Shadforths Ltd v Human Rights & Equal Opportunity Commission

[1991] FCA 660

Re: SHADFORTHS LIMITED
And: HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION; CHRISTOPHER SIDOTI and
ELIZABETH BURTON
No. T G14 of 1991
FED No. 660
Judicial Review - Sex Discrimination Act
(1992) EOC 92-400
(1991) 32 FCR 303
(1991) 25 ALD 721 (extracts)

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Judicial Review - complaint to Human Rights and Equal Opportunity Commission alleging discrimination - conduct of inquiry on behalf of Commission - directions given by Commission - request of adjournment of hearing upon failure of complainant to comply with directions - refusal to grant adjournment - whether denial of natural justice - review of decision to refuse adjournment

Sex Discrimination Act - complaint against former employer alleging discrimination on ground of pregnancy - inquiry into complaint - power of Human Rights and Equal Opportunity Commission to give directions concerning hearing - purpose of directions - obligation to afford reasonable opportunity to call and cross-examine witness - adversarial nature of proceedings - refusal to grant adjournment of hearing upon failure of complainant to comply with directions.

Administrative Decisions (Judicial Review) Act 1977

Sex Discrimination Act 1984

HEARING

MELBOURNE (heard in HOBART)

#DATE 6:11:1991

Counsel for applicant: Mr J.M. Bennett

Solicitors for applicant: Dodson, Mitchell and Allport

Counsel for first and second respondents: Mr K.A.M. Pitt

Solicitor for first and second respondents: Mr I.J. Clyde

Counsel for third respondent: Mr G. Bradfield

ORDER

Declares that the decision of the first respondent to refuse to grant the applicant's application for the adjournment of the proceedings listed for hearing at Hobart on 13 September 1991 in respect of the third respondent's complaint against the applicant pursuant to the Sex Discrimination Act 1984 amounted to a breach of the rules of natural justice, and

Orders that the applicant's costs of the proceedings including any reserved costs and the costs of the interim injunction obtained on 12 September 1991 be taxed and paid by the respondents.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

By application dated and filed on 12 September 1991 the applicant sought the following substantive relief:

An order that an injunction issue against the first and second respondents restraining the first and second respondents from proceeding to hear and determine a complaint numbered H91/12 ("the complaint") between Elizabeth Burton ("the complainant") and Shadforths Limited filed in the Human Rights and Equal Opportunity Commission and set down for hearing on 13 September 1991, unless and until the complainant provides the applicant herein with the statements/affidavits of the complainant together with the statements/affidavits of any witnesses on which the complainant intends to rely at the hearing of the complaint, and the first and second respondents have provided to the applicant a reasonable opportunity within which to obtain instructions on the statements/affidavits referred to and to prepare its defence to the complaint and to provide the complainant with copies of the statements/affidavits of any witnesses it intends to call at the hearing of the complaint.

The single ground upon which relief is sought is the assertion that the first and/or second respondent has or have denied the applicant natural justice. The following particulars of the claimed denial are pleaded:

PARTICULARS

(i) The first and/or second respondent issued directions in the matter of the complaint, affecting the rights of the respondent (being the applicant herein) to the complaint, without first holding a directions hearing or otherwise consulting the applicant.

(ii) The first and/or second respondent requires the applicant to proceed with its defence to the complaint without requiring the complainant to comply with the orders of the first and/or second respondent made in or about May 1991 and 12 August 1991.

(iii) The first and/or second respondent requires the applicant to proceed with its defence to the complaint without affording to the applicant a reasonable opportunity to know the case against it.

(iv) The first and/or second respondent requires the applicant to proceed with its defence to the complaint without allowing the applicant a reasonable amount of time within which to prepare its defence.

(v) The first and/or second respondent refuses to entertain an application by the applicant for an adjournment of the hearing of the complaint, prior to the date of the hearing of the complaint.

(vi) The first and/or second respondent refuses to adjourn the hearing of the complaint for such reasonable period of time after the applicant is served with the complainant's statement or affidavit together with the statements or affidavits of any witnesses intended to be called by the complainant at the hearing of the complaint, which statements were required to be served by the complainant on the applicant pursuant to the first and/or second respondent's directions.

(vii) The first and/or second respondent would only entertain an application by the applicant for an adjournment of the proceedings at the hearing of the complaint and not before, and only on the basis that if the applicant's application for an adjournment was unsuccessful the hearing of the complaint would proceed on that date.

(viii) The first and/or second respondent requires the applicant to produce for the benefit of the complainant at the hearing of the complaint a number of the witnesses referred to in the complainant's list of witnesses.

The filing of the application was preceded on the same day by an urgent application made by the applicant in which it sought an interlocutory injunction to restrain the second respondent, who was the member of the Human Rights and Equal Opportunity Commission appointed to hear the complaint, from proceeding with the hearing on 13 September 1991. The matter was dealt with by me in Melbourne ex parte by telephone, the applicant being represented by its solicitor Mr Bennett who was in Hobart. In the circumstances of the case, I was satisfied that the matter was sufficiently urgent to justify it being dealt with on an ex parte basis and on the evidence adduced I concluded that an interim order should be made. I accordingly ordered:

1. That the Human Rights and Equal Opportunity Commission be joined as a respondent and designated as the first respondent.

2. That the heading of the application be amended to delete reference to the respondent Christopher Sidoti as Acting Race Discrimination Commissioner of the Human Rights and Equal Opportunity Commission and that said Christopher Sidoti be designated as the second respondent.

3. That Elizabeth Burton be joined as a respondent and designated as the third respondent.

4. That the application be amended to claim relief against the first and second respondents.

5. That until 4.00 p.m. on 17 September 1991 or until further order, the first and second respondents be restrained from proceeding to inquire into the alleged infringement of Part II of the Sex Discrimination Act 1984 pursuant to a complaint by the third respondent against the applicant in proceedings No. H91/12 in the Human Rights and Equal Opportunity Commission.

6. That the application herein, the affidavit of John Meyers Bennett, sworn 11 September 1991 and this order be served on all respondents by 4.30 p.m. on 12 September 1991.

7. Service on the first and second respondents be effected by delivery of the said documents to the Acting Registrar of the Human Rights and Equal Opportunity Commission in Hobart.

8. Service on the third respondent be effected by delivery of the said documents to the third respondent's solicitors.

9. The application be listed for directions on Tuesday, 17 September 1991 at 9.45 a.m.

10. All parties have leave to apply to set aside or vary this order on 24 hours notice.

11. The costs of the application for interim relief be reserved.

Service of the order was duly effected and the matter came before me, sitting in Hobart, for directions on 17 September 1991. Appearances were entered on behalf of all three respondents who were represented by counsel.

1. Upon the matter being called on counsel for the first and second respondents sought, and was granted, leave to file a notice of motion seeking orders that:
   

1. Order No. 5 of the orders made in this Honourable Court on the 12th September 1991 at Melbourne by His Honour Mr Justice Olney, be set aside.

2. The applicant be ordered to pay to the first and second named respondents, damages to be assessed arising from the granting of the said orders.

3. Costs of this application and of the originating application.

4. An order that the time for service of notice be abridged.

5. Such further or other orders as may be appropriate.

I ordered that the notice of motion be made returnable on 20 September 1991 and I adjourned the directions hearing to the same date. The notice of motion was supported by a substantial affidavit filed on behalf of the first respondent. I further ordered that the applicant and the third respondent have liberty to file and serve affidavit material in reply by 4 p.m. on 18 September 1991.

1. On 17 September 1991 the applicant sought an order for the continuation of the interim injunction until the final hearing of the application but I refused to so order on the ground that there was evidence before me which indicated that since the interim order had been made the second respondent on behalf of the Commission had given further directions which if adhered to would completely satisfy the applicant, and there was no reason for me to believe that such directions would not be adhered to. On 20 September 1991, although the matter was listed initially as a directions hearing, the application and the notice of motion were argued in full. I reserved my decision.

2. The hearing was conducted upon affidavit evidence and none of the several deponents was cross-examined. In these circumstances it is not possible for me to make any findings as to credibility except to the extent that there is other objective evidence which either supports or contradicts the testimony of the respective deponents. As it happens I do not think that there is any significant issue of fact in dispute and accordingly the question of credibility does not arise.

3. The following affidavits were filed and relied upon by the respective parties.
   For the applicant:
   

Affidavits of John Meyers Bennett, sworn 11 September 1991 and 18 September 1991.

Affidavit of Richard Ewen Pringle-Jones, sworn 18 September 1991. Affidavit of Fabio Romano Meloni, sworn 18 September 1991.

For the first respondent :

Affidavit of Ian Jeffrey Clyde, sworn 16 September 1991.

For the third respondent:

Affidavit of Graeme Bruce Bradfield, sworn 16 September 1991. Affidavit of Elizabeth Anne Burton, sworn 16 September 1991.

1. To some extent the affidavit evidence is repetitive and in a number of cases copies of the same documents are exhibited to the affidavits of more than one deponent.

2. The following facts are common cause: The third respondent (who is hereafter referred to as the complainant) commenced employment with the applicant in October 1989. In May 1990 the complainant advised the applicant that she had become pregnant and that she wished to take maternity leave from December 1990. In July 1990 a director of the applicant advised the complainant that in order to reduce business costs her working hours would be reduced to 3 days per week. On 1 August 1990 the applicant terminated the complainant's employment. On 9 August 1990 the complainant lodged a complaint with the Hobart Regional Office of the first respondent (hereafter referred to as the Commission) alleging that she had been dismissed from her employment on the ground of her pregnancy in contravention of sections 7 and 14 of the Sex Discrimination Act 1984 and seeking compensation by way of damages for pain, suffering and humiliation. Upon receipt of the complaint the Sex Discrimination Commissioner (the Commissioner) investigated the matter and in the course of those investigations a conciliation meeting attended by the complainant, her solicitor, a director of the applicant and an official of the Commission was held. Nothing was then resolved and in due course the matter was referred to the Commission pursuant to section 57(1) of the Sex Discrimination Act. In May 1991 the Commission forwarded to the applicant and the complainant a document entitled Statement of Issues which set out certain relevant facts, the complaint and the applicant's response. At the same time the Commission forwarded to the applicant and the complainant a document which is reproduced below:
   

IN THE HUMAN RIGHTS

AND EQUAL OPPORTUNITY

COMMISSION

SYDNEY No. H91/12 Between

ELIZABETH BURTON Complainant And

SHADFORTHS LIMITED Respondent DIRECTIONS

1. The parties must file with the Commission and serve on the other party any submission arising from or relating to the matters contained in the Statement of Issues by 17 June 1991.

2. The complainant must file with the Commission and serve on the respondent a list of witnesses together with a brief outline of such witnesses' evidence by 24 June 1991.

3. The complainant must file with the Commission and serve on the respondent the complainant's statement/affidavit together with the statements/affidavits of any witnesses intended to be called by 8 July 1991.

4. The respondent is to file with the Commission and to serve on the complainant its statement/affidavit together with the statements/affidavits of any witnesses intended to be called by 22 July 1991.

5. Leave to the parties to apply to the Commission for further directions on 24 hours notice.

6. Date and venue of the Inquiry to be fixed. Dated May 1991.

(This document is hereafter referred to as the May directions.)

1. In response to direction 1 the applicant forwarded to the Commission and to the complainant's solicitor a written submission. It is said by the respondents that the complainant's solicitors also forwarded a submission to the Commission but it is conceded that no copy of same was ever sent to the applicant or its solicitors. The applicant's solicitor Mr Bennett was advised by telephone on 9 August 1991 that the complaint would be heard on 13 September 1991. By letter dated 12 August 1991 the Commission confirmed the hearing date as 13 September 1991 and forwarded to the applicant's solicitors amended directions of the same date. The letter and amended directions are reproduced below:
   

HUMAN RIGHTS AND

EQUAL OPPORTUNITY COMMISSION

12 August 1991

Dobson, Mitchell and Allport

Barristers and Solicitors

59 Harrington Street

HOBART TASMANIA 7001

Attention Mr Bennett

Dear Sir

RE: ELIZABETH BURTON v SHADFORTHS LIMITED INQUIRY UNDER THE SEX DISCRIMINATION ACT I refer to your telephone conversation with Ian Clyde of the legal section on 9 August 1991.

As you will see from the enclosed Amended Directions (which should be followed strictly), a Commissioner has become available to conduct the hearing, which will occur on 13 September 1991.

The complainant has sought leave from the Commission to be represented at the hearing. Would you please indicate whether your client also wishes to be represented. Yours sincerely

(Signed)

Megan Chalmers

Acting Registrar

IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION, SYDNEY

No. H91/12 Between

ELIZABETH BURTON Complainant And

SHADFORTHS LIMITED Respondent AMENDED DIRECTIONS

1. The complainant must file with the Commission and serve on the respondent the complainant's statement/affidavit together with the statements/affidavits of any witnesses intended to be called by 23 August 1991.

2. The respondent is to file with the Commission and to serve on the complainant its statement/affidavit together with the statements/affidavits of any witnesses intended to be called by 6 September 1991.

3. Date of the Inquiry: 13 September 1991. Venue to be fixed.

4. Leave to the parties to apply to the Commission for further directions on 24 hours notice. Dated 12 August 1991

(The amended directions are hereafter referred to as the August directions.)

1. On 14 August 1991 the applicant's solicitors received a letter from the complainant's solicitors enclosing a list of witnesses and other information which could fairly be said to be responsive to direction 2 of the May directions, albeit some 7 weeks late. In the same letter the complainant's solicitors said that the complainant's statement had been drafted and would be served "within the next day or so after she has confirmed its contents". On 15 August 1991 the applicant's solicitors received by fax an unverified statement by the complainant. On 20 August 1991 the complainant's solicitors advised the applicant's solicitors that the complainant would verify the statement on the following day. By fax dated and transmitted on 28 August 1991 the applicant's solicitors raised with the Commission the question of the complainant's failure to comply with the Commission's directions. The text of the fax is reproduced below:
   

DOBSON, MITCHELL and ALLPORT 28th August 1991

The Registrar

Human Rights and Equal Opportunity Commissioner BY FAX 02 - 2297611

Dear Sirs,

BURTON v SHADFORTHS LTD H91/12

We refer to previous correspondences and discussions regarding this matter and advise that the complainant has once again failed to comply with the directions of the Registrar.

We are yet to receive the material referred to in the Directions of May, 1991 or in the Amended Directions dated 12th August 1991.

Would you kindly advise us at your earliest convenience as to what course the Commission proposes to take having regard to these matters.

Yours faithfully,

DOBSON MITCHELL and ALLPORT

Per:

J.M. BENNETT

1. In the absence of any response to the foregoing the applicant's solicitors forwarded to the Commission by fax on 29 August 1991 a formal application for the adjournment of the proceedings. On the same day (namely 29 August 1991) the Commission caused a fax to be sent to the applicant's solicitors. Although the latter is dated 28 August 1991 it is conceded that it was wrongly dated and it is said by the Commission to have been sent in response to the fax of the applicant's solicitor of 29 August 1991. The Commission's response is reproduced below:
   

HUMAN RIGHTS AND

EQUAL OPPORTUNITY COMMISSION

28 August 1991

Dobson, Mitchell and Allport

Barristers and Solicitors

59 Harrington Street

HOBART TASMANIA 7001

Attention Mr Bennett

Dear Sir

RE: ELIZABETH BURTON v SHADFORTHS LIMITED INQUIRY UNDER THE SEX DISCRIMINATION ACT I refer to a letter from the Acting Registrar dated 12 August 1991.

I confirm that the Acting Race Discrimination Commissioner, Mr Chris Sidoti, has been appointed to conduct the hearing in the above matter. The hearing will commence at 9AM on Friday 13 September 1991 at the Commonwealth Offices situated at 188 Collins Street, Hobart. The conference room on level 12 has been reserved.

At the hearing, the Commissioner will be assisted by counsel for the Commission. Accordingly, both the complainant and the respondent may be legally represented. In this regard, I draw your attention to those provisions of the Sex Discrimination Act that describe procedure. In particular, you will note that section 77 directs the Commission to:

(i) inform itself on any matter in any manner it thinks fit;

(ii) conduct the hearing with a minimum of formality and technicality and as much expedition as is feasible; and

(iii) endeavour, by way of directions, to ensure that costs born by the parties are kept to a minimum and that a prompt hearing is achieved. In relation to witnesses, please ensure that they are available on the day of the hearing. The complainant has referred in her list of witnesses to a number of persons apparently in the employ of the respondent. Would you please ensure that those on the list whom the respondent does not intend to call are nonetheless available on the day. I note your concerns in relation to the complainant not adhering to the Amended Directions. You state that this means your client does not know the case it has to meet and that this will inevitably lead to an "ambush situation" on 13 September. In this regard, I draw your attention to the following:

(i) you have received the Referral Report which contains the complainant's original letter of complaint together with the Sex Discrimination Commissioner's outline of the complainant's case;

(ii) You have received the Statement of Issues prepared by the Commission, which summarises the matters to be investigated during the hearing;

(iii) you have received the complainant's comments on the Statement of Issues; and

(iv) I understand that in a letter to you dated 11 July 1991, the complainant's solicitor set out his client's case in detail.

In relation to directions, you state that your client was never consulted. Firstly, the issuance of directions does not occur in public; the Commission does not usually hold directions hearings. Secondly, directions are issued pursuant to s.77 (see above) as a means for the Commission to efficiently co-ordinate a hearing. I have communicated all your concerns to Acting Commissioner Sidoti. He is, however, of the view that the matter should proceed. Any remaining queries concerning procedure should be directed to Ian Clyde on [phone]. Yours sincerely

(Signed)

Bronwyn Scheelbeck

Acting Registrar

1. In the foregoing recitation of the facts I have made no reference to numerous telephone communications between the various persons involved. In some cases there is a dispute (which I am unable to resolve on affidavit evidence) as to what was said on these occasions but in the circumstances nothing turns on any of the conversations. Sufficient to say that the applicant's solicitor emphasised throughout that the timely preparation of the applicant's case was being prejudiced by the complainant's failure to comply with the Commission's directions and the Commission officers to who the applicant's solicitor spoke were adamant throughout, once a hearing date had been set, that the hearing should proceed on that day.

2. The interim injunction referred to above was granted on the morning of 12 September 1991 and served just before 4 p.m. on that day. At 4.30 p.m. the second respondent conducted a preliminary conference at which the applicant and the complainant were represented. In the course of the conference the complainant's solicitor handed to the applicant's solicitor a verified copy of the complainant's statement.

3. Section 14(2) of the Sex Discrimination Act 1984 (which comes within Part II of the Act) provides :
   

14. (2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy:

(a) in the terms or conditions of employment that the employer affords the employee;

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment;

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment.

1. The functions of the Commission, which is established by the Human Rights and Equal Opportunity Commission Act 1986, include the function to inquire into alleged infringements of Part II of the Act, and endeavour by conciliation to effect a settlement of the matters to which the alleged infringements relate (Sex Discrimination Act, paragraph 48(1)(a)) and the function to do anything incidental or conducive to the performance of any of its other functions (paragraph 48(1)(h)). The function of the Commission under paragraph 48(1)(a) (and the function under paragraph 48(1)(h), to the extent that it relates to the performance of the first-mentioned function) are required to be performed by the Sex Discrimination Commissioner (the Commissioner) appointed under section 96 (S.D.A. s.49(1)).

2. A complaint in writing alleging that a person has done an act that is unlawful by virtue of a provision of Part II may be lodged with the Commission by a person aggrieved by the act (S.D.A. s.50(1)(a)). Upon such a complaint being made the Commission must notify the Commissioner who is required to inquire into it and endeavour, by conciliation, to effect a settlement of the matter (S.D.A. s.52(1)).

3. If the Commissioner, inter alia, is of the opinion that a matter cannot be settled by conciliation or has endeavoured to settle it by conciliation but has not been successful, the Commissioner is required to refer the matter to the Commission together with a report relating to any inquiries made by the Commissioner into the matter (S.D.A. s.57(1)(a), (b)).

4. Subject to some irrelevant exceptions, the Commission is required to hold an inquiry into each matter referred to it under subsection 57(1) (S.D.A. s.59). The powers of the Commission to hold inquiries may, if the President so directs, be exercised by a single member of the Commission who is a legally qualified person or by 2 or more members of the Commission at least one of whom is a legally qualified person (S.D.A. s.60(1)).

5. Subsection 63(1) of the Act provides:
   

63. (1) The Commission:

(a) shall give a party to an inquiry, other than a person to whom the Commission grants leave to appear as a party to the inquiry, such notice in such manner as the Commission determines of the time and place at which it intends to hold the inquiry; and

(b) shall give each party to an inquiry reasonable opportunity to call or give evidence, examine or cross-examine witnesses and make submissions to the Commission. And section 77 :

77. (1) For the purposes of an inquiry, the Commission:

(a) is not bound by the rules of evidence and may inform itself on any matter in such manner as it thinks fit;

(b) shall conduct the inquiry with as little formality and technicality, and with as much expedition, as the requirements of this Act and a proper consideration of the matters before the Commission permit; and

(c) may give directions relating to procedure that, in its opinion, will enable costs or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties.

(2) The member presiding at an inquiry shall determine any question relating to the admissibility of evidence and any other question of law or procedure.

1. After holding an inquiry, the Commission may either dismiss the complaint the subject of the inquiry (S.D.A. s.81 (1)(a)) or find the complaint substantiated and make a determination, which may include any one or more of the following:
   

(i) a declaration that the respondent has engaged in conduct rendered unlawful by this Act and should not repeat or continue such unlawful conduct;

(ii) a declaration that the respondent should perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant.

(iii) a declaration that the respondent should employ or re-employ the complainant;

(iv) except where the complaint was dealt with as a representative complaint - a declaration that the respondent should pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the conduct of the respondent;

(v) a declaration that the respondent should promote the complainant;

(vi) a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;

(vii) a declaration that it would be inappropriate for any further action to be taken in the matter. (S.D.A. s.81(1)(b)).

1. The damage referred to in the foregoing includes injury to the complainant's feelings or humiliation suffered by the complainant (S.D.A. s.81(4)). A determination of the Commission under subsection 81(1) is not binding or conclusive between any of the parties to the determination (S.D.A. s.81(2)), however, the Commission or complainant may institute a proceeding in the Federal Court for an order to enforce a determination made by the Commission (S.D.A. s.82(1)).

2. Where the Federal Court is satisfied that the respondent has engaged in conduct or committed an act that is unlawful under the Sex Discrimination Act, it may make such orders (including a declaration of right) as it thinks fit (S.D.A. s.82(2)) and may give effect to a determination of the Commission (S.D.A. s.82(3)).

3. The evidence discloses that the complainant made a complaint to the Commission pursuant to subsection 50(1) which was inquired into by the Commissioner and in respect of which an unsuccessful attempt was made to effect settlement by conciliation. The Commissioner thereupon referred the complaint to the Commission and submitted a report thereon. The Commission was thus required by virtue of section 59 to hold an inquiry.

4. The inquiry process effectively commenced when the Commission forwarded to the parties the document entitled Statement of Issues which was accompanied by the May directions. At that stage no hearing date had been set and there was no urgency about complying with the directions within the time frame set out. The situation changed somewhat on 9 August 1991 when the hearing was set down for 13 September 1991.

5. The Commission's obligations under subsection 63(1) were to give the parties such notice, in such manner, as it determined of the time and place at which it intended to hold the inquiry and to give each party reasonable opportunity to call or give evidence, examine and cross-examine witnesses and make submissions to the Commission. In this context the Commission saw fit to issue the August directions pursuant to its power to give directions relating to procedure that, in its opinion, would enable costs or delay to be reduced and would help to achieve a prompt hearing of the matters at issue between the parties (S.D.A. s.77(1)(c)). The good sense behind the directions is obvious. If each party knows in advance what is to be said by or on behalf of the other party, then each may prepare its case properly and the occasion for a party to be 'taken by surprise' will be avoided. Clearly the object of reducing costs and delay would be served by the type of directions given by the Commission.

6. Having given the May directions and had them substantially ignored by the complainant, the Commission proceeded to set a hearing date and to give further similar directions with an amended timetable which in the covering letter sent to the parties it said "should be followed strictly". Had the directions been complied with there would appear to be no reason to suggest that the applicant would not have been given the reasonable opportunities to which it was entitled pursuant to paragraph 63(1)(b). Furthermore, there is no question that the Commission obviously considered that strict compliance with the August directions was necessary to achieve that end. The applicant was entitled to expect that the Commission was serious when it issued the August directions and meant what it said in the covering letter. And it was entirely appropriate that the applicant and its advisers should approach the task of preparing for the hearing on the basis that the complainant would comply.

7. Something has been made of the fact that on 15 August 1991 the applicant's solicitors received an unverified copy of the complainant's statement and that the statement was later signed by the complainant with only a couple of very minor and irrelevant changes. In my opinion, until the statement had been verified the applicant could not act upon it with any confidence and indeed the long delay between the forwarding of the original unverified copy and the ultimate verified statement being served may have tended to suggest that the complainant had some reservations about signing it in its original form. This is particularly so by reason of the statements made on 2 occasions by her solicitor that it would be signed the next day. The fact of the matter is that the statement was not given to the applicant's solicitor until it was produced at the preliminary hearing late on 12 September 1991 and on the face of it, it was not signed until that day. Nor can it be gainsaid that no statements of any of the witnesses proposed to be called on behalf of the complainant were ever produced.

8. The application in these proceedings is in substance an application for a review of the decision of the Commission to refuse the applicant's request made on 29 August 1991 for the hearing to be adjourned. The letter written by the applicant's solicitors on 29 August 1991 contained in its final paragraph an express application for an adjournment. The Commission's reply, wrongly dated 28 August 1991 but conceded to be in reply to the applicant's solicitors' letter, expresses in clear and unequivocal terms that "(t)he hearing will commence at 9AM on Friday 13 September 1991". Furthermore, in the penultimate paragraph the statement is made:
   

I have communicated all your concerns to Acting Commissioner Sidoti. He is, however, of the view that the matter should proceed.

1. There is, therefore, clear evidence of a decision having been made by or on behalf of the Commission to refuse to adjourn the proceedings. Furthermore, there can be no question that the decision was a decision of an administrative character made under an enactment within the meaning of that term as defined in subsection 3(1) of the Administrative Decisions (Judicial Review) Act 1977. The applicant had standing as a person aggrieved by the decision to seek a review of the decision. The ground upon which relief was sought, namely, a denial of natural justice, is a ground open to the applicant.

2. The question is whether the applicant has made out the ground relied upon. In my opinion it has. Given that the nature of the proceedings before the Commission are essentially adversarial, and having regard to the significant consequences that may flow from an unfavourable determination of the Commission, the statutory obligations of the Commission under paragraph 63(1)(b), the conduct of the Commission in issuing successive directions in exercise of a power conferred by the statute for the purpose of reducing costs and delay and ensuring a prompt hearing and the failure of the Commission to take any effective action to ensure that the complainant complied with its directions in a timely manner, the applicant's request for an adjournment was entirely appropriate and in the facts of the case the Commission's decision to refuse to grant it and to force the applicant to a hearing on 13 September 1991 constituted a breach of the rules of natural justice. The applicant was clearly entitled to the injunctive relief sought.

3. In other circumstances it would be appropriate to make orders in terms of the relief sought, but in this case as often happens, events subsequent to the making of the application render the granting of relief, at least in the form sought, either unnecessary or inappropriate.

4. As a result of the interim injunction issued on 12 September 1991 the hearing did not proceed before the Commission on 13 September 1991. However, on 12 September 1991 the Commission issued the following further directions.
   

DIRECTIONS

1. In view of the Orders of the Federal Court served upon the Commission at approximately 3.50 p.m. today, the hearing of this matter set down for tomorrow is adjourned.

2. In view of the inability of the Commission at this stage to fix a further date for the hearing of this matter until the Federal Court disposes of the respondent's application, I make the following Directions:

(i) The complainant file with the Commission and serve on the respondent the complainant's signed statement/affidavit together with the signed statements/ affidavits of any witnesses intended to be called on behalf of the complainant no later than 26 September 1991.

(ii) The respondent file with the Commission and serve on the complainant its signed statement/affidavit together with the signed statements/affidavits of any witnesses intended to be called no later than twenty-one days after receiving the statements/affidavits from the complainant referred to in subparagraph (i) hereof.

(iii) The complainant and respondent be available and prepared to proceed with the hearing before the Commission no later than fourteen days after the filing and serving by the respondent of the statements/affidavits referred to in subparagraph (ii) hereof.

(iv) Leave to the complainant and respondent to apply to the Commission for further directions on twenty-four hours notice. (Signed)

C.D. SIDOTI

12 September 1991

Hobart

1. In view of the foregoing, when the matter came before me on 17 September 1991 I took the view that there was no longer any basis for granting the relief sought and accordingly refused to order continuance of the interim injunction. The Commission clearly had no intention of proceeding with the hearing in circumstances that would give rise to the same or a similar complaint to that raised in the application. The same situation still prevails. In my opinion the appropriate order at this time is simply to grant the applicant a declaration that the decision to refuse an adjournment was a denial of natural justice.

2. One would have thought that when the matter was raised on 17 September 1991 the sensible course for the respondents to adopt would have been to let the matter stand, particularly in light of my refusal to continue the injunction and the issuing of the further directions. Nothing could undo the effect of the interim injunction and no legal costs had been incurred by the respondents to that stage. But unfortunately, neither good sense nor reason appear to have motivated the respondents. They chose to follow a course of conduct which involved the mounting of a substantial case which if successful could only have benefited them by obtaining an order for the costs of mounting that case. The whole exercise was ill conceived in the extreme and in the case of the Commission amounted to a blatant waste of public funds. The only conclusion that I can draw is that the Commission wished to punish the applicant for having had the effrontery to challenge its decision to proceed come what may. As it has happened the Commission has failed to justify the decision under review and must take the normal consequences of defeat.

3. I have some sympathy for the complainant. Whatever may be the reason for her failure to comply with the directions of the Commission (and from what was said from the Bar table it seems likely that none of the fault was hers), there seems to be no justification for her having taken part in these proceedings. She was of course quite properly made a party but she was under no obligation to take part and indeed her participation did nothing but prolong the hearing unnecessarily. No doubt she acted on advice, but that is no reason why she should escape the consequences of having been unsuccessful.

4. There will be an order that the applicant's costs of the proceedings, including any reserved costs and the costs of the interim injunction be taxed and paid by the respondents.