Rothery v Marr

[2012] TASSC 52

[2012] TASSC 52

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Rothery v Marr [2012] TASSC 52

PARTIES:  ROTHERY, Kevin Charles
  v
  MARR, Alec

FILE NO:  2/2012
DELIVERED ON:  10 August 2012
DELIVERED AT:  Hobart
HEARING DATE:  25 July 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Complaint not alleging discrimination or prohibited conduct – Dismissal as misconceived and lacking in substance.

Anti-Discrimination Act 1998 (Tas), s99(2)(a).
Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  D Barclay
Solicitors:
             Appellant:  In person
             Respondent:  Page Seager

Judgment Number:  [2012] TASSC 52
Number of paragraphs:  25

Serial No 52/2012
File No 2/2012

KEVIN CHARLES ROTHERY v ALEC MARR

REASONS FOR JUDGMENT  BLOW J

10 August 2012

1. This is an appeal from an order of the Anti-Discrimination Tribunal dismissing a complaint.  In the beginning the appellant, Kevin Rothery, and the respondent, Alec Marr, both worked for The Wilderness Society Inc ("TWS Inc").  Mr Marr was the executive director of that association.  Mr Rothery was employed by it as an information technology specialist.  There was a schism within the staff and membership of TWS Inc.  Mr Rothery and Mr Marr were on opposite sides.  On 11 June 2011 Mr Rothery complained to the Anti-Discrimination Commissioner alleging that he had been discriminated against by Mr Marr and three other individuals who held senior positions within TWS Inc.  The commissioner conducted an investigation, and referred the matter to the tribunal on 10 March 2011.  On 8 December 2011, the tribunal, constituted by a single member, Ms L Wall, conducted a directions hearing.  During that directions hearing, after giving Mr Rothery an appropriate opportunity to be heard as to his complaint against Mr Marr, she summarily dismissed that complaint.  This is an appeal by Mr Rothery pursuant to the Anti-Discrimination Act 1998 ("the Act"), s100(2), from that dismissal.

1. When she dismissed the complaint, the learned tribunal member relied on s99(2) of the Act, which reads as follows:

"(2)   The Tribunal may dismiss a complaint at any time if it is satisfied that —  

(a)the complaint is trivial, vexatious, misconceived or lacking in substance; or

(b)dismissing the complaint would, for some other reason, be just and appropriate."

She said that the complaint was misconceived, lacking in substance, and unlikely to succeed. 

1. Mr Rothery has relied on three grounds of appeal.  In essence he contends that the tribunal member should have disqualified herself; that she failed to provide adequate reasons for her decision to dismiss the complaint; and that she ought not to have dismissed the complaint because there was a prospect of evidence emerging that implicated Mr Marr in causing, inducing or aiding another person to discriminate against him. 

1. At the hearing of this appeal, I heard all of Mr Rothery's submissions as to the second and third of these grounds.  I heard some of his submissions as to the first ground, concerning disqualification, but did not allow him to complete those submissions because I took the view that, regardless of whether the learned tribunal member ought to have disqualified herself, this appeal should not succeed.  I will discuss all three grounds of appeal, but will leave the disqualification ground until last.

Reasons for decision (ground 2)

1. At the directions hearing on 8 December, there was a discussion as to the basis of the complaint against Mr Marr. Mr Rothery said that he wanted his complaint against a Mr Blanksby, the human resources manager of TWS Inc, heard before his complaint against Mr Marr. He said that there was a distinct possibility that Mr Marr had been directing Mr Blanskby's behaviour. The learned tribunal member asked several times whether Mr Rothery had any evidence that anything Mr Blanksby did was directed by Mr Marr. Ultimately Mr Rothery said that he did not have any such evidence, but said, "… it's an inferred situation based on the evidence". It seems to me that he was telling the tribunal that he did not want to miss out on the possibility of a complaint against Mr Marr succeeding as a result of evidence of Mr Marr's involvement in discrimination against him emerging during the hearing of the complaint against Mr Blanksby. The learned tribunal member proceeded to make a number of points in discussion with Mr Rothery. She made a comment to the effect that nothing in Mr Rothery's complaint alleged any behaviour on the part of Mr Marr that was proscribed under the Act. She observed that he had complained about bullying, but that the Act does not deal with the concept of bullying. She made a comment that, in his summary of his complaint, Mr Rothery did not actually identify any breach of the Act by Mr Marr. She asked Mr Rothery whether he was alleging that there was any breach of the Act in respect of Mr Marr. He responded that there was a potential for it. Mr Rothery said that, according to legal advice that he had received, he could not allege on any evidence that there had been a breach of the Act by Mr Marr, but said that that went against his instincts, and that he felt he had been discriminated against. After some further discussion, the learned tribunal member read s99(2) to Mr Rothery. She offered him an opportunity to make written submissions, but he said that a written submission would only say the same as he had just said verbally.

1. It was at that point that the learned tribunal member dismissed the complaint. She said, "I will dismiss the complaint against Mr Marr under s99(2)(a) of the Act in that in my view the complaint is misconceived and lacking in substance and that it is unlikely to succeed – it is not capable of succeeding in the current circumstances on the facts as you've put them to me today."

1. In my view the learned tribunal member made it perfectly clear that she was dismissing the complaint pursuant to s99(2) on the basis that it was misconceived and lacking in substance; and that she considered it to be misconceived and lacking in substance because Mr Rothery was unable to make any allegation that Mr Marr had ever done anything that amounted to discrimination against him that was proscribed by the Act. In my view she made her reasoning perfectly clear, and there was nothing more that she could have said.

1. When the tribunal conducts an inquiry and finds that a complaint is substantiated, s89(1) empowers it to make various types of orders, including orders for compensation, re-employment, or the payment of a fine. Under s93(1), if a complainant or a respondent so requests, the tribunal is obliged to give reasons in writing for an order made under s89. However the Act contains no provision that requires the tribunal to give reasons for a dismissal under s99(2).

1. In Public Service Board of New South Wales v Osmond (1986) 159 CLR 656, the High Court held that there is no general rule of common law or principle of natural justice that requires reasons to be given for administrative decisions, even when such a decision is made in the exercise of a statutory discretion and liable adversely to affect the interests, or defeat the legitimate or reasonable expectations, of others. I do not need to decide whether or not that case should be distinguished. It is at least arguable that the tribunal is not an administrative decision-maker, but is analogous to a court, and therefore has a non-statutory obligation to give reasons for its decisions.

1. However, since I am satisfied that the learned tribunal member gave adequate reasons for her decision to dismiss the complaint, ground 2 must fail.

Causing, inducing or aiding discrimination (ground 3)

1. Ground 3 reads as follows:

"The complaint was dismissed without exercising discretion in relation to Section 21 of the Act, and without giving the Complainant an opportunity to interpret the relevant evidence before the Tribunal."

1. Section 21 of the Act reads as follows:

"(1)   A person must not knowingly —  

(a) cause another person to contravene this Act; or

(b)induce another person to contravene this Act; or

(c)aid another person to contravene this Act.

(2)   All persons referred to in subsection (1) are jointly and severally liable for any contravention under this Act."

1. Mr Rothery contends that the learned tribunal member ought not to have dismissed the complaint, but should instead have directed that the hearing of the complaint against Mr Blanksby proceed first, and that a hearing of the complaint against Mr Marr should have proceeded thereafter, so that, if any evidence emerged during the hearing against Mr Blanksby implicating Mr Marr in causing, inducing or aiding Mr Blanksby to contravene the Act, that evidence would then have been available for use in the hearing concerning Mr Marr.

1. Mr Rothery did not have a case against Mr Marr. He wanted to be able to use a hearing of his complaint about Mr Blanksby to try to find evidence that Mr Marr had caused, induced or aided Mr Blanksby to engage in prohibited discriminatory conduct. In lawyers' jargon, he wanted to use that hearing as a "fishing expedition". In my view, that would have amounted to an abuse of the process of the tribunal. To explain how I reach that conclusion, it is necessary to outline a number of provisions in the Act.

1. Section 16 provides that a person must not discriminate against another person on the ground of any of various attributes, which it lists.  Those attributes include industrial activity, political belief or affiliation, and political activity: s16(l), (m) and (n).  Section 60(1)(a) permits a person against whom alleged discrimination or prohibited conduct was directed to complain to the commissioner about discrimination.  Section 62 imposes requirements as to the contents and lodgement of a complaint.  Under s62(1)(c), a complaint about discrimination or prohibited conduct  is required to set out details of the alleged discrimination or conduct.  Section 69 empowers the commissioner to investigate a complaint.  On the completion of an investigation, s71(1)(c) empowers the commissioner to determine that the complaint is to proceed to an inquiry by the tribunal.  In conducting an inquiry, the tribunal is bound by the rules of natural justice: s87(4)(a).  If the tribunal finds after an inquiry that a complaint is substantiated, there are various types of orders it can make under s89(1), as I have said.  It can order that the respondent must redress any loss, injury or humiliation suffered by a complainant: s89(1)(b).  It can order that the respondent must re-employ a complainant: s89(1)(c).  It can order the payment of compensation: s89(1)(d).  It can impose a fine: s89(1)(e).  It can vary a contract or agreement or declare one void wholly or in part: s89(1)(f). 

1. The starting point of all the procedures put in place by the Act is the lodging with the commissioner of a complaint that contains details of alleged discrimination or prohibited conduct as required by s62(1)(c). If there are no allegations of discrimination or prohibited conduct, then there is nothing for the commissioner to investigate, and nothing for the tribunal to inquire into. Observing the rules of natural justice requires that the respondent be given details of the allegations of discrimination or prohibited conduct. If there are no such allegations, there is no case for the respondent to meet.

1. I think it must follow that, if a complaint is referred to the tribunal, and the tribunal finds that there are no allegations of discrimination or prohibited conduct against the respondent, then the complaint must be one that is "misconceived" and "lacking in substance" within the meaning of s99(2)(a). The learned tribunal member therefore had a discretion to dismiss the complaint at the directions hearing. It was open to her either to dismiss it then and there, or to let the proceedings against Mr Marr continue, at least for a time.

1. The purpose of an inquiry by the tribunal is to inquire into a complaint that contains allegations of alleged discrimination or prohibited conduct. The purpose of an inquiry into the complaint against Mr Blanksby would be to inquire into discrimination alleged by Mr Rothery in his complaint. To use such a hearing for a collateral purpose, namely to try to find out whether Mr Rothery could mount a case against Mr Marr, would amount to an improper use of the hearing, that is to say, an abuse of the process of the tribunal. The possibility that evidence might emerge that implicated Mr Marr in a contravention of s21 by causing, inducing, or aiding Mr Blanksby to contravene the Act was therefore an irrelevant consideration that the learned tribunal member was obliged not to take into account when deciding whether to exercise her discretion to dismiss the complaint against Mr Marr under s99.

1. For these reasons, ground 3 must fail.

Disqualification (ground 1)

1. This ground asserts that Mr Rothery had "a strong perception of conflict of interest" concerning the learned tribunal member, and that he felt "robbed of procedural fairness". 

1. There is no suggestion of actual bias on the part of the learned tribunal member.  Mr Rothery based his submissions on the proposition that there was a reasonable apprehension of bias.  The learned tribunal member was obliged to disqualify herself if a fair-minded lay observer might reasonably apprehend that she might not bring an impartial mind to the resolution of the questions she was required to decide: Ebner v Official Trustee (2000) 205 CLR 337 at par[6]. Mr Rothery submitted to me that that was the situation because she was involved in the Environmental Defenders' Office, which was heavily involved in representing or assisting 20 individuals, including Mr Marr, who were once sued by Gunns Ltd. He wanted to make further submissions to me with a view to proving that Mr Marr was party to a secret deal whose objective was to facilitate the construction of a pulp mill in the Tamar Valley by Gunns Ltd. I did not afford him an opportunity to make submissions as to that point because I did not think the outcome in relation to ground 1 would make any difference to the outcome of this appeal.

1. On the basis of Mr Rothery's incomplete submissions and the incomplete evidence that I permitted him to present in relation to this ground, I saw no basis for a reasonable apprehension that the learned tribunal member might be biased.  However it remains possible, at least in theory, that Mr Rothery might have persuaded me, if I had permitted him to proceed, that the learned tribunal member should have disqualified herself.

Outcome of the appeal

1. If I had been persuaded that a fair-minded lay observer might reasonably have apprehended that the learned tribunal member might not bring an impartial mind to the resolution of the questions she was required to decide, then ground 1 would have succeeded.  It would then have been necessary to decide whether to remit the matter to the tribunal, with a direction that it be differently constituted, or whether to dismiss the appeal.  In such a situation, there is a power to make any order that a judge considers appropriate: Supreme Court Rules 2000, rr709(1), 693(8)(c).

1. Because there has never been an allegation that Mr Marr did anything that contravened the Act, it is quite clear that the complaint against him was misconceived and lacking in substance. If it had been established that the learned tribunal member was obliged to disqualify herself, I would not have remitted the matter to the tribunal for the continuation of the inquiry proceedings concerning Mr Marr because, in my view, the most appropriate course would be for the tribunal to dismiss the complaint under s99(2). If there should have been a disqualification, the most appropriate course, in my view, would have been to dismiss this appeal, rather than allowing it and remitting the matter.

1. Since the other grounds of appeal have failed, and the outcome of ground 1 would not make any difference to my decision, I decided that it was unnecessary to hear Mr Rothery any further.  For the reasons stated above, the appeal is dismissed.