Smith v State of SA and Human Rights and Equal Opportunity Commission No. Scciv-02-642

SMITH v STATE OF SOUTH AUSTRALIA AND
HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
[2002] SASC 355
Full Court: Doyle CJ, Perry and Debelle JJ

DOYLE CJ I agree that the appeals against the decision in each of the actions initiated by the appellant must be dismissed. I agree with the reasons of Debelle J. There is nothing that I wish to add.
PERRY J I agree with the orders proposed by Debelle J and with his reasons.
DEBELLE J This appeal raises some issues concerning the operation of the Sex Discrimination Act 1984 (Cth) (“the Act”). They are capable of being readily resolved.
In 1993 the appellant was a director of a company which ran a small business. The appellant’s wife was the company secretary. On 24 July 1993 the appellant dismissed a female employee whom I will call Ms K. On 11 August 1993 Ms K lodged a written complaint with the Equal Opportunity Commission (“the EOC”) complaining that she had been the victim of sexual harassment. On the same day she also made a statement to an officer of the EOC which was typed and signed by her. The complaint was investigated by officers of the EOC. Eventually, the EOC instituted an inquiry against both the appellant and his company. The inquiry was to be heard by a Commissioner of the Human Rights and Equal Opportunity Commission on 28 August 1995. Before the hearing began the parties announced that they had been able to reach a compromise. The appellant apologised for his conduct and consented to pay $1000 compensation to Ms K. The Commissioner noted the apology which was in these terms:
“I, Brian Smith, admit that the basis of the complaint of [Ms K] more particularly set out in the particulars of claim and her oral evidence given on oath before the Human Rights and Equal Opportunity Commission has been substantiated and I apologise unreservedly to [Ms K] for the injury to her feelings and humiliation caused to her as a result of my conduct during the period of her employment with [B Pty Ltd] and submit to an order to pay to [Ms K] $1000 damages by way of compensation within 28 days.”
By consent, the Commissioner made a declaration pursuant to s 81(1)(b)(iv) of the Act that the appellant pay Ms K $1000 as compensation for any loss or damage suffered by reason of the appellant’s conduct.
The next step did not occur until 23 September 1997 when the appellant instituted an action in the District Court in which he complained of the manner in which the EOC had investigated Ms K’s complaint against him. He sought a substantial sum in damages. The statement of claim was later amended. The final form of the statement of claim was filed on 4 October 2001. It alleged that the Equal Opportunity Commissioner, Ms Tiddy, as well as two officers of the EOC, Mr Cheok and Ms Melvin, had failed to act in good faith and thus in breach of the statutory duty which the appellant alleged was to be found in ss 52 and 111 of the Act. The appellant further alleged that Ms Melvin was biased in her investigation of the appellant’s conduct. The appellant alleged that her conduct had caused him loss. He claimed damages in the sum of $2.4 million.
In 1999 the plaintiff commenced a second action in the District Court claiming damages for defamation. The statement of claim was amended. The final form of the statement of claim is dated 19 October 1999. The claim for defamation was based on statements in Ms Melvin’s notes of the interviews conducted with a Ms Hardman and with the appellant which had been sent to the Human Rights and Equal Opportunity Commission on 17 August 1994. The plaintiff alleged that those notes contained defamatory statements which had been maliciously made. He claimed $50000 damages.
Both actions were heard by a judge of the District Court who dismissed the appellant’s claims. The appellant has appealed against the orders dismissing those claims. I will deal in turn with each of the grounds of appeal.
The events, the subject of this appeal, occurred in 1993 and 1994. The Act has undergone considerable amendment since 1996. It is necessary, therefore, to have regard to the provisions of the Act as they stood in 1993 and 1994.
Although the Act was the creature of the Federal Parliament, in 1993 and 1994 the Equal Opportunity Commissioner of South Australia received and investigated complaints under the Act. That was a consequence of an agreement made between the Federal Government and the State of South Australia on 30 June 1992 by which it was agreed that the Equal Opportunity Commissioner would administer aspects of the Act. If it were not possible to resolve the complaint, an inquiry into that complaint would be conducted by the federal Human Rights and Equal Opportunity Commission.
Ground 1
The appellant’s first ground of appeal is that the trial judge failed to adjudicate whether Mr Cheok had acted in breach of s 50(1)(a) of the Act by adding a charge of sexual harassment from a person who was not an aggrieved person. The gravamen of this ground of appeal is that the complaint of sexual harassment had not been made by Ms K but by Ms Kelsey, an industrial liaison officer employed by an organization called the “Working Women’s Centre”, in a letter dated 3 September 1993. Ms K consulted Ms Kelsey concerning her complaint against the appellant. The appellant contends that the Act does not authorise an agent to make a complaint on behalf of another.
Section 50 of the Act provides for the lodging of complaints for breaches of the Act and s 50(1)(a) deals with complaints by an aggrieved person. It provides:
“ 50. (1) 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) a person aggrieved by the act, on that person’s own behalf or on behalf of that person and another person or other persons aggrieved by the act;”
It is unnecessary to determine whether s 50(1)(a) authorises an agent to make a complaint on behalf of an aggrieved person because, even if it does not, this ground must fail on the facts. Ms K had on 11 August 1993 made a written complaint to the Commission concerning the conduct of the appellant. In that written complaint she had set out what had occurred. The letter written by Ms Kelsey on 3 September did not make any complaint but identified persons who could give evidence on Ms K’s behalf. The letter refers to the complaint which Ms K had already lodged. In that letter Ms Kelsey described the conduct as sexual harassment. That letter may have caused Mr Cheok to add a charge of sexual harassment. It was open to him to do so. The appellant misconstrues Ms Kelsey’s letter as a further letter of complaint. It is no such thing, since Ms Kelsey’s letter presumes the existence of the written complaint. In no respect did Mr Cheok act on a complaint made by any person other than Ms K, who was an aggrieved person within the meaning of the Act.
Ground 2
The second ground is that Ms Melvin failed to investigate the complaints against the appellant and his company in a fair and competent manner and that the trial judge failed to examine that issue. The appellant said that he wished to demonstrate that Ms K had not been victimised by her dismissal but that he had dismissed her for a bona fide reason in that his company was in financial difficulty and he wished to reduce his staff. He asserts that Ms Melvin did not allow him the opportunity to do so.
The trial judge accepted the evidence of Ms Melvin. He found her to be an honest, careful and competent witness. He accepted her evidence that she did not wish to see the appellant’s books of account or other documentation concerning the business because she was prepared to accept at face value the appellant’s statements about the financial difficulties of the business. The appellant has not been able to demonstrate that the trial judge erred in making these findings of fact or that he should not have accepted the evidence of Ms Melvin.
The appellant also contended that s 52 of the Act created a duty of care to persons whose conduct is being investigated as a result of a complaint. For present purposes, it is sufficient to refer only to subsections (1) and (2) of s 52.
“       52.    (1)    Where:
(a) a complaint relating to an alleged unlawful act is made to the Commission under section 50; or
(b)    it appears to the Commission that a person has done an act that is unlawful by virtue of a provision of Part II;
the Commission shall notify the Commissioner accordingly and the Commissioner shall, 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 commenced 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 by reason of a provision of Part II;
(b)    the Commissioner is of the opinion that the person aggrieved by the act does not desire, or none of the persons aggrieved by the act desires, that the inquiry be made or continued;
(c)    in a case where a complaint has been made to the Commission in relation to the act, a period of more than 12 months has elapsed since the act was done; or
(d)    in a case where a complaint has been made to the Commission in relation to the act, the Commissioner is of the opinion that the complaint was frivolous, vexatious, misconceived or lacking in substance.”
This Act creates a statutory scheme for the protection of those who might suffer discrimination on the ground of sex, marital status, pregnancy, potential pregnancy or family responsibilities or involving sexual harassment. It prohibits discrimination in the workplace, accommodation, education, the provision of goods and services, the disposal of land and in other areas prescribed by the Act. The Act establishes a régime for the investigation of complaints and for a formal inquiry by the Commission. The imposition of a duty of care upon officers of the Commission who are investigating a complaint is, in my view, inconsistent with the due performance by those officers of their statutory duty. Furthermore, the Commission may investigate in such manner as it thinks fit and is expressly authorised not to inquire or to discontinue an inquiry. A duty of care of the kind alleged by the appellant is incompatible with the duty to investigate complaints thoroughly or to decide not to inquire or to discontinue an inquiry. It follows that the duty of care does not exist: Sullivan v Moody (2001) 183 ALR 404; Hill v Chief Constable of West Yorkshire [1989] AC 53; and X (Minors) v Bedfordshire County Council [1995] 2 AC 633 at 739. For these reasons, there is no duty of care of the kind for which the appellant contends.
I do not think that the terms of s 111 of the Act affect this conclusion. Section 111(1) provides:
“ 111. (1) The Commission, a member of the Commission, the Commissioner or a person acting under the direction or authority of the Commission or of the Commissioner or pursuant to a delegation under section 104 is not liable to an action or other proceeding for damages for or in relation to an act done or omitted to be done in good faith in the performance or purported performance of any function, or in the exercise or purported exercise of any power or authority, conferred on the Commission or the Commissioner.”
In s 111, the Commission means the Human Rights and Equal Opportunity Commission. It is not entirely clear whether s 111 has any operation in the particular circumstances of this case because it seems that the EOC and the Equal Opportunity Commissioner were not acting as delegates of Human Rights and Equal Opportunity Commission but pursuant to an agreement made between the Commonwealth and the State of South Australia on 30 June 1991. However, even if it did, it does not assist the appellant because it is not possible to spell a duty of care out of the immunity which s 111 provides.
For these reasons, the appellant fails on two counts. First, the officers of the EOC were not subject to a duty of care to him when investigating the complaint. Secondly, even if a duty of care existed, no breach has been established.
Ground 3
The appellant’s third ground of appeal complains that Ms Melvin failed to interview two witnesses whom he alleges would have supplied relevant information. It is implicit in this ground of appeal that the appellant also complains that the trial judge made no finding of fact concerning this issue. These witnesses were two women employed by the appellant’s company. The appellant’s evidence at the trial was that he had given their names to Ms Melvin and had asked her to interview them. Ms Melvin did not interview them. In her evidence, Ms Melvin said that the appellant had not asked her to interview these two women in relation to the allegations of sexual harassment. She did add that the appellant might have suggested that she interview them in relation to his claim that his business was in financial difficulty. Her evidence was not consistent with a minute to the Attorney-General providing information to be used in response to questions in the Parliament concerning the conduct of the inquiry against the appellant. The relevant part of the minute reads:
“Why did not the Officer from the Equal Opportunity Department interview two girls who Mr Smith named as his witnesses?
Ms Melvin’s recollection is that these two women were put forward as character witnesses, and she did not believe that his character generally was in issue. The investigation generally came to a halt when Mr Smith refused to comply with written requests to name past and present employees and so Ms Melvin did not interview anyone after she had spoken to the complainant, the respondent and one independent witness.”
The trial judge did not make any finding whether the appellant had asked Ms Melvin to interview the two women. However, even if a finding were to be made in the appellant’s favour, it would not assist him because Ms Melvin did not owe any duty of care to him.
Ground 4
The appellant’s fourth ground of appeal is that Ms Melvin acted in excess of her powers under s 52(1)(b) of the Act by asking for the names and addresses of both past and present employees of the appellant’s company. The request was made by telephone and confirmed by letter dated 3 February 1994 to the appellant’s then solicitor. The request was repeated in a letter dated 7 March 1994. The appellant’s solicitor replied on 9 March 1994 advising that he was obtaining counsel’s opinion as to the validity of the request and suggested it was beyond power. It is unnecessary to determine whether the request was unreasonable. On its face it was, in that it sought the names of past employees for a period as long as 12 years prior to the alleged offending. At the trial it was admitted that the request was not appropriate and was unreasonable. However, it appears that Ms Melvin did not insist on her request. Even if the request was unreasonable or beyond power, it does not give rise to an action in damages.
Ground 5
The appellant abandoned his fifth ground of appeal.
Ground 6
In the next ground of appeal, the appellant complains that in his reasons the trial judge failed to adjudicate upon the appellant’s complaint as to the conduct of Ms Melvin. In effect, he reiterates his complaints about Ms Melvin’s conduct. For the reasons already given, Ms Melvin was not subject to any duty of care to the appellant and this ground also fails.
Ground 7
In the seventh ground of appeal, the appellant complains that Ms Melvin’s typed notes of interviews were not an accurate reflection of her handwritten notes of those same interviews. The trial judge made several findings concerning the appellant’s allegations as to differences between the handwritten and typed notes of interviews between Ms Melvin and himself, Ms K and Ms Hardman, another of his employees. He said:
“Ms Melvin was cross-examined vigorously about the differences between the typewritten notes of her interview with the plaintiff and her handwritten notes of that same interview (Exhibits P6 and P21). Whatever the arguments might be as to the differences between the two I accept the evidence of Ms Melvin that she has not added anything to the typewritten notes nor put anything in the typewritten notes that was not said by the plaintiff. I found her to be an honest, careful and competent witness. She had no reason to fabricate material and there is no indication that she did. The expanded version of the record of interview between the plaintiff and Ms Melvin in fact does not incriminate the plaintiff in any form of sexual harassment. If there were any discrepancies or additions it is very difficult to see how they could prejudice the plaintiff because on Ms Melvin’s version the plaintiff vigorously denies the allegations put by Ms K.
Ms Melvin was also cross-examined about the differences between the typed versions and the handwritten notes of the interview between she and Ms Hardman. These differences are set out in Exhibit D55 and I will not repeat them. Ms Melvin said that those differences were nothing more than the differences between cursory handwritten notes which were expanded into typewritten notes pursuant to the process which she explained. I accept her evidence on that topic. I also accept her evidence on the topic that there has been no fabrication in relation to the statement taken from Ms K because there may be some differences between the typewritten and handwritten notes. In coming to those conclusions I have borne in mind very carefully the individual details of the differences between the typed and written versions of the above statements. These differences were set out very carefully in the cross-examination of Ms Melvin by the plaintiff.”
Later, he concluded:
“Having heard Ms Melvin and having assessed her as a witness I find that she is honest and reliable. I accept her evidence that there was no fabrication of any interview that she had with either the plaintiff or Ms K or Ms Hardman.”
A close examination of the appellant’s attack on these findings of the trial judge does not disclose that the trial judge has erred. The appellant has not demonstrated one material inconsistency. He did demonstrate that on one occasion there is an apparent inconsistency but it does not relate to any material facts. Furthermore, it is but one small inconsistency in quite detailed records of several interviews. It does not in any respect justify interfering with the conclusions of the trial judge.
Ground 8
The eighth ground of appeal asserts that the trial judge “wasted” (to use the appellant’s word) one-third of his reasons for judgment by dealing with an irrelevant issue and that he failed to adjudicate whether there had been a breach of s 52 of the Act. The allegedly wasted part of the reasons deals with events in the Human Rights and Equal Opportunity Commission and the appellant’s apology. Contrary to the appellant’s assertions, that was a relevant issue and had to be examined. Further, the trial judge did, in the early stage of his reasons, hold that s 52 did not give rise to a duty of care to the defendants. While he did not expressly state his conclusion in those terms, it is clear from his reasons that he had reached that conclusion. Furthermore, out of an abundance of caution, the trial judge proceeded to examine the facts on the assumption that a duty of care did exist. He ruled that the office of the Commission had acted competently and honestly and dismissed the appellant’s claim. Thus, the trial judge decided the question of law whether there was a duty of care against the defendant and, assuming the existence of the duty of care, went on to consider the question of fact as to whether there had been a breach of that duty. Both were decided against the appellant. This ground of appeal must plainly fail.
Ground 9

The ninth ground of appeal is that the trial judge failed to rule which of the two respondents was vicariously liable for the actions of the officers of the EOC. Given the conclusion that there is no duty of care, it is unnecessary to determine that issue.
Ground 10
The tenth ground of appeal is that the trial judge failed to rule on the question whether the agreement between the Federal Government and the Government of the State of South Australia by which the Equal Opportunity Commissioner received and investigated complaints under the Act was valid. The appellant contends the Attorney-General for South Australia is responsible for staff of the EOC and cannot abrogate this responsibility. The appellant relies on Attorney-General (NSW); ex rel. Clark v Publishing and Broadcasting Ltd [1977] 2 NSWLR 813. The argument is misconceived and the appellant misunderstands the purport of the decision he relies on. It is within the competence of the Government of South Australia to enter into an agreement of this kind with the Federal Government. This ground of appeal also fails.
The final ground of appeal is advanced only if some of the earlier grounds of appeal are upheld. No relevant ground of appeal has been upheld with the consequence that this ground of appeal must also fail.
It is apparent that many of the grounds of appeal depend on the proposition that the officers of the Equal Opportunity Commission had a duty of care to the appellant. No such duty exists with the consequence that the appellant’s claim must fail. The remaining grounds fail for the reasons which have been given.
The appellant also has appealed against the dismissal of his action for defamation. The effect of this submission is that Ms Melvin acted with malice so as to defeat any qualified privilege as well as to defeat any immunity pursuant to s 111 of the Act. The claim was grounded on the conclusions in Ms Melvin’s reports of interview. This issue had not been raised in the notice of appeal but, in any event, the appellant did not demonstrate any error on the part of the trial judge.
The appellant has failed on all of his grounds of appeal. It follows that his appeal must be dismissed.

[2002] SASC 355

1 November 2002