Shewan, John Adrian v Human Rights and Equal Opportunity Commission
[1998] FCA 1772
•9 SEPTEMBER 1998
FEDERAL COURT OF AUSTRALIA
HUMAN RIGHTS – DISABILITY DISCRIMINATION – dismissal of claim of discrimination by Disability Discrimination Commission – review by President – denial of natural justice – efficiency and expediency of procedures in the Human Rights & Equal Opportunity Commission
Disability Discrimination Act 1992 (Cth) ss 69, 71 and 101
Administrative Decisions (Judicial Review) Act 1977 (Cth) ss 5 and 11
Russell v Duke of Norfolk [1949] 1 All ER 109
Pearlberg v Varty [1972] 1 WLR 534
JOHN ADRIAN SHEWAN V HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION & NSW DEPARTMENT OF SCHOOL EDUCATION
NG 897 of 1997
EINFELD J
SYDNEY
9 SEPTEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 897 of 1997
BETWEEN:
JOHN ADRIAN SHEWAN
APPLICANTAND:
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENTAND:
NSW DEPARTMENT OF SCHOOL EDUCATION
SECOND RESPONDENTJUDGE:
EINFELD J
DATE OF ORDER:
9 SEPTEMBER 1998
WHERE MADE:
SYDNEY
THE COURT ORDERS THAT:
The time within which the application for judicial review may be filed be extended to 30 October 1997.
The application be dismissed with costs.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
NG 897 of 1997
BETWEEN:
JOHN ADRIAN SHEWAN
APPLICANTAND:
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
FIRST RESPONDENTAND:
NSW DEPARTMENT OF SCHOOL EDUCATION
SECOND RESPONDENT
JUDGE:
EINFELD J
DATE:
9 SEPTEMBER 1998
PLACE:
SYDNEY
REASONS FOR JUDGMENT
APPLICATION
On 30 October 1997 the applicant, John Shewan, filed an application which claimed a variety of relief, including declarations of unlawful conduct, injunctions and damages, against the Human Rights & Equal Opportunity Commission (the Commission), the NSW Department of School Education (the Education Department), the Department of Social Security and the NSW Teachers Federation. However, at the hearing of this matter it became clear that the application before the Court was for an order of review of a decision of the President of the Commission given on 19 June 1997, which dismissed the applicant’s complaint that he had been discriminated against on the basis of his disability. Both the applicant and the Education Department have made written submissions which are consistent with this approach and, despite the defects in the document entitled “APPLICATION”, I propose to treat the matter as such. As the application for review was filed some three months out of time, the applicant also seeks an extension of time for the filing of an order of review.
PARTIES
The only parties involved in the matter before the Commission were the applicant and the Education Department. It appears that the applicant unilaterally joined both the Department of Social Security and the NSW Teacher’s Federation to this action, for his own convenience, in order to make new and separate allegations against them, completely unrelated to the issues before the Commission. No party can properly be joined to a proceeding with which it has absolutely no connection and at the hearing I therefore ordered that the proceedings against both the Department of Social Security and the NSW Teacher’s Federation be struck out. I also do not see why the Commission was made a party but it did not ask to be struck out of the proceedings, merely submitting to any decision of the Court except as to costs.
BACKGROUND
The applicant is a qualified teacher who claims to have several medical conditions including epilepsy, aphasia and a degenerative spinal condition. According to his evidence, these conditions cause him considerable discomfort and inhibit certain activities including sitting down for long periods which in turn limits his ability to drive long distances regularly. The applicant currently receives an invalid pension.
After discussions in May 1996 with Mr John Abercrombie, the principal of Muswellbrook High School, the applicant was employed on several occasions as a casual relief teacher. During June 1996, Mr Abercrombie sought a part-time replacement teacher for a Mr Avery, a full-time member of staff who was going to begin working on a part-time basis. On 12 June 1996, Mr Abercrombie approached the applicant and the position was offered on the basis that he would have to work two and a half days per week. The applicant claims to have accepted this offer of employment and that subsequently a representative of the New South Wales Teachers’ Federation attempted to negotiate a change in the agreement so that the applicant would work five consecutive half days per week. The applicant refused on the basis of his disability. Apparently he was prepared to work a total of two and a half days per week but, because of his disabilities, was not prepared to undertake travel from his remote residence to the school on five consecutive days per week. He stated that he was approached again on 20 June 1996 to consent to an arrangement involving five consecutive half days per week which he again refused due to his disability. On 28 June 1996 the applicant approached the principal of Muswellbrook High School about the prospective employment. The applicant claimed that Mr Abercrombie stated:
Work! What work! I don’t have any work for you. If we do, we’ll call. You’re lucky. You can choose when you want to work.
The applicant returned to the school on 15 July 1996, at the beginning of third term, but was not offered employment as the part-time vacancy created by Mr Avery’s change in status had apparently been filled by another casual teacher. Between July and September 1996, the applicant was employed by the Education Department at Wee Waa High School and in November 1996 he was employed at Merriwa High School.
On 20 July 1996, the applicant lodged a complaint with the Commission pursuant to section 69 of the Disability Discrimination Act 1992 (Cth) (the Act) which alleged two separate incidents of discrimination. The first was said to have been committed by Mr Abercrombie when he did not employ him as a teacher at Muswellbrook High School and that his comments on 28 June 1996 were discriminatory. The second allegation was that the applicant was discriminated against when he was not granted an incremental salary increase by the School Staffing Unit of the Education Department, following his application for such an increase in June 1996.
The Disability Discrimination Commissioner (the Commissioner) commenced an inquiry into these matters and, by a letter dated 29 October 1996, sought further information from the Education Department which was provided in a response by letter dated 22 January 1997, and included information regarding the applicant’s periods of employment and details of the agreements giving rise to that employment. The applicant claims that this information was incorrect and that further incorrect information was supplied to the Commissioner by the Department in March 1997.
On 25 March 1997, while she was continuing to inquire into the aspect of the complaint relating to an incremental salary increase, the Commissioner notified the applicant of her decision that, after reviewing the material submitted by both parties, the Education Department had not acted unlawfully in respect of the first aspect of the complaint, regarding employment at Muswellbrook High School, including the comments made by Mr Abercrombie. The letter advised the applicant of his right to seek to have this decision reviewed by the President of the Commission. The applicant availed himself of this right and on 19 July 1997, the President, Sir Ronald Wilson, dismissed the complaint as lacking in substance, pursuant to section 101(1) of the Act. Sir Ronald’s decision was as follows:
1.I have read and considered the report of the Disability Discrimination Commissioner (“the Commissioner”) as contained in her letter to me dated 14 April 1997, pursuant to s.71(6) of the Disability Discrimination Act 1992 (Cth) (“the Act”) and the file relating to this complaint.
2.The decision the subject of review was made by the Commissioner and conveyed to Mr Shewan by letter dated 25 March. The Commissioner decided not to continue to inquire into allegations made by Mr Shewan pursuant to s.71(2)(d) of the Act because in her opinion the Department did not act in a way that was unlawful.
3.By a letter dated 28 March 1997, Mr Shewan, in accordance with s.71(5) of the Act, required the Commissioner to refer the complaint to the President.
4.Having read the materials referred to in the foregoing paragraphs. I have reached the same conclusion as the Commissioner, namely not to further inquire into the acts, the subject of complaint, but upon a different basis.
5.The first complaint related to alleged discrimination in employment. In the absence of a clear contract of employment, the complaint essentially relates to alleged discrimination in determining who should be offered employment. There is insufficient evidence to suggest that Mr Shewan was directly discriminated against because of his disabilities in relation to the employment of casual teaching at Muswellbrook High School. I am also of the view that there has been no indirect discrimination in the offer of employment. In my view, the condition imposed by the Department to work five half days per week at Muswellbrook High School was not unreasonable, given the school timetabling arrangements and the fact that the employment offered was a replacement teaching position for a limited period. Accordingly, I think that the complaint, insofar as it can be considered one of indirect discrimination, is also lacking in substance.
6.The second complaint related to alleged harassment in employment. I am not satisfied that a reasonable bystander would have objectively found the comments made by the Principal intimidating, offensive or humiliating, even though the [sic] Mr Shewan obviously did.
Therefore, in accordance with s.101 of the Act, having reviewed the Commissioner’s decision, I now dismiss the complaint.
LEGISLATION
The applicant’s initial complaint to the Commission was made pursuant to section 69 of the Act:
(1)A complaint in writing alleging that a person has done an act that is unlawful under a provision of Part 2 may be lodged with the Commission by:
(a) a person aggrieved by the act:
(i) on that person’s own behalf; or
...
The Commissioner made her decision pursuant to section 71 of the Act:
(1) If:
(a) a complaint relating to an alleged unlawful act is made to the Commission under section 69; or
...
the Commission must notify the Commissioner accordingly and the Commissioner must, subject to subsection (2), inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates.
(2) The Commissioner may decide not to inquire into an act, or, if the Commissioner has commence to inquire into an act, decide not to continue to inquire into the act, if:
(a) the Commissioner is satisfied that the act is not unlawful under a provision of Part 2;
...
(3) If the Commissioner decides not to inquire into, or not to continue to inquire into, an act in respect of which a complaint was made to the Commission, the Commissioner must give notice in writing to the complainant or each of the complainants of that decision, of the reasons for that decision and of the rights of the complainant or each of the complainants under subsection (5).
...
(5) If the Commissioner has given a complainant a notice under subsection (3), the complainant may, within 21 days after receipt of the notice, by notice in writing served on the Commissioner, require the Commissioner to refer the complaint to the President.
(6) On receipt of a notice under subsection (5), the Commissioner must refer the complaint to the President together with a report relating to any inquiries made by the Commissioner into the complaint.
(7) The Commissioner may, for the purposes of this Act, obtain information from such persons and make such inquiries, as the Commissioner thinks fit.
The President made his decision pursuant to section 101:
(1) If a complaint is referred to the President under subsection 71(5), the President may, without holding an inquiry, dismiss the complaint if:
(a) the President thinks the complaint is trivial, vexatious, misconceived, lacking in substance or stale; or
(b) the President is satisfied that the complaint relates to an act that is not unlawful under a provision of Part 2;
...
GROUNDS
Neither the application nor the affidavit in support was in the prescribed form, but both were accepted by the Court for the purposes of determining this matter. Written submissions were also made by both parties. In the case of the applicant they ran to thirty-seven pages and annexed a further fifty pages or thereabouts. Within this material the applicant set out almost all the grounds available under section 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (Judicial Review Act) and substantiated them with a mixture of complaints relating to the procedures and findings of the President and the Commissioner. Having carefully read all the material, and bearing in mind that the Court’s power extends only to the review of errors of law, the following grounds can be distilled which, if made out, could justify setting aside the decision of the President:
there was a denial of natural justice because the President’s decision was made on a different basis to that of the Commissioner
there was a denial of natural justice because the President, in making his decision, took into account material which the applicant did not have a fair opportunity to respond to
(iii)there was a denial of natural justice because the Commissioner did not refer to the President all inquiries she had made into the complaint, as required by section 71(6)
(iv)the dismissal of the complaint on the basis that it was lacking in substance and that there was insufficient evidence to support it constituted an error of law
there was an improper exercise of power by the Commission because it took into account irrelevant considerations, did not take into account relevant considerations, exercised a discretionary power without regard to the merits of the case, and characterised the conduct subject of the complaint as not falling under section 17 of the Act
NATURAL JUSTICE
It was conceded by the Education Department that if the applicant was able to show that there was a breach of the rules of natural justice associated with the making of the President’s decision, review would be available. In my view the applicant has not made out any such breach. The first ground relied on was that the President’s decision was made on a different basis to that of the Commissioner. As it happens, I do not believe that assertion to be true in substance. However, the applicant could not point to any requirement in the Act that the President consider and determine a matter referred to him for review on the same basis as the Commissioner and in my opinion the Act evinces no such intention. The clear object of sections 71(5) and 101 is that a complainant have available an expeditious avenue of review from a Commissioner’s preliminary determination that an inquiry into a complaint should not continue. The procedures provide that the President have available to him/her the requisite information from which s/he can review the matter and make a determination. The possibility that the President’s determination will not be on the same basis as the Commissioner’s is envisaged by the grounds specified in section 101, on the basis of which the President may dismiss a complaint, which differ from the grounds available to the Commissioner under section 71. Having the President conduct a complete review of the matter, in accordance with the provisions of the Act, and reach the same conclusion as the Commissioner but on a slightly different or differently expressed basis, in no way manifests a denial of natural justice.
The second matter raised by the applicant is that the President took into account material to which he did not have an opportunity to respond. It is not clear that this complaint relates at all to the making of the decision under review, namely that of the President, but rather it seems to relate to the procedures adopted by the Commissioner in the making of her decision. Nevertheless, I am prepared to review the question, on the assumption that such a complaint, if made out, could taint the decision under review. The procedures set out by the Act for the resolution of complaints of disability discrimination aim to provide a system which is effective, expedient and efficient. A system of written submissions is adopted in the first instance to obviate the need for lengthy and expensive oral hearings wherever possible. Where a Commissioner makes a preliminary decision dismissing the complaint, review is available by the President. These procedures strike a balance between the interests of complainants in having an avenue of review and the public interest in having matters resolved quickly and inexpensively where no genuine act of discrimination has occurred. As Lord Hailsham of St Marlyebone LC stated in Pearlberg v Varty [1972] 1 WLR 534 at 540:
It is true, of course, that the Courts will lean heavily against any construction of a statute which would be manifestly unfair. But they have no power to amend or supplement the language of a statute merely because on one view of the matter the subject feels himself entitled to a larger degree of say in the making of the decision that [sic] the statute accords him.
His Lordship went on to quote a passage from the judgment of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118 concerning the elements of natural justice:
There are, in my view, no words which are of universal application to every kind of inquiry and every kind of domestic tribunal…but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.
In my view, the applicant was afforded every opportunity required by the Act to put his case and despite the fact that he was unsuccessful both before the Commissioner and on review by the President, there was no denial of natural justice.
The third claim in respect of natural justice was that procedures required by law in the making of the decision were not observed, in that not all material before the Commissioner was referred to the President. The applicant relied on section 71(6):
On receipt of a notice under subsection (5), the Commissioner must refer the complaint to the President together with a report relating to any inquiries made by the Commissioner into the complaint.
This section is simply not in the terms asserted by the applicant. It does not refer to “all” inquiries of the Commissioner nor to a requirement that the records of the inquiries themselves be referred to the President but that the Commissioner make a report as to any inquiries conducted into the complaint. In this case, the Commissioner fulfilled this obligation by writing a letter to the President on 14 April 1997. Clearly if she had denied relevant information to the President and he did not make his decision upon all the relevant facts, an attack on the process could succeed. However, the President’s decision records that he took into account both the report of the Commissioner and the Commission’s file, which presumably contained all material relevant to any inquiries made. It is also apparent from the covering letter to the decision that the President also took into account further information supplied by the applicant. Therefore, not only has the applicant failed to establish that the provisions of the Act were not complied with, it seems that the President has given the matter even more detailed attention than he was required to. In my view, this ground manifests no possible error of law.
INSUFFICIENT EVIDENCE/LACKING IN SUBSTANCE
The Act specifically provides to the President the power to dismiss a complaint which is, in his/her opinion, lacking in substance. On the basis of my construction of the Act identifying the twin objects of the review procedures, Sir Ronald Wilson’s conclusion was squarely based on the material before him and the applicant’s claim that it involved an error of law because there was a factual dispute which should not have been resolved without some further hearing, is completely baseless.
IMPROPER EXERCISE OF POWER
The remainder of the grounds specified by the applicant do not reveal any error of law in the decision of the President, and are in fact mainly complaints about errors of fact made throughout the Commission’s proceedings, in which the Court is not empowered by Parliament to intervene even if they were substantiated.
CONCLUSIONS
I have carefully considered the entirety of the applicant’s lengthy submissions and the associated material but can find no reasonable basis on which his application might succeed. In my view the President exercised his powers in accordance with the Act and in a manner free of reviewable error.
EXTENSION OF TIME
Pursuant to section 11 of the Judicial Review Act, an application for review must be filed within 28 days of the decision sought to be reviewed. In this matter, the decision was made and furnished to the applicant on 19 June 1997 and consequently the last date on which an application for review could be filed was 18 July 1997. This application was not filed until 30 October 1997, almost fourteen weeks late. Although the delay was not really explained, it did not prejudice the respondent and was not exorbitantly lengthy in the circumstances, I would therefore ordinarily only have extended the time if the application raised any serious questions which might have succeeded even if in the result they failed. However, a significant factor weighing against the granting of an extension is that there is no merit in the application. The substance of this application has demonstrated that it cannot possibly succeed. It is therefore appropriate to refuse the extension of time but because the applicant has been unrepresented in these proceedings, and may therefore feel an additional sense of grievance if he believes, however unjustifiably, that he has failed on a technicality, I will grant the extension of time and dismiss the application with costs.
I certify that this and the preceding ten (10) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Einfeld
Associate:
Dated: 9 September 1998
The applicant appeared in person. For First Respondent: Ms K Eastman For Second Respondent: Ms E. Brus instructed by the State Crown Solicitor Date of Hearing: 27 November 1997 Written submissions completed:
30 December 1997
Date of Judgment: 9 September 1998
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