State of NSW (NSW Police Force) v Whitfield
[2012] NSWADTAP 27
•25 July 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27 Hearing dates: 17 and 18 May 2012 Decision date: 25 July 2012 Before: Judge K P O'Connor, President
G Furness SC, Judicial Member
J McClelland, Non-judicial MemberDecision: 1. Appeal allowed.
2. Orders of Tribunal set aside.
3. Registrar to fix a date, in consultation with the parties, for the hearing of oral submissions as to what further orders for the disposal of the proceedings should be made.
Catchwords: EQUAL OPPORTUNITY - Age Discrimination - Conduct of police constable - Tribunal finding of liability and award of damages - Appeal - whether 'service' - comparator - protected characteristic - judicial notice - causation - drawing of inferences - held error in that regard - assessment of damages for psychological harm - expert evidence. Appeal allowed. Anti-Discrimination Act 1977, ss 49ZYA, 49 ZYN. Legislation Cited: Anti-Discrimination Act 1977
Evidence Act 1995
Police Act 1990
Sex Discrimination Act 1984 (Cth)Cases Cited: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
Commissioner of Police v Estate of Russell [2001] NSWSC 745
Commissioner of Police v Mohamed [2009] NSWCA 432
Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191
Farah v Comr of Police of Metropolis [1998] QB 65 (CA)
Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261
Hall v Sheiban (1989) 20 FCR 217
Howe v NSW Farmers Association [2010] NSWADT 101
IW v City of Perth [1997] HCA 30; 191 CLR 1
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Richards v Commissioner of Police [2010] WASAT 115
Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] HCA 1978
Virgin Blue v Hooper [2007] QSC 75
Walker v State of New South Wales [2003] NSWADT 13
Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349
Whitfield v State of New South Wales (NSW Police Force) [2010] NSWADT 284
Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265Category: Principal judgment Parties: State of NSW (NSW Police Force) (Appellant)
Keith Whitfield (Respondent)Representation: Counsel
M Seck (Appellant)
N Poynder (Respondent)
Henry Davis York (Appellant)
Legal Aid NSW (Respondent)
File Number(s): 119056 Decision under appeal
- Jurisdiction:
- 9108
- Citation:
- Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265
- Date of Decision:
- 2011-11-15 00:00:00
- Before:
- Equal Opportunity Division
- File Number(s):
- 101068
REASONS FOR DECISION
This is an appeal against a decision of the Equal Opportunity Division of the Tribunal finding that a police officer engaged in unlawful discrimination and awarding the complainant damages of $10,000: Whitfield v State of NSW (NSW Police Force) [2011] NSWADT 265 (15 November 2011).
The appeal has as its background an event that occurred on the evening of Sunday 29 September 2008 at a retirement village in a country town. The police went to the village in response to complaints by some residents over the behaviour of another resident, Mr Whitfield. The upshot was that later that evening Mr Whitfield left the unit he had lived in for five years. He lived there in a share arrangement with the unit's lessee, Mrs 't Hart. At that time he was 85 years old and Mrs 't Hart was 86 years old.
A year later he made a complaint under the Anti-Discrimination Act 1977 (AD Act) to the President of the Anti-Discrimination Board, alleging that the police behaviour towards him on the night in question constituted discrimination in the provision of a service on the ground of age.
He contended that a police officer, Constable Lobb, visited the unit that night and peremptorily ordered him to pack his bags and get out. He complied with the demand because he felt he had no other choice given his age. Another resident came to his aid with overnight accommodation, and he ended up staying in her unit for a few weeks. He believed that Constable Lobb took advantage of his age in the way he was treated. Mr Whitfield's account of the events of the night has been disputed. His account was not consistent in several respects with the evidence given by Constable Lobb and other witnesses. Some aspects of Mr Whitfield's evidence were not accepted by the Tribunal.
The relevant provisions of the AD Act for this case are:
49ZYA What constitutes discrimination on the ground of age
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of age if, on the ground of the aggrieved person's age ..., the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group ... or
(2) For the purposes of subsection (1) (a), something is done on the ground of a person's age if it is done on the ground of the person's age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.
49ZYN Provision of goods and services
(1) It is unlawful for a person who provides ... services to discriminate against another person on the ground of age:
(a) by refusing to provide the other person with those ... services, or
(b) in the terms on which the other person is provided with those ... services.
Under s 4(1) 'services' includes: '(e) services provided by a council or public authority.' It is accepted that the Police Force is a public authority. It is sufficient that the discriminatory conduct be one of the reasons for the conduct in issue: s 4A. It need not be the sole reason or the main reason, but it needs, according to the case law, nonetheless to be a significant reason.
As noted by Brennan CJ and McHugh J in IW v City of Perth (1997) 191 CLR 1 at 15, 'legislatures have ... deliberately confined the application of anti-discrimination legislation to particular fields and particular activities within those fields'. The appellant has from the outset contended that the conduct in which Constable Lobb engaged did not involve a relationship of service as between him and Mr Whitfield within the meaning of the AD Act. If that is wrong, the appellant further contended that Constable Lobb did not deal with Mr Whitfield differently because of his age or a characteristic associated with age.
The President of the Board accepted the first of the appellant's submissions, found that the complaint lacked substance and referred it to the Tribunal. For such a complaint to proceed leave is required. The Tribunal gave leave: Whitfield v State of New South Wales (NSW Police Force) [2010] NSWADT 284 (30 November 2010). The Tribunal at the leave hearing recorded Mr Whitfield's complaint in this way:
27 ... Mr Whitfield said that his situation should be compared with a person aged, for example, in their 40s in the same circumstances. His submission was that a police officer would not have asked such a person to leave their own home. Mr Whitfield says that the police officer would not have had the confidence or courage to have ordered a younger man out of his home in the same circumstances. He said that the police officer took the action he did because he was confident that because of Mr Whitfield's frail appearance and age, he would not challenge the police officer's direction.
At the full hearing, the Tribunal found that Constable Lobb was engaged in the provision of a service to Mr Whitfield. It was satisfied that the circumstances satisfied either limb of s 49ZYN. They had involved a refusal of service, or, alternatively the provision of a service on terms, which in either case involved Mr Whitfield being treated less favourably than a person not of his age or age group, and did so by reference to a characteristic that appertains generally to persons of Mr Whitfield's age or age group.
The Appeal
An appeal may be made on a question of law, and, by leave, extended to the merits. The appellant's appeal itemises a number of alleged errors of law in the reasoning of the Tribunal, and applies for leave to extend the appeal to the merits.
The appeal challenged each step in the reasoning process of the Tribunal. We will deal with the appeal points in the sequence in which they arise in the reasoning process. It will be seen that we reject many of the points of appeal, however on the critical issue of causation we have upheld the appeal for the reasons that appear later in our decision. In our opinion, the Tribunal erred in the way it went about drawing an inference that the constable's conduct was done on the ground of age or a characteristic appertaining to age.
Whether and What 'Service' was provided to the Complainant
The Police Act 1990 (Police Act) s 6 deals with the 'mission and functions of the NSW Police Force'. Section 6(2)(a) states that the police force is 'to provide police services for New South Wales'. The term 'police services' is the subject of a non-exhaustive definition (s 6(3)):
police services includes:
(a) services by way of prevention and detection of crime, and
(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and
(c) the provision of essential services in emergencies, and
(d) any other service prescribed by the regulations.
Section 6(4) provides that a 'reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police'.
In its reasons the Tribunal referred to these provisions and picked up their terms in the way it formulated the service that it saw Constable Lobb as providing to the complainants and to Mr Whitfield as a person affected on the night in question.
The Tribunal began its consideration of the issue of what service was being provided by the constable, and the related matters of whether it was refused or offered on differential terms at [65]:
We accept that when Constable Lobb attended the unit in which Mr Whitfield and Mrs 't Hart were living, he did so to investigate a complaint about Mr Whitfield. In the course of investigating that complaint he was providing the services of "preventing and detecting crime" and "protecting persons from injury and death and property from damage".
At [67] the Tribunal found:
There is no point defining the service in broad terms if the allegation relates to a narrow situation. In this case, the alleged conduct is the insistence by Constable Lobb that Mr Whitfield move out of his home.
After reviewing the authorities, the Tribunal concluded at [85]-[86]
85 Services "by way of prevention and detection of crime" and "the protection of persons from injury or death, and property from damage" were actually provided to Mr Whitfield when he was told to leave his home. These are helpful or beneficial activities and Mr Whitfield was a potential beneficiary. This activity is not a purely governmental function such as charging, arresting or prosecuting a suspected criminal. It was not done pursuant to any power or duty that is entirely within the governmental sphere. It is sufficiently analogous to an activity that a private person may engage in to come within the definition of a service. For example, a security guard, counsellor or social worker may, without authority, make demands of a person which are akin to the demand that Constable Lobb made of Mr Whitfield.
86 We are satisfied that Constable Lobb was providing a service to Mr Whitfield within the meaning of that term in s 19 of the AD Act when he demanded that he move out.
'Errors' one to four of the notice of appeal challenge these reasons. (We will describe the points as grounds.) Ground 1 is that the Tribunal erred in determining that the appellant had an obligation to provide services to Mr Whitfield to prevent him from suffering injury or death, and that there was a refusal to provide those services. Ground 2 is that the Tribunal erred in concluding that the Commissioner provided services to Mr Whitfield by way of prevention of crime, contending that there was no such duty to Mr Whitfield and that there was no refusal to provide those services. Ground 3 raises a natural justice point, following on from the alleged error of law in finding a refusal of service. The Commissioner contends that the possibility of a finding of refusal of service was not canvassed at hearing by the Tribunal or by Mr Whitfield, and he was denied the opportunity to meet such a finding by submissions or relevant evidence. Ground 4 is that the Tribunal erred in finding that Mr Whitfield's complaint concerned the terms on which it was provided, as distinct from the 'manner' in which it was provided.
There is no definition in the AD Act of the terms 'service' or 'services'.
In general, the courts have called for a generous approach to be given to the meaning of 'services', mindful of the purpose and social goals of preventing unlawful discrimination in various aspects of community life: see, for example, IW v City of Perth per Brennan CJ, McHugh J at 11-12; per Dawson, Gaudron JJ at 22-23.
The complainant must specify the 'service' that is said to have given rise to unlawful discrimination. As is emphasised in Commissioner of Police v Mohamed [2009] NSWCA 432, a key step in proving a claim is specification of the service. The Tribunal's finding in that regard is one of fact, though a penumbra of law applies to any finding of fact including this one: see esp Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 at 404 per McHugh J, cited with approval by Basten JA in Mohamed at [34].
In Mohamed, Basten JA said at [35]:
It follows that there is no difficulty in identifying police services, for the purposes of s 19 of the Anti-Discrimination Act [we interpolate, here the equivalent provision is s 49ZYN], by reference to the services actually provided (or refused) to the complainant or those on whose behalf she complains. The aggrieved persons for that purpose may be one or more individuals or a section of the community.
In the case of public authorities established by statute, there is often a clause in the statute describing the functions and responsibilities of the authority, and sometimes those functions are cast in the language of provision of 'services'. The Police Force of New South Wales is an example. We have set out the meaning given to police services by the Police Act above.
On first impression, Constable Lobb was engaged in providing a service of the kind to which categories (a) and (b) of the definition in the Police Act s 6 refer in handling the neighbourhood dispute and seeking to effect a peaceful resolution. He went to the retirement village following complaints that Mr Whitfield had been behaving in a way that the complainants found offensive, and that there was concern for the welfare of Mrs 't Hart.
Not all activities of public authorities have been regarded as involving the provision of a service within the meaning of anti-discrimination provisions of the present type.
For example, a majority of the court held in IW v City of Perth that the planning authority's decision to refuse to grant a planning approval to a drop in centre for persons who were affected or infected with HIV did not involve the provision of service for the purposes of the Western Australian law (relevantly similar). They ruled that the council at that point was exercising a statutory power of determination.
Brennan CJ and McHugh J said at 16:
The fact that the public or a section of the public benefits from the operation of an activity or execution of a process of council does not necessarily mean that the council provides a service for the purpose of the Act.
Their Honours drew a distinction between the consideration of applications and the making of determinations. They regarded the giving of consideration to applications as involving a service, and therefore a person could complain if the service was refused. (To succeed they would then have to show that the refusal was based, at least in part, on a ground of unlawful discrimination.)
At the determination stage it was engaged in the performance of a public duty that required it to decide the matter by reference to relevant considerations. It was not rendering a 'service' to the applicant, and in deciding to refuse the application it was not 'refusing' a service to the applicant.
To similar effect, Dawson and Gaudron JJ at 24:
Once the service in issue is identified as the exercise of a discretion to grant or withhold planning approval, a case of refusal to provide that service is not established simply by showing that there was a refusal of planning approval.
They distinguished a situation where the decision might, for example, have a condition attached to it, which condition was unlawfully discriminated. They did not preclude from regulation by the Act conduct of this type.
In cases involving law enforcement authorities the same kind of distinction has often been drawn. See most recently for a review of the law, Mohamed, esp at [41]-[45] per Basten JA (Spigelman CJ agreeing); and Handley JA at [81]-[90].
It is not immediately apparent what specific 'service' Constable Lobb could in fact be said to be rendering to Mr Whitfield as an individual. In going to the retirement village the constable was performing the general service of responding to complaints alleging a possible breach of the peace, and exploring first options for resolution short of consideration of criminal charges or proceedings of a similar character (apprehended violence order applications).
Mr Whitfield's decision to move out provided the solution. The Tribunal accepted Mr Whitfield's evidence that he left unwillingly following a demand made by Constable Lobb. Constable Lobb conceded in cross-examination that he had no formal power to give an order, in effect, evicting someone from their residence. (The police case had been conducted on the basis that Constable Lobb requested co-operation, and that Mr Whitfield's exit had been brought about after discussions between Mrs 't Hart and the neighbour who took him in, Mrs Deans. The Tribunal did not accept this version of events, preferring Mr Whitfield's version on these matters.)
We have noted above the Tribunal's linking at para [65] of Constable Lobb's actions to categories (a) and (b) of the meaning of 'police services', and its conclusion at [67] that 'the alleged conduct is the insistence by Constable Lobb that Mr Whitfield move out of his home'.
Many of the cases note that the word 'service' has the connotation of an activity of a helpful or beneficial character. They also conceive of 'service' as being a kind of activity that a body or person in the private sector, not possessed of any official powers, might engage in.
The only case among the leading authorities where these features might be said to be missing is Commissioner of Police v Estate of Russell [2001] NSWSC 745 (Sully J). In that case, Sully J considered that the pursuit and the arrest involved services to the 'community at large'. But he differentiated the position after the detained person (an aboriginal) was placed in custody. Thereafter the police provided an individual service to the person, one of care (he died while in custody).
At [77] of its reasons, the Tribunal said:
77 Mr Seck [for the appellant] submitted that Constable Lobb was not providing a service to Mr Whitfield because services by way of preventing and detecting crime are not services to alleged perpetrators. The service is to the putative or actual victim of the crime. That proposition is not supported by the decision in Farah nor, despite Mr Seck's submission to the contrary, by the Supreme Court's decision in Commissioner of Police v Estate of Russell [2002] NSWCA 272.
While in Russell the individual came to police attention involuntarily, the position changed once the individual was placed in custody. At that the point the police and the individual were involved in a relationship of service. The police were obliged to care for the inmate in an appropriate way, and provide that care in a non-discriminatory manner, just as say a private sector institution, such as a hospital caring for a certified mental patient, would be obliged to provide services in a non-discriminatory way.
Farah v Comr of Police of Metropolis [1998] QB 65 (CA) is not a case of the same kind. The complainant, a Somali refugee to England, asked for police assistance after she had been attacked by a gang of white youths. The police did not investigate her allegation, instead they charged her, and then at court withdrew the prosecution offering no evidence. Hers was a voluntary relationship at inception. The Western Australian case is a broadly similar one, Richards v Commissioner of Police [2010] WASAT 115. There victims of assaults which had a racial aspect complained over the failure of police who had observed the assaults to intervene and come to their aid. Similarly, in the recent NSW case of Mohamed, the Muslim family in fear had asked for police assistance.
In our opinion, there is no decided case analogous to these circumstances.
The appellant argued that the Tribunal erred in holding that the appellant had an obligation to provide services to Mr Whitfield 'by not preventing him from suffering injury or death'. The Tribunal did not express its finding as to the service under notice in that way. It had regard to the statement of functions in the agency's legislation, but it did not formulate the service as broadly as preventing him from suffering injury or death. It depicted the service as the demand or direction that he move out. See [67].
We accept that the making of demands is not something that would be regarded as falling with the common conception of the delivery of a 'service'. We also acknowledge that the decided cases to which we have been referred do not have circumstances exactly analogous to the present.
The setting of the events under notice was an informal one in the sense that the constable was seeking to find a solution that did not involve the laying of charges. It was described in one of his reports as a neighbourhood dispute.
In these circumstances, we do not consider that a strict distinction should be drawn as between the people seeking assistance, the person said to be the cause of trouble, and others with an interest. In cases of this kind, in our view it is reasonable to regard all affected as recipients of services though the exact nature of the service rendered may vary between them.
Accordingly, we accept that it was open to the Tribunal to conclude as it did at [86] that Constable Lobb was engaged in the provision of a service, namely the demand that Mr Whitfield move out, that fell within the parameters of categories (a) and (b) of the meaning of 'police services' in the Police Act s 6(3). The characterisation of the service is a question of fact, and the Tribunal had a basis for its finding in that regard. Grounds 1 and 2.1 of the notice of appeal are rejected.
Refusal of Service or Provision of Service on Terms
Once a 'service' is identified, and its nature and scope specified, the next step is to ascertain whether there has been a refusal of the service or the provision of the service on different or unfavourable terms.
Ground 2.2 of the notice of appeal introduces the issue of whether it was open to the Tribunal to find a refusal of service. Ground 3 is related, the natural justice point. Ground 4 challenges the finding that the service was provided on unfavourable terms.
The Tribunal found:
90 We are satisfied that Constable Lobb refused to provide Mr Whitfield with the service of "protecting persons from injury and death" by insisting that he leave. His insistence that he do so, without authority, exposed Mr Whitfield to psychological injury.
91 In relation to paragraph (b) of s 49ZYN(1) the NSW Police Force submitted that they did not enter into a transaction with Mr Whitfield where terms would govern the provision of the service. No transaction of the kind envisaged is required in order for the actions of Constable Lobb to constitute the provision of a service on unfavourable terms. We are satisfied that even if Constable Lobb did not refuse to provide Mr Whitfield with the service of protecting persons from injury, he provided that service to Mr Whitfield on unfavourable terms by insisting that he move out.
The Tribunal specified the service as the demand that Mr Whitfield move out. The constable was seeking to take positive action. In our view, then to re-characterise his conduct in the way done at para [90] is an error. Once the service is specified as the demand to move out, it is a very strained interpretation to cast this conduct as a 'refusal of service'.
We have similar difficulties with the Tribunal's alternative approach of characterising the conduct as the provision of service 'on terms'. The service, as found, comprised the demand to move out. There are no 'terms' referred to in that characterisation, and the Tribunal in its reasons identifies no terms (express or implied). In our view, this is also an error.
The result is that neither a 'refusal' or provision of the service 'on terms' was established in the circumstances in respect of the service as specified by the Tribunal.
As Ground 3 (the procedural fairness ground) is a consequential one, there is no need to address it.
Comparator, Differential Treatment, Causation
The Tribunal said:
Differential treatment
94 In the same or similar circumstances, would Constable Lobb have treated a person of a different age or age group (or a person who did not have a characteristic of older people) more favourably than he treated Mr Whitfield?
95 Mr Whitfield was asked whether, if he had been 60 or 40 rather than 87 when the incident occurred, he would also have been upset. With respect that is not a relevant question. The question is not whether Mr Whitfield would have been just as upset regardless of his age but whether Constable Lobb would have made the same demands of a younger person.
96 When there is no actual comparator, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the NSW Police Force treated Mr Whitfield less favourably than a hypothetical person of a different age by determining that age was a reason for that different treatment: Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.
Causation
97 To substantiate his complaint, at least one of the reasons for Constable Lobb's conduct must be Mr Whitfield's age or the characteristic of being generally less physically able to offer resistance to a police officer and more likely to comply with the sort of direction given by Constable Lobb. We take judicial notice of the fact that this is a characteristic that generally appertains to elderly people. Constable Lobb gave relevant evidence about the way in which he would have treated a hypothetical comparator when he said that it is likely that he would meet resistance if he attempted to remove a person from their home without authority.
98 There is no need for Mr Whitfield to prove that the Constable Lobb intended to discriminate. Discrimination may not be conscious. The fact that the reason for the conduct is almost always within the respondent's knowledge makes it difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case.
99 There was no direct evidence of causation. Mr Whitfield must rely on the Tribunal drawing an inference from the facts that age (or a characteristic of age) was one of the reasons for the conduct. To draw an inference, there must be a probable connection between the conduct and Mr Whitfield's age (or the characteristic) and the inference must be logical. An inference cannot be made where more probable and innocent explanations are available on the evidence.
100 While there may have been other reasons for his actions, such as the requests from the Osbourne's, Mrs 't Hart's daughter and Mrs 't Hart herself, it is sufficient if one of the reasons for the conduct was Mr Whitfield's age: AD Act , s 4A.
101 We are satisfied that, in the same or similar circumstances, if Mr Whitfield had been a much younger person Constable Lobb would not have demanded that he move out. Constable Lobb agreed that if there had been no breach of the law, he has no power to force a resident to vacate their home. Despite lacking the authority to do so, Constable Lobb forced Mr Whitfield to move out. We are satisfied that he would not have made that demand to a younger person or to a person who was likely to be less compliant because his age. It follows that one of the reasons for the treatment was Mr Whitfield's age or a characteristic of old age.
Identifying the Complainant's Relevant Attributes
Ground 5 is that the Tribunal erred in not identifying Mr Whitfield's age or age group as the basis for his claim of direct age discrimination, and three questions are appended.
In our view, the reasons fairly read, are sufficiently clear on this point. Mr Whitfield is saying that he belongs to a very old part of the age cohort. He is saying that he is affected by conditions of physical and mental frailty that make him more susceptible not to question or resist the commands of persons in authority than younger persons who ordinarily have greater physical and mental strength. He says that the officer by his conduct exploited that difference.
This is a case about the treatment of very old people as measured by such yardsticks as the median age of the Australian community (36.9 years as at 10 June 2010, Australian Bureau of Statistics, Perhaps more relevant is the life expectancy data of males falling into Mr Whitfield's age cohort and born around 1920, which was for them just over 60 years as compared to around 77 for a male new-born today (Australian Bureau of Statistics, 4102.0 Australian Social Trends: Life Expectancy Trends - Australia, March 2011).
It is not necessary to descend to the detail of persons of a fixed age cohort (say 40-50) and make that the point of comparison, as the questions of law contend. It can, in our view, be more loosely constructed. To similar effect, see generally, Virgin Blue v Hooper [2007] QSC 75 at [200]; and Thompson v Big Bert Pty Ltd t/as Charles Hotel [2007] HCA 1978.
The Hypothetical Comparator
The Tribunal chose not to use an actual comparator. This is not unusual in cases of this kind. Ground 6 is that the Tribunal did not identify properly the characteristics of the hypothetical comparator. In our view it is plain from the reasons that the hypothetical comparator is simply a younger person not possessed of the frailties of extreme old age. Ground 6 as expressed is largely a reworking of the points raised under Ground 5.
The Comparison: Relevant Circumstances
Ground 7 asserts that the Tribunal erred in failing to take into account the relevant circumstances when undertaking the comparison.
The High Court (Gleeson CJ, Gummow, Hayne, Heydon, Callinan JJ; McHugh, Kirby JJ dissenting) in Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92 dealt with the way the comparison as to circumstances was to be constructed. In that case the majority held that the comparison was properly to be made between the person said to have suffered unlawful discrimination (a student with a disability who engaged in violence, where the violence was the function of the disability) and a person without the protected characteristic. For that purpose, the hypothetical comparator was a student without the disability.
The process of comparison does not exclude from the circumstances the conduct that was a consequence of, or manifestation of, the disability and gave rise to the administrative action the subject of complaint, exclusion from the school. So the comparison is to be made between a student with the disability who engages in violence towards other students and a student without the disability who engages in violence towards other students: see per Gleeson CJ at [11]-[12]; Gummow, Hayne and Heydon JJ at [223]-[225]; and Callinan J at [273].
Applied to this case, therefore, the comparison is between a person of old age who has been the subject of a complaint of offensive conduct by or on behalf of the person with whom he or she shares a residence; and a person belonging to a younger age group who has been the subject of a complaint of offensive conduct by or on behalf of a person with whom he or she shares a residence.
In our view, reading the reasons as a whole, and having regard particularly to [97]-[100], we consider that the Tribunal did invest the hypothetical comparator with the characteristics to which we have referred.
Ascertainment of Characteristics: Relying on Common Knowledge
The Tribunal went on to find as a fact that a person of Mr Whitfield's age would possess the characteristic of being generally less physically able to offer resistance to a police officer and more likely to comply with the sort of direction given by Constable Lobb. It did this without independent evidence, taking judicial notice of these matters. Ground 8 puts in issue the use of judicial notice.
The appellant submits that there is a complex relationship between age and conduct that cannot glibly be encapsulated in a general way. The submission noted that the evidence recited by the Tribunal as to what occurred on the occasion of the visit shows that Mr Whitfield was argumentative and initially he declined to respond to the 'requests' (to use the submission's word) made by Constable Lobb.
At common law judicial notice may be taken of 'facts, which a judge can be called upon to receive and to act upon either from his general knowledge of them, or from inquiries to be made by himself for his own information from sources to which it is proper for him to refer': Commonwealth Shipping Representative v P & O Branch Service [1923] AC 191, 212 (Sumner LJ). The Evidence Act 1995 reflects the same approach, replacing the term 'judicial notice' with the use of 'common knowledge', and provides:
144 Matters of common knowledge
(1) Proof is not required about knowledge that is not reasonably open to question and is:
(a) common knowledge in the locality in which the proceeding is being held or generally, or
(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.
(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.
(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.
(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.
The Tribunal is not strictly bound by the rules of evidence. The ADT Act, s 73(2) provides:
The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
In anti-discrimination proceedings, caution should be exercised in finding a fact by taking judicial notice especially when it is done under the first limb of Sumner LJ's formulation without any reference to an external reliable source (s 144(1)(a) of the Evidence Act) . See further, Walker v State of New South Wales [2003] NSWADT 13 at [44]-[46].
In this case the Tribunal found as a matter of general community knowledge that people of Mr Whitfield's age were possessed of two characteristics considered relevant to the case: they were 'generally less physically able to offer resistance to a police officer' and they were 'more likely to comply with the sort of direction given by Constable Lobb'.
We have noted in the course of our reasons that very aged people, as Mr Whitfield was, will possess physical and mental frailties that are not usual among younger people. We would accept that judicial notice could be taken of the fact that people with those attributes would be less physically able to offer resistance to a younger person especially one in authority such as a police officer.
The next part of the Tribunal's analysis makes a link between that factor and the likelihood or otherwise that an aged person would be 'more likely to comply' for the reason of physical disparity with a direction given by an authority figure such as a police officer.
Again we are inclined not to interfere with the Tribunal's finding, and accept that it was open to accept this characteristic as a matter of common knowledge. But as can be seen our view is guarded on this issue. We note that the panel included, apart from the presiding judicial member, two non-judicial members. All members are equal in respect of fact-finding. The two non-judicial members have had an extensive involvement in community affairs. They provide a jury element, unlike a single judge court.
While we do not think that the Tribunal erred in law in taking judicial notice of these matters, we think this course is normally better avoided in the making of findings of fact that go to a key element of a complaint.
Ground 9 raised the issue of whether it was open to the Tribunal to decide the case, as it was submitted it had, by reference to the characteristics appertaining to age, rather than on the basis of age itself. Early anti-discrimination laws nominated the protected attribute in simple terms, such as race, sex, marital status and the like. The laws were later extended (so as to avoid doubt) to protect actual or imputed characteristics appertaining to those attributes (as seen here). In our view, Ground 9 takes an unduly rigid view of the Tribunal's approach. It was open to treat the conduct as an instance of discrimination on the ground of age, or on the ground of a protected characteristic of age, actual or imputed.
Causation: The Drawing of Inferences
The complainant must establish, on the balance of probabilities, that the respondent's refusal to provide services or to discriminate in relation to the terms and conditions of services was 'on the ground' of age (or a characteristic associated with age). As noted by Kirby J in IW v City of Perth [1997] HCA 30; 191 CLR 1 at 63:
Because persons, faced with allegations of discrimination, genuinely or otherwise, assert multiple and complex reasons - and because affirmative proof of an unlawful reason is often difficult - the Act has simplified the task for the decision-maker. It is enough that it be shown that the doing of the act was "by reason" or "on the ground" of the particular matter in the sense that the unlawful consideration was included in the alleged discriminator's reasons or grounds. It must be a real "reason" or "ground". It is not enough to show that it was a trivial or insubstantial one. But once it is shown that the unlawful consideration truly played a causative part in the decision of the alleged discriminator, that is sufficient to attract a remedy under the Act.
Ground 10 raises the questions 'what are the proper principles for drawing inferences that unlawful discrimination has ocurred on a specific ground based on facts found by the Tribunal?' and 'did the Tribunal have an adequate basis to infer that the appellant would not have engaged in the alleged unlawful act in relation to a younger person or a person who was likely to be less compliant because of his or her age'.
The drawing of an inference without establishing a proper basis is an error of law: see, for example, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 364 per Mason CJ (Brennan J agreeing).
While the Tribunal is not bound strictly by the rules of evidence, it must at least have probative evidence. In our view the ordinary principles relating to the drawing of inferences should apply in the Tribunal. We understand the Tribunal below to be in agreement with that view: see para [100].
The relevant principles are detailed by the Tribunal (Pritchard JM, O'Sullivan NJM and Lowe NJM) in Howe v NSW Farmers Association [2010] NSWADT 101 at [90] ff, as follows:
The standard of proof and drawing of inferences in direct discrimination claims
90 In the instant case, there was no direct evidence of sex discrimination. That is, even if each of the events is found to have occurred as alleged by the applicant, there was no direct evidence that the treatment of the applicant was "on the ground of" her sex (as required by s 24(1)). No witness gave evidence to that effect. No document revealed that the applicant's sex was a ground for her treatment. Accordingly, any finding by the Tribunal of unlawful sex discrimination will necessarily involve the drawing of inferences. It is, of course, not unusual in a case of direct discrimination for the drawing of inferences to be required.
91 As the respondents submitted, the process for making findings in relation to claims under anti-discrimination legislation, including the applicable standard of proof and the drawing of inferences, is subject to well established principles. These can be summarised as follows.
92 First, the applicant bears the onus of proving each of the elements of direct sex discrimination under s 24(1)(a) of the AD Act (generally as those elements are set out in Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5): Sharma v Legal Aid (Qld) (2002) 115 IR 91 at [40]; Ferrus v Qantas Airways Ltd [2006] FCA 812 per Collier J at [48].
93 Second, each of those elements must be proved to the civil standard of proof in accordance with the principles identified in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2: see Employment Advocate v Williamson (2001) 111 FCR 20 at [65]; Qantas Airways Limited v Gama (2001) 167 FCR 537 at [128] per Branson J. In Briginshaw v Briginshaw Dixon J said at 361-362 as follows:
"Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
94 Third, the principles relevant to the drawing of inferences in discrimination cases were distilled in Sharma v Legal Aid (Qld) (2002) 115 IR 91 per Heerey, Mansfield and Hely JJ at [40] and more recently in Gama v Qantas Airways Limited (No 2) [2006] FMCA 1767 at [7]-[9]. These can be summarised as follows:
(a) individual pieces of evidence ought not be considered in isolation, but the cumulative effect of the circumstances is to be considered, provided each is established as fact: Sharma at [40];
(b) an inference may only be reasonably drawn upon the basis of facts which have been established by the applicant in evidence such that "it is more probable that it exists than that it does not": Gama (No 2), citing Jordan CJ in Carr v Baker (1936) 36 SR (NSW) 301 at 306-307, where his Honour observed as follows:
"There must be evidence affording ground for treating it as a matter existing as a matter of inference and not of conjecture. ...the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists; if they go no further than to show that it is possible that it may exist, then its existence does not go beyond mere conjecture. Conjecture may range from the barely possible to the quite possible. Inferences of probability may range from a faint probability -- a mere scintilla of probability such as would not warrant a finding in a civil action...to such practical certainty as would justify a conviction in a criminal prosecution."
(c) the decision in Carr v Baker was followed by the frequently cited decision of the High Court in Jones v Dunkel (1959) 101 CLR 298 where Kitto J said at 305:
"One does not pass from the realm of conjecture into the realm of inference until some fact is .found which positively suggests, that is to say provides a reason, special to the particular case under consideration, for thinking it likely that in that actual case a specific event happened or a specific state of affairs existed."
(d) for an inference to be drawn, it must follow from given premises as certainly or probably true: Nominal Defendants v Owens (1978-79) 22 ALR 128 at 130 citing Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at [264];
(e) no inference can be drawn from conflicting conjectures of equal degrees of probability where reasons of equal sufficiency or insufficiency exist for other explanations: Luxton v Vines (1952) 85 CLR 352; Greater Taree City Council v Craig Michael Peck [2002] NSWCA 331; Squillacioti v Roads & Traffic Authority of New South Wales & Anor [2002] NSWCA 133; and
(f) an adverse inference ought only to be drawn where there is sufficient evidence to reject alternative innocent explanations: State of Victoria v McKenna (1999) 140 IR 256 at [42]-[43].
The Tribunal below at para [99] alluded to these principles.
As noted by Street CJ in Gurnett v Macquarie Stevedoring Co Pty Ltd (1955) 72 WN (NSW) 261 at 264:
an inference is a reasonable conclusion drawn as a matter of strict logical deduction from known or assumed facts. It must be something which follows from given premises as certainly or probably true, and the mere possibility of truth is not sufficient to justify an inference to that effect.
In Purvis, for example, the trial tribunal did canvass explanations consistent with innocence. There the principal's case clearly was that he would have excluded from the school any student who engaged in the degree of violence that had occurred regardless of any disability that might explain that violence. The principal's case was that he would have acted in this way in order to maintain a satisfactory educational environment and in response to the State's duty to provide students with a safe environment.
As we understand the material, Constable Lobb's position was that he handled the dispute in, what he regarded, as a usual way.
The Tribunal does not, in its reasons, consider explanations consistent with innocence and explain why they were not accepted and the inference it chose to draw preferred. In our view, the Tribunal should have addressed the question of whether Constable Lobb would have made the same direction to a hypothetical younger person. The Tribunal refers to no evidence going to this point. It did say at [97]:
Constable Lobb gave relevant evidence about the way in which he would have treated a hypothetical comparator when he said that it is likely that he would meet resistance if he attempted to remove a person from their home without authority.
But this evidence does not refer to the separate, and decisive matter in the context of the case, of whether he would nevertheless have made the direction.
The Tribunal recites no 'known' or 'assumed' facts to justify the critical conclusion that Constable Lobb would not have made the direction to a younger person in the same or similar circumstances. At this point in its reasons, para [101], the Tribunal did not in any case link its conclusion to the evidence to which it referred at [97]; and it may therefore have not relied on it in any way in drawing the inference. But assuming that this was an ingredient in its thinking, together with Mr Whitfield's age and relative frailty as compared to a younger person, we do not consider these facts to be sufficient facts, mindful of the gravity of the allegation, to provide a basis for the drawing of the inference that 'he would not have made the demand to a younger person or to a person who was likely to be less compliant because of his age'.
In our view, it is at least likely that a constable dealing with an alleged domestic disturbance would have acted in the same way towards any class of occupant, that is he would have given a direction to leave - even though its prospects of success may have been less because of factors such as the relative youth of the occupant or the greater likelihood that he would be met with physical resistance.
The Tribunal did not exclude this, the more favourable inference, and provided its basis for doing so.
Constable Lobb was not asked what was his usual practice in resolving domestic disputes. He did agree that he had no power to 'throw a person out' of their accommodation without first arresting them or obtaining an apprehended violence order. But he said nothing about his usual practice in circumstances of a lesser kind. He did acknowledge that he had no experience of 'throwing a person out' of their accommodation in the absence of arrest or an apprehended violence order. (See transript 107:25 to 108:5.) It may be possible to infer from his evidence that it was usual practice not to force a person to leave their home in cases of a lesser kind. However, the position remained, in our opinion, unaddressed as to what he would have done in relation to a similar circumstance involving a younger person. In these circumstances, the negative inference should not have been drawn.
Assessment of Damages and Expert Evidence
At Grounds 11 and 12, the appellant makes three challenges to the Tribunal's reasoning in relation to the award of damages: (1) that the witness whose evidence the Tribunal relied upon, Barbara Schmidt, Mental Health Social Worker, did not have relevant expertise; (2) that her report did not satisfy the evidentiary standards applicable to the acceptance of expert evidence; (3) that a damages award, if justified at all, was excessive.
The Tribunal made its award under s 108(2) of the Act which provides:
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:
(a) ... order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct,
The Tribunal accepted Mr Whitfield's evidence as to his pain and distress because of what happened to him. It said at [103]:
103 Mr Whitfield says that he found Constable Lobb frightening and bullying and found the experience humiliating and distressing. Even up to a year afterwards people commented to him that he had been kicked out of his house. He found these remarks distressing. He says that he is now unable to go out at night and feels stressed, anxious and unsure of his safety. He said the experience radically affected his outlook on life and he often feels depressed. We accept that evidence.
It also accepted the evidence of his neighbour, Mrs Deans, that he had changed a lot since the incident: at [104].
As to Ms Schmidt's evidence, the Tribunal said:
105 Ms Schmidt gave evidence that she is a qualified mental health social worker and that she has been accredited to practise in that area. She confirmed that she is not a psychologist or a psychiatrist but is qualified to diagnose people with mental illnesses including post traumatic stress disorder (PTSD), depression and anxiety. She first saw Mr Whitfield in January 2011 at the request of his solicitor following a referral from the Veterans and Veterans Families Counselling Service (VVCS). She administered a test to ascertain the state of his mental health. That test revealed that he suffered from severe depression, moderate anxiety and severe general stress. Although she did not consider that he had suffered from PTSD, he exhibited symptoms consistent with that diagnosis including difficulty sleeping and intrusive flashbacks. She said he avoids going outside at night, has lost weight and has stopped swimming because of concerns about his weight loss.
106 Ms Schmidt confirmed that Mr Whitfield did not seek any assistance for his symptoms for approximately two and a half years after the incident. He was not taking any medication prior to the incident nor has he been prescribed medication following the incident. She confirmed that he reported that he was in "fairly good order", prior to the incident. She has now seen him for 15 sessions and he has reported that his sleep is improving.
107 When prompted, Ms Schmidt disclosed that it was not only the altercation with Constable Lobb that had led to his changed mood but that he was also disappointed that there had not been a happy ending with Mrs 't Hart.
108 Ms Schmidt's evidence was given in a professional and objective manner and we accept it.
Ms Schmidt's report is a one page document of about 500 words (Exhibit I before the Tribunal). She gave evidence by telephone, and was cross-examined. Mr Seck, counsel for the appellant, traversed these issues: her formal qualifications (they were not included in her report); the extent of her contact with Mr Whitfield (15 appointments since 24 January 2010, the hearing was held on 22-23 August 2010); whether her qualifications extended to diagnosis of depression, anxiety and post-traumatic stress disorder. There followed a number of questions from the members of the Tribunal. She referred in some detail to the scoring methods she had been trained in and used that to rate the level of depression and anxiety. She acknowledged that Mr Whitfield was not taking any medication for these conditions, and that she had first had contact with him over two years after the incident, and, so far as she was aware, he had not sought any help in the interim.
In closing submissions at hearing, the appellant questioned her qualifications to make diagnoses, and submitted that her evidence should be given limited weight in that regard.
In the appeal submissions, the appellant referred to the Makita principles in relation to the acceptance of expert evidence: Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 at [85] per Heydon JA:
85 In short, if evidence tendered as expert opinion evidence is to be admissible, it must be agreed or demonstrated that there is a field of "specialised knowledge"; there must be an identified aspect of that field in which the witness demonstrates that by reason of specified training, study or experience, the witness has become an expert; the opinion proffered must be "wholly or substantially based on the witness's expert knowledge"; so far as the opinion is based on facts "observed" by the expert, they must be identified and admissibly proved by the expert, and so far as the opinion is based on "assumed" or "accepted" facts, they must be identified and proved in some other way; it must be established that the facts on which the opinion is based form a proper foundation for it; and the opinion of an expert requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached: that is, the expert's evidence must explain how the field of "specialised knowledge" in which the witness is expert by reason of "training, study or experience", and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded. If all these matters are not made explicit, it is not possible to be sure whether the opinion is based wholly or substantially on the expert's specialised knowledge. If the court cannot be sure of that, the evidence is strictly speaking not admissible, and, so far as it is admissible, of diminished weight. And an attempt to make the basis of the opinion explicit may reveal that it is not based on specialised expert knowledge, but, to use Gleeson CJ's characterisation of the evidence in HG v R (1999) 197 CLR 414, on "a combination of speculation, inference, personal and second-hand views as to the credibility of the complainant, and a process of reasoning which went well beyond the field of expertise" (at [41]).
The case was not one attended by the rigour seen in many cases in the court system or some cases in this Tribunal where causation, remoteness and damage are central issues.
Ms Schmidt attached no curriculum vitae to her expert report. She held a provider number, and it would appear that the Tribunal accepted her qualifications as, in effect, a counsellor who had done a relevant course, and had skill in administering specialised tests that measured the disorders of depression, anxiety and post traumatic stress. It also accepted as we read its reasons her ability to undertake a diagnosis within the parameters of her qualifications. It is clear from the Tribunal's own questions that it appreciated she was not a medical practitioner, and that she had no role to play in relation to the prescribing of medications. In neither the written appeal submissions nor the oral submissions, did the appellant spell out in any detail how the various Makita principles were infringed.
In our view, it was open to the Tribunal in the circumstances to accept Ms Schmidt as having expertise sufficient to enable it to rely on her evidence in reaching the conclusion it reached as to psychological harm. It will be seen that in para [105] the Tribunal takes a narrow approach to the nature of Ms Schmidt's expertise. While we think other decision-makers may well have taken a different view of the acceptabililty of her qualifications and the weight to be given to her evidence, the Tribunal had material on which to base its conclusions, and they amount to findings of fact that do not give rise to an error of law.
As to the quantum, in the history of anti-discrimination law in Australia, it might be said that $10,000 is a high amount for non-economic loss if the comparison is made with the awards of twenty to thirty years ago. A cautious view should be taken, we think, of the observations in early anti-discrimination cases such as Hall v Sheiban (1989) 20 FCR 217, 256 uttered as they were only a few years after the law under notice in that case had come into force, the federal Sex Discrimination Act 1984 (Cth), after a long, acrimonious Parliamentary debate.
There is nothing unusual in general litigation about an award for non-economic loss of an amount in the order of $10,000. We see no justification for an approach which diminishes what might otherwise be appropriate awards in anti-discrimination cases by reference to notions of special constraint. In our view an award of this order cannot reasonably be regarded as so excessive as to warrant intervention on appeal.
Disposal of Case
We have found that the Tribunal erred in a critical way in raising an inference negative to Constable Lobb's conduct without exploring explanations consistent with innocence. Therefore we should enter an order setting aside the orders made by the Tribunal. The question then becomes what further steps should be taken.
The appellant gave several reasons, in addition to the error of law grounds, for having the matter re-heard. The Appeal Panel could itself extend the case to the merits. That step is problematic in cases where a good deal of witness evidence has been heard, and findings of fact have already been made as to a number of matters. That, therefore, raises the possibility of remittal to the Tribunal as previously constituted or differently constituted.
We are mindful of the age of key witnesses and the fact that Constable Lobb has left the police force. It may that the parties could explore some form of confidential resolution as a means of bringing this case to an end.
In our view, it is desirable that the Appeal Panel reconvene to hear the parties as to further orders.
Order
1. Appeal allowed.
2. Orders of Tribunal set aside.
3. Registrar to fix a date, in consultation with the parties, for the hearing of oral submissions as to what further orders for the disposal of the proceedings should be made.
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Decision last updated: 25 July 2012
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