Roseman v United Bonded Fabrics pty Limited (No. 2)

[2000] NSWADT 152

CITATION:	Roseman (No. 2) -v- United Bonded Fabrics pty Limited [2000] NSWADT 152
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gregory Roseman RESPONDENT United Bonded Fabrics pty Limited
FILE NUMBER:	991043
HEARING DATES:	03/10/2000
SUBMISSIONS CLOSED:	10/03/2000
DATE OF DECISION:	10/03/2000
BEFORE:	Innes G - Judicial Member; Alt M - Member; Antonios Z - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Application under section 111(1)
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Tunbridge -v- Lind Material Handling Pty Limited 72 IR 115 Langley -v- Niland 1981 2 NSW LR 104
REPRESENTATION:	APPLICANT In person RESPONDENT A Moses, barrister
ORDERS:	That this matter is dismissed pursuant to section 111(1) of the Anti-Discrimination Act.

Introduction

1 On 17 October 1997 Mr Gregory Roseman lodged a complaint under the New South Wales Anti-Discrimination Act against United Bonded Fabrics Pty Limited. The complaint was referred to the Administrative Decisions Tribunal by the President of the Anti-Discrimination Board on 5 May 1999. The respondent made an application that the complaint should be dismissed by the Tribunal pursuant to s 111(1) of the Anti-Discrimination Act. This application was made on the basis that in December 1997 Mr Roseman had entered into a deed of release with the respondent in relation to his claim in the Industrial Relations Commission. The respondent argued that the deed was a complete bar to Mr Roseman proceeding with his discrimination claim as it precluded any other suits or actions apart from his workers compensation claim for which there was a statutory bar to contracting out.

2 The Tribunal heard this application originally on a number of dates during 1999 and rejected it. This decision was appealed and the appeal panel upheld the appeal on 10 May 2000. The appeal panel ordered that the s 111(1) application be reheard before a differently constituted tribunal. The rehearing took place on 3 October 2000 and the decision was brought down on that day by this Tribunal.

The Evidence

3 Clause 1.1 of the deed of release provides:

1.1 Definitions
In this Deed:
"Claims" means all claims, demands, suits, causes of action, damages, debts, costs, verdicts and judgments whatsoever whether at law or in equity or under any statute.
"the Company" includes a related body corporate of the Company as defined in the Corporations Law, together with each and every director, officer and employee of the Company and its related bodies corporate.

Clause 3 of the deed of release provides:

3. RELEASE
The Employee releases and discharges the Company from all Claims (with the exception of workers' compensation Claims) which the Employee has, or which but for this Deed, could, would or might at any time have or have had against the Company in respect of or arising out of, either directly or indirectly, the Employment or the Termination.

5 At the hearing of the Industrial Relations Commission before Commissioner Kelly on 5 December 1997 Mr Roseman was questioned about the effect of the deed. Commissioner Kelly clearly asked from the transcript, which was an exhibit in these proceedings, if Mr Roseman understood that signing of this deed would preclude all other claims apart from his workers compensation claim. Mr Roseman, according to the transcript, indicated that he did. Also at that hearing the limits placed on Mr Roseman by the deed were reiterated by the representative of the respondent. These statements are also included in the transcript.

6 Whilst specific reference was not made to a discrimination claim in the transcript the wording in the transcript although in general terms - was quite clear on this point. Mr Roseman asserted that at the time he signed the deed he did not understand that it would prevent him from pursuing a discrimination claim. In fact he stated in his evidence that this view was supported by Reverend Joseph Formosa when Mr Roseman consulted him. However in evidence of Reverend Formosa, who witnessed Mr Roseman's signature to the deed, a different view was put. Reverend Formosa gave quite clear evidence that prior to witnessing the signature he drew the exclusion clause to Mr Roseman's attention. Reverend Formosa was very clear on this point because he knew how committed Mr Roseman was to his discrimination claim. Reverend Formosa stated that he told Mr Roseman that if Mr Roseman wanted to pursue his discrimination claim he should not accept the deed in these terms.

7 The Tribunal accepts the evidence of Reverend Formosa on this point based on the vehemence and clearness of his recollection. The Tribunal is satisfied that taking into account Reverend Formosa's advice, the fact that the complainant had ample opportunity to obtain other independent advice when the deed was posted to him, and the fact that the complainant brought no cogent evidence of any duress or pressure applied by the respondent, the complainant was not under duress when he signed the deed.

8 The complainant also asserted that in December 1997, as a result of the anti-depressants he was taking, he did not have the mental capacity to understand what he was signing. He told the Tribunal that he was hearing voices and having sleepless nights. He sought to have notes from a Dr Donohoe admitted in evidence. However these notes indicated that his first consultation with Dr Donohoe was on 15 October 1999, some 22 months after the time in question. The Tribunal was of the view that in these circumstances medical evidence as to the state of mind of the complainant that long ago could have no weight and did not allow the documents to be admitted.

9 Reverend Formosa also gave evidence as to Mr Roseman's state of mind. He stated that around that time Mr Roseman had been acting erratically and that this had continued for a number of years. However he also said that the complainant was determined to sign the document in question. Whilst the Tribunal accepts both Mr Roseman's and Reverend Formosa's evidence as to the behaviour of the complainant at the time, in the absence of contemporaneous medical evidence the Tribunal is not satisfied that the complainant has established that he did not have the capacity to understand the basic provisions of the deed.

10 The complainant sought an adjournment to obtain further medical evidence. However the Tribunal was of the view that he had had ample opportunity to do so before the hearing and did not grant that adjournment.

The Law

11 The respondent drew the Tribunal's attention to the matter of Tunbridge -v- Lind Material Handling Pty Limited 72 IR 115 which helpfully summarises the reasons which may be available to a party for setting aside a deed. None of these, apart from the ones canvassed above, appear from the complainant's evidence to be available to him.

12 As an unrepresented litigant the Tribunal attempted to provide the complainant with every opportunity to present his case. The introduction to this hearing sets out the number of appearances before the Tribunal and at every stage the complainant was encouraged to inquire about legal representation. The Tribunal also asked many questions of the complainant and his witness to ensure that all areas of evidence were drawn out.

Conclusion

13 The Tribunal is satisfied that the deed does provide a complete bar to the complainant pursuing a matter before this Tribunal. Justice Hunt's comments in Langley -v- Niland 1981 2 NSW LR 104 provide a clear basis for the Tribunal in such circumstances to dismiss the complaint under s 111(1) of the Act for any other reason. The Tribunal so orders.

14 It seems to the Tribunal that Mr Roseman is seeking an investigation by the Anti-Discrimination Board in order to progress his Workers Compensation Claim. However this seems to us to be a misguided view. If the complainant wishes to pursue his workers compensation claim it will be necessary for him to produce evidence himself of the circumstances supporting that claim, not to seek to have the Anti-Discrimination Board carry out that work. Mr Roseman indicated during the hearing that he had a lawyer assisting him with that claim. The Tribunal hopes that the conclusion of this matter means that he can focus his attention on that issue.

15 The order of the Tribunal is that this matter is dismissed pursuant to section 111(1) of the Anti-Discrimination Act. The Tribunal notes that the respondent did not pursue costs in the matter and that no orders as to costs were made.