an intention, he submitted, is not generally the unequivocal exercise of a right of election, especially when it is on its face based upon an erroneous legal premise.  He submitted that the memo should be characterised as an indication of the University's then policy rather than a promise that "we will keep you on".  The submission goes on that it was neither an affirmation nor a disaffirmation of rights under the contract and does not amount to a choice between alternative inconsistent rights.
           Plainly it does not amount to a variation of contract as no consideration was involved.
           On the other hand Mr Amerena, for Dr Ivory, submits that it contains a representation tantamount to a promise that such persons may continue their employment beyond the age of 65 (subject to satisfactory levels of performance and productivity).
           In my view, none of the attempts to characterise the statement is entirely accurate although some of them fairly describe some elements of it.  The memo commences with an erroneous statement of law and then asserts a reassuring conclusion that would be taken by the reader to be at the very least a statement of what would be permitted to happen in the future.  It is fair to say, however, that reading it as a whole, it is structured along the lines "this being the state of the law, this is our position and this is what you may expect."
           Election by waiver requires an unequivocal statement or conduct.

"The words or conduct ordinarily required to constitute an election must be unequivocal in the sense that it is consistent only with the exercise of one of the two sets of rights and inconsistent with the exercise of the other . . ."

(Sargent v. A.S.L. Developments (1974) 131 CLR 634, 646 per Stephen J)

In the present matter the memorandum was an erroneous statement of the effect of existing law and of what the University proposed to do on the question.  It does not comfortably meet the "unequivocal" test.
           It is important to identify, if possible with some precision, the nature of the right that is said to have been waived.  Verwayen was concerned with waiver (or estoppel) in relation to rights that arise in the course of litigation;  Immer was concerned with vendor and purchaser (and in particular whether the purchaser had abandoned its right to rescind the contract);  and Freshmark Ltd v. Mercantile Mutual Insurance (Australia) Ltd [1994] 2 Qd.R. 390 was concerned with waiver by an insurer of the right to apply an exception under the policy. A useful discussion of principle appears in Freshmark.  Dowsett J, having discussed the authorities (including Immer), stated:

"The better view is that a mere indication of an intention not to rely upon contractual rights will not generally constitute a waiver sufficient to bar a future action to enforce such rights.  Waiver should not be seen as an alternative weapon to estoppel in the war against the doctrine of consideration.  However, where a party elects between alternative rights available under a contract, such election will usually be final."

In the present case, the legal rights governing the relationship of the parties arises under the contract of employment. It is a contract which provides for its own automatic termination upon the occurrence of an event, namely attainment of the age of 65. It is in this respect equivalent to a contract for a term which expires at a particular time. It may be that the University had already "set an age for compulsory retirement" under s.32(1) of the original Anti-Discrimination Act, by means of the 1977 contract, and that this particular contract was never subject to invalidity under the Act. It is not necessary to attempt to answer that question, because even if clause 4.2 was otherwise an unlawful act of discrimination under s.7, upon the passing of the 1994 Amendment Act, the University's right to rely upon clause 2 at all times was expressly recognised, and Dr Ivory was "taken always to have been required" to retire in accordance with the retirement age set by the agreement. The effect of s.268(2) is not a statutory requirement that Dr Ivory retire at 65; it is a recognition that the University has the right to rely upon its contract unless it waives the right. Thus the nature of the right asserted by the University is a contractual right. Ultimately the nature of the right that is said to have been waived is the University's contractual right under clause 4.2.
           In my view when the memo was written the University was not electing between alternative rights.  It was undoubtedly making a misleading statement.  But the action of the officer in sending the memo did not have the character of an election.  Further, in the absence of detriment to Dr Ivory resulting from the representation, there does not appear to be anything unconscionable in the University insisting on or reverting to its contractual relationship with its employee. 
           If one asks the basic question posed in Immer (p.41) - Can it be said that the University was then confronted with two mutually exclusive courses of action between which it must choose? - the answer in my view is "No."
           I therefore consider that the action of the University in this instance did not amount to a waiver by election as that term is currently regarded by the authorities.  Neither do I think that the University made any enforceable promise to extend the contract of employment beyond its expiry date.
           It may also be noted that the effect contended for on behalf of Dr Ivory is not so much a waiver by the University of some right possessed by it, as the creation of a new term or a new right of employment between the two parties after the original term has expired.  This point was not developed by either counsel, but it is in my view capable of contributing to proper analysis of the problem.  A right to further employment after the original employment terminates might more readily be created by promissory estoppel than by the waiver of any existing right on the part of the University.  We are concerned with a fresh arrangement after the original term expires by effluxion of time.  However I do not base my decision on this line of reasoning.  If it is correct it supports the same conclusion.

Estoppel

It was submitted for Dr Ivory that if the Tribunal erred in finding waiver by election, the decision could be upheld by setting aside the Tribunal's finding of absence of detriment on the part of Dr Ivory.

Waiver by estoppel was rejected by the Tribunal holding:

"However, I should look at the question of reliance and detriment to see if sufficient reliance and detriment have been shown that would give rise to an estoppel which would prevent the University from enforcing its strict legal rights.  Dr Ivory says that he made arrangements on the basis of the memorandum of 1 July, 1994, but he does not specify what they were.  Accordingly, as there is insufficient evidence that there was reliance and detriment, estoppel has not been established."

Some attempt was made during the appeal to rely upon a letter which was annexed to an affidavit filed on Dr Ivory's behalf (described as PI7) dated 5 April 1995.  The contents of the letter were not sworn to and quite simply the matters raised in it were not litigated, or apparently the subject of any submissions below.  The letter, in any event, does not address the question of detriment resulting from the 1994 memorandum, and is primarily based upon Dr Ivory's problems since a certain decision of the University in 1992.  Dr Ivory simply did not give any evidence to the effect that he would suffer any detriment attributable to his receipt of the June 1994 memorandum if the University were permitted to change its position from that represented in the memo.  There is no reason to think that any evidence was overlooked by the President or that the evidence and conduct of the case required a different view to be taken.

Conclusions
           I conclude that the Tribunal erred in concluding that waiver was established which precludes the University from relying upon the terms of its contract.
           The appeal should be allowed and the orders of the Tribunal should be set aside.