Shellharbour Golf Club v Wheeler

[1999] NSWSC 224

Reported Decision: 46 NSWLR 253

New South Wales

Supreme Court

CITATION:	Shellharbour Golf Club v Wheeler [1999] NSWSC 224
CURRENT JURISDICTION:	Administrative Law
FILE NUMBER(S):	30023/98
HEARING DATE(S):	11 March 1999
JUDGMENT DATE:	24 March 1999
PARTIES :	Shellharbour Golf Club Limited (Appellant) Lynne Isabel Wheeler (1st Respondent) James Gough (Second Respondent) Delmar Veronica Jeffrey (Third Respondent) Equal Opportunity Tribunal (Fourth Respondent)
JUDGMENT OF:	Studdert J

LOWER COURT JURISDICTION:	Equal Opportunity Tribunal
LOWER COURT FILE NUMBER(S) :	85/95
LOWER COURT JUDICIAL OFFICER:	P. Goode, M. Alt, D. McNeill

COUNSEL :	I.M. Neil (Appellant) S. Winters (1st Respondent) Submitting appearance (2nd Respondent) Submitting appearance (3rd Respondent) Submitting appearance (4th Respondent)
SOLICITORS:	Russell McClelland Brown (Appellant) Redfern Legal Centre (1st Respondent) Leo & Morrison (2nd Respondent) Maguire & McInerney (3rd Respondent) I.V. Knight (4th Respondent)
CATCHWORDS:	Sex Discrimination; liability of principal for conduct of agent; liability of incorporated golf club for conduct of its president; whether statute imposed onus on principal to prove conduct not authorised by it; whether findings of Equal Opportunity Tribunal involved error of law; Statutory construction; Anti-Discrimination Act, 1977, s 53(1)
ACTS CITED:	Anti-Discrimination Act Commonwealth Sex-Discrimination Act Interpretation Act
CASES CITED:	Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Canadian Pacific Railway Co. v Lockhart [1942] AC 591 Deatons Pty Limited v Flew (1949) 79 CLR 370 Ex parte Johnson; re MacMillan 47 SR 16 Haines v Leves (1987) 8 NSWLR 442 Langley v University of New South Wales (1984) EOC 902-018 Samuels Real Estate v Lamb & Anor (1998) EOC 92-923 University of New South Wales v Moorhouse (1974-75) 133 CLR 1 Waters v The Public Transport Commission (1991-92) 173 CLR 349
DECISION:	Summons dismissed

IN THE SUPREME COURT
OF NEW SOUTH WALES
ADMINISTRATIVE LAW DIVISION

STUDDERT J

Wednesday 24 March 1999

030023/98 SHELLHARBOUR GOLF CLUB LIMITED v LYNNE ISABEL WHEELER & ORS

JUDGMENT
1 HIS HONOUR : This is an appeal from the decision of the Equal Opportunity Tribunal. The Tribunal entertained a complaint of sexual harassment against the appellant Shellharbour Golf Club Limited and the former president of that club. By its decision delivered on 13 May 1997 the Tribunal found the complaint to have been established and that the club and its former president were jointly and severally liable. Both were ordered to pay damages to the complainant in the sum of $15,500 and legal costs in the sum of $4757.65.
2 The appeal is brought by the Shellharbour Golf Club Limited. The Tribunal and the former president, to whom I shall refer as the “second respondent”, each filed submitting appearances before this Court.
3 Under s 118 of the Anti-Discrimination Act, 1977 appeal lies to this Court on a question of law only, and this Court cannot correct errors of fact: see Haines v Leves (1987) 8 NSWLR 442 and the judgment of Kirby P at 469-470.
The nature of the complaint before the Tribunal
4 The complaint before the Tribunal was directed at sexual harassment. The complainant, the first respondent on this appeal, was at the time of the events complained of employed by the appellant as a clerk and in that capacity had work association with the second respondent as the president of the appellant and one of the directors of the club.
5 The sexual harassment the subject of the complaint was by words and by conduct. The first respondent accused the second respondent of the following:

(i) Saying to the first respondent at work after she had coloured her hair, words to the following effect: “Every woman’s hair should be the same colour as her pussy.”
(ii) Saying to the first respondent at work: “I like a woman with long legs right up to her crutch.”
(iii) Finally, at a staff Christmas party at the golf club attended not only by staff but by directors of the club, the second respondent danced with the first respondent and in the course of doing so repeatedly rubbed his genitals against her left leg.

6 The Tribunal found that the second respondent had said that which had been alleged and further that he had done what it was alleged he had done at the staff Christmas party. The Tribunal in the reasons for its decision recorded that it was widely accepted that sexual harassment can constitute unlawful discrimination on the ground of sex within the meaning of s 25 of the statute and it held that the second respondent’s behaviour constituted unlawful discrimination within the meaning of s 25 of the Anti-Discrimination Act. That has not been challenged on this appeal. There has not been, nor could there be, any challenge to the findings which the Tribunal made as to the misconduct of the second respondent. This appeal concerns the basis upon which the appellant was found to be liable for that misconduct by the second respondent.
The decision of the Tribunal
7 Central to the determination of the liability of the appellant were the findings expressed at pp 27-28 of the reasons for the decision of the Tribunal:
“We accept the Complainant’s evidence that she was at work when the Second Respondent made the offensive comments to her about her hair and her legs in November 1993 and mid 1994 respectively. Similarly, we are satisfied that the Second Respondent was acting in his capacity as the Club’s President on both occasions. We also accept that the Complainant attended the staff and directors’ Christmas party on 10 December 1994 in her capacity as an employee of the Club. Similarly, we are satisfied that, notwithstanding the social nature of the occasion, the Second Respondent attended in his capacity as the President and a director of the Club, and that the relevant acts were committed while he was ostensibly performing his duties as the Club’s President. Accordingly, we find that in respect of all three incidents the Second Respondent was acting in his capacity as the Club’s President and that he was, therefore, the Club’s agent.”
8 The Tribunal then went on to consider whether the appellant had established “that it did not authorise, either expressly or by implication, the second respondent’s conduct”. It will be necessary to examine the Tribunal’s approach to this question more closely later, but for the present it suffices to record that the Tribunal determined that the appellant failed to establish that it did not authorise the second respondent’s conduct.
The alleged errors of law
9 The appellant has submitted that the Tribunal erred in law in four ways:

(i) the Tribunal fell into error in determining that the findings of fact earlier expressed were sufficient to attract liability under s 53 of the Anti-Discrimination Act ;
(ii) the Tribunal fell into error in the construction of s 53 by determining the section imposed an onus of proof upon the appellant;
(iii) the Tribunal fell into error in the construction of s 53 by determining that the appellant had failed to prove it had not authorised the conduct of the second respondent;
(iv) the Tribunal fell into error having regard to the facts as found by it in failing in consequence to find that the appellant had discharged the onus attributed to it under s 53(1).

10 I shall now consider each of these grounds in turn.
Ground 1
11 Section 53 has been amended from time to time but it is common ground that for present purposes the section provided:
“(1) An act done by a person as the agent or employee of the person’s principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.”

12 Mr Neil, on behalf of the appellant, submitted that the findings of the Tribunal which I set out earlier were insufficient to attach liability to the appellant for what the second respondent did. It was not enough to find that the second respondent said what he said and did what he did at the Christmas function whilst he was ostensibly performing his duties as the president of the club. It was further necessary, Mr Neil submitted, for the Tribunal to be satisfied that what he did he did “as the agent” for the club. Mr Neil referred to the very well known decision of the High Court in Deatons Pty Limited v Flew (1949) 79 CLR 370. In that case, concerned with the employment of a barmaid, the High Court held that the barmaid’s employer was not liable for the harm its barmaid caused when, whilst serving a customer, she threw first the contents of a glass and then the glass itself into the face of a customer. The employer was not liable because what the barmaid did was outside her employment.
13 In his judgment Latham CJ said at 378:
“The liability of the employer depends upon the scope of employment of the barmaid and the authority which her employment conferred upon her, such authority to be exercised on behalf of the employer. An employer is liable for the act of his servant only if the act is shown to come within the scope of the servant’s authority either as being an act which he was employed actually to perform or as being an act which was incidental to his employment.”
14 The Chief Justice went on to cite a familiar passage from Canadian Pacific Railway Co. v Lockhart [1942] AC 591 at 599:
"It is clear that the master is responsible for acts actually authorized by him: for liability would exist in this case, even if the relation between the parties was merely one of agency, and not one of service at all. But a master, as opposed to the employer of an independent contractor, is liable even for acts which he has not authorized, provided they are so connected with acts that he has authorized that they may be regarded as modes - although improper modes - of doing them. In other words, a master is responsible not merely for what he authorizes his servant to do, but also for the way in which he does it. On the other hand, if the unauthorized and wrongful act of the servant is not so connected with the authorized act as to be a mode of doing it, but is an independent act, the master is not responsible: for in such a case the servant is not acting in the course of his employment, but has gone outside of it."
15 Dixon J, as he then was, categorised the barmaid’s conduct in this passage at 381-382:
“The truth is that it was an act of passion and resentment done neither in furtherance of the master’s interests nor under his express or implied authority nor as an incident to or in consequence of anything the barmaid was employed to do. It was a spontaneous act of retributive justice. The occasion for administering it and the form it took may have arisen from the fact that she was a barmaid but retribution was not within the course of her employment as a barmaid.”
16 Williams J said at 386-387:
“A barmaid who throws an empty glass at a customer is not doing an act of the class which she is employed to do. To throw the beer, much less the glass, at a customer is not a mode, although an improper mode, of serving a customer with beer, and even less a glass of beer…In the present case the only reasonable inference from the evidence is that the glass was thrown for a purpose of Mrs Barlow’s own and was an independent act on her part not so connected with any act which she was authorized to do as to be a mode of doing it, and not an act of excess and violence in the course of her employment not justified by the occasion.”
17 Mr Neil submitted it was not enough for the Tribunal to find that the second respondent was ostensibly performing his duties for the club at the time he misconducted himself any more than it availed the plaintiff, Flew, to prove that the barmaid was the employee of the defendant at the time she injured the plaintiff. It was argued that on a correct approach to the construction of s 53 it was necessary for the complainant to satisfy the Tribunal that the very act complained of was done “as the agent”. What was essential therefore was for the Tribunal to be satisfied that in saying what he said to the first respondent in the work environment and later in doing what he did on the dance floor, the second respondent was then acting in such conduct as the appellant’s agent.
18 Counsel were not able to refer to any decision of this court which bears upon Mr Neil’s submission as to the construction of s 53.
19 It is necessary when considering s 53 to have regard to the statutory framework and to the objectives of the Anti-Discrimination Act. One of the objectives, dealt with in Pt 3, is sex discrimination, and Pt 3 Div 2, in which s 25 is to be found, focuses upon discrimination in the workplace. Part 2A, when added to the Act, was specifically directed towards the prohibition of sexual harassment, with s 22B dealing specifically with the sexual harassment of employees. Section 22B(2) now provides:
“It is unlawful for an employee to sexually harass a fellow employee.”
20 Section 22B(6) now provides:
“It is unlawful for a workplace participant to sexually harass any workplace participant at a place that is a workplace of both those persons.”
21 “Workplace” is defined for the purposes of the section as meaning
“a place at which a workplace participant works or otherwise attends in connection with being a workplace participant.”
22 “Workplace participant” is defined as meaning:
“(a) an employer or employee;

(b) a commission agent or contract worker;
(c) a partner in a partnership;
(d) a person who is self employed;
(e) a volunteer or unpaid trainee.”

23 Part 2A was not added to the Act until 1997 (by Act No. 9 of 1997), but before its introduction it was, as I have observed, already settled that misconduct of the type found to have been committed by the second respondent was unlawful under Pt 3 of the statute.
24 Part 9 deals inter alia with the functions of the Tribunal. Once, as in this case, the Tribunal has inquired into a complaint it may dismiss the complaint or upon finding the complaint substantiated do one of a number of things, under s 113:

(i) order the respondent to pay damages;
(ii) make an order enjoining the respondent from continuing or repeating any unlawful conduct;
(iii) order the respondent to perform any reasonable act to redress the harm suffered by the complainant.

25 It is significant that before the amendments in 1997 it was not possible to lay a complaint against a fellow employee. That person could only be joined and hence the subject of the Tribunal’s decision through the operation of s 53.
26 Even had it been in force at the relevant time, Pt 2A would not have been broad enough to attach liability directly to the second respondent because he was not “an employee” for the purposes of s 22B(2), nor was he by definition a “workplace participant” for the purposes of s 22B(6). Nevertheless the significance of the amending statute in the provisions I have reviewed was the further emphasis it places upon the objectives of the statute.
27 The Anti-Discrimination Act must be construed so as to give preference to a construction that gives effect to its statutory purposes. Section 33 of the Interpretation Act, 1987 so requires. Section 53 must be construed accordingly. It is apt to cite the dicta of Mason CJ and Gaudron J in their joint judgment in Waters v The Public Transport Commission (1991-92) 173 CLR 349 at 359:
“However, the principle that requires that the particular provisions of the Act must be read in the light of the statutory objectives is of particular significance in the case of legislation which protects or enforces human rights. In construing such legislation the courts have a special responsibility to take account of and give effect to the statutory purpose.”
28 See also Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 and in particular the judgment of McHugh J at 195-197.
29 The principle stated in Waters and set out above applies here.
30 I have concluded that s 53 should not be construed in the manner for which Mr Neil contends. To do so would defeat one of the statutory objectives, even as the Act stood prior to the 1997 amendments. A body corporate can only act through its servants or agents. An employer would not ordinarily employ an employee to engage in misconduct such as that committed by the second respondent in this case. Nor would a principal ordinarily engage his agent to do so. Hence the construction for which Mr Neil contends, viewing the Act as it stood at the relevant time, would preclude redress to an employee who has been sexually abused by another employee, or by the agent of a principal, even though the misconduct occurred in the workplace environment.
31 Section 53(1) must be read as a whole. The key to the sub-section is to my mind to be found in what should properly be considered as the exception:
“Unless the principal or employee did not, either before or after the doing of the Act, authorise the agent or employee, either expressly or by implication, to do the Act.”
32 If Mr Neil’s submission was correct that exception would have no work to do, applying the general principles relating to the law governing principal and agent.
33 However, as I construe s 53(1) once it was established that the misconduct occurred in the workplace environment and the offender was ostensibly at the time acting in the discharge of responsibilities as agent for his principal, what he did was deemed to be done by his principal, unless the conduct was unauthorised by the principal either expressly or by implication.
34 I therefore do not consider that the Tribunal was wrong in its approach to s 53 when it concluded that the second respondent “was acting in his capacity as the club’s president and that he was, therefore, the club’s agent.”
35 The first ground of appeal fails.
Ground 2
36 Mr Neil submitted that the proper approach to s 53(1) was that it rendered the principal’s authority a condition of its liability and that the sub-section imposed no onus upon the principal.
37 Mr Neil referred to the decision of the Court of Appeal in Langley v University of New South Wales (1984) EOC 902-018. This was a case in which P complained of discrimination against her by O, the university being the employer of both P and O. There was no evidence that the university authorised O to do that which was the subject of the complaint. Hope JA, with whose judgment Hutley JA and Glass JA agreed, said at 75-466:
“I may say that the respondent is the University, the employer both of Mr O’Neill and of Ms Langley, and as such may be liable for any discriminatory acts in breach of the Act by Mr O’Neill in respect of Ms Langley, but only if the University either before or after the doing of the relevant acts authorised Mr O’Neill, either expressly or by implication, to do those acts: see sec. 53. I will deal with the matter disregarding the provisions of that section, but I may say there is no evidence which, in my opinion, establishes that the University at any time, expressly or by implication, authorised Mr O’Neill to use the appellation ‘Mrs’ to Ms Langley.”
38 The above passage suggests that his Honour approached this case upon the basis that there was no onus on the employer under s 53. However the remarks were obiter, as their context discloses, and the case was decided on the basis that there was no evidence of discrimination within the meaning of the statute. Neither Hutley JA nor Glass JA addressed the onus issue under s 53(1).
39 In Samuels Real Estate v Lamb & Anor (1998) EOC 92-923, James J had occasion to consider the issue of onus under s 53(1). His Honour said at 78,148:
“Section 53 expressly provides that a principal or employer can authorise an act by an agent or employee, either before or after the doing of the act. Under s 53 the onus on the issue of authorisation is cast on the principal or employer; it is for the principal or employer to establish that it did not authorise the act of the agent or employee.”
40 I agree with his Honour’s conclusion on the issue of onus. It seems to me that such a construction of s 53(1) is in harmony with the scheme of the statute and that indeed s 109 directly addresses the onus issue with which this ground is concerned:
“Where by any provision of this Act or the regulations, conduct is excepted from conduct that is unlawful under this Act or the regulations or that is a contravention of this Act or the regulations, the onus of proving the exception in any inquiry lies upon the respondent.”
41 The conduct of the appellant which the Tribunal had to consider was unlawful under the Act unless the appellant did not authorise the second respondent to say and to do what was the subject of the complaint. This analysis leads me to the conclusion that s 109 imposed an onus upon the appellant to prove the absence of authority contemplated by s 53(1).
42 I therefore conclude that ground 2 fails.
Ground 3
43 Mr Neil submitted that the Tribunal’s stated reasons indicate that it misdirected itself as to what was involved in establishing that the appellant did not authorise the second respondent to say and do what he did.
44 It is necessary to examine the reasons of the Tribunal closely for the purposes of considering this ground, and this includes consideration of the evidence of the club’s secretary/manager as reviewed by the Tribunal.
45 The secretary/manager gave evidence of posting a notice on the staff notice board on the subject of sexual harassment. In respect of the publication of this notice, the Tribunal said at pp 28-29:
“The Third Respondent said that she had received a circular dealing with sexual harassment in the workplace from the Registered Clubs Association sometime prior to the events in question. Although a copy was not given to either the staff or the directors, she attached the circular to the Staff Notice Board in the office where she and the Complainant worked. The wording of the circular is as follows:

‘STAFF PLEASE NOTE
1. Sexual harassment is not tolerated in this Club. Unlawful under the Anti-Discrimination Act.
2. The Company will promptly and confidentially treat these complaints seriously and sympathetically.
3. The Correct procedure to be taken as follows:
1. The complaint to be brought to the attention of the Secretary Manager. Under the guidelines as above the complaint will be dealt with impartially.
2. Complainants and Witnesses will not be victimised in any way.
3. Action will be taken to ensure that misconduct does not continue.’
The Third Respondent said that although the circular was not given to the directors or discussed by them at a Board Meeting, they were aware of it because it was pinned up on the Staff Notice Board in her office. The Complainant said that she saw it on the Notice Board but had probably never read through it. In direct contrast to the Third Respondent’s evidence, the Second Respondent said the circular had ‘gone through the Board’. However, there were no Board Minutes tendered to support this assertion. On balance, we prefer the evidence given by the Third Respondent on this issue. Accordingly, we are not satisfied that the circular was ever formally bought [sic] to the attention of the directors or discussed by them as a Board.”

46 The Tribunal went on to observe that the secretary/manager gave no evidence that there was any special procedure prescribed for lodging a sexual harassment complaint. Then the Tribunal went on to state at pp 29-30:
“We are not satisfied that there was any training on sexual harassment available to the staff or any guidance given to them about how to handle conduct, engaged in by either management or the directors, which might be classified as sexual harassment. Significantly too, there does not appear to have been any real attempt made to communicate to the directors the existence of the sexual harassment circular and the importance of not engaging in conduct which might contravene the relevant provisions of the Act. This was all the more critical in circumstances where the Third Respondent had been told by the Complainant that the President had uttered rude comments of a sex-based nature to her on two occasions and where the Third Respondent herself had been subjected to demeaning and rude behaviour by the Club’s President on numerous occasions.”
47 The Tribunal found that after the complainant lodged her complaint with the appellant’s board of directors on 13 December 1994 in relation to the events of 10 December 1994, the second responded was cited to appear before a meeting of directors on 20 December 1994. Having heard both the complainant and the second respondent and other witnesses, the board determined that the second respondent was guilty of conduct unbecoming a member of the club and it suspended him from membership for twelve months. The Tribunal said at pp 32-33:
“We accept that the club acted quickly and efficiently to resolve the complaint of sexual harassment arising out of the incident which occurred at the Christmas party.”
48 The Tribunal then went on immediately to state:
“Nonetheless, taking into account the circumstances which existed prior to the Christmas party, we are not satisfied that the First Respondent has established that it did not authorise the Second Respondent’s conduct. Accordingly, we are satisfied that pursuant to both ss.25(2)(a) and 25(2)(c), the First Respondent is liable for the Second Respondent’s discriminatory conduct.”
49 It is the finding in the above passage which Mr Neil has submitted involved an error of law.
50 It was submitted that the finding of the prompt reaction to the complaint, after the second respondent’s conduct was drawn to the notice of the directors, was a clear demonstration of the appellant’s disapproval of the second respondent’s behaviour ten days after the club function. It was argued that other evidence considered by the Tribunal, so far as it referred to inadequacies in instruction and guidance of staff, was not directly in point when considering whether the appellant authorised the second respondent’s misconduct.
51 In considering this ground however it is important to bear in mind that the onus was upon the respondent to prove a negative and as the present case illustrates this was not an easy task. The appellant was required to satisfy the Tribunal by evidence that it had not authorised the second respondent to do and say what he did, either expressly or by implication.
52 Mr Neil referred to the decision in Samuels Real Estate v Lamb (supra) to support the submission that the Tribunal fell into error in the manner contended for in this third ground. In Samuels Real Estate the Tribunal addressed the onus upon the employer under s 53 and said that it was not enough for the employer to prove
“that it issued general, vague and inconsistent verbal instructions to employees on the commencement of their employment and that an employer must show that it had an effective policy in place which was capable of being effectively applied.”
53 James J found that in stating that requirement the Tribunal was in error. He upheld a submission (at 78,148)
“that the question which arises under s 53…is whether an employer or principal has expressly or impliedly authorised the doing of the act by its agent or employee which contravenes the act, not whether the employer or principal has put in place an effective Anti-Discrimination policy.”
54 Mr Neil submitted that the findings I have recorded in paragraphs 45-48 above indicate that the Tribunal made a similar error to that detected by James J in Samuels Real Estate.
55 Mr Neil referred to the decision in Ex parte Johnson; re MacMillan 47 SR 16 for authority for the meaning of the word “authorise”. In that case, which was a decision considering the word “authorising” in a regulation made under the National Security (War Service Moratorium) Regulations Jordan CJ said at 18:
“The word ‘authorise’, according to its natural meaning, signifies the conferring upon a person of a right to do something which, apart from the authorisation, he does not possess.”
56 The above definition cannot be taken as a rigid definition of the word “authorise” for all purposes. The meaning may differ depending upon the statutory provision in which it is found. Thus in University of New South Wales v Moorhouse (1974-75) 133 CLR 1 the High Court had occasion to consider the word “authorise” in the setting of s 36 of the Copyright Act, 1968. In this context Gibbs J said at 12-13:
“The word ‘authorize’, in legislation of similar intendment to s 36 of the Act, has been held judicially to have its dictionary meaning of ‘sanction, approve, countenance’: Falcon v Famous Players Film Co. [1926] 2 KB 474 at 491’ Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 at 489, 497.. It can also mean ‘permit’, and in Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR 481 ‘authorize’ and ‘permit’ appear to have been treated as synonymous. A person cannot be said to authorize an infringement of copyright unless he has some power to prevent it: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 497-498, 503. Express or formal permission or sanction, or active conduct indicating approval, is not essential to constitute an authorization; ‘Inactivity or “indifference, exhibited by acts of commission or omission, may reach a degree from which an authorization or permission may be inferred”’: Adelaide Corporation v Australasian Performing Right Association Ltd (1928) 40 CLR at 504. However, the word ‘authorize’ connotes a mental element and it could not be inferred that a person had, by mere inactivity, authorized something to be done if he neither knew nor had reason to suspect that the act might be done. Knox CJ and Isaacs J referred to this mental element in their dissenting judgments in Adelaide Corporation v Australasian Performing Right Association Ltd. Knox CJ (1928) 40 CLR at 487 held that indifference or omission is ‘permission’ where the party charged (amongst other things) ‘knows or has reason to anticipate or suspect that the particular act is to be or is likely to be done’. Isaacs J apparently considered that it is enough if the person sought to be made liable ‘knows or has reason to know or believe’ that the particular act of infringement ‘will or may’ be done.”
57 Jacobs J, with whose judgment McTiernan A-CJ agreed, gave to the word authorise, at p 20-21, an equally broad interpretation.
58 The decision in University of New South Wales v Moorhouse has been much followed in copyright cases and the broad concept of “authorise” reflected in the above passage has been frequently applied for the purposes of statutory construction under the copyright legislation. For present purposes, bearing in mind the nature of the Anti-Discrimination Act, I consider that the word “authorise” should be given an equally broad meaning to that given to the word in the copyright cases. Accordingly, it seems to me that for the purposes of s 53 the word “authorise” embraces “sanction, approve, countenance and permit”. Permission may be inferred from inactivity and indifference where the person sought to be made liable is aware that some particular behaviour may occur.
59 With this concept of the word “authorise” in mind, I return to the judgment of the Tribunal and in particular to its review of the evidence of the secretary/manager of the appellant at pp 30-31.
60 The Tribunal found that the first respondent had complained to the secretary/manager of the appellant of “rudeness of a sex based nature on two occasions”, and that the secretary/manager had “herself been subjected to demeaning and rude behaviour by the second respondent on numerous occasions”. In the Tribunal’s judgment, because these events occurred prior to the Christmas party, the secretary/manager should have arranged for the circular concerning sexual harassment to be formally discussed by the Board of Directors “so as to ensure that they were aware of the consequences of engaging in conduct that might be classified as sexual harassment.”
61 Further, the Tribunal specifically rejected the secretary/manager’s assertion that she knew of no inappropriate sexual behaviour of the second respondent before the Christmas party. It reviewed the content of the secretary/manager’s affidavit, addressing the complaint that the first respondent made to her about the second respondent after the incident at the Christmas party:
“‘She [i.e. the Complainant] said:

“Jim Gough rubbed himself up against me while we were dancing and kept pulling me towards him. He was embarrassing me. I asked him to stop and he laughed at me and said, ‘I’m just a dirty old man’. He is so rude.”
I said:
“I should have warned you about Jim Gough’s behaviour.”’”

62 The Tribunal went on to express the following relevant conclusion:
“Clearly, in the context in which the Complainant was talking, namely recounting what had happened on the dance floor and stating that the Second Respondent had said, ‘I’m just a dirty old man’, the comment, ‘He is so rude’, can only have been referable to the Second Respondent’s sexual behaviour. For the Third Respondent to reply that she should have warned the Complainant about the Second Respondent’s ‘behaviour’, as distinct from his ‘rudeness’, strongly suggests that she had some prior knowledge that he had engaged in inappropriate sexual behaviour on prior occasions or, at the very least, that he was renowned for doing so.”
63 The Tribunal therefore made findings as to prior relevant knowledge of the secretary/manager concerning the second respondent. It also addressed the absence of evidence of any effective measure taken by the appellant, notwithstanding that knowledge, at least in its secretary/manager, to guard against sexually inappropriate behaviour by the second respondent.
64 The amendments introduced to the Anti-Discrimination Act by Act No. 9 of 1997 added to s 53 two additional sub-sections:
“(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

(4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.”

65 Section 53(3) as it now stands introduces an analogous concept to that found in s 106(2) of the Commonwealth Sex-Discrimination Act, 1984. It may be that there is scope for tension between s 53(1) and s 53(3) as the Act now stands, but this is not the occasion to explore that issue.
66 The Tribunal determined from the terms of the exchange between the complainant and the third respondent reviewed above (at paragraph 61) that such was strongly suggestive that the secretary/manager had some prior knowledge that the second respondent “had engaged in inappropriate sexual behaviour on prior occasions or, at the very least, that he was renown for doing so.” In these circumstances, even though the complainant may not have told the secretary/manager the detail of the offensive remarks that the second respondent had made, the Tribunal regarded it as incumbent upon the secretary/manager to ensure that the circular as to sexual harassment was discussed by the board of directors “so as to ensure that they were aware of the consequences of engaging in conduct which might be classified as sexual harassment.”
67 In considering whether the appellant had discharged its onus under s 53, the Tribunal’s task was not to determine whether the appellant had taken reasonable steps to prevent the second respondent from misconducting himself; rather the Tribunal’s task was to determine whether the appellant had proved that what the second respondent had done was not authorised either expressly or by implication. Failure to address the appropriate issue under s 53 would plainly have constituted error of law of the very type identified by James J in Samuels Real Estate.
68 However, it seems to me to be clear from the terms of the reasons for its decision that the Tribunal did not misdirect itself as to its task under s 53. The Tribunal referred to cases upon which the complainant had relied before it to demonstrate the vicarious liability of a principal for sexual harassment committed by its agent. Those cases however were cases which the Tribunal identified as being under different legislation. Specific reference was made to s 106 of the Commonwealth Sex-Discrimination Act which imposes liability on an employer for the acts of an agent done in connection with its duties as an agent. However, under s 106(2) that liability does not arise “if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.” The Tribunal correctly recognised the distinction between s 106 of the Commonwealth statute and s 53(1) of the relevant Act when it observed at p 32 concerning the cases to which it had been referred under the Commonwealth statute:
“However in our view these cases are of limited assistance because s 53(1) of the New South Wales Act provides the club with a defence if it can establish it did not authorise the second respondent to engage in the conduct in question. It, therefore, appears to be a less difficult defence to establish than s 106(2) of the Commonwealth Act. While we acknowledge the distinction, we nonetheless accept Ms Winters’ submission that s 53 of the Act should be interpreted broadly so as not to defeat the objects of the legislation.”
69 In my opinion there is no error of law in the above passage.
70 There was certainly no evidence before the Tribunal to warrant a positive finding that the appellant authorised the second respondent to engage in misconduct by word or by deed. However, no such finding was required before the Tribunal could find the complaint of unlawful sexual discrimination substantiated. Rather, it was for the appellant to prove that it had not authorised the second respondent to say and to do what he did. In practical terms the task which the appellant had in discharging its onus was not an easy one, particularly having regard to what the Tribunal considered that the secretary/manager knew about the second respondent. Clearly on the view that the Tribunal took of the evidence of the secretary/manager her evidence did not satisfy the Tribunal that the misconduct was not authorised. The Tribunal specifically rejected the evidence of the second respondent that the sexual harassment circular had been considered by the Board of Directors (reasons for decision p 29).
71 I am not persuaded that the decision which the Tribunal reached that it was not satisfied that the appellant had established that it did not “authorise” the second respondent’s conduct amounted to an error of law. It was for the Tribunal to assess the facts and in making that assessment it found that the appellant had not discharged the onus of proof imposed on it. It seems to me that that was a decision which the Tribunal was entitled to reach, and no error of law has been proved.
Ground 4
72 Mr Neil submitted finally that since the appellant’s board decided that the second respondent was guilty of conduct unbecoming a member of the club and suspended him from membership for twelve months this should have satisfied the Tribunal that the appellant had discharged its onus under s 53. That the appellant had acted “quickly and efficiently to resolve the complainant’s complaint” in relation to the Christmas party behaviour was a specific finding of the Tribunal. It was submitted that the appellant’s quick and efficient action should have been regarded as proof, after the conduct of the second respondent, that the appellant did not authorise such misconduct.
73 This submission assumes that it would necessarily suffice for the purposes of s 53, in the discharge of the principal’s onus, for the principal to prove it did not authorise the misconduct after the event. It assumes further that given such proof, it was not necessary for the principal to prove also that it did not authorise the misconduct before the event. I do not consider that s 53(1) should be so construed.
74 In my opinion the sub-section imposes the requirement upon the principal to prove that it did not authorise the agent at any time. It does not necessarily suffice for the principal to prove, after the event, conduct on its part inconsistent with the conferring of authority on the agent to do what he had done. For example, in a case where a principal permitted sexual harassment of a type the subject of a subsequent complaint to be committed by its agent, it could not escape liability under s 53(1) by the device of a decision made only after the event that such conduct was not authorised.
75 Plainly what the appellant did in this case after the event was to be weighed by the Tribunal in deciding whether the onus imposed on the principal had been discharged; but for the purposes of s 53(1), the principal must shoulder the added requirement to prove that, before the misconduct of the agent complained of, it did not give authority either expressly or by implication.
76 In my opinion ground 4 fails.
77 In the result no ground for relief has been established and accordingly the summons is dismissed. I order the appellant to pay the first respondent’s costs.

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Last Modified: 03/29/1999