State of Victoria v Schou

[2001] VSC 382

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 6377 of 2000

THE STATE OF VICTORIA	Plaintiff
v.
DEBORAH SCHOU	Defendant

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JUDGE:	HARPER, J.
WHERE HELD:	MELBOURNE
DATE OF RULING:	10 OCTOBER 2001
CASE MAY BE CITED AS:	THE STATE OF VICTORIA v. SCHOU
MEDIUM NEUTRAL CITATION:	[2001] VSC 382

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CATCHWORDS:      Administrative Tribunals – Matter to be remitted to VCAT for a limited rehearing – How tribunal should be re-constituted – Evidence to be presented to tribunal – Victorian Civil and Administrative Tribunal Act 1998, s.148(7).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. P.J. Hanks QC with Ms. M. Young	Victorian Government Solicitor
For the Defendant	Ms. R.M. Doyle	Holding Redlich

HIS HONOUR:

1. On 31 August 2001, I allowed an appeal in this matter from the Victorian Civil and Administrative Tribunal. In doing so, I remitted the proceeding to the Tribunal to be dealt with according to law. As a consequence, I am required by s.148(8) of the Victorian Civil and Administrative Tribunal Act 1998 to decide how the Tribunal "is to be constituted for the rehearing". It is also necessary, the parties being at odds over the issue, to decide pursuant to s.148(7) whether the rehearing should include the reception of further evidence.

1. I must exercise the powers given to me by these provisions so as to best assist the Tribunal to meet its own obligations under the Act.  In this case, the primary obligation of the Tribunal is to determine whether or not it is reasonable for the Department of Victorian Parliamentary Debates to require its sub-editors, of whom Ms. Deborah Schou was one, to attend Parliament House during parliamentary sessions.  Ms. Schou, who was the parent and carer of a recurrently sick child, wished to work from home for limited periods during those sessions.  It was part of her case that the Department agreed to install a modem in her house in order to give effect to the scheme.  Later, however, it reneged;  and the modem was never forthcoming.  This was the basis for her claim that it was unreasonable for the Department to deny her wish, and that she was therefore the victim of indirect discrimination.  I held that she might be correct, but only if the "attendance" requirement was itself unreasonable.

1. The centrality of this issue was not apparent to the Tribunal when the matter came before it at first instance.  Indeed, the Tribunal concentrated on the reasonableness (or otherwise) of Ms. Schou's request to work from home.  The Department now submits that proper consideration by the Tribunal of the real issue will best be advanced if the Tribunal were re-constituted and if, after such re-constitution, the issue were retried.  The Department accordingly proposes that the calling of fresh evidence be permitted.  The course thus advocated would be fairer, the submission continues, because the parties conducted the entire proceeding before the Tribunal on the basis that it was being recorded.  Through no fault of either party, however, the recording was destroyed.  The parties now put forward different versions of the evidence as presented to the Tribunal.

1. The destruction of the recording is undoubted.  Each other aspect of the Department's submission is resisted by the defendant.  She argues that no issues of credit were determined at first instance and that, on appeal, the Department did not criticise the Tribunal's "fairness of approach or attitude towards the parties":  see the defendant's written submission dated 1 October 2001, at paragraph 11.  The submission also points out, correctly, that I made no finding of bias;  to the contrary, neither party suggested during the hearing before me that the Tribunal had exhibited bias;  and I saw not the slightest indication of any such thing.  The issue, therefore, never arose. 

1. Ms. Schou is not in such a strong position when submitting that the "impugned findings of the Tribunal did not pertain to issues of credit":  written submission, paragraph 11.  In fact, the Tribunal did not believe the evidence, called on behalf of the Department, that it never abandoned the "modem" proposal.  The credit of those witnesses who gave this evidence was therefore found wanting.

1. This circumstance points to the desirability of a re-constituted tribunal determining the issue which I have remitted to it.  Further support for this conclusion is to be found in the advantage of having a fresh mind considering that issue;  a mind free from the inhibitors which necessarily intrude when someone is required to reconsider a point once taken by that person to be peripheral, but later decreed by someone else to go to the heart of the problem which the first person is asked to solve.

1. Because no transcript is available, the evidence given before the Tribunal has been recorded only in accounts compiled from notes and from memory the accuracy of which is subsequently verified by affidavit.  My experience is that such material constitutes a most unsatisfactory basis for findings of fact.  This is especially so when the accounts differ.  If the affidavits are used to refresh the memory of the adjudicator before whom the evidence was first called, that adjudicator when attempting to reconstruct the evidentiary picture will inevitably be required to marry independent recollection with that which has as its source the memory of third parties as thus recorded.  The resultant distractions are very difficult to avoid.  On the other hand, a re-constituted tribunal, if limited to this material, would find it difficult if not impossible to appreciate the flavour of the evidence when first called;  difficult to view portions of it against the general matrix of facts;  and difficult to ascertain its veracity when competing evidence is also led.

1. As against this, the calling of fresh evidence before a re-constituted tribunal will involve additional expense and additional time.  I appreciate this, but think that the additional cost is worth the additional benefit.  The issue with which the Tribunal is now confronted will not be easy to resolve.  While anti-discrimination legislation should be liberally construed, the task of a court or tribunal in applying the legislation to the particular facts of the case will often create its own problems.  One – but only one – of these is that the adjudicator must approach the endeavour with a diffidence which is grounded in the likely lack of expertise of that adjudicator in relevant areas – such as the administration of a Department of State the purpose of which is to ensure fair, accurate, but edited, reports of parliamentary proceedings.

1. Given the hazards inherent in the task which the Tribunal must undertake, and given the importance of its findings, it seems to me that the Tribunal should be afforded the benefit of such fresh evidence as the parties think is necessary to enable the Tribunal properly to determine the relevant issue.  At the same time, the Tribunal itself will doubtless wish to have some control over the extent to which additional evidence should be called.  The Tribunal will have the benefit of the affidavit material and the exhibits thereto.  Having read that material, it might well be possible for a mutually satisfactory accommodation – satisfactory, that is, to the parties and the Tribunal - to be reached on the scope of any fresh evidence.  Failing such accommodation, the parties should, I think, be permitted to call such fresh evidence as is relevant and is capable of giving substance to the written accounts upon which the parties will rely.

1. For these reasons, I direct:

(1)that the Tribunal be re-constituted for the hearing at which the reasonableness of the "attendance" requirement will be determined;

(2)that, subject to further order of the Tribunal, the Tribunal have placed before it the affidavit material, placed before me, going to the evidence called at the original hearing;  and

(3)that the parties be permitted to call such further evidence as is relevant and as supplements that affidavit material.

1. It does not seem to me that witness statements – by which the evidence in chief of a witness is reduced to writing – are warranted.  It may be, however, that the Tribunal takes the opposite view.  Alternatively, the Tribunal might direct that a summary of each witness' evidence be furnished by each party to the other.  Or the Tribunal might consider that other procedural steps are appropriate.  Matters of this kind should, I think, be left to the Tribunal;  but I will reserve to each party liberty to apply generally in relation to the directions set out in paragraph [10] above.

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