Rodgers v Revenue SA, Department of Treasury and Finance (State of South Australia) - [2014] SASCFC 2

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RODGERS v REVENUE SA, DEPARTMENT OF TREASURY AND FINANCE (STATE OF SOUTH AUSTRALIA)
[2014] SASCFC 2
Judgment of The Full Court
(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Stanley)
23 January 2014
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - EMPLOYMENT, PROMOTION AND RETRENCHMENT
HUMAN RIGHTS - TRIBUNALS, COMMISSIONS AND OTHER AUTHORITIES - SOUTH AUSTRALIA
LIMITATION OF ACTIONS - GENERAL MATTERS - STATUTES OF LIMITATION GENERALLY - RETROSPECTIVE OPERATION
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - GENERALLY - POWER OF COURT TO EXTEND LIMITATION PERIOD
This is an appeal against the summary dismissal by the Equal Opportunity Tribunal of a complaint under the Equal Opportunity Act 1984 (SA).
In March 2012, Ms Rodgers lodged a complaint with the Commissioner for Equal Opportunity. She complained that in December 2003 she was subjected to sexual harassment by a fellow employee for whose conduct the respondent was vicariously liable and that the respondent discriminated against her on the ground of her sex by exposing her to the harassment. She also complained that after December 2003 she was subjected to intimidating conduct by fellow employees which amounted to victimisation for which the respondent was vicariously liable. She subsequently provided particulars of the alleged victimisation over two periods. The first period was between December 2003 and January 2006 and the alleged victimisation was principally comprised by fellow employees grinning at her and giving her dirty looks. The second period was between January 2006 and February 2011 after she had left the department when a former fellow employee grinned at her and gave her dirty looks whenever he came into contact with her outside the office.
The Tribunal summarily dismissed the complaint on the grounds that it was out of time, there was no power to extend time in respect of conduct before April 2009 and there was no reason to extend time in respect of conduct after because there was no explanation for the delay and the claim in respect of the second period was untenable.
HELD (Blue J with Vanstone J agreeing; Stanley J dissenting) dismissing the appeal:
1. The alleged acts of victimisation after Ms Rodgers left the department in January 2006 committed by the former fellow employee were incapable of being characterised as being committed while acting in the course of employment so as to render the respondent vicariously liable for his acts under s 91 of the Equal Opportunity Act 1984 (SA) (at [52]-[53] per Blue J, Vanstone J agreeing; contra Stanley J at [208]-[210]).
2. The respondent did not discriminate against Ms Rodgers on the grounds of her sex by subjecting her to detriment being the alleged conduct of the former fellow employee after Ms Rodgers left the department in January 2006 so as to render the respondent directly liable for the former fellow employee's acts (at [59] per Blue J, Vanstone J agreeing; per Stanley J at [191]).
3. The Tribunal has power under s 48 of the Limitation of Actions Act 1936 (SA) to extend time for lodging a complaint limited by s 93(2) of the Equal Opportunity Act 1984 (SA) (at [77] per Blue J, Vanstone J agreeing; contra Stanley J at [164]).
4. The Commissioner has power under s 93(2a) of the Equal Opportunity Act 1984 (SA) to extend time for lodging a complaint notwithstanding that the time limit had already expired before the enactment of that provision (at [86] per Blue J, Vanstone J agreeing; contra Stanley J at [155]).
5. The respondent did not engage in conduct comprising a single series of acts which encompassed the period February 2006 and February 2011 within the meaning of s 93(2) of the Equal Opportunity Act 1984 (SA) (at [93] per Blue J, Vanstone J agreeing; Sanley J at [190]-[191].
6. The Tribunal did not err in exercising discretion not to extend time for lodging the complaint (at [104] per Blue J, Vanstone J agreeing; contra Stanley J at [211]-[212]).
Equal Opportunity Act 1984 (SA) ss 23, 25, 29, 30, 86, 87, 91, 93, 95, 95B, 96, 97; Limitation of Actions Act 1936 (SA) s 48; Acts Interpretation Act 1915 (SA) s 22; Anti-Discrimination Act 1977 (NSW) ss 24, 25; Sex Discrimination Act 1984 (Cth) ss 5, 14, 28; Equal Opportunity Act 1984 (WA); Equal Opportunity Act 1984 (VIC) s 34; Equal Opportunity (Miscellaneous) Amendment Act 2009 (SA); Workers Rehabilitation and Compensation Act 1986 (SA) s 30, referred to.
IW v City of Perth (1997) 191 CLR 1, applied.
Hill v Water Resources Commission of New South Wales (1985) 14 IR 158; Millner v Raith (1942) 66 CLR 1; R v Kidman (1915) 20 CLR 425, distinguished.
Agostinelli v Kelvinator Australia Ltd (1996) EOC 92-786; Aldridge v Booth (1988) 80 ALR 1; Australian Iron & Steel Limited v Hoogland (1962) 108 CLR 471; Comcare v PVYW [2013] HCA 41; Craig v Wokers Compensation Tribunal & Anor (2004) 90 SASR 490; Danvers v Commissioner for Railways (NSW) (1969) 122 CLR 529; Elliott v Nanda & Anor (2001) 111 FCR 240; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125; Hall v A & A Sheiban Pty Ltd (1989) 20 FCR 217; Hatzimanolis v ANI Corporation Ltd (1992) 173 CLR 473; Maxwell v Murphy (1957) 96 CLR 261; New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511; O’Callaghan v Loder & Anor [1983] 3 NSWLR 89; Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474; R v Equal Opportunity Board; Ex Parte Butns [1985] VR 317; Roberts v Crown in Right of State of South Australia (1995) EOC 92-761; Roberts v Crown in Right of State of South Australia (1995) EOC 92-761; State Electricity Commission of Victoria v Equal Opportunity Board & Ors [1989] VR 480; Van Vliet v Griffiths (1978) 19 SASR 195; Van Vliet v Griffiths (1979) 20 SASR 524; Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22; Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474, discussed.
Agostinelli v Kelvinator Australia Ltd (1996) EOC 91-786; Australian Postal Commission v Dao & Anor (1986) 6 NSWLR 497; Bird v The Commonwealth (1988) 165 CLR 1; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629; Comcare v PVYW [2013] HCA 41; Danvers v Commissioner for Railways (NSW) (1966) 122 CLR 529; Dee v Commissioner of Police (No 2) [2004] NSWADT 168 (16 August 2004); Drummond-Jackson v British Medical Association [1970] 1 All ER 1094 at 1101; Guest v Department for Administrative and Information Services [2006] SAWCT 54; Haztimanolis v ANI Corporation Ltd (1972) 173 CLR 473; Henderson v Commissioner of Railways (NSW) (1937) 58 CLR 281; Kavanagh v The Commonwealth (1960) 103 CLR 547; Mitsubishi Motors Australia Ltd v Kowalski [2004] SASC 302; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541; Comcare v PVYW [2013] HCA 41; R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366; Spencer v Commonwealth (2010) 241 CLR 118; Danvers v Commissioner for Railways (NSW) (1966) 122 CLR 529; Dee v Commissioner of Police (No 2) [2004] NSWADT 168 (16 August 2004); State of New South Wales v Lepore (2003) 212 CLR 51; The Commonwealth v Oliver (1962) 107 CLR 547; Haztimanolis v ANI Corporation Ltd (1972) 173 CLR 473; Henderson v Commissioner of Railways (NSW) (1937) 58 CLR 281; Vella v Department of Employment, Vocational Education, Training and Industrial Relations (Qld) [1994] HREOCA 22 (10 August 1994); Western Pastoral Co v Eyeington (1971) 125 CLR 342; Vella v Department of Employment, Vocational Education, Training and Industrial Relations (Qld) [1994] HREOCA 22 (10 August 1994); Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22, considered.

RODGERS v REVENUE SA, DEPARTMENT OF TREASURY AND FINANCE (STATE OF SOUTH AUSTRALIA)
[2014] SASCFC 2
Full Court: Vanstone, Blue and Stanley JJ

VANSTONE J. I would dismiss the appeal. I agree with the reasons of Blue J.
BLUE J. Ms Rodgers appeals against summary dismissal by a Presiding Officer of the Equal Opportunity Tribunal of her complaint against the respondent.
Ms Rodgers lodged with the Commissioner for Equal Opportunity a complaint under the Equal Opportunity Act 1984 (SA) (“the Act” or the “Opportunity Act”). The complaint was made against the Office of State Revenue South Australia. The complaint alleged that:
1.Ms Rodgers had been subjected to sexual harassment by a fellow employee, Mr V, at a work-related function on 5 December 2003[1] for which the Office of State Revenue was vicariously liable;[2]
2.the Office of State Revenue discriminated against Ms Rodgers on the ground of her sex by subjecting her to detriment by exposing her to the sexual harassment;[3] and
3.employees of the Office of State Revenue engaged in intimidating conduct towards Ms Rodgers because she made a complaint in December 2003 to the Commissioner of State Taxation and participated in the ensuing investigation and disciplinary hearing, which conduct amounted to victimisation[4] for which the Office of State Revenue was vicariously liable.
[1]    Equal Opportunity Act 1984 (SA) s 87(1).
[2]    Equal Opportunity Act 1984 (SA) s 91.
[3]    Equal Opportunity Act 1984 (SA) s 30(2)(d).
[4]    Equal Opportunity Act 1984 (SA) s 86.
The Commissioner in due course wrote to Ms Rodgers stating that she had decided not to take action on the complaint because it was out of time, lacking in substance and misconceived. She informed Ms Rodgers that she could request that her complaint be referred to the Tribunal. At Ms Rodgers’ request, the Commissioner referred her complaint to the Tribunal for hearing and determination.[5]
[5] Equal Opportunity Act 1984 (SA) s 95B.
Ms Rodgers filed in the Tribunal particulars of her complaint. In respect of the complaint of victimisation, Ms Rodgers gave particulars that:
·     between December 2003 and January 2006 employees who were friends of Mr V grinned at her and gave her dirty looks in the office;
·     on an occasion in 2004 a man said “Don’t smile at me, you bitch” in the lift at the office; and
·     between January 2006 and February 2011 an employee, Mr K, grinned at her and gave her dirty looks whenever he came into contact with her.
The respondent[6] applied for summary dismissal of the proceedings. The Presiding Officer dismissed the complaint on the ground that it was out of time, there was no power to extend time in respect of conduct before April 2009 and there was no reason to extend time in respect of conduct after April 2009 because there was no explanation for the delay and the claim against the respondent in this period was based upon Mr K’s conduct and was untenable.
[6] In her complaint and before the Tribunal, Ms Rodgers treated the respondent as the Office of State Revenue South Australia. That office is not a legal entity. The relevant legal entity is the State of South Australia. Steps taken in the Tribunal by the respondent were taken in the name of the State of South Australia. I use the term “the respondent” to refer to the State of South Australia in its manifestation as the Office of State Revenue South Australia.
The appeal raises the following issues.
1.Assuming that Mr K grinned and gave dirty looks to Ms Rodgers between January 2006 and February 2011 and this comprised victimisation in contravention of section 86, were Mr K’s acts committed while acting in the course of his employment with the Office of State Revenue so as to render the respondent vicariously liable for his acts under section 91?
2.Alternatively, assuming that Mr K committed those acts, did the Office of State Revenue discriminate against Ms Rodgers on the grounds of her sex by subjecting her to detriment being the conduct of Mr K, in contravention of section 30?
3.Did section 48 of the Limitation of Actions Act 1936 (SA) (“the Limitation Act”) empower the Tribunal to extend time for lodging a complaint limited by section 93(2) of the Opportunity Act?
4.Did subsection 93(2a) of the Opportunity Act empower the Commissioner to extend the time for lodging a complaint in circumstances in which the time limit in respect of contraventions before 2 April 2009 had already expired before the enactment of section 93(2a).
5.Was the alleged conduct of the respondent a single series of acts such that time only commenced to run from the last of those acts in February 2011?
6.Should the Presiding Officer have exercised discretion to extend time for lodging the complaint?
Background
In December 2003, Ms Rodgers was employed by the State of South Australia in the Office of State Revenue division of the Department of Treasury and Finance. Mr V was a manager at Office of State Revenue. Mr K in turn was Mr V’s manager.
On 5 December 2003, Office of State Revenue staff attended a Christmas lunch at the Adelaide Casino. Mr V allegedly engaged in words and actions which it may be assumed amounted to sexual harassment within the meaning of subsection 87(1) of the Act.
On 8 and 10 December 2003, Ms Rodgers complained to her supervisor and director and to the Commissioner of State Taxation concerning Mr V’s conduct. She cooperated in the ensuing investigation.
Later in December 2003, Ms Rodgers spoke to someone from the Equal Opportunity Commissioner’s Office. She was informed of the processes involved in making a complaint under the Act. She was informed of the role of conciliation in those processes. She made a deliberate decision not to lodge a complaint with the Commissioner against the Office of State Revenue or anyone else.
In May 2004, Ms Rodgers participated in a disciplinary hearing of charges against Mr V. As a result of the hearing, Mr V was transferred to a different department.
Between December 2003 and January 2006, there were several incidents in which managers within the Office of State Revenue who were friends of Mr V allegedly walked past Ms Rodgers grinning at her or giving her dirty looks. On one occasion in 2004, a work colleague allegedly said to her in the lift “Don’t smile at me, you bitch”.
In January 2006, Ms Rodgers was transferred to the Department for Heritage and Environment SA. Ms Rodgers then worked in a different building two streets away from Office of State Revenue. Ms Rodgers alleged that after January 2006 and up to the end of 2010 she still saw Mr K from time to time in the street, at a bar, in the foyer of a building or elsewhere. She alleged that he grinned at her, glared at her for long periods and gave her looks of disapproval when he saw her on such occasions.
In February 2011, Ms Rodgers commenced maternity leave. There was no suggestion that she saw Mr K after that date.
On 20 March 2012, Ms Rodgers lodged the complaint with the Commissioner. In the complaint, she did not allege any victimisation after 2006.
On 26 April 2012, the Commissioner wrote to Ms Rodgers. She said that, as the alleged events happened before 2 April 2009, Ms Rodgers had up to six months from the last event in which to lodge her complaint and, under the applicable law, the Commissioner could not take up a late complaint.[7] She inquired whether there were any relevant events on or after 2 April 2009.
[7] The Commissioner was referring to s 93(2) of the Act in its form before 2 October 2009. In that form, s 93(2) required a complaint to be lodged within six months of the contravention or the last of the acts comprising the contravention. After 2 October 2009, s 93(2) has required a complaint to be lodged within 12 months of the contravention or the last of the series of acts comprising the contravention and s 93(2a) has empowered the Commissioner to extend the time for lodging a complaint.
On 16 May 2012, Ms Rodgers’ solicitors wrote to the Commissioner. They alleged that, until Ms Rodgers commenced maternity leave in February 2011, Mr K committed acts of victimisation by grinning and giving her dirty looks whenever he came into contact with her. They contended that Mr K’s conduct comprised victimisation in breach of section 86 of the Act and, in addition, it formed part of a continuous course of conduct by the Office of State Revenue from December 2003 to February 2011.
On 12 June 2012, the Commissioner wrote to Ms Rodgers. The letter included the following passages:
In your complaint you say you were sexually harassed by a work colleague on 5 December 2003. You say that since that date colleagues have given you dirty looks and smirks, and you say that this amounts to victimisation because you made a complaint about the alleged acts of sexual harassment.
Complaints about events that occurred prior to 2 April 2009 needed to be made within 6 months of the events, or the last in a series of events. Although you claim that you have received dirty looks and smirks from colleagues after 2 April 2009, there does not appear to be a link between those actions and the complaint of sexual harassment you made in 2003.
After careful thought, I have decided that I should not take action on your complaint because, in my opinion, the complaint is lacking in substance and misconceived.
A copy of your complaint and a letter will be sent to Office of State Revenue South Australia with a letter explaining why I have decided not to take action.
You now have the right to take your complaint to the Equal Opportunity Tribunal. To do this you need to write to me within three months of receiving this letter and request that I refer your complaint to the Tribunal. You can ask me to provide you with legal assistance and I will consider your request. More information about this is enclosed.
On 11 September 2012, Ms Rodgers requested the Commissioner to refer her complaint to the Tribunal.
On 19 September 2012, the Commissioner formally referred Ms Rodgers’ complaint to the Tribunal for hearing and determination by notice of referral pursuant to section 95B. She attached to the notice of referral the complaint dated 20 March 2012 and the letter dated 16 May 2012.
On 16 October 2012, the respondent filed an interlocutory application seeking summary dismissal of the proceedings because they were out of time, did not disclose a cause of action for victimisation or were frivolous or vexatious.
On 12 December 2012, Ms Rodgers filed an affidavit deposing to the facts alleged to comprise contraventions of the Act.
On 22 February 2013, the Presiding Officer heard the respondent’s application for summary dismissal. The application was argued on the basis that, to succeed, the respondent needed to establish that Ms Rodgers did not have a reasonably arguable claim of contravention of the Act and that she could not or should not be granted an extension of time.
On 16 April 2013, the Presiding Officer dismissed the complaint.
Reasons of the Presiding Officer
The Presiding Officer concluded that the complaint was out of time under subsection 93(2) because it was lodged in March 2012 which was more than 12 months after the last possible contravention (when Ms Rodgers left on maternity leave in February 2011).
The Presiding Officer referred to the amendment to section 93 made with effect on 2 October 2009 by the Equal Opportunity (Miscellaneous) Amendment Act 2009 (SA) (“the Amendment Act”). He held that the Amendment Act did not revive an entitlement to lodge a complaint which had been extinguished and consequentially contraventions before 2 April 2009 could not be made the subject of an extension of time under section 93(2a) of the Act.

The Presiding Officer rejected a contention by Ms Rodgers that all of the conduct the subject of the complaint from December 2003 to February 2011 could be regarded as a series of acts within the meaning of section 93(2a) of the Act.
The Presiding Officer held that section 48 of the Limitation Act did not empower an extension of time.[8]
[8] The Presiding Officer expressed his reasons for his conclusion by adopting the reasoning of the Tribunal in Agostinelli v Kelvinator Australia Ltd (1996) EOC 92-786.
In relation to the alleged victimisation by Mr K up to February 2011, the Presiding Officer declined to extend time under section 93(2a) of the Act. He concluded that there was nothing to explain why the complaint could not have been lodged within time and the delay was very large. He also considered that it would not be just to the respondent to extend the time because there was no basis upon which it could be said that the actions by Mr K were within the course of his employment.
The contentions on appeal
It is common ground on appeal that, because the respondent was seeking summary dismissal, the test was whether Ms Rodgers had a reasonably arguable case on the issues upon which she would have to succeed at final hearing.
It is common ground that it was reasonably arguable that Mr V’s alleged conduct on 5 December 2003 was capable of amounting to sexual harassment within the meaning of section 87 and that the respondent is vicariously liable for that conduct under section 91 of the Act.
Ms Rodgers contends that the Presiding Officer erred in concluding that it was not reasonably arguable that the respondent is vicariously liable for Mr K’s alleged conduct between January 2006 and February 2011 under section 91. In the alternative, she contends that it is reasonably arguable that the respondent is directly liable in respect of Mr K’s alleged conduct under section 30(2)(d).
Ms Rodgers contends that the Presiding Officer erred in construing section 48(1)(c) of the Limitation Act and subsection 93(2a) of the Opportunity Act as not conferring power to extend time for lodging a complaint under subsection 93(2) in respect of contraventions committed before April 2009.
Ms Rodgers contends that the alleged discrimination by the respondent in contravention of section 30(2)(d) was constituted of a series of acts, the last of which occurred in February 2011 and that an extension of time should have been assessed on this basis.
Ms Rodgers contends that the Presiding Officer erred in the exercise of his discretion against granting an extension of time.
The respondent takes issue with each of Ms Rodgers’ contentions.
Liability of respondent in respect of Mr K’s conduct
Vicarious liability
The arguments in this Court and in the Tribunal below proceeded on the assumption that it was reasonably arguable that the alleged conduct of Mr K, by grinning, glaring and giving looks of disapproval, comprised victimisation within the meaning of section 86 of the Act. Section 86(2) includes in the definition of victimisation that the person “treats the victim unfavourably”. It is doubtful whether merely grinning, glaring and giving looks of disapproval is capable of amounting to treating a victim unfavourably. However, as the respondent did not argue to the contrary, I assume for the purposes of the appeal that it is reasonably arguable that such conduct comprises victimisation.
Subsection 91(1) imposes vicarious liability on an employer for an unlawful act of an employee committed while acting in the course of his or her employment. Subsection 91(1) at material times provided:
(1) 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.
Ms Rodgers contends that the Presiding Officer erred in concluding that Mr K’s acts committed after January 2006 were not committed while he was acting in the course of his employment by the Office of State Revenue. Ms Rodgers contends that it was sufficient that the acts were committed during Mr K’s working day and they did not need to have any other connection with his employment.
The common law determines vicarious liability of an employer for a tort using the criterion whether the tort was committed in the course of the employee’s employment. In New South Wales v Lepore,[9] Gleeson CJ said:
An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The limiting or controlling concept, course of employment, is sometimes referred to as scope of employment. Its aspects are functional, as well as geographical and temporal. Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability.
The antithesis of conduct in the course of employment is sometimes expressed by saying that the employee was "on a frolic of his own".[10]
[9] [2003] HCA 4; (2003) 212 CLR 511.
[10] (2003) 212 CLR 511 at [40]-[41]. See also at [129] per Gaudron J; [166] per McHugh J; [225] per Gummow and Hayne JJ; [307] per Kirby J and [342] per Callinan J.
In New South Wales v Lepore,[11] the High Court addressed the test for what amounts to acting “in the course of employment” in a case of a tort committed intentionally by an employee without the authority of the employer. Gleeson CJ, Gaudron and Kirby JJ each formulated a test by reference to whether there was a sufficiently close connection between the act on the one hand and the employment, the employer’s enterprise or what the employee was engaged to do on the other hand.[12] Gummow and Hayne JJ formulated a test as being whether the conduct was in the intended pursuit of the employer’s interests or performance of the contract of employment or in the ostensible pursuit of the employer’s business or apparent execution of authority which the employer held out the employee as having.[13]
[11] (2003) 212 CLR 511.
[12] Ibid [74] per Gleeson CJ, [131] per Gaudron J and [315]-[320] per Kirby J.
[13] Ibid at [231]-[239] per Gummow and Hayne JJ.
Ms Rodgers does not contend that, if the meaning of acting in the course of employment adopted by Gleeson CJ, Gaudron and Kirby JJ applies to section 91, the conduct of Mr K after January 2006 was in the course of his employment.[14] After January 2006, Mr K and Ms Rodgers worked in quite separate departments in quite separate locations. Ms Rodgers’ employment by the Department for Heritage and Environment SA gave her no reason to have work-connected dealings with Mr K. Mr K’s employment by the Department of Treasury and Finance gave him no reason to have work-connected dealings with Ms Rodgers. The only occasions on which they had contact of any type was when they saw each other by happenstance in the street, at a bar or in the precincts of their buildings. Mr K’s alleged conduct had no connection at all with his employment by the Office of State Revenue.
[14] Nor does Ms Rodgers contend that, if the meaning adopted by Gummow and Hayne JJ applies to s 91 of the Act, the conduct of Mr K after January 2006 was in the course of his employment.
Ms Rodgers contends that the phrase “while acting in the course of their employment” in section 91 should be construed in a similar manner to the like phrase in section 30(2)(a) of the Workers Rehabilitation and Compensation Act 1986 (SA) (“the Workers Compensation Act”). Section 30 provides:
(1)     Subject to this Act, an injury is compensable if it arises from employment.
(2)     Subject to this section, an injury arises from employment if—
(a)     in the case of an injury that is not a secondary injury or a disease—it arises             out of or in the course of employment; or
(b)     in the case of an injury that is a secondary injury or a disease—
(i)    the injury arises out of employment; or
(ii)     the injury arises in the course of employment and the employment   contributed to the injury.
(3)     A worker's employment includes—
(a)     attendance at the worker's place of employment on a working day but before          the day's work begins in order to prepare, or be ready, for work; and
(b)     attendance at the worker's place of employment during an authorised break             from work; and
(c)     attendance at the worker's place of employment but after work ends for the            day while the worker is preparing to leave, or in the process of leaving, the               place; and
(d)     attendance at an educational institution under the terms of an apprenticeship           or other legal obligation, or at the employer's request or with the employer's              approval; and
(e)     attendance at a place to receive a medical service, to obtain a medical report           or certificate (or to be examined for the purpose), to participate in a                    rehabilitation program or for the purposes of a rehabilitation and return to             work plan, or to apply for, or receive, compensation for a compensable         injury.
(4)     However, an injury does not arise from employment if it arises out of, or in the       course of, the worker's involvement in a social or sporting activity, except where         the activity forms part of the worker's employment or is undertaken at the direction      or request of the employer.
(5)     An injury that arises out of, or in the course of, a journey arises from employment     only if—
(a)     the journey is undertaken in the course of carrying out duties of   employment; or
(b)     the journey is between—
(i)    the worker's place of residence and place of employment; or
(ii)     the worker's place of residence or place of employment and—
(A)     an educational institution the worker attends under the terms of            an apprenticeship      or other legal obligation, or at the employer's             request or with the employer's approval; or
(B)     a place the worker attends to receive a medical service, to            obtain a medical report or certificate (or to be examined for that          purpose), to participate in a rehabilitation program, or to apply          for, or receive, compensation for a compensable injury,
and there is a real and substantial connection between the                     employment and the accident      out of which the injury arises.
(6)     However, the fact that a worker has an accident in the course of a journey to or       from work does not in itself establish a sufficient connection between the accident and the employment for the purposes of subsection (5)(b).
(7)     The journey between places mentioned in subsection (5)(b) must be a journey by      a reasonably direct route but may include an interruption or deviation if it is not,        in the circumstances of the case, substantial, and does not materially increase the         risk of injury to the worker.
Ms Rodgers contends that the phrase “arising out of employment” in section 30(2)(a) directs attention to a causative link and the phrase “in the course of employment” directs attention to a temporal link between the injury and employment. Ms Rodgers contends that the phrase “in the course of employment” in section 91 should be interpreted in a similar manner to connote a purely temporal link.
Ms Rodgers’ contention should be rejected. First, section 91 of the Act adopts the single criterion “in the course of employment”; whereas section 30 of the Workers Compensation Act adopts the composite criterion “arises out of or in the course of employment”. When used as part of a disjunctive phrase, the fact that the words “arising out of employment” are suggestive of a causative connection is in turn suggestive that the words “in the course of employment” connote a temporal connection.[15] This suggestibility does not apply to section 91 which imposes the single criterion “in the course of employment”. It is inappropriate to apply decisions concerning the meaning of a component of the composite phrase in the Workers Compensation Act to the single phrase in the Opportunity Act.
[15] See the analysis by the High Court in Kavanagh v The Commonwealth (1960) 103 CLR 547 at 557 per Dixon CJ, 558-559 per Fullagar J and 570 per Menzies J and Comcare v PVYW [2013] HCA 41 at [53] per French CJ, Hayne, Crennan and Kiefel JJ.
Secondly, section 30 sets out a series of detailed rules as to what constitutes employment for this purpose in subsections (3) to (7). The structure of section 30 of the Workers Compensation Act is quite different to the structure of section 91 of the Opportunity Act.
Thirdly, the context of compensability of an injury under the Workers Compensation Act is very different to the context of derivative liability of an employer for an unlawful act of an employee under the Opportunity Act. The former is part of a scheme of no fault compensation payable by WorkCover to the employee: no issue of liability of the employer to a third party for the act of the employee or at all arises. The latter governs the liability to a third party (the victim) of an employer for the unlawful conduct of employees.
In any event, in the context of workers compensation legislation referring to injuries arising out of or in the course of employment, when considering whether an injury occurs in the course of employment, it is not merely a question of asking whether there is a temporal connection but considering all aspects of the connection between the employee and the injury.[16] Where an activity was engaged in at the time of the injury, it is not sufficient that there is a connection between the place at which the injury occurred and the employment, it is necessary that there be a connection between the activity and the employment.[17] Section 91 of the Act is directed at an activity (discrimination or another unlawful act) rather than a place. If the approach to the phrase in the Workers Compensation Act were adopted, it would still be necessary to find a connection between the activity comprising the unlawful act and the employment.
[16] Whittingham v Commissioner of Railways (WA) (1931) 46 CLR 22 at 29 per Dixon J; Henderson v Commissioner of Railways (WA) (1937) 58 CLR 281 at 294 per Dixon J; Danvers v Commissioner for Railways (NSW) (1966) 122 CLR 529 at 536 per Barwick CJ; Hatzimanolis v ANI Corporation Ltd (1972) 173 CLR 473 at 483-484 per Mason CJ, Deane, Dawson and McHugh JJ; Peet v Workers Rehabilitation and Compensation Corporation (1996) 66 SASR 474 at 478-482 per Doyle CJ (Duggan J agreeing) and 483-484 per Debelle J; Comcare v PVYW [2013] HCA 41 at [34]-[37], [50]-[52] per French CJ, Hayne, Crennan and Kiefel JJ.
[17] Comcare v PVYW [2013] HCA 41 at [38]-[45], [52], [59]-[60] per French CJ, Hayne, Crennan and Kiefel JJ.
Ultimately, the words “in the course of employment” in section 91 must be construed in their context as part of the section and in the context of the Act as a whole. The meaning of that phrase in other contexts can only be a guide. The context of vicarious liability in tort is closer than the context in workers compensation legislation. Even so, in both contexts, there must be a connection between the relevant activity by the employee and the employment.
The subject matter of subsection 91(1) is an “act” by the employee. An act by a person who happens to be an employee which has no connection at all with his or her employment is not an act “committed while acting in the course of employment” within the meaning of section 91.
The activities of Mr K outside his workplace having no connection whatsoever with his work comprised individual conduct not committed while acting in the course of his employment by the Office of State Revenue.
The respondent is not vicariously liable for the alleged conduct of Mr K between January 2006 and February 2011.
Direct liability
Ms Rodgers contends in the alternative that the respondent discriminated against her on the ground of her sex by subjecting her to detriment in contravention of section 30(2)(d) of the Act because the Office of State Revenue tolerated a sexually hostile work environment which resulted in Mr K’s conduct between January 2006 and February 2011 and this subjected her to detriment.
Section 30 of the Act at material times provided:
Discrimination against applicants and employees
(1)     It is unlawful for an employer to discriminate against a person on the ground of       sex, chosen gender or sexuality—
(a)     in determining, or in the course of determining, who should be offered          employment; or
(b)     in the terms or conditions on which employment is offered.
(2)     It is unlawful for an employer to discriminate against an employee on the ground of sex, chosen gender or sexuality—
(a)     in the terms or conditions of employment; or
(b)     by denying or limiting access to opportunities for promotion, transfer or         training, or to other benefits connected with employment; or
(c)     by dismissing the employee; or
(d)     by subjecting the employee to other detriment.[18]
[18] Before 1 October 2009, the words "on the ground of sex, chosen gender or sexuality" did not appear in the chapeau to subsection 30(1) or subsection 30(2). However, section 29 defined "discrimination" for the purposes, inter alia, of section 30 as meaning discriminate on the ground of "sex" or "sexuality". It did not include "chosen gender" and it did include "marital status" or "pregnancy" but these changes are not material in the present case.
Ms Rodgers relies upon Hill v Water Resources Commission of New South Wales.[19] In that case, the Equal Opportunity Tribunal of New South Wales considered section 25 of the Anti‑Discrimination Act 1977 (NSW) which was in similar terms to section 30 of the Act. The Tribunal (Barbour J, Thiering and Tracey) said:
The complainant’s case is that the harassment proved in this case produced a hostile work environment and that it was sufficiently pervasive to affect adversely the terms and conditions of employment. Conditions of employment include the psychological and emotional work environment …
It is submitted that the employer became responsible for the effects of it because senior officers such as Mr Whelan were constantly made aware of the circumstances of the complainant’s working environment and no prompt or adequate remedial action was taken until 29 July 1982, and then only over one specific incident.
In our opinion this submission is soundly based both in fact and law and should be accepted. The crucial period of inactivity was in the period from January to July 1982. Mr Whelan sought to explain his lack of activity on the basis that it was important that the Commission should not be seen to have done something which was ineffective, but in our opinion the proper view of the matter is that because the Commission was seen to be ignoring some things and taking inadequate measures in respect to other things, those who were guilty of the misbehaviour were encouraged to continue. We consider that the evidence of Ms Squirchuk and Ms Hill as to their growing concern about Mr Whelan’s inactivity is highly instructive.[20]
[19] (1985) 14 IR 158.
[20] (1985) 14 IR 158 at 172-173. See also Vella v Department of Employment, Vocational Education, Training and Industrial Relations (Qld) [1994] HREOCA 22 (10 August 1994); and Dee v Commissioner of Police (No 2) [2004] NSWADT 168 (16 August 2004).
It is to be noted that the Tribunal made an express finding that the Water Resources Commission encouraged the harassment, found that the harassment was directed at Ms Hill because of her sex and concluded that there was a contravention of the equivalent of section 30(2)(a) by way of discrimination in the terms or conditions of employment.[21]
[21] (1985) 14 IR 158 at 174-175 per Barbour J, Thiering and Tracey.

In the present case, even in respect of Mr V’s original conduct on 5 December 2003, it is doubtful whether, on the basis of the allegations contained in Ms Rodgers’ complaint and particulars and her affidavit, it could be said that the Office of State Revenue in any sense encouraged (or acquiesced) in harassment of Ms Rodgers or that the harassment involved discrimination against Ms Rodgers on the ground of her sex. However, for present purposes, it may be assumed that the Office of State Revenue did discriminate against Ms Rodgers in December 2003 on the ground of her sex by subjecting her to detriment by way of harassment.
In respect of the alleged conduct by Mr K between January 2006 and February 2011, there was no allegation made or evidence adduced by Ms Rodgers that she informed the Office of State Revenue of Mr K’s ongoing conduct from January 2006 onwards or that the Office was otherwise aware of it. There was no basis for a contention that the respondent breached section 30(2)(d) by reason of Mr K’s alleged conduct.
Conclusion
It was not reasonably arguable by Ms Rodgers that the respondent was liable, either vicariously or directly, in respect of Mr K’s alleged conduct between January 2006 and February 2011.
Power to grant extension of time
Limitation Act s 48
Ms Rodgers contends that the Tribunal had power under section 48(1)(c) of the Limitation Act to extend the time prescribed by subsection 93(2) of the Opportunity Act for “doing any act or taking any step with a view to instituting an action”.
Section 48 of the Limitation Act relevantly provided:
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2)A court may exercise the powers conferred by this section in respect of any action that—
(a)     the court has jurisdiction to entertain; or
(b)     the court would, if the action were not out of time, have jurisdiction to entertain.
...
(4)Where an extension of time is sought pursuant to this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.
(5)Proceedings under this section may be determined by the court at any time before or after the close of pleadings.
(6)This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.
It is common ground that the Tribunal is a “court” and a proceeding in the Tribunal is an “action” within the meaning of section 48 of the Limitation Act.
The respondent contends that, while lodging a complaint with the Commissioner might be regarded as “doing any act or taking any step” by Ms Rodgers, it cannot be said that it is “with a view to instituting an action” because the step that must be taken under subsection 93(2) of the Opportunity Act is lodging a complaint with the Commissioner, whereas the institution of the action in the Tribunal is not undertaken by the complainant but rather by the Commissioner.
The respondent’s contention should be rejected. At the outset, it is to be observed that section 48(1)(c) does not prescribe or limit who must take the step or who must institute the action. It speaks in the passive voice of taking a step and instituting an action. There is no reason for reading into section 48(1)(c) words limiting its operation to those in which it is the plaintiff who is required to take the step or to institute the action.
In any event, as a matter of substance, it is the complainant, and not the Commissioner, who institutes the proceedings in the Tribunal. The scheme of Division 1 is to treat the process initiated by the making of a complaint under section 93 and concluding with orders by the Tribunal under section 96 as a single process rather than two distinct and disparate processes before the Commissioner and then before the Tribunal.
The scheme of Division 1 can be seen from the following selective extracts from Division 1 as in force immediately before the Amendment Act.
Part 8 – Enforcement
Division 1 – Proceedings before Commissioner and Tribunal
93—The making of complaints
(1)A complaint alleging that a person has acted in contravention of this Act may be made—
(a)     by any person aggrieved by the act;
(b)     by a person aggrieved by the act, on behalf of himself or herself and any               other person aggrieved by the act;
(c)     if a person aggrieved by the act is a child or has an intellectual disability—             by a person who is, in the opinion of the Commissioner, a suitable   representative of the interests of the aggrieved person
...
(1b)A person who consents to a complaint being made on his or her behalf is bound by any decision or order made on the complaint.
...
(3)Upon a complaint being lodged under this section, the Commissioner must cause a written summary of the particulars of the complaint to be served, personally or by post, upon the respondent named in the complaint.
94—Investigations
(1)On a complaint being lodged or a matter being referred, the Commissioner may conduct an investigation into the alleged contravention.
95—Manner in which Commissioner may deal with alleged contraventions
(1)Where, in the opinion of the Commissioner, a complaint that has been lodged is frivolous, vexatious, misconceived or lacking in substance, the Commissioner may, by notice in writing addressed to the complainant, decline to recognise the complaint as one upon which action should be taken by the Commissioner.
...
(3)Where the Commissioner is of the opinion that a matter (not being the subject of a complaint to which subsection (1) applies) may be resolved by conciliation, the Commissioner must make all reasonable endeavours to resolve the matter by conciliation.
...
(6)A party to proceedings is not entitled to be represented, or assisted, by a legal practitioner in conciliation proceedings under this section except with the authority of the Commissioner.
...
(8)     Where the Commissioner—
(a)     is of the opinion that a matter cannot be resolved by conciliation; or
(b)     has attempted to resolve the matter by conciliation but has not been successful in that attempt; or
(c)     has declined to recognise a complaint as one upon which action should be taken under this section and the complainant has, within three months of being notified of the Commissioner's decision, by notice in writing, required the Commissioner to refer the complaint to the Tribunal,
the Commissioner must refer the matter to the Tribunal for hearing and determination.
(8a)Where a matter referred to the Commissioner for investigation is to be referred to the Tribunal for hearing and determination, the Commissioner will lodge a complaint with the Tribunal in respect of the matter.
96—Power of Tribunal to make certain orders
(1)The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make any one or more of the following orders:
(a)     an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to any person for loss or damage arising from the contravention;
(b) an order requiring the respondent to refrain from any further contravention of the Act;
(c)     an order requiring the respondent or any other party to the proceedings to perform specified acts with a view to redressing loss or damage arising from the contravention.
…
Division 1 treated, and continues to treat, the proceedings as being a single set of proceedings. This is evident from the title “Proceedings before the Commissioner and Tribunal”, the reference to a “party to proceedings” in subsection 95(6) at which point the matter is still before the Commissioner and the reference to “proceedings under this Part” in subsection 96(1). Division 1 treats the matter as a single matter both while it is before the Commissioner and while it is before the Tribunal. This is evident from the reference to “a matter being referred” in subsection 94(1) and subsection 95(8) and to resolution of the “matter” in subsection 95(3).
Division 1 treats the complaint as being carried through the Commissioner to the Tribunal. This is evident from section 93(1b) referring to an “order made on the complaint” which is a reference to orders by the Tribunal under section 96. Division 1 treats there being a respondent from the time of lodging the complaint through to the hearing and determination of the complaint by the Tribunal. This is evident from subsection 93(3) which refers to “respondent” while the matter is before the Commissioner and section 96 which refers to the same “respondent in proceedings under this Part” while the matter is before the Tribunal.
Subsection 95(8) requires the Commissioner to “refer” the matter to the Tribunal for hearing and determination under certain circumstances. The matter is necessarily already in existence before reaching the Tribunal. Subsection 95(8) does not provide for the Commissioner to institute a matter in the Tribunal but rather for the Commissioner to refer the matter which was initiated by the complainant’s complaint.
The referral of the complaint is ultimately the act of the complainant because the Commissioner must refer it for hearing and determination to the Tribunal under subsection 95(8) if it cannot be resolved by conciliation. Even if the Commissioner has declined to recognise the complaint as one on which action should be taken under the section, the Commissioner must refer it for hearing and determination if the complainant requires.
The Presiding Officer adopted the reasoning of the Tribunal in Agostinelli & Ors v Kelvinator Australia Ltd[22] for concluding that the Tribunal had no power to extend the time limit for lodging a complaint under subsection 48(1) of the Limitation Act.
[22] (1996) EOC 92-786.
Before turning to Agostinelli, it is convenient to refer to an earlier decision of the Tribunal in Roberts v Crown in Right of the State of South Australia.[23]In Roberts, the Tribunal held that it did have power under subsection 48(1) of the Limitation Act to extend time for lodging a complaint and it exercised its discretion to grant an extension. The Tribunal addressed a contention made by the respondent in that case that there was a distinction between the process before the Commissioner and the process before the Tribunal as follows:
The clear intention of the Act is for the Commissioner to facilitate a person’s access to a remedy under this Act with assistance given in the drafting of a written complaint ... Once that action has been taken there is no further action a complainant need take to have the matter referred to the Tribunal unless the Commissioner declines to recognise the complaint.
...
The Act provides for a system of conciliation to be undertaken prior to referral of the complaint for hearing before the Tribunal. It is envisaged that the Commissioner will attempt to resolve all complaints by conciliation. However, the Commissioner does not exercise judicial power and the administrative duties required of the Commissioner do not include a final determination of any complaint.[24]
[23] (1995) EOC 92-761.
[24] Ibid at 78, 641.
In Agostinelli & Ors v Kelvinator Australia Ltd,[25] a differently constituted Tribunal took a different view. The Tribunal did not hold that lodging a complaint under subsection 93(2) cannot constitute “doing any act or taking any step with a view to instituting an action” within the meaning of section 48(1)(c). Rather, the Tribunal held that, if a complaint is lodged out of time under subsection 93(2), the Commissioner has no power to refer the complaint to the Tribunal and hence the Tribunal will have no vehicle in which to grant an extension of time under the Limitation Act. The reasoning of the Tribunal in this respect was as follows:
There are no means under the Act for a complaint to be made by a complainant direct to the Tribunal. Where s 95 refers to the Commissioner dealing with “complaints”, it is of necessity referring to complaints made in compliance with s 93 of the Act: that is, inter alia; complaints made within the prescribed time limit. The time limit of s 93(2) is mandatory, and if it is not complied with then there is no complaint before the Commissioner to be dealt with, and no complaint to be referred to the Tribunal pursuant to s 95(8).
[25] (1996) EOC 92-786.
It is to be observed that subsection 93(2) merely provides that a complaint must be lodged within a defined time period. It does not specify the consequences of a failure to lodge within time and does not provide that such a complaint is a nullity. There is nothing in section 95 which prevents the Commissioner from referring the matter to the Tribunal because the complaint was not lodged within the period prescribed by subsection 93(2). If it is concluded that section 48(1)(c) of the Limitation Act is otherwise available to confer upon the Tribunal power to grant an extension of time, there is no reason why the complaint should not be referred by the Commissioner to the Tribunal for that purpose. Section 48(2)(b) of the Limitation Act empowers the Tribunal to exercise the powers conferred by section 48(1)(c) in respect of any action that it would otherwise have jurisdiction to entertain.
In the present case, the Commissioner did refer the complaint to the Tribunal on 19 September 2012 and the Tribunal did exercise jurisdiction under section 96 of the Opportunity Act in respect of the complaint. The respondent accepted that the Tribunal had jurisdiction and invoked that very jurisdiction to seek summary dismissal of the complaint.
On the proper construction of the Limitation Act and the Opportunity Act, the Tribunal had power before October 2009 under section 48(1)(c) of the Limitation Act to extend the time prescribed by subsection 93(2) of the Opportunity Act.
Opportunity Act section 93(2a)
The Presiding Officer held that, on the proper construction of the Amendment Act and subsection 93(2a) of the Act as inserted by the Amendment Act, the Commissioner had no power under subsection 93(2a) to extend time. If the Commissioner had no power to extend time, it follows that the Tribunal had no power to extend time under subsection 93(2a).
Before the amendment made by the Amendment Act came into effect on 2 October 2009, subsection 93(2) provided:
(2)     A complaint must be lodged —
(a)     when the alleged contravention is constituted of a series of acts — within six months of the last of those acts;
(b)     in any other case — within six months of the date on which the contravention is alleged to have been committed.
After the amendment, subsections 93(2) and (2a) provided:
(2)     A complaint must be lodged —
(a)     if the alleged contravention is constituted of a series of acts — within 12 months of the last of those acts;
(b)     in any other case — within 12 months of the date on which the contravention is alleged to have been committed.
(2a)The Commission may, on application, extend the time for lodging a complaint, even if the time for lodging a complaint has expired, if the Commissioner is satisfied —
(a)     that there is good reason why the complaint was not made within the stipulated time period; and
(b)     that in all the circumstances it is just and equitable to do so.
On appeal, Ms Rodgers contends that, on its proper construction, subsection 93(2a) applies to any application for an extension of time made after 2 October 2009 rather than being confined to any contravention occurring on or after 2 April 2009.
Ultimately, it is a question of construction whether subsection 93(2a) is limited in the manner decided by the Presiding Officer or is limited in the manner contended by Ms Rodgers. By way of guidance in approaching that question of construction, a guide which is frequently adopted is to distinguish between substantive and procedural rights. The guide is that amending legislation which affects substantive rights tends to be construed as having only prospective effect in relation to future events whereas amending legislation which affects only procedural matters tends to be construed by reference to the proceedings rather than the substantive subject matter of those proceedings.
In Maxwell v Murphy,[26] the Compensation to Relatives Act 1897 (NSW) was amended with effect on 16 December 1953 to extend the limitation period for the commencement of an action from one year to six years after the death of the deceased. Before the amending Act, the plaintiff’s cause of action was out of time by approximately 21 months. She subsequently brought an action within four years of the death of her husband. The High Court held that the amendment did not operate to revive her cause of action which had been barred in March 1952. Dixon CJ said:
The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events. But, given rights and liabilities fixed by reference to past facts, matters or events, the law appointing or regulating the matter in which they are to be enforced or their enjoyment is to be secured by judicial remedy is not within the application of such a presumption.
The distinction is clear enough in principle and its foundation in justice is apparent. But difficulties have always attended its application.
The effect of [the compensation to Relatives Act] ... was, in the conditions defined, to confer a right of action which is to endure for 12 months from the death. The statement that every such action shall be commenced within 12 months meant, of course, “and not otherwise”. When the time expired the right of action was termination or defeated.
That being so, it appears to me that the situation is one falling within the application of the presumptive rule of construction. The appellant had lost her right of action before Act No 33 of 1953 was passed and was without remedy.[27]
[26] (1957) 96 CLR 261.
[27] (1957) 96 CLR 261 at 267-68.
In Australian Iron & Steel Limited v Hoogland,[28] the Workers Compensation Act 1926 (NSW) required common law proceedings against an employer to be instituted within 12 months after first receipt of workers compensation or within a further 12 months if a Judge considered that it was reasonable to extend the first period of 12 months. In 1953, the Act was amended to increase the initial period from one year to three years with the additional period of 12 months unaffected. When the amending Act came into effect, the period of 12 months for Mr Hoogland to sue his employer had expired but not the additional period of 12 months during which an application for an extension of time might have been made. Mr Hoogland instituted the proceedings more than three years but less than four years after his first receipt of compensation. In other words, when Mr Hoogland applied for an extension, his absolute right to sue had expired but the time for applying for such an extension had not. The High Court held that the amending Act applied to the action notwithstanding that, subject only to the discretionary power to grant an extension of time, the action had already been barred before the amending Act came into operation. Dixon CJ said:
I retain the opinion that s 63(3) is a provision controlling the exercise of a common law right of action and that the substantive right from which the controlled right of action springs continues to subsist. On the whole I think that the correct view to apply is that until the substantive right is completely lost by the final extinguishment of all remedy its subsistence should be recognised and the enlargement of the period of limitation upon the remedy treated as applicable to it.[29]
[28] (1962) 108 CLR 471.
[29] Ibid at 476.

The enactment of subsection 93(2a) in 2009 must be considered against the background that the time within which a complaint was to be lodged was not previously limited absolutely to six months, but was subject to the power of the Tribunal to grant an extension of time under subsection 48(1) of the Limitation Act. Subsection 93(2a) of the Opportunity Act created a parallel power in the Commissioner to the power which the Tribunal already had under section 48. Subsection 93(2a) did not create a right in a complainant to an extension of time, but left it to the discretion of the Commissioner. In exercising that discretion, the Commissioner must take into account all relevant circumstances in determining whether it is just and equitable to extend the time for lodging the complaint. In these circumstances, on its proper construction, subsection 93(2a) was intended to apply to any application made after the section was inserted into the Act (2 October 2009), whenever the contravention occurred.
This conclusion is consistent with the decision of this Court in Van Vliet v Griffiths.[30] In that case, this Court held that section 48 did not give power to extend time in which to institute an action in respect of which the defendant had already acquired, before the enactment of section 48, an “absolute immunity to action”. In the present case, the respondent had not acquired an absolute immunity as at October 2009.
[30] (1979) 20 SASR 524.
The Commissioner had power to extend time under subsection 93(2a).
Grant of extension of time by Commissioner
Before the Tribunal, both parties proceeded on the basis that the Commissioner had neither granted nor refused an application for an extension of time under subsection 93(2) but had referred the entire matter to the Tribunal for hearing and determination of the application for extension of time as well as the substantive matter.
On appeal, the respondent contends for the first time that it should be inferred that the Commissioner granted an extension of time in respect of alleged conduct occurring on or after 2 April 2009 but not before that date. The respondent contends that this should be inferred from the fact that the entire complaint was out of time under subsection 93(2) and, unless the Commissioner had granted an extension of time under subsection 93(2a), she had no power to refer the matter to the Tribunal for hearing and determination under section 95B.
Although the respondent’s contention operates partly in favour of Ms Rodgers (and partly against her), it cannot be accepted. The material paragraphs from the Commissioner’s letter dated 12 June 2012 are set out at [19] above. It is clear from that letter that the Commissioner did not make any decision whether an extension of time should be granted under subsection 93(2a). Moreover, the Commissioner referred in her letter to the prospective referral of the entire complaint to the Tribunal, and subsequently in September 2012 referred the entire complaint to the Tribunal. She did not refer only the allegations in the complaint relating to conduct occurring after 2 April 2009.
It is true, as the respondent contends, that section 96B provides explicitly for an application for review to the Tribunal of a refusal by the Commissioner of an application for an extension of time. However, that section has no operation when the Commissioner has not refused the application. Under section 95B, the Commissioner referred the entire matter to the Tribunal including the issue of extension of time.
Contravention constituted of a series of acts
The date from which the time limit imposed by subsection 93(2) of the Act commences to run depends on whether the alleged contravention comprises a discrete act or a series of acts. In the latter case, time only commences to run on the date of the last of the series of acts.
Ms Rodgers contends that there was an alleged contravention of section 30(2)(d) of the Act by the respondent constituted of a series of acts commencing with the sexual harassment by Mr V on 5 December 2003, continuing with acts of victimisation by employees of the Office of State Revenue between December 2003 and January 2006 and continuing with acts of victimisation by Mr K after Ms Rodgers left the Office between February 2006 and February 2011.
The Presiding Officer rejected this contention because he concluded that the respondent was not responsible for Mr K’s conduct between February 2006 and February 2011 in any event. He was correct in that conclusion. It follows that Ms Rodgers’ reliance upon section 93(2)(a) cannot avail her in any event.
Discretion
Where a court has power under subsection 48(1) of the Limitation Act to extend a time limit prescribed by an Act other than the Limitation Act itself, the criterion for grant of an extension of time is what the justice of the case requires.
The criteria for grant of an extension of time under subsection 93(2a) of the Opportunity Act are:
(a) that there is good reason why the complaint was not made within the stipulated time periods; and
(b) that in all the circumstances it is just and equitable to do so.
Both of the criteria mentioned in subsection 93(2a) are applicable to an assessment of what the justice of the case requires under subsection 48(1) of the Limitation Act.
The Presiding Officer was not prepared to exercise discretion to extend time. He gave two reasons for declining to exercise his discretion. First, there was nothing to explain the delay in lodging the complaint. Secondly, it would not be just to do so given that the complaint related to events nearly 10 years old.
The question of discretion to extend the time limit only arises in respect of the respondent’s conduct between December 2003 and January 2006. After January 2006, Ms Rodgers does not have a tenable case in any event for the reasons given above.
In Brisbane South Regional Health Authority v Taylor,[31] the High Court emphasised that a limitation provision is the general rule and an extension provision is the exception to it. Toohey and Gummow JJ said:
The discretion conferred by the sub-section is to order an extension of the limitation period. It is a discretion to grant, not a discretion to refuse, and on well established principles an applicant must satisfy the court that grounds exist for exercising the discretion in his or her favour. There is an evidentiary onus on the prospective defendant to raise any consideration telling against the exercise of the discretion. But the ultimate onus of satisfying the court that time should be extended remains on the applicant.[32]
McHugh J (Dawson J agreeing) said:
The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.[33]
and Kirby J said:-
Nevertheless, the legal burden of establishing that the residual discretion should be exercised in favour of an extension order undoubtedly rests throughout the proceedings on the applicant. It is a burden to convince the court, affirmatively, that an order should be made. It is not one of showing that it would not be unreasonable to make the order. Still less, the preconditions being established, is it for the defendant to show why it would be unreasonable to make the order.[34]
(Citations omitted)
[31] (1996) 186 CLR 541.
[32] Ibid at 547.
[33] Ibid at 553-554.
[34] Ibid at 567.
On appeal, Ms Rodgers contends that she gave an explanation for not lodging a complaint within time. She refers to the explanation for delay contained in her complaint to the Commissioner and in her affidavit filed in the Tribunal. The principal reason given for the delay was that she believed that she would be required to face Mr V during the conciliation process before the Commissioner and felt that she could not do so and furthermore she was not aware of any time limit. She only learnt from solicitors in July 2011 that her lawyers could participate in the conciliation on her behalf. This was a wholly inadequate explanation for the delay.
When Ms Rodgers contacted the Commissioner’s office in December 2003, she did not apparently inform them that she felt she could not physically face Mr V and did not enquire whether that could be avoided. Under the terms of the Act in force at that time, it was not mandatory for a party to participate in conciliation. Subsection 95(3) merely provided that, where the Commissioner was of opinion that a matter may be resolved by conciliation, the Commissioner must make all reasonable endeavours to resolve the matter by conciliation.
Ms Rodgers made a deliberate decision not to lodge a complaint against Revenue SA. It was not until more than eight years later that she decided that she did wish to lodge a complaint after all.
The Act at the relevant time imposed a time limit of six months after the last alleged incident for lodging a complaint. Ms Rodgers did not lodge her complaint until more than six years after the last alleged conduct in January 2006. The lapse of time compared to the limitation period was extreme.
Ms Rodgers manifestly failed to establish that the justice of the case required that an extension of time be granted for proceedings instituted in March 2012 in respect of conduct between December 2003 and January 2006.
Conclusion
I would dismiss the appeal. I would hear the parties as to consequential orders.
STANLEY J:
Introduction
This is an appeal from a decision of the Equal Opportunity Tribunal (“EOT”) dismissing the appellant’s complaint that she was the victim of sex discrimination, sexual harassment and victimisation contrary to the provisions of the Equal Opportunity Act 1984 (SA) (“the Act”). The complaint was made against RevenueSA, Department of Treasury and Finance. The complaint was referred to the EOT by the Commissioner for Equal Opportunity (“the Commissioner”) at the appellant’s request pursuant to s 95B(c) of the Act. RevenueSA applied to the EOT for an order dismissing the complaint. Pursuant to s 96(2)(b) of the Act the EOT is conferred with power to make such an order at any stage of the proceedings.
Background
The appellant commenced employment with the government of South Australia in the year 2000. At that time she was 20 years old. Between 2000 and 2006 she was employed in the Department of Treasury and Finance in the office of RevenueSA. In 2006 she transferred to the Department of Environment and Heritage. She has remained employed in that department subsequently. In February 2011 she commenced parental leave. It appears she did not return to work thereafter. In July 2012 she commenced a second period of parental leave.
On 19 March 2012 the appellant lodged a complaint with the Equal Opportunity Commission (“EOC”) alleging contraventions of the Act by her employer on the grounds of sex discrimination contrary to s 30 of the Act, sexual harassment contrary to s 87 of the Act and victimisation contrary to s 86 of the Act.
The complaint alleged that on 5 December 2003, during the course of her attendance at a work Christmas function, she was sexually harassed by one of her managers in RevenueSA, Mr V, in the presence of other senior managers. The harassment was both verbal and physical. The appellant’s allegations, if proven, amount to a serious contravention of s 87 of the Act. On 8 December 2003, she made a written report of this incident to her supervisor and director. The next day Mr F, the Assistant Commissioner of Property Services at RevenueSA, recommended that Mr V undertake training in relation to sexual harassment. The appellant was dissatisfied with the outcome of her complaint and, through her union, took her complaint to the Commissioner of State Taxation. As a result, an investigation was conducted and disciplinary proceedings were taken against Mr V which resulted in his demotion for a period of 12 months. The appellant complains that from the time of the incident at the Christmas function, she was victimised by employees of RevenueSA. She alleges that their conduct made it obvious to her that they disliked her and disapproved of her bringing the complaint against Mr V. This conduct consisted of verbal abuse and the way they looked at her. This led to her seeking a transfer to another department.
In her complaint she requested that the Commissioner not exercise her power to terminate the complaint because it was lodged more than 12 months after the sex discrimination, sexual harassment and victimisation took place. She set out reasons in support of that request. Those reasons set out the actions taken in 2003 and 2004 to resolve her complaint and the reasons for her subsequent delay in pursuing a complaint to the EOC, the prejudice to the respondent by reason of the delay and the prejudice to her if she was unable to pursue her complaint. She advised that in late December 2003 she was notified by the Harassment and Discrimination Contact Officer at RevenueSA of her right to lodge a complaint with the EOC in relation to Mr V’s conduct. The appellant contacted the EOC and was advised, inter alia, of the EOC’s processes, including conciliation. She was left with the impression this would involve her in a face-to-face confrontation with Mr V. She decided at that time not to proceed with a complaint to the EOC as she did not feel she could cope with such a confrontation. She did not seek legal advice until July 2011 when she was on parental leave and was feeling increasingly anxious about returning to work at the conclusion of such leave.
On 26 April 2012 the acting Commissioner responded by letter advising the appellant, through her solicitors, that as the alleged events happened before 2 April 2009, the complaint was out of time and she was unable to take up the complaint. Further, she advised the appellant that if there were relevant events on or after 2 April 2009, she should advise accordingly and the acting Commissioner would reconsider the complaint.
It appears the basis of the acting Commissioner’s advice was that prior to 2 October 2009, the Commissioner was empowered to receive complaints of a contravention under the Act lodged within six months of the act or acts constituting the contravention. In the case of a contravention constituted by a series of acts, the complaint had to be lodged within six months of the last act constituting the contravention. The acting Commissioner considered that prior to an amendment to the Act,[35] which commenced operation on 2 October 2009, she was not conferred with power to extend the time within which a complaint could be lodged. Since 2 October 2009, the time within which to lodge a complaint is 12 months. Further, pursuant to s 93(2a) of the Act, the Commissioner is empowered to extend the time for lodging a complaint, even if the time for lodging the complaint has expired, where the Commissioner is satisfied that there is a good reason for the failure to lodge the complaint within time and it is just and equitable to do so.
[35] Amending Act No. 34 of 2009.
On 16 May 2012 the appellant, by her solicitors, notified the EOC that until her transfer in 2006, the persons who victimised her were managers in RevenueSA. Even after her transfer to the Department of Environment and Heritage in 2006, she continued to experience victimisation. In particular, she alleged that an employee of RevenueSA, who is a friend of Mr V and who witnessed the original incident of sexual harassment in December 2003, Mr K, regularly grinned at her and gave her dirty looks. In a subsequent affidavit,[36] the appellant alleges that this occurred approximately once a month from the time of her transfer until she first took parental leave in February 2011. These incidents took place in the streets around her office, at a local bar, in the foyer of the building in which she worked, and other surrounding areas.
[36] Affidavit of Michelle Anne Rodgers filed 12 December 2012.
The appellant alleged that this victimisation formed part of an extensive, continuous course of action commencing with the original incident of sexual harassment on 5 December 2003, which constituted a single continuum of conduct by her employer (whether directly, and/or vicariously on behalf of its employees).
On 12 June 2012 the acting Commissioner notified the appellant in writing that she would not take action on the appellant’s complaint. She wrote:
No matter how unfair the treatment you have experienced may seem, for me to be able to investigate your complaint it must be covered by the Act. The complaint must also have been made within time.
In your complaint you say you were sexually harassed by a work colleague on 5 December 2003. You say that since that date colleagues have given you dirty looks and smirks, and you say that this amounts to victimisation because you made a complaint about the alleged acts of sexual harassment.
Complaints about events that occurred prior to 2 April 2009 needed to be made within six months of the events, or the last in a series of events. Although you claim that you have received dirty looks and smirks from colleagues after 2 April 2009, there does not appear to be a link between those actions and the complaint of sexual harassment you made in 2003.
After careful thought, I have decided that I should not take action on your complaint because, in my opinion, the complaint is lacking in substance and misconceived.
The acting Commissioner went on to advise the appellant that she had the right to take her complaint to the EOT. She could do this by advising the EOC within three months that she wanted her complaint to be referred to the EOT.
On 11 September 2012 the appellant asked the Commissioner to refer her complaint to the EOT. The Commissioner did so.
On 16 April 2013 the EOT dismissed the complaint. The EOT did so without hearing the merits of the complaint.
Reasons of the EOT
The EOT determined the respondent’s application on the basis that the power to dismiss proceedings at an early stage should only be exercised in circumstances where it could be said that the complaint had no prospect of success. For this purpose, it appears the EOT approached the determination of the application on the basis that the appellant would prove the facts alleged in her complaint.
The EOT considered that, while the Commissioner did not expressly avert to the necessity for her to exercise her power to extend the time within which a complaint had to be lodged, it was implicit in the approach she took that she declined to do so. The EOT noted that, while the appellant had a right to seek a review of that part of the Commissioner’s decision, no such application was made.
The EOT found that there was no likelihood of the appellant making out her complaint against the respondent. It did so for three reasons.
First, on the basis that all the conduct complained of could not constitute a single contravention of the Act consisting of a series of acts. The conduct of Mr V and Mr K in combination, could not constitute a series of acts, constituting a single contravention of the Act, because the alleged conduct of Mr V constituted a contravention of s 87 while the alleged conduct of Mr K constituted a contravention of s 86.
Secondly, on the basis that, accordingly, the complaint was out of time. Insofar as the complaint related to events prior to 2 April 2009, it could not succeed because there was no power to extend time within which to hear and determine those matters. Insofar as the complaint related to events after 2 April 2009, the complaint was out of time as the last relevant act occurred no later than February 2011, i.e. more than 12 months prior to the lodging of the complaint, and no good reason had been demonstrated that would justify extending the time limit.

In the end, what is involved is an exercise of statutory construction. The Court must construe the Act by reference to its text, context and purpose. While the Act is beneficial legislation and is to be construed liberally having regard to its purpose, I consider that does not detract from the application of the principles relevant to the presumption against the retrospective operation of statutes which affect substantive rights. The purpose of s 93(2a) is to be discerned from its text and context. Whether it operates retrospectively cannot be determined by recourse to an approach to construction which identifies the Act in which it is found as beneficial and remedial, and thereby conclude that the legislature must have intended s 93(2a) to have a retrospective operation. The phrase in s 93(2a) “even if the time for lodging the complaint has expired” is ambiguous. On the one hand it is capable of meaning that the power to extend time conferred by the amendment is to apply from the date of commencement of the amending Act, including where that time had already expired before the amendment. On the other hand it is capable of meaning that the power to extend time conferred by the amendment is only to apply where the time has expired subsequent to the commencement of the amending Act. The presumption against retrospectivity is capable of being rebutted, but only where the legislature’s intention to do so is expressed with reasonable certainty.[62] The inherent ambiguity of the phrase means that I cannot conclude with the requisite certainty that the legislature intended to rebut the presumption against retrospective operation in enacting s 93(2a). There is nothing in the second reading speech to indicate an intention that s 93(2a) would operate retrospectively. This case is plainly distinguishable from authorities such as R v Kidman[63] and Millner v Raith[64] where the legislature clearly expressed an intention that the statutes operated retrospectively so as to apply to facts or events that had already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law has defined by reference to the past events.[65]
[62] R S Howard & Sons Ltd v Brunton (1916) 21 CLR 366 per Griffith CJ at 371.
[63] (1915) 20 CLR 425.
[64] (1942) 66 CLR 1.
[65] Chang Jeeng v Nuffield (Australia) Pty Ltd (1959) 101 CLR 629 at 637.
In the alternative, the appellant submits that the terms of s 48 of the LOA Act are such that, prior to 2 October 2009, the EOT could have extended the time for lodging a complaint with the EOC. The appellant submits that because the ability to obtain an extension of time was available under the LOA Act prior to 2 October 2009, it was not possible for the appellant to become finally statute barred or for the respondent to obtain an absolute immunity from proceedings for a contravention of the Act. Accordingly, she submits the Van Vliet principle does not apply.
I do not accept that submission.
Section 48 of the LOA Act provides:
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)     instituting an action; or
(b)     doing any act, or taking any step in an action; or
(c)     doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
(2) A court may exercise the powers conferred by this section in respect of any action that—
(a)     the court has jurisdiction to entertain; or
(b)     the court would, if the action were not out of time, have jurisdiction to entertain.
…
(6)This section does not derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act, regulation, rule or by-law.
“Action” is defined in s 3(1) of the LOA Act to include legal proceedings of all kinds.
In my view, prior to 2 October 2009 s 48 of the LOA Act did not permit the extension by the EOT of the time limit imposed by s 93(2) of the Act. I come to this conclusion notwithstanding that I am satisfied that the EOT satisfies the description of a “court” within the meaning of s 48 of the LOA Act.
It is important to recognise that the relevant question is whether the EOC was empowered to extend the time prescribed by s 93(2) prior to 2 October 2009, not the EOT.
The time limit imposed by s 93(2) applied to the EOC not the EOT. The failure to lodge a complaint with the EOC within the limitation period precluded the EOC from taking action to investigate the complaint. The terms of s 93(2) did not prescribe or limit the time for instituting an action in the EOT within the meaning of s 48(1) of the LOA Act. For s 48(1) of the LOA Act to apply to a limitation period prescribed by s 93(2) of the Act, the power contained in s 48(1) must be a power exercisable by the EOC. However, s 48(1) provides that the power to extend time is conferred on a “court”. The EOC is an administrative body. It lacks the defining characteristics of a court. In that regard it is readily distinguishable from the EOT.
Further, the terms of s 48(1) are predicated upon an “action” either being instituted, being in existence or being contemplated. “Action” is defined to include legal proceedings of all kinds. In my view, the concept of “legal proceedings” in the LOA Act means curial proceedings. The referral of a complaint by the Commissioner to the EOT does not constitute the institution of an action. The institution of an action is a step taken by a plaintiff, applicant or complainant. The Commissioner cannot be characterised by any of those. Consequently, the lodging of a complaint with the Commissioner is not an act or step taken with a view to instituting an action because proceedings in the Tribunal are not instituted by the complainant. The EOT’s jurisdiction is invoked by a complaint being referred to the EOT by the Commissioner pursuant to s 95B of the Act.
Accordingly, I am satisfied that the EOT was correct in concluding that there is no power conferred on the EOC to extend the time for lodging a complaint in relation to pre 2 October 2009 conduct.
This conclusion effectively disposes of the respondent’s submission concerning the EOT’s jurisdiction to hear and determine what it characterised as the purported referral. The Commissioner purported to refer the appellant’s complaint to the EOT pursuant to s 95B(c). However, insofar as the complaint concerned pre 2 October 2009 conduct, the EOC had not considered the question of whether an extension of time should be granted in respect of that conduct. In these circumstances, the respondent submits that the EOC could not refer this part of the complaint to the EOT pursuant to s 95B. The only basis upon which that part of the complaint could come to the EOT is by an application for a review pursuant to s 96B. Section 96B permits an application to be made to the EOT for a review of a decision by the Commissioner refusing an application for an extension of time within which to lodge a complaint. As the Commissioner has not made a decision refusing an application for an extension of time in relation to pre 2 October 2009 conduct, the EOT had no jurisdiction to hear and determine that part of the complaint. Having come to the conclusion that the Commissioner and the EOT were correct in deciding that there was no power to extend time in relation to a contravention of the Act occurring prior to 2 October 2009, the respondent’s submission goes nowhere.
The conclusion that there was no power to extend time in relation to a contravention of the Act occurring prior to 2 October 2009 means that the respondent had to satisfy the EOT that the complaint in relation to post 2 October 2009 conduct was completely lacking in merit such that there was no prospect of the appellant obtaining any relief pursuant to s 96 in respect of that conduct. That raises two questions. First, is it arguable that the respondent is liable for a contravention of s 30 that consists of a series of acts, the last of which occurred after 2 October 2009? Secondly, is the EOT correct in concluding that the alleged conduct of Mr K did not occur in the course of his employment within the meaning of s 91(1)? I now turn to consider these questions.
A continuing contravention of s 30
The appellant submits that the respondent has contravened s 30 of the Act in permitting or tolerating the existence of a sexually hostile work environment in the workplace.
It is not entirely clear how the appellant propounds the argument in relation to what constitutes the workplace for the purpose of this submission. The submission of the appellant does not specify whether the workplace is the office or offices of RevenueSA or the offices of the SA Government, including in particular the offices of RevenueSA and the Department of Environment and Heritage where the appellant has worked. I will return to this matter later in these reasons.
The appellant submits that her complaint was not out of time because, even after she left RevenueSA in 2006, she was subjected regularly to conduct by employees of RevenueSA, contrary to s 30, which indicated to her that she was not welcome to return to work at RevenueSA and that the effect of this conduct continued even after she went on parental leave in February 2011. Accordingly, she submits that for the purposes of s 93(2) of the Act, the complaint she lodged in March 2012 was lodged within 12 months of the last of a series of acts which constituted the alleged contravention of s 30.
The respondent submits that the conduct alleged by the appellant amounting to victimisation could not amount to discrimination on the ground of sex because, if she was victimised it was not because of her sex but rather because she had made an allegation that she had been the subject of an act that contravened the Act.[66] Further, it submits that a contravention, for the purposes of s 93(2), is a breach of one of the norms of conduct prescribed by the Act, i.e. s 30, s 86 or s 87. The series of acts contemplated by s 93(2)(a) is one which breaches one of those sections. The breach of each section is a distinct contravention. Accordingly, the respondent submits that a series of acts constituting a mixture of sexual harassment and victimisation could not constitute a contravention of s 30.
[66] See s 86(2)(c) of the Act.
Section 30(2) provides:
(2)It is unlawful for an employer to discriminate against an employee on the ground of sex, chosen gender or sexuality—
(a)     in the terms or conditions of employment; or
(b)     by denying or limiting access to opportunities for promotion, transfer or training, or to other benefits connected with employment; or
(c)     by dismissing the employee; or
(d)     by subjecting the employee to other detriment.
Section 29(2)(a) provides that, for the purposes of the Act, a person discriminates on the ground of sex if he or she treats another unfavourably because of the other’s sex.
The appellant submits that by reason of all the conduct of which she complains, commencing in 2003 until now, namely, sexual harassment and victimisation, she has been discriminated against on the ground of sex in the terms or conditions of her employment and by subjecting her to detriment. She submits that she has been subjected to unfavourable treatment to which she would not have been subject if she had been a male.
The appellant submits that all this conduct was committed by employees of RevenueSA who were senior to her and/or in managerial positions.
In O’Callaghan v Loder & Anor,[67] Judge Mathews (as she then was) held that sexual harassment by an employer can amount to discrimination on the ground of sex in contravention of s 24(1) of the Anti-Discrimination Act 1977 (NSW) (“the NSW Act”) where the conduct is such as to create an unwelcome feature of the work environment in a continuing sense so as to fall within s 25(2)(a) or to be detrimental under s 25(2)(c) of the NSW Act. At that time, s 24(1)(a) of the NSW Act was in substantially similar terms to s 29(2)(a) of the Act and s 25(2)(a) and (c) of the NSW Act were in substantially similar terms to s 30(2)(a) and (d) of the Act. At that time, there was no equivalent in the NSW Act of s 86 and s 87 of the Act. Judge Mathews considered that the phrase “terms or conditions of employment” in s 25(2)(a) of the NSW Act should be interpreted broadly to cover and include all substantial terms or conditions relating to employment which may be imposed upon an employee during the course of that employment. Further, her Honour considered that the expression “detriment” in s 25(2)(c) required that a complainant had to have been placed under a substantial disadvantage in comparison with other employees of the opposite sex. The Judge held that sexual harassment creating an unwelcome feature of a complainant’s employment would not only constitute discrimination against the employee on the grounds of his or her sex in the terms or conditions of employment afforded to the employee, but also would constitute a detriment within the meaning of the NSW Act.
[67] [1983] 3 NSWLR 89.
A similar approach was taken in Aldridge v Booth,[68] R v Equal Opportunity Board; Ex Parte Burns,[69] and Hall v A & A Sheiban Pty Ltd.[70]
[68] (1988) 80 ALR 1.
[69] [1985] VR 317.
[70] (1989) 20 FCR 217.
In Hall v A & A Sheiban Pty Ltd, French J (as he then was) held that there was nothing in the concept of discrimination in the Sex Discrimination Act 1984 (Cth) (“SDA”) to suggest that it should not extend to sexual harassment in the workplace.[71] Expressly approving the approach in O’Callaghan v Loder, he said:[72]
This exposition does not embody any distinct requirement that there be a discriminatory element in the employer’s behaviour. That is implicit in the very nature of sexual harassment. The implication is also to be found in the concept of sexual harassment covered by s 28. That section puts beyond doubt that sexual harassment in employment is a species of unlawful sex discrimination. The requirements of s 14 relating to discriminatory treatment in the terms and conditions of employment or subjection to detriment are subsumed in the nature of the prohibited conduct…
[71] (1989) 20 FCR 217 at 276.
[72] (1989) 20 FCR 217 at 277.
At that time, s 5 of the SDA was in comparable terms to s 29 of the Act, s 14(2) of the SDA was in comparable terms to s 30(2) of the Act and s 28 of the SDA was in comparable terms to s 87 of the Act. The other members of the Full Federal Court, Lockhart and Wilcox JJ, did not decide the question.
The approach of French J in Hall v A & A Sheiban Pty Ltd has been followed subsequently by the Federal Court in Elliott v Nanda & Anor.[73]
[73] [2001] FCA 418 at [118] – [127], (2001) 111 FCR 240 at 279 – 281.
In my view, applying these authorities, conduct contravening s 87 of the Act, namely, sexual harassment, could also constitute discrimination on the ground of sex contravening s 30.
None of the authorities I have referred to address the question of whether conduct contravening s 86 of the Act, namely, victimisation, could also constitute discrimination on the ground of sex contravening s 30.
However, by parity of reasoning, I consider that conduct contravening s 86 of the Act could also constitute discrimination on the ground of sex contravening s 30. If an employer knowingly permits or tolerates the victimisation of an employee within the meaning of s 86(2) where the employee has made an allegation of sexual harassment,[74] it would have treated the employee less favourably in the terms or conditions of his or her employment and subjected the employee to detriment on the grounds of sex. In any event, a finding either way would be sufficient to make out a contravention of s 30.
[74] Which has been made truthfully or in good faith, see s 86(3) of the Act.
It is important to note that only an employer can contravene s 30 of the Act by discriminating against an employee. This can occur directly or vicariously.
Hill v Water Resources Commission of New South Wales[75] is a case of direct discrimination. In Hill, the Equal Opportunity Tribunal of New South Wales found that an employer had discriminated against an employee on the ground of sex by condoning a continuing and increasingly damaging work environment for the employee because of the hostility of a predominantly male office towards a senior female employee. This finding was made mostly on the basis of the harassing conduct of employees who were junior to the complainant or at a comparable grade to the complainant. The employer was found liable because it had failed to respond to complaints by the female employee or failed to respond adequately so as to bring the harassing conduct to an end.
[75] (1985) 14 IR 158.
Alternatively, an employer can be vicariously liable for the contravening conduct of its employees pursuant to s 91 of the Act. I will come back to this later in these reasons.
For the reasons set out above, I reject the respondent’s contention that the victimisation alleged by the appellant could not arguably constitute a contravention of s 30. On the other hand, I reject the appellant’s submission that there could have been a contravention of s 30 after she stopped work in February 2011. The terms of s 93 make plain that a contravention of the Act depends upon the act or acts of a person. Accordingly, I consider that the appellant’s complaint lodged on 19 March 2012 was out of time. However, that does not matter because I accept the respondent’s submission that the acting Commissioner extended the time for the lodgement of the appellant’s complaint in respect of post 2 April 2009 conduct. That conduct was the alleged victimisation of the appellant by Mr K. The acting Commissioner treated that conduct as constituting an allegation of a contravention of s 86.
Before the EOT, the appellant contended that the conduct also constituted a series of acts contravening s 30. The EOT did not address this argument. The appellant’s prospects of success on this basis depend on whether her employer is liable for the alleged contravention of s 30. This depends on the characterisation of her employer. RevenueSA and the Department of Treasury and Finance ceased to be her employer in 2006. Accordingly, it could not have discriminated against her on the ground of sex after that date. However, if her employer is the State of South Australia, the position is different as she has been and remains an employee of the State since at least 2003. For the purpose of the argument, the Solicitor-General, who appeared for the respondent, conceded that the Court is entitled to treat the appellant’s employer as the Crown in the right of the State of South Australia.[76]
[76] Full Court transcript, p.44.
Likewise, this means the appellant’s workplace extends to include the places where she worked in RevenueSA and the Department of Environment and Heritage.
It follows that, in my view, the EOT erred in dismissing the proceedings if the appellant’s employer could be liable directly or vicariously for a contravention of s 30.
In order for the employer to be directly liable, the appellant must prove that the employer knowingly condoned, tolerated or permitted the conduct alleged to constitute the contravention of s 30. On the material before the EOT, I am satisfied that it is at least arguable that this is true of the conduct constituting the sexual harassment in 2003. On the appellant’s case, the acts constituting sexual harassment occurred in the presence of a number of her managers who failed to take any steps to stop or prevent Mr V’s conduct. Further, while the department eventually took disciplinary action against Mr V, this took some time. However, in relation to the conduct constituting victimisation, there was no material before the EOT which would evidence any complaint by the appellant to anyone in RevenueSA or, for that matter in the Department of Environment and Heritage, about the conduct of Mr K, at least after she left RevenueSA in 2006. In fact, I understood counsel for the appellant, Mr Harmer, to concede that no complaint was made.

In my view, the employer could not condone, tolerate or permit the conduct of Mr K if it was unaware of it. The finding in Hill v Water Resources Commission is readily distinguishable on this basis. Accordingly, I do not consider that there is any prospect of the appellant succeeding in an allegation that her employer directly contravened s 30 by reason of it condoning, tolerating or permitting the victimising conduct alleged against Mr K. This leads to the conclusion that the appellant cannot make out a claim that there was a direct contravention of s 30 consisting of a series of acts which continued past 2 October 2009. I turn then to consider whether the appellant’s employer could be vicariously liable for the alleged contravention of s 30. This requires consideration of the operation and effect of s 91 of the Act.
Section 91 of the Act
The Act provides for the vicarious liability of employers and principals in s 91. Section 91 provides:
91—Civil liability of employers and principals
(1)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.
(2) In proceedings brought under this Act against a person in respect of an act alleged to have been committed by an agent or employee while acting in the course of their agency or employment, it is a defence to prove that the person took reasonable steps to ensure that the agent or employee would not act in contravention of this Act.
(3) Without limiting subsection (2), a defence is established under that subsection in relation to an alleged discriminatory or unlawful act if the person—
(a) had in force at the relevant time an appropriate policy for the prevention of such an act; and
(b) had taken reasonable steps to implement and enforce the policy including—
(i) reasonable steps to make the employees and agents of the person aware of the terms of the policy; and
(ii) prompt investigation of any alleged act and taking appropriate action.
The EOT did not address the question of the vicarious liability of the employer for the conduct of Mr V because it concluded that it lacked jurisdiction to consider the allegation of sexual harassment by him as it was alleged to have occurred many years before the expiry of the limitation period prescribed by s 93 in circumstances where there was no power to extend that time limit. However, the EOT concluded that the employer could not be liable for the conduct alleged against Mr K because, while it was capable of constituting a contravention of s 86, it was not conduct committed by him while acting in the course of his employment.
The respondent contends that the test applied by the EOT to the construction of the meaning of the expression “in the course of employment” is correct. Citing a passage in the High Court’s judgment in the State of New South Wales v Lepore[77] where Gleeson CJ discussed the test for vicarious liability at common law, the EOT held that the alleged conduct of Mr K was not done in the course of his employment because there was no connection, real or apparent, between his actual duties and the intimidatory conduct alleged, nor could it be said that it was conduct in the intended pursuit of his employer’s interests.
[77] [2003] HCA 4 at [42], (2003) 212 CLR 511 at 536.
In my view, the EOT erred in formulating the test in this way.
I approach the construction of s 91(1) in accordance with the principles set out in IW v City of Perth.[78]In that case the High Court was required to construe the provisions of the Equal Opportunity Act 1984 (WA). Dawson and Gaudron JJ said:[79]
In construing legislation designed to protect basic human rights and dignity, the courts “have a special responsibility to take account of and give effect to [its] purpose”.
[78] [1997] HCA 30 (1997) 191 CLR 1.
[79] [1997] HCA 30 (1997) 191 CLR 1 at 22.
For this reason, they said the provisions of the Act should be construed as widely as their terms permit.[80]
[80] See also Kirby J at 58.
The phrase “in the course of employment” must be construed in its statutory context. However, some assistance can be derived from its use in workers’ compensation legislation. In that context, the phrase invokes a temporal relationship between injury and employment.[81] In Hatzimanolis v ANI Corporation Ltd[82] the High Court reviewed the authorities in relation to the meaning of the phrase in the context of workers’ compensation law. Mason CJ, Deane, Dawson and McHugh JJ said:[83]
For the purposes of workers’ compensation law, an injury is more readily seen as occurring in the course of employment when it has been sustained in an interval or interlude occurring within an overall period or episode of work than when it has been sustained in the interval between two discrete periods of work. Where an employee performs his or her work at a permanent location or in a permanent locality, there is usually little difficulty in identifying the period between the daily starting and finishing points as a discrete working period. A tea break or lunch break within such a period occurs as an interlude or interval within an overall work period. Something done during such a break is more readily seen as done in the course of employment than something that is done after a daily period of work has been completed and the employee has returned to his or her home.
[81] Kavanagh v The Commonwealth [1960] HCA 25, (1959 – 1960) 103 CLR 547 at 556 - 559 and 570; The Commonwealth v Oliver (1962) 107 CLR 353 at 362.
[82] [1992] HCA 21, (1992) 173 CLR 473.
[83] [1992] HCA 21, (1992) 173 CLR 473 at 483.
The High Court reformulated the relevant organising principle. The reformulation of the principle concerned the circumstances in which injuries to employees, which did not occur during periods of actual work, would nevertheless be treated as arising in the course of employment. The High Court held that occurred where the employer had, either expressly or impliedly, induced or encouraged the employee to spend that interval at a particular place or in a particular activity. The reformulation is not relevant to the issue of construction which arises in this matter. However, in determining whether an injury occurred in the course of employment, the Court said regard must always be had to the general nature, terms and circumstances of the employment, not merely to the circumstances of the particular occasion out of which the injury arose.[84]
[84] [1992] HCA 21, (1992) 173 CLR 473 at 484.
The High Court has recently revisited Hatzimanolis in Comcare v PVYW.[85]In PVYW the High Court considered the way in which the test for whether an injury arose out of the course of employment had been formulated over the years. It recognised that the test for the course of employment from an early stage covered not only the actual work undertaken by an employee but what was incidental to it. The majority judgment[86] referred to Whittingham v Commissioner of Railways (WA)[87] in which it was said that what was incidental to employment involved the sufficiency of the connection between the employment and the thing done by the employee, which was a matter of degree, in which time, place, practice and circumstance together with the conditions of employment had to be considered. The majority also referred to the judgment of Barwick CJ in Danvers v Commissioner for Railways (NSW)[88] where his Honour said that what is incidental to the performance of work includes what an employee is reasonably required, expected or authorised to do in order to carry out his actual duties. This may include being at a place at which the employee’s presence is so incidental or ancillary to the employment that, in being there, he is doing something in virtue, or in pursuance, of his employment. This statement should be applied to the facts and circumstances of a particular case “liberally and practically”.
[85] [2013] HCA 41.
[86] French CJ, Hayne, Crennan and Kiefel JJ.
[87] (1931) 46 CLR 22.
[88] (1969) 122 CLR 529.
The Act, like workers compensation legislation, is remedial legislation and should be construed beneficially.[89] If a person or case falls within the general spirit of such remedial legislation and there are two possible interpretations, the courts ought not to construe the Act so as to exclude that person or case.
[89] Bird v The Commonwealth [1988] HCA 23, (1988) 165 CLR 1 at 9.
In the end, however, it is the Act which must be construed. While some assistance can be obtained from other statutory contexts, it is the subject, scope and purpose of this Act to which particular attention must be given.
In my view, in construing s 91(1) it is a sufficient nexus, rendering the employer vicariously liable for the conduct of its employee, if the employee’s conduct occurs while the employee is at his or her place of employment, during the hours of work or a tea break or lunch break, or while performing the duties of his or her employment, or undertaking some activity ancillary or incidental to that employment, including any activity condoned, induced or encouraged by the employer. This last factor is a question of degree.
An employer cannot avoid vicarious liability in accordance with s 91(1) on the basis that the employee’s conduct is unauthorised, wrongful or not undertaken in pursuit of the employer’s interest if it otherwise satisfies the test formulated above. This construction is supported by reading the section as a whole. Section 91(2) and (3) provide an employer or principal with a defence to the imposition of vicarious liability in s 91(1). If the meaning of the phrase “in the course of employment” was limited in the way the EOT construed it, there would be little if any work for the defence to perform. A contravention of the Act would, per se, be outside the course of employment because it can be presumed no employer would authorise its employees to contravene the Act. Section 91 is to be construed in a large, liberal and generous manner so as to afford an effective remedy to a victim of a contravention of the Act. Commonly, an effective remedy will only be available if an employer or principal is held vicariously liable.
I am reinforced in this construction by a consideration of State Electricity Commission of Victoria v Equal Opportunity Board & Ors.[90]That case was concerned with the construction of s 34 of the Equal Opportunity Act 1984 (Vic) (“the Victorian Act”). Section 34 of the Victorian Act was in comparable terms to s 91 of the Act. It provided:
(1) Subject to sub-section (2), where a person acts in contravention of this Act on behalf of another person either as his agent or employee, the person by whom the act is committed and the person on whose behalf the act is committed shall be jointly and severally liable under this Act in respect thereof.
(2)In proceedings brought under this Act against any person in respect of an act alleged to have been committed by a person acting on his behalf it shall be a defence for that person to prove that he took reasonable precautions to ensure that the person acting on his behalf would not act in contravention of this Act.
[90] [1989] VR 480.
The Victorian Supreme Court held that but for the provisions of s 34(2), it might have been necessary to interpret the provisions of s 34(1) to require an authorisation on the part of the other person to act in the particular way in order that the employer be held liable for the acts of an employee, but that would leave no work for s 34(2) to perform.[91]
[91] [1989] VR 480 per Kaye J at 482 – 483.
In my view, for these reasons, the EOT erred in adopting the meaning the common law has given to the phrase “in the course of employment”. To do so would exclude most employers from vicarious liability for a wide range of conduct constituting sexual harassment and victimisation. It would not be consistent with the object of the Act which is to prevent discrimination on the ground, inter alia, of sex.
Consideration
For the reasons I have set out above, I am satisfied that the conduct of Mr V and Mr K is capable of constituting a contravention of s 30 of the Act. Their conduct could constitute a contravention consisting of a series of acts. I am satisfied the respondent is directly liable for any contravention of s 30 based on the conduct of Mr V, but not that of Mr K. Any liability for a contravention of s 30 relying on the conduct of Mr K depends on the application of s 91. Due to the approach taken by the EOT, it did not consider whether the respondent could avail itself of the defence in s 91. This Court is not in a position to form any judgment in relation to that question. However, I am satisfied that it is arguable that the respondent could be vicariously liable for the conduct of Mr K and for that matter Mr V pursuant to s 91. First, I am satisfied it is arguable that at least some of the alleged conduct of Mr K occurred in the course of his employment within the meaning of s 91(1). It is alleged that some of the relevant conduct occurred in the streets around the appellant’s office and in the foyer of the building in which she worked. I infer that some of this alleged conduct occurred during Mr K’s working hours or during a tea or lunch break. It may have occurred while he was going about the performance of his duties or undertaking activities ancillary or incidental to their performance. In any event, the material before the EOT did not conclusively establish the converse proposition. Secondly, I am satisfied that the alleged conduct of Mr V at the Christmas function in December 2003 arguably occurred in the course of his employment within the meaning of s 91(1). Attendance at a work-organised social function has been held to occur in the course of employment in workers’ compensation law.[92] In any event, there is no evidence to establish conclusively that his attendance at the work Christmas function was not in the course of his employment.
[92] Guest v Department for Administrative and Information Services [2006] SAWCT 54.
The conduct alleged against Mr V is conduct which, if proven, is conduct for which the State may be directly or vicariously liable as his employer. The conduct alleged against Mr K is conduct which, if proven, is conduct for which the State may be vicariously liable as his employer. In my view, it is arguable the alleged conduct was committed by them while they were acting in the course of their employment within the meaning of s 91(1).
I am satisfied that it is arguable that their conduct consists of a series of acts which contravenes s 30. As the last of those acts is alleged to have occurred subsequent to 2 October 2009, the appellant’s complaint was one that enlivened the Commissioner’s power to extend time pursuant to s 93(2a). As I have found, the EOT erred in concluding that the Commissioner had not exercised her discretion to extend the time. While the Commissioner did so in relation to considering whether the allegations concerning the conduct of Mr K constituted a contravention of s 86 as opposed to a contravention of s 30, I do not consider that matters. The Commissioner should have extended the time limit for that purpose as well. The Commissioner also should have extended the time limit for the purpose of considering whether the allegations concerning the conduct of Mr V and Mr K constituted a contravention of s 30. As I have explained, their conduct arguably consisted of a series of acts constituting a contravention of s 30. For the reasons set out above, both the Commissioner and the EOT erred in concluding that it was not arguable that the respondent may be liable for a contravention of the Act pursuant to s 91, whether for sex discrimination, harassment or both.
The respondent submits that the time limit should not have been extended to consider the allegations concerning the conduct of Mr V in December 2003. It submits it has suffered irremedial prejudice by reason of the effluxion of time. I do not accept that submission. First, the employer undertook an investigation into these allegations which resulted in disciplinary action in 2004. Secondly, it is only necessary to extend the time from the last in a series of acts constituting the single contravention of s 30 for the purposes of s 93(2)(a). The last in the relevant series of acts allegedly occurred in late 2010 or early 2011.
Accordingly, I conclude that the EOT erred in dismissing the proceedings on the basis that they had no prospect of success.
Conclusion
I would allow the appeal. I would remit the matter to the EOT to hear and determine the Commissioner’s referral in accordance with these reasons.