The Corporation of the Synod of the Diocese of Brisbane v Smith
[2013] QCATA 254
•20 September 2013
| CITATION: | The Corporation of the Synod of the Diocese of Brisbane v Smith [2013] QCATA 254 |
| PARTIES: | The Corporation of the Synod of the Diocese of Brisbane Archbishop Phillip Aspinall Bishop Geoff Smith (Applicants/Appellants) |
| v | |
| Ms Peta Smith (Respondent) |
| APPLICATION NUMBER: | APL133-13 |
| MATTER TYPE: | Appeals |
| HEARING DATE: | 30 August 2013 |
| HEARD AT: | Brisbane |
| DECISION OF: | Hon J B Thomas, Judicial Member |
| DELIVERED ON: | 20 September 2013 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. Leave to appeal is granted. 2. The appeal is dismissed. 3. The Tribunal's order of 14 March 2013 in application ADL 036-11 dismissing the application of The Corporation of the Synod of the Diocese of Brisbane, Archbishop Phillip Aspinall and Bishop Geoff Smith, is confirmed. |
| CATCHWORDS: | APPEAL – ANTI-DISCRIMINATION – where complaint named numerous employees of corporate applicant as involved in discriminatory acts – where complaint ranging over period greater than 12 months before complaint made – where "acceptance" by Commissioner of "in time" complaints against three named applicants – where request for submissions why Commissioner should accept the "out of time" part of the complaint – eventual purported acceptance (as against the three named applicants) of all complaints both "in time' and "out of time" – whether implied rejection of complaints other than the accepted "in time" complaints against the three applicants – Commissioner's statutory obligations between receipt of complaint and referral of accepted complaint to QCAT –whether vicarious liability of employer excluded in relation to acts of the named non-parties – whether Commissioner's "summary of allegations" attached to letter formally accepting complaints limited the issues Anti-Discrimination Act 1991 (Qld), s 134, s 136, s 138, s 139, s 141, s 143, s 165, s 166, s 168, s 172 State of Queensland v Walters [2007] 2 Qd R 451, cited |
APPEARANCES and REPRESENTATION (if any):
| APPLICANTS: | G W Diehm QC instructed by HBM Lawyers |
| RESPONDENT: | M Healy of counsel instructed by Honeychurch Workplace Lawyers |
REASONS FOR DECISION
This is an application for leave to appeal, and, if leave is granted, to appeal from an interlocutory decision of a QCAT Tribunal.
The litigation involves a claim by Ms Peta Smith, a former employee of the Corporation of the Synod of the Diocese of Brisbane, alleging sexual harassment and/or discrimination by the corporation and by Archbishop Aspinall and Bishop Smith. The claim is brought under the Anti-Discrimination Act 1991 (Qld) ("the AD Act").
Ms Smith (who is the applicant in the primary proceeding but the respondent in this appeal) will be referred to as “the claimant”. The three appellants (who are referred to in the primary proceedings as “respondents”) will be collectively referred to as “the defendants”, and individually as “the Corporation”, “Archbishop Aspinall” and “Bishop Smith”.
The decision in question was a refusal to strike out certain allegations in the claimant's statement of contentions and corresponding supporting statements in the statement of evidence.
Such a decision is non-final and requires leave to appeal.[1]
[1] Queensland Civil and Administrative Tribunal Act 2009 s 142(3)(a)(ii) (“QCAT Act”).
The application to strike out
The defendants sought to have certain allegations in the claimants amended statement of contentions and statement of evidence struck out in relation to:
(a)The actions of 9 people not named as respondents (“the non parties”);
(b)Discrimination and/or harassment by Archbishop Aspinall and Bishop Smith;
(c)Victimisation by Archbishop Aspinall prior to 20 February 2008;
(d)Victimisation by Bishop Smith prior to June/July 2008;
(e)Discrimination and/or harassment by the Synod, other than on the basis of vicarious liability for the conduct of unnamed persons who allegedly initiated or transmitted a rumour that the claimant was involved in a lesbian relationship with a colleague;
(f)Victimisation by the Synod, other than for the non renewal of the claimant’s contract of employment following her alleged complaints of discrimination, and on the basis of vicarious liability for the alleged victimisation by Archbishop Aspinall and Bishop Smith.
Under s 138 of the AD Act a person is only entitled to make a complaint within 1 year of an alleged contravention, but the Commissioner has a discretion to accept the complaint after the expiry of one year if the complainant “shows good cause”.
Many persons are mentioned by name in the somewhat rambling “amended notice of contention” upon which the claimant relies. It is common ground that it contains some allegations of conduct within the relevant 12 month period and other allegations of conduct occurring before that period. These respective allegations were referred to by the learned Member as the “in time allegations” and the “out of time allegations”.
The learned member found that all of the “in time” allegations were accepted by the Commissioner on 12 June 2009, and that the “out of time” allegations were accepted on 6 April 2010. This latter acceptance included all allegations against all persons identified in the amended statement of contentions and statement of evidence, on the basis that the Corporation was allegedly vicariously liable for those persons' acts. She also rejected the defendants' submissions that the Commissioner's "summary of allegations" attached to its letter of 5 July 2010[2] defined all the issues that had been accepted by the Commissioner.
[2] Exhibit 4L.
In the result the learned Member declined to strike out any allegations in any documents.
Leave to appeal
The relevant exercise involved analysis of extensive correspondence between the solicitors for the respective parties and the Commissioner over a 2 year period. Interpretation and characterisation of various decisions made by the Commission under Division 1, Part 1, Chapter 7 of the AD Act was necessary.
Counsel for the appellant defendants, Mr G Diehm QC, submitted that a number of errors appeared in the learned Member’s interpretation of the written material, including that:
(a)The Member stated in para 11 of her reasons:
“I think it would be fair to say that Ms Smith has not made a complaint “against” these persons as such – they are not named respondents. Rather, Ms Smith has made a complaint against the Synod, the employer of these men, and she has merely provided particulars about the conduct she alleges they have engaged in for which the Synod may be vicariously liable.”
and
(b)The Member stated in para 4 of her reasons:
“The “in time” allegations contained in Ms Smith’s complaint were accepted on 12 June 2009, and the “out of time” allegations were accepted on 6 April 2010.”
With reference to the submission referred to in para 12(a) above, the persons to whom the learned member was referring were Messrs Turner, Nolan, Tutin, Read, Knox, Hunter and McLarry. The original complaint that was dealt with by the Commissioner explicitly included in part B thereof Messrs Turner, Nolan, Tutin and Read as actual respondents, along with the Corporation, Archbishop Aspinall and Bishop Smith.[3] It was erroneous to say that Messrs Turner, Nolan, Tutin and Read were not named respondents. This misunderstanding was on a point that was a relevant consideration in the overall interpretation of the Commissioner's decisions.
[3] Exhibit 4A, Part B.
With reference to the submission in para 12(b) above, there is no evidence that the “in time” allegations were accepted on 12 June 2009. The only document of that date is a letter from the claimant's solicitors to the Commissioner supplying further particulars of the complaint. Under the AD Act, "acceptance" by the Commissioner needs to be duly notified to the parties in accordance with the mandatory requirements of the Act. It is now common ground on this appeal that the claimant was notified by the Commissioner of its acceptance of the “in time” allegations by a letter dated 14 August 2009,[4] and that the defendants were then informally advised of this by the claimant's solicitors. The Commissioner then sought submissions from the parties concerning whether the out of time complaints ought to be accepted, and much later (6 April 2010) notified the claimant's solicitors of its decision under s 138 to accept the "out of time" complaints. Apparently the solicitors for the defendants were provided with a courtesy copy of that letter. However the defendants were not formally and appropriately notified in accordance with s 143 of either the “in time” or "out of time" acceptances by the Commissioner until 5 July 2010[5], when the Commissioner notified both the solicitors for the claimant and the solicitors for the defendants of its decisions in accordance with that section.
[4] Appeal exhibit A, and cf Exhibit 4H.
[5] Appeal exhibit D.
I do not propose to discuss further points that were argued on the question of grant of leave to appeal. It is enough to say that a number of material misconceptions have been shown in relation to the relevant documents, and that sufficient error is shown to justify the grant of leave to appeal. A fresh examination should be made of the material as a whole.
Main points of appeal
It will be sufficient to deal with the main points argued on the appeal.
Mr Diehm QC's main point is that the documents as a whole, and in particular the original complaint, exhibits 4H, 4I, 4K, and exhibits A and C, tendered by consent on this appeal, show that the acceptance of the "in time" complaints impliedly rejected the allegations that were made against the named persons other than the defendants.
It is common ground that some of the complaints in relation to conduct of the named persons other than the defendants were alleged to have occurred within the 12 months preceding the complaint, and that other complaints against those persons were in relation to the out of time period.
It was submitted that the belated acceptance of the out of time complaints (exhibit 4K) was only an acceptance in relation to the 3 defendants, and was an implied rejection of all the others.
In order to deal with these submissions. It is necessary to identify the statutory process by which an anti-discrimination complaint is made by a complainant, "accepted" by the Commissioner, and ultimately referred to QCAT for determination.
A complaint in writing may be made about a contravention of the AD Act (ss 134, 136). The Commissioner is initially required to reject complaints that are frivolous, trivial, vexatious, misconceived or lacking in substance (ss 139, 168).
A person is only entitled to make a complaint within one year of the alleged contravention, but the Commissioner has a discretion to accept it after the expiry of that time "if the complainant shows good cause" (s 138).
The Commissioner "must decide whether to accept or reject a complaint within 28 days of receiving the complaint" and must "promptly notify the complainant of the decision" (s 141).
The Commissioner must also "promptly" notify the respondent if a complaint is accepted, and must also state the complainant's address for service, and further state that the respondent must advise an address for service, and may give a written response to the allegations (s 143).
A process of conciliation is then provided for. If it fails, the complainant may require the Commissioner to refer the complaint to QCAT (s 166).
The Commissioner has the power to extend the time limits prescribed in this part of the Act "if the Commissioner is of the reasonable opinion that the extension will not cause undue hardship to any party, and there are reasonable grounds for granting the extension"(s 172).
Claims for findings of contravention and for compensation are statutory causes of action. Unless there is due compliance by the Commissioner with mandatory requirements, a referral of the complaint to QCAT may be invalid. In the present case there is no specific evidence that the Commissioner exercised the power to extend the necessary time limits for notification of acceptance to the defendants. But no challenge is made to the validity of the Commissioner's acceptance based on the ground of exceeding time limits. Indeed, the defendants’ solicitors were kept notified at all material times of what was happening, and the defendants have specifically conceded that the acceptance of the "in time" claim was consistent with the Commissioner's obligations under s 141(1).
Against this background, I turn to Mr Diehm's submissions that the Commissioner impliedly rejected a substantial portion of the original complaint.
Reference was made to State of Queensland v Walters[6]. In that case, Douglas J recognised that piecemeal acceptance by the commission of multiple complaints may be made, and that it is a question of fact in each case whether any of the complaints are rejected. It also shows that a decision by the Commissioner that a complaint fails to set out sufficient details to substantiate a complaint is not necessarily a rejection of it, especially if the Commissioner indicates that she is willing to consider further evidence so that she can properly perform her functions under s 139.
[6] [2007] 2 Qd R 451.
That case exemplifies the function that a Court or tribunal may need to perform in determining whether a complaint has been accepted or rejected, and recognises that rejection may be implied, but it does not advance Mr Diehm's submissions either in principle or by example.
In the present case the Commissioner notified her acceptance of some complaints in her letter of 14 August 2009. The letter did not clearly dissect the complaint into parties, allegations, and times. It did, however, draw a distinction between in time and out of time allegations and it limited its acceptance of complaints up to that stage to those against the Corporation, Archbishop Aspinall and Bishop Smith. The accepted complaints at that stage were "the allegations of sexual harassment and victimisation against the above-named respondents which occurred within year before the complaint was made", and "the above-named respondents" were limited to the Corporation, Archbishop Aspinall and Bishop Smith.
The letter continued "Please provide within 14 days written submissions about why the Commissioner should accept the out-of-time part of your client's complaint". It clearly deferred "the decision whether to accept the out of time part of the complaint" until after submissions had been received from both parties.
In the present case, where the non-parties allegedly contributed to contraventions both in -time and out-of-time, even if there was an implied rejection of the in-time complaints against the non-parties, it is impossible to see how it was also a rejection of the out-of-time complaints against them, especially when it was made clear that the Commissioner wanted submissions on the general question of "whether I should exercise my discretion to accept that part of the complaint that falls outside the statutory time limit"[7], and deferred any decision on the remainder while the parties made submissions about acceptance or rejection of others.
[7] Exhibit 4K.
Mere acceptance of some parts of a complaint and deferral of the remainder would in the ordinary course connote neither acceptance nor rejection concerning the remainder. Both options (acceptance or rejection) would remain open to the Commissioner.
Mr Diehm further submitted that if the facts show that there was no deferral intended with respect to such complaints, there would be implicit rejection of them. On that basis the question would be whether the documents show that no deferral was intended. I do not find these formulations particularly helpful. The true issue is whether the Commissioner impliedly rejected the various complaints identified by counsel when she expressly accepted the complaints against the named three defendants and deferred further decision until the parties had made submissions on whether time should be extended for the out of time complaints.
Certainly there was no express reservation of complaints against individual named persons when the question of acceptance of the out of time complaints was considered. As I read the documents, the Commission treated the matter in globo, that is to say it accepted the in time complaints against the three defendants whom it named, and reserved everything else for further consideration. It proceeded to give the parties the opportunity of making submissions as to whether there was “good cause” for accepting the "out of time" complaints. As earlier noted, some of those complaints were against named persons other than the defendants.
I can find no examples in the documents of language that demonstrates any intention to reject the allegations against the other named persons, and exempt the corporation from vicarious liability in respect of their acts.
It is true that the relevant correspondence displays a lack of precision on the part of the Commissioner in isolating relevant complaints, and some ambiguity as to the extent of the acceptance of the complaints. However the present exercise requires the defendants to show an implied rejection, and the very ambiguity of the Commissioner's language increases the difficulty of doing so.
In my view, reading the complaint and the correspondence as a whole there was no implied rejection by the Commissioner of the allegations which the defendants seek to have struck out.
It was further submitted that no basis exists for the claim that the Corporation can be held vicariously liable for the acts of the non-parties.
This submission is premised on the implied rejection by the Commissioner of the allegations against the non-parties. In my view that premise is incorrect.
On this point I agree with the reasoning of the learned Member. I also accept the submission of Mr Healy, counsel for the claimant, that the designation of the three named respondents did not imply rejection of the allegations made against other persons for whose acts the Corporation was vicariously liable. Such liability is expressly contemplated by ss 132 and 133 of the AD Act.
There is no basis for striking out the allegations that could support a claim for vicarious liability.
It was further contended on behalf of the defendants that the "summary of allegations" given by the Commissioner to the parties under cover of the Commissioner's letters of 5 July 2010[8] represents the ultimate decision of the Commissioner of what has been accepted and referred to QCAT. This would very substantially limit the complaints. The "summary" focuses only upon a few specific allegations against the three named defendants, and differentiates between "sexual harassment" and "victimisation" contraventions.
[8] Ex 4L, Ex D on Appeal.
The view of the learned member was that the Commissioner's letter (Ex 4L) with the attached summary was essentially an attempt to help the parties to understand the complaints,[9] and that it did not define the limits of the complaints that it accepted.
[9]Smith v Corporation of the Synod of the Diocese of Brisbane & Ors [2013] QCAT 117 at [9].
The strongest contrary argument on behalf of the defendants is that the letters to the parties of 5 July 2010 were intended by the Commission to be the means by which it satisfied the statutory requirements of s 143 of the AD Act. This was a very late compliance with that section, as s141 required the Commissioner to decide whether to accept or reject a complaint within 28 days of receiving it, and there was an obligation to “promptly” notify the complainant of the decision (s 141(2)) and to notify the respondent of the substance of the complaint (s 143(1)). However s 172 gives the Commissioner the power to extend time limits in certain circumstances, and it was not contended that the Commissioner did not have the power to deal with the matter at that later time or that it did not do so. The letters of 5 July 2010 comply with the formalities required by s 143(2), so it is correct to say that this was a formal intimation of the Commissioner's decision.
It was contended on behalf of the defendants that these letters were the expression of how the Commissioner regarded the claims, and of what was accepted under that section. The operative words in the letter to the claimant concerning the attachment were:
“To assist you to understand the complaint, I have attached a “summary of allegations” which indicates the basis of the decision to accept the complaint. The decision to accept the complaint does not indicate the complaint has merit…”
In my view these letters and the attached summaries represent a clumsy attempt by the Commissioner to help the parties understand the complaint, and that the status of the attached “summary of allegations” is primarily governed by the words “to assist you to understand the complaint”. Those words connote a degree of informality and a purpose beyond the actual formulation of a decision. It is significant that the earlier statement in that letter (“As you know, we have accepted this complaint including those allegations lodged outside the one year time limit”) is unqualified, and is inconsistent with the result contended for by the defendants.
Reading the document as a whole I do not think that it amounts to a decision to the effect that anything outside the summary of allegations was rejected.
Conclusions and orders
It is unnecessary to deal with other points raised on the appeal, including the powers of QCAT to strike out allegations in pleadings and supporting statements. Counsel for the defendants did not press the appeal in relation to the refusal of the learned Member to give further directions. In this context, it is noted that any necessary further directions can be given by any member of QCAT, including the member to whom the hearing is assigned.
In view of the rather unsatisfactory nature of the Notice of Contentions, including the lack of identification of particular occasions of alleged misconduct which might enable the defendants to search for and obtain contradictory evidence, there is obviously considerable room for further narrowing of issues by prehearing procedure.
I am also prepared to say that the lack of precision and failure to identify occasions of alleged misconduct in the allegations as they presently stand may place the defendants at undue disadvantage, and leave open an eventual exercise by the member who hears the case of QCAT's power under s175 of the AD Act to decline to deal with some or all of the out of time complaints, if on the balance of fairness between the parties it would not be reasonable to do so. Such a question could be reserved, if thought appropriate, until the conclusion of the evidence. In short, there remains room for the exercise of further procedural powers in this matter.
It will be ordered that:
1.Leave to appeal is granted.
2.The appeal is dismissed.
3.The Tribunal's order of 14 March 2013 in application ADL036-11 dismissing the application of The Corporation of the Synod of the Diocese of Brisbane, Archbishop Phillip Aspinall and Bishop Geoff Smith, is confirmed.
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