Smith v State of SA & Human Rights & Equal Opport Commn;smith v State Ofsa No. DCCIV-99-1254, DCCIV-97-1193

SMITH v STATE OF SOUTH AUSTRALIA AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION
AND
SMITH v STATE OF SOUTH AUSTRALIA
[2002] SADC 41
Judge David
Civil

In both of these matters the plaintiff represented himself. As both actions arose from the same basic set of facts they were ordered to be heard together. The first action is a claim against the State of South Australia claiming damages resulting from the behaviour of certain officers of the Equal Opportunity Commission of South Australia when they investigated a claim against the plaintiff for what can be described as sexual harassment. In short the plaintiff’s case was that if the employees of the Equal Opportunity Commission had investigated the matter properly then at a very early stage the Commissioner would inevitably be of the opinion that the complaint was frivolous or vexatious and proceedings would have stopped. It was further argued that because that was not done and because the case against the plaintiff dragged on needlessly he has suffered damages in excess of $2,000,000. The details of those damages are set out in the pleadings under the heading of “Particulars of Loss”. It is alleged in the pleadings that an escalation of solicitor’s fees due to the unnecessary prolongation of the case resulted in economic pressure being placed upon his business which led to the losses as set out in the statement of claim.
I intimated during the addresses of counsel that there was no actual evidence as to the plaintiff’s loss if the cause of action was made out. I indicated that if I found for the plaintiff I would give him leave to re‑open his case to deal with the question of damages. I did this of course because the plaintiff was unrepresented. However in light of the decision that I have come to it is unnecessary to do that.
In relation to the first action there is also an argument presented by both defendants as to who would be responsible if I found for the plaintiff. The 1^st defendant is the State of South Australia who is the employer of the officers of the Equal Opportunity Commission of South Australia who investigated the matter. The 2^nd defendant is the Human Rights and Equal Opportunity Commission who are responsible for complaints made pursuant to the Commonwealth Sex Discrimination Act. It was under that Act that the complaint against the plaintiff was brought which was the basis of this action. I was told in evidence by Ms Josephine Mary Tiddy who was the Equal Opportunity Commissioner for the State of South Australia at the appropriate time that as a result of her position she held delegations to act in respect of matters arising from the Human Rights and Equal Opportunity Commission. There was a complicated argument as to who would be responsible if the plaintiff’s case was made out. Was it the State of South Australia because they employed the officers who carried out the investigations? Or the Human Rights and Equal Opportunity Commission because they were the body that was pursuing the matter. In the light of my ultimate decisions that question need not be answered.
The second action is one in defamation against the State of South Australia. That action is based upon the allegation that during the investigation by officers of the Equal Opportunity Commission of South Australia one of those officers when taking statements from the plaintiff, the person who complained about the plaintiff and another witness she fabricated certain material. It is further alleged that that material was published by virtue of the fact that it was passed on as a matter of course to the Human Rights and Equal Opportunity Commission.
Before turning to an outline of the background facts I want to make it clear that the thrust of my judgment is to tease out the relevant facts in relation to each cause of action and deal with them accordingly. It is important to make that clear because there is a plethora of material before me which is irrelevant to the plaintiff’s claims and there are many criticisms of the investigation which could not form a basis for an action for damages. It appears though that the thrust of the plaintiff’s claim in the first action is based upon section 52(2) of the Sex Discrimination Act 1984 (Commonwealth). I set that section out in full.
“52(2) [Decision not to inquire] 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.”
In particular the plaintiff’s claim seems to be based upon section 52(2)(d) in that the officers of the Commission breached that section by virtue of their biased and faulty investigation and therefore the plaintiff was denied the opportunity of showing at a very early stage that the complaint was either “frivolous, vexatious, misconceived or lacking in substance”. In order to make out his claim, if there is a cause of action, the plaintiff has to prove that if it were not for the bias or faults in the investigation the matter would not have proceeded as long as it did because at a very early stage the Commissioner would have elected not to go on with the investigation of the complaint. I have already commented on the matter of the question of damages if this has been so proved.
Background Facts
It is undisputed that on the 11^th August 1993 a Ms Lara Kearns gave a statement to an officer of the Equal Opportunity Commission of South Australia complaining about the behaviour of the plaintiff towards her while she was employed by he and his company. The matter then went to a solicitor of the Commission and was then referred to a conciliation officer, Ms Christina Melvin, who was called as a witness for the 1^st defendant. On the 30^th September 1993 a document was sent by the Commissioner for Equal Opportunity to the plaintiff setting out details of Ms Kearns’ complaint (Exhibit P3). Ms Melvin in her capacity as a conciliator interviewed the original complainant Ms Lara Kearns on the 17^th December 1993. She then interviewed the plaintiff on the 10^th January 1994 and another employee of the plaintiff Ms Elise Hardman on the 12^th January 1994. She produced to the Court typewritten records of these interviews (Exhibits P20, P21 and P22). Also produced to the Court were handwritten notes made by Ms Melvin while conducting these interviews preparatory to preparing the typewritten records. At one stage an application was made by the Commissioner for Equal Opportunity to the plaintiff’s solicitors for the names, addresses and telephone numbers of all persons who were employed by the plaintiff’s company between the 9^th July 1992 and the 24^th July 1993 to be provided pursuant to section 54 of the Sex Discrimination Act (Exhibit P14). Eventually the matter was referred to the Human Rights and Equal Opportunity Commission because it could not be effectively conciliated. A hearing was conducted before Commissioner Costello in Adelaide on the 28^th August 1995 and from an extract of the transcript of that hearing (Exhibit D49) it can be seen that the plaintiff who was represented by counsel, admitted to the basis of the complaint of Lara Kearns, apologised unreservedly to her and paid an amount of $1,000.00 damages.
The plaintiff now claims that despite that admission, apology and payment of damages if the conciliation investigation into the complaint of Ms Kearns had been conducted properly everything would have ceased at a very early stage because it would be seen that the complaint had no substance.
The Plaintiff’s Case
The plaintiff gave evidence himself and tendered many documents while giving evidence. He set out a very clear history of the matter. There are several matters which he points to which he says indicate that the investigation by Ms Melvin was not only biased but was in fact deliberately biased and dishonest. The first area of what can only be described as mischief on behalf of Ms Melvin is the way in which she interviewed important parties in relation to the complaint. She firstly interviewed the complainant Ms Kearns on 17^th December 1993. As I have indicated a typed record of interview was produced (Exhibit P20) and also produced were handwritten notes of that record of interview (Exhibit P24). On the plaintiff’s case there are discrepancies between the two versions in a sense that there are words and phrases and material in the typewritten version which are not in the handwritten version.
She also interviewed a witness who worked for the plaintiff namely Ms Elise Hardman. That interview took place on the 12^th January 1994. There are also differences between the typewritten version of that conversation between Ms Melvin and Ms Hardman (Exhibit P22) and the handwritten notes (Exhibit P25). The plaintiff argues that in relation to the differences in both of those interviews they indicate that material has been deliberately added in both records to implicate the plaintiff. Ms Melvin also interviewed the plaintiff himself on the 10^th January 1994. As I have indicated a typed record of interview was produced (Exhibit P21) and also produced were handwritten notes of that record of interview (Exhibit P6). The same criticisms and observations were made. It was argued that there were discrepancies between the two versions. The plaintiff argues that this indicates material had been added to the typed version which was not said by the plaintiff. The plaintiff gave detailed evidence in relation to all three interviews of the differences between the handwritten versions and the typewritten versions. It is the plaintiff’s case that without those embellishments or false statements made by Ms Melvin in the typewritten versions the Commissioner would not have proceeded further with the matter.
The plaintiff also gave evidence that the investigator, Ms Melvin, refused to look at the financial books of the plaintiff’s company and refused to interview two witnesses namely two people known as “Jackie” and “Chris” who were also employees of the company. It was argued that if the books of the company were properly investigated by the Commissioner then it would be seen that the company was in trouble and that was the reason that Ms Kearns was dismissed and not because of any sexual harassment. It was also argued that if statements were taken from “Jackie”, “Chris” and the plaintiff’s wife these would have indicated the frivolous nature of the complaint by Ms Kearns.
There were many other criticisms made by the plaintiff of the way in which the investigation was conducted and criticisms of Ms Melvin in particular. One example is the fact of the relevance of the notice under section 54 whereby a list of all employees between the 9^th July 1992 and the 24^th July 1993 was asked to be supplied. There are a host of other criticisms but in my view they are not remotely connected to the present claim.
Even before turning to the cases of the defendants it can be seen that the plaintiff is confronted with a number of insurmountable hurdles. The first is whether there is a cause of action at all. The 1^st defendant relied upon the High Court authority of Thomas Patrick Sullivan v Margaret Catherine Moody & Ors [2001] HCA 59 to support its argument that even accepting everything the plaintiff has said there is still no cause of action. In Sullivan’s case the 1^st defendant was a medical practitioner employed at the Sexual Assault Referral Centre and the 2^nd and 3^rd defendants were two social workers who were employed by the Sexual Assault Referral Centre and the Adelaide Children’s Hospital respectively. The plaintiff was the father of a young daughter who was examined. In examining the child the defendants investigated the possibility of sexual abuse and this caused a break down of the marriage. The question of sexual abuse was pursued in Family Court proceedings. It was argued that the defendants owed a duty of care to the plaintiff to exercise reasonable care in the conduct of the investigation of allegations of sexual abuse of the daughter. The joint judgment of the High Court unanimously held that no such duty existed. That decision of course was based against the background of a statutory scheme which empowered the defendants to form the examinations. It was held by the Court that:-
“62.The statutory scheme that formed the background to the activities of the present respondents was, relevantly, a scheme for the protection of children. It required the respondents to treat the interests of the children as paramount. Their professional or statutory responsibilities involved investigating and reporting upon, allegations that the children had suffered, and were under threat of, serious harm. It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm. The duty for which the appellants contend cannot be reconciled satisfactorily, either with the nature of the functions being exercised by the respondents, or with their statutory obligation to treat the interests of the children as paramount. As to the former, the functions of examination, and reporting, require, for their effective discharge, an investigation into the facts without apprehension as to possible adverse consequences for people in the position of the appellants or legal liability to such persons. As to the latter, the interests of the children, and those suspected of causing their harm, are diverse, and irreconcilable. That they are irreconcilable is evident when regard is had to the case in which examination of a child alleged to be a victim of abuse does not allow the examiner to form a definite opinion about whether the child has been abused, only a suspicion that it may have happened. The interests of the child, in such a case, would favour reporting that the suspicion of abuse has not been dispelled; the interests of a person suspected of the abuse would be to the opposite effect.”
In my view that reasoning applies to investigations by appropriate officers in relation to complaints under the Sex Discrimination Act.
The other difficulty the plaintiff has is his settlement of the action before the Human Rights and Equal Opportunity Commission on the 28^th August 1995 (Exhibit D49). On the face of it it seems incongruous that he would make such an apology and admission and agree to pay damages that day before the Human Rights and Equal Opportunity Commission and yet in this case say that the matter should not have proceeded because it was inevitable that if it was properly investigated it would be found to be without foundation and vexatious. In relation to that difficulty the plaintiff in his own evidence gave the following explanation (transcript page 30):-
"AOn 28 August 1995 the plaintiff attended a commission hearing in Adelaide. The plaintiff’s solicitor had told him that due to scarcity of funds they would not be questioning what Ms Melvin had done in relation to the oldest documents. This left the plaintiff no option but to bail out of that situation that Ms Melvin had created.
QCould you just read that again, I am sorry, go back.
AOn 28 August 1995 the plaintiff attended a commission hearing in Adelaide. Due to the scarcity of funds the plaintiff’s solicitors had told him that they would not be questioning what Ms Melvin had done in relation to the oldest documents. This left the plaintiff with no option but to bail out of that situation which Ms Melvin had created, and so the plaintiff offered the complainant $1,000 to conciliate the matter. She accepted.
QWhen you went along to the commission, did you intend to do that or what did you intend to do.
AWell, right up to the commission hearing – right up to the very date – I wanted my solicitors to go into bat for me to say ‘Look, here is what Ms Melvin was told and here what is she has typed up’. Each complaint goes against the plaintiff, but it would have taken a few days in the commission hearing.
QYou were going to test the case, in other words.
AYes, and the solicitors and barristers were not prepared to do that without me coming up with the ready money for them to act. We were going broke fast. Even that thousand dollars which I offered the complainant, I made that offer $250 per week for four weeks.
QSo when you compromised the case by settling it, you gave full instructions to do that; there is no problem with that.
ANo.
QThey didn’t go behind your back or anything like that. Do you agree with that.
AYes.
QBut the reason you say you gave full instructions to do that was because of the economic reality of the situation, is that right.
AIt was, yes.
QOf course, you must realise that that is often the case in a lot of cases, whether civil cases or equal opportunities cases, that you might settle a case because, you know, you look at where you are going and you look at how much it is going to cost. That is what you did in that case, is that right.
AThat’s right, because my solicitors said ‘We will only go in on the fact she said you did and you say you didn’t, your word against her’. Ms Melvin had done such a job on the typed notice of interview when she typed them up against me that I knew which way it had gone. Plus HREOC had shown bias anyway by documents which I got at a later date.
QSo you didn’t think you were going to win. That is the reason.
ANot head to head, so to speak, but using documentary evidence showing that Ms Melvin had written it down when she interviewed the plaintiff, and when she typed it up she completely altered what we told her, and it was the typed up notes that everyone was looking at, it was not the handwritten notes.
QBut did you instruct your solicitors or your barristers: ‘Look, let’s take them on and let’s cross-examine her about the difference between that typed written note and the handwritten note.’
AYes, that was my instructions prior to the hearing.
QBut you changed your mind because –
AOn the day of the hearing I was told – informed by the solicitor I think – who told me that they would only be questioning her on the sexual harassment part of the case and the victimisation, rather than on what Ms Melvin had done.
QBut did you instruct them to go ahead and tackle them on what Ms Melvin had done and her story.
AI would have done, but they required further funds.
QIt would have taken longer.
AI had run out of funds. It would have taken probably a week in the commission hearing for a barrister to go through all of this, $1500 a day; we had just come to the end of the money tree. It was doing damage to my business in August 1995, and in November I had my daughter coming home from Germany and that was the first time in four years, because my son was getting married and rellies were flying in, so pressure was on me to get out of a bad situation and try and save my business and save my home as a consequence.”
It is to be noted that some of the questioning in his evidence in chief was done by myself in order to bring out his explanation. He was cross-examined on that same topic. I set out the relevant parts of that cross-examination (transcript page 39):-
"QWhen the matter came on in front of Commissioner Nettlefold, Ms Kearns gave evidence, didn’t she.
ANo, she got in the witness box, I think, and spoke for an hour maybe, if that. She was never cross-examined though.
QYour barrister didn’t cross-examine her, did he.
ANo.
QShe got in the witness box and she was asked questions by her barrister.
AYes.
QThen when he’d finished the matter was adjourned.
AI think there was a break, yes.
QLater on in the day you came back, having instructed your solicitors that you wished to compromise the matter.
AYes.
QNot only did you –
ACould I put the word ‘conciliate’, rather than ‘compromise’; conciliate the matter.
QYou tendered an apology, didn’t you.
AYes.
QAnd that apology was written out.
AYes, by their solicitor, I think. I’m not too sure, it could have been Mr Moore wrote it out.
QYou signed it.
AYes.
QAnd Mr Moore signed it.
AYes, I believe so, but I didn’t read it.
QMaybe you’d like to read it now.
ANo, I’ve read it since then, so I know what it says, but at that time I state that I didn’t read it.
QDo you recall that the apology says ‘I, Brian Smith, admit that the basis of the complaint of Lara Kearns, 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 Kearns for the injury to her feelings and humiliation caused to her as a result of my conduct during the period of her employment with Brandeis Pty Ltd (Trading as Southern Browse-In) and submit to an order to pay Ms Kearns $1,000 damages by way of compensation within 28 days’.
AYes.
QIs that what you are telling his Honour now, that you didn’t read that before you signed it –
HIS HONOUR:           Just let’s get it right.
HIS HONOUR
QDo you agree that you apologised in those terms.
AYes, apologised for the basis of the complaint.
QDo you agree what was read out was accurate, in the sense it was read out in court.
AYes, the basis of her complaint I agreed with. That was that I had –
QDo you agree that they were the terms.
AYes, that’s the terms that were set out.
HIS HONOUR            Mr Telfer, just assist me, how is that done before this tribunal? Is it hand up, or is it read out by the solicitor, or what’s done?
MR TELFER:              It was read onto the transcript and handed up, and the commissioner read it and there was some discussion about the procedure, but it’s in the transcript.
XXN
QDo I understand you to be saying that you didn’t read the text of that apology before you signed it.
AThat’s right.
QBut you now don’t resile from the contents of that apology.
ANo, I’ve read it since.
QYou were present in the tribunal when Commissioner Nettlefold read that out.
AI don’t think he read it out. I am not too sure on that point.
HIS HONOUR:           Is there a copy of the document that was tendered?
MR TELFER:              Yes.
HIS HONOUR:           Why don’t you tender it in this courtroom?
MR TELFER:              Perhaps I should tender the whole file.
HIS HONOUR:           Is there a transcript as to what happened in the tribunal on that day?
MR TELFER:              Yes, the transcript of the commissioner’s findings are here, the commissioner’s handwritten notes of the hearing are here and the apology.
HIS HONOUR:           Show that to the witness.
XXN
QYou see the transcript taken of –
AI’ve read that.
QYou have seen that before, haven’t you.
AYes.
QThere is the apology; that’s your signature at the bottom.
AYes.
QThat’s Mr Moore’s signature there.
AYes.
MR TELFER:              I tender the file.
HIS HONOUR
QHave you any objection to that being tendered as an exhibit as to what happened.
ANo.
EXHIBIT #D49 TRANSCRIPT OF TRIBUNAL HEARING TENDERED BY MR TELFER. ADMITTED.”

The problem the plaintiff has is that at the hearing before the Commission, with the help of experienced counsel, he clearly admits to the substance of the complaint by Ms Kearns. He also apologises and agrees to pay damages. If it was inevitable that evidence from “Jackie” or “Chris” would have shown the complaint to be without merit then it is very difficult to understand why that was not agitated before the Human Rights and Equal Opportunity Commission. Similarly with the help of experienced counsel he could easily have made the point about the differences between the records of interviews and the handwritten notes. Instead there is an admission and an apology and an agreement to pay to damages. That is totally inconsistent with the allegations made in these proceedings.
Although I have already indicated in this judgment that I find that there is no cause of action nevertheless because of the factual allegations that are made I turn to the case for the 1^st defendant.
Case for the 1^st Defendant
The 1^st defendant’s main witness was the investigator Christina Pauline Melvin. She gave evidence that she was a conciliation officer with the Equal Opportunity Commission and investigated the matter between the plaintiff and Ms Lara Kearns. She interviewed Ms Kearns on the 17^th December 1993 and gave evidence of the process. She said it was the practice of the Equal Opportunity Commission and indeed her practice to take handwritten notes during the course of the interview which would be used as an “aide‑memoire” in transcribing those notes into typed records of interview. That is the system that she used. She said that the notes would be transcribed as soon as possible after the interview, preferably the same day. She said that when she transcribed the conversation from her notes it was when that conversation was still fresh in her memory. She said that she did not add anything to the typewritten notes which was not said by Ms Kearns in the interview. She said that she has not changed anything in the typewritten notes to reflect a different meaning. She gave evidence that the handwritten notes were a shorthand way of getting down what was said and any difference between the two is merely cosmetic. She gave evidence that she then contacted the plaintiff by telephone at his place of business and was seeking to interview him to put the allegations of Ms Kearns. She eventually managed to do that on the 10^th January 1994. When interviewing the plaintiff she used the same method as she used when interviewing Ms Kearns. She made handwritten notes and expanded those into typewritten notes. She said that the typewritten notes accurately reflected the conversation and she did not add anything the plaintiff did not say.
Two days after interviewing the plaintiff she gave evidence that she interviewed a witness, Elise Hardman, who was employed by the plaintiff. She interviewed that person on the 12^th January 1994. Again that interview was conducted by the same method of taking handwritten notes while the interview took place and expanding those notes into typewritten notes. She gave evidence that the handwritten notes accurately reflected the conversation as did the typewritten version but in a more expanded form. There was nothing in the typed version that Ms Hardman did not say.
Having taken those statements Ms Melvin gave evidence that she intended, as was her duty, to conciliate the matter between the parties. This however was difficult because the plaintiff was firm throughout that he was not prepared to deal with her and certainly not to conciliate the complaint of Ms Kearns. She also said that she attempted to seek further information from the plaintiff namely the records of former employees. She wanted to do that because she felt that there was an indication there may have been an ongoing course of conduct by the plaintiff towards female employees. She was unsuccessful in obtaining that information and subsequently a notice was sent to the plaintiff’s solicitors pursuant to section 54 of the Sex Discrimination Act. She said that there was never a request by the plaintiff for her to interview the persons “Jackie” or “Chris” in relation to the allegations against him of sexual harassment.
She gave evidence that the matter was forwarded to the Human Rights and Equal Opportunity Commission because of a request of the plaintiff’s solicitors. That is often done when the matter obviously cannot be conciliated any further. When that happened the file was forwarded to the Human Rights and Equal Opportunity Commission and taken out of Ms Melvin’s hands because the conciliation phase was over. That was normal procedure.
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 Kearns.
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 Kearns 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.
It was also put in cross-examination that Ms Melvin in her investigations did not look at documentation about how bad the business of the plaintiff was going. It was put that if she had found that out it would support the plaintiff’s contention that he dismissed Ms Kearns not because of any sexual harassment but because of economic reasons. However I accept Ms Melvin’s clear explanation that she accepted what the plaintiff said about that and did not have to view any documentation. She said in evidence the following (transcript page 187):-
"Q‘The complainant said that business was not as slow as Mr Smith is indicating and that she had worked at the store for a short period 12 months earlier and that business was slower at that time’. Ms Kearns has actually stated basically she shouldn’t have been sacked because business was better in 1993 than in the previous year in 1992. When you came to interview me on 10 January this was part of my documentary evidence which I had to show you and document 423 highlights that point, that business was better in 1992 than 1993, that was the documentary evidence which you should have, and you needed to, look at. Why didn’t you look at it.
AIt wasn’t necessary at that time. I was prepared to take you at face value on the information that you provided to me about the state of your business, it was not necessary to go deeper into that aspect of the matter at that time.
HIS HONOUR
QI want to get this clear and you tell me if I am wrong. Is what you are saying is that you were there to conciliate, you heard an explanation from Mr Smith, part of that explanation was that he sacked her for economic reasons, not for harassment or refusal to go out with him, but nevertheless there were whole parts to this complaint and for the purposes conciliating the whole matter you were prepared to accept him at that stage.
AThat’s right, yes.
QIs that accurately putting it.
AThat’s exactly right, yes.
QThat’s your answer.
AYes.
QWhether I accept it or not is another matter.
AYes that’s right.”
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 either with the plaintiff or Ms Kearns or Ms Hardman. On the statements that she took there can be no question that at any stage of the investigation the matter should have been discontinued.
The 1^st defendant also called Ms Josephine Mary Tiddy who was the Equal Opportunity Commissioner for the State of South Australia in 1993 and 1994 and Mr Vincent Cheoik who was employed by the Equal Opportunity Commission in 1993 and gave legal advice in relation to the matter of the complaint of Ms Kearns. Mr Cheoik became involved in the matter on the 20^th August 1993 and his job was to give directions and guidance to the Commission’s officers who carried on the investigations. In other words he advised the investigators as to what they were legally entitled to do. He could not independently remember this particular matter and was reliant upon the file in order to give evidence. He gave evidence of certain instructions that he gave including the following instruction. He gave that evidence on the basis of a file note (transcript page 247):-
“I have no special instructions other than to say in this instance you do not focus unduly on any particular incident but to build up a case in the aggregate.”
He gave evidence that what he meant by that was to look at the case as a whole. That advice was seized upon by the plaintiff in cross-examination and it was put that this implied some form of fabrication. Mr Cheoik vehemently denied that and said that “building up a case” was merely an expression. I accept his explanation. His evidence really takes the matter no further. Similarly the evidence of Ms Tiddy in relation to this specific matter does not take the matter any further. She indicates that the proper processes were followed in the investigation of this complaint.
I find that even if there was a cause of action pursuant to section 52(2)(d) of the Sex Discrimination Act 1984 the investigation of the officers of the Commissioner was performed competently and honestly. I find there is no basis for saying that the Commissioner at any stage could say that the complaint was frivolous, vexatious, misconceived or lacking in substance. The fact that the plaintiff wanted to defend the claim in the way he did and incur the costs that he did is his choice and his right. I find that there is nothing in the behaviour, particularly of Ms Melvin, or any of the officers of the Commissioner which forced him to be put into the position which he has described in his evidence.
It follows that I also find that there has been no fabrication or addition to any statements taken by Ms Melvin and I accept her evidence unreservedly on that topic. I therefore dismiss the first claim. In the light of that decision it is unnecessary to decide the question of the responsibility between both defendants.
Second Cause of Action
As I have already indicated there was no fabrication or false information put into the written statements taken by Ms Melvin from the plaintiff, Lara Kearns and Elise Hardman. I find in particular that the statement she took from the plaintiff in her typewritten notes (Exhibit P21) was accurate and she has not added anything which was not said. I also find that the typewritten interview with Elise Hardman (Exhibit P22) was accurate and nothing was put in that record of interview which was not said by Ms Hardman. It is claimed by the plaintiff that the sending of both of those interviews to the Human Rights and Equal Opportunity Commission amounted to the publication of material defamatory to the plaintiff. In my view the situation is clearly covered by section 111(2) of the Sex Discrimination Act 1984 which reads as follows:-
“111(2)     [Complaint, submission, etc.]   Where-
(a)     a complaint has been made to the Commission; or
(b)    a submission has been made, a document or information has been furnished, or evidence has been given, to the Commission or the Commissioner,
a person is not liable to an action, suit or other proceeding in respect of loss, damage or injury of any kind suffered by another person by reason only that the complaint or submission was made, the document or information was furnished or the evidence was given.”
The material that is complained of clearly comes within that subsection and there can be no cause of action. The plaintiff’s claim in the second action is therefore dismissed.

[2002] SADC 41

1 May 2002