Thompson v Nissan Motor Co (Australia) Ltd
[1999] FCA 953
•15 JULY 1999
FEDERAL COURT OF AUSTRALIA
Thompson v Nissan Motor Co (Australia) Ltd [1999] FCA 953
ADMINISTRATIVE LAW - an appeal from a successful strike-out motion, that no reasonable grounds of review existed from the Human Rights and Equal Opportunities Commission decision - Discussion that application for review under the Administrative Decisions (Judicial Review) Act 1977 does not engage in merits review - whether any reviewable grounds were available - the difference, if any, amended grounds of review would have made.
PRACTICE AND PROCEDURE - consideration of the nature of a Full Court appeal - discussion of the discretion to allow an amendment to the pleadings.
Administrative Decisions (Judicial Review) Act 1977 (Cth)
Sex Discrimination Act1984 (Cth) ss 28, 14(2), 81(1)
Federal Court of Australia Act 1976 (Cth) s 24Petreski v Cargill (1987) 18 FCR 68 applied
Magarditch v Australia & New Zealand Banking Group Ltd [1999] FCA 806 appliedTRACEY LEE THOMPSON v NISSAN MOTOR COMPANY (AUSTRALIA) LTD
WAG 54 of 1998
SPENDER, COOPER and R D NICHOLSON JJ
15 JULY 1999
BRISBANE (heard in PERTH)
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 54 OF 1998
On appeal from a judge of the Federal Court of Australia
BETWEEN:
TRACEY LEE THOMPSON
AppellantAND:
NISSAN MOTOR COMPANY (AUSTRALIA) LTD
RespondentJUDGES:
SPENDER, COOPER and R D NICHOLSON JJ
DATE OF ORDER:
15 JULY 1999
WHERE MADE:
BRISBANE (heard in PERTH)
THE COURT ORDERS THAT:
1.The appeal be dismissed.
2.The appellant pay the respondent’s costs of and incidental to the appeal to be taxed if not agreed.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 54 OF 1998
On appeal from a judge of the Federal Court of Australia
BETWEEN:
TRACEY LEE THOMPSON
AppellantAND:
NISSAN MOTOR COMPANY (AUSTRALIA) LTD
Respondent
JUDGES:
SPENDER, COOPER and R D NICHOLSON JJ
DATE:
15 JULY 1999
PLACE:
BRISBANE (heard in PERTH)
REASONS FOR JUDGMENT
THE COURT:
This is an appeal from the judgment of a single judge of this Court (French J) who on 9 April 1998 dismissed the appellant’s application seeking a review under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (the ADJR Act). Nissan Motor Company (Australia) Ltd (‘Nissan’) had moved by notice of motion filed 5 March 1998 to strike out an amended application for an order of review by Tracey Lee Thompson in respect of a decision of the Human Rights and Equal Opportunities Commission (‘HREOC’) on 18 December 1997. The Commission had dismissed her complaint that she had been subject to unlawful sexual harassment and discrimination contrary to ss 28 and 14(2) of the Sex Discrimination Act1984 (‘the Act’).
The notice of appeal filed on 30 April 1998 is an unusual document. It identifies the grounds on which the appeal was based as follows:
“…
GROUNDS:
2.The learned Judge erred in law in failing to grant the Appellant an opportunity to submit re-drafted Grounds for Review.
PARTICULARS
The Appellant seeks leave to re-amend her Amended Application for an Order of Review (“the Amended Application”) in terms of the Minute of Re-amended Application for an Order for Review annexed to this Notice of Appeal (the “Minute annexed hereto”).
3.The learned Judge erred in law in holding that each of the Grounds of Review sought an impermissible review of the merits of the findings of fact made by the Commission in that:
(a) Paragraph 3 of the Amended Application raised errors of law, particulars of which are provided in Paragraph 3 of the Minute annexed hereto. Further, or alternatively, Paragraph 3 of the Amended Application concerned:
(i)a breach of natural justice which occurred in connection with the making of the relevant decision, particulars of which appear in Paragraph 4 of the Minute annexed hereto;
(ii)a complaint that there was no evidence or other material to justify the making of the relevant decision by the Commission, particulars of which appear in Paragraph 5 of the Minute annexed hereto;
(iii)an improper exercise of the power conferred by the Commission by the Sex Discrimination Act 1984 (CTH) (“the Act”), particulars of which appear in Paragraph 6 of the Minute annexed hereto.
(b) Paragraph 4 of the Amended Application concerned a finding which involved errors of law, particulars of which appear in Paragraph 7 of the Minute annexed hereto. Further or alternatively, Paragraph 4 of the Amended Application concerned:
(i)a breach of natural justice which occurred in connection with the making of the relevant decision, particulars of which appear in Paragraph 8 of the Minute annexed hereto;
(ii)a complaint that there was no evidence or other material to justify the making of the relevant decision, particulars of which appear in Paragraph 9 of the Minute annexed hereto;
(iii)an improper exercise of the power conferred on the Commission by the Act, particulars of which appear in Paragraph 10 of the Minute annexed hereto.
(c) Paragraph 5 of the Amended Application concerned a finding which involved errors of law, particulars of which appear in Paragraph 11 of the Minute annexed hereto. Further or alternatively, Paragraph 5 concerned an improper exercise of the power conferred on the Commission by the Act, particulars of which appear in Paragraph 12 of the Minute annexed hereto.
The “Particulars” of the error in Ground 2, of course, are not particulars at all.
The Minute of Proposed Re-amended Application for an Order of Review is a thirty-two page document which abandons, by deletion, the grounds of the application for review contained in the Amended Application for review considered by French J. It then asserts in paragraphs and sub-paragraphs from paragraphs 3 to 13, numerous errors by the Commission in its consideration of the appellant’s claim before it. The nature of appellant’s appeal, particularly in the light of the Notice of Appeal filed 30 April 1998 appears from the appellant’s written submissions. Counsel for the appellant submitted:
“The discretion exercised by French J to refuse the appellant leave to amend her application for review miscarried if, as the appellant contends, there are arguable grounds of review disclosed in the minute of proposed re-amended application. Further, if leave to amend is granted on that basis this honourable court should adjudicate on the substantive issue of whether the decision of the Commission should be quashed or set aside on the grounds pleaded in the amended application.”
Concerning the Minute of Proposed Re-amended Application, it was submitted:
“The minute of proposed re-amended application contains fresh grounds of review, only some of which were argued before French J. The appellant would suffer obvious and substantial injustice if there are arguable grounds for review but she is denied leave to amend to raise those grounds. Consequently, whether the appeal from the decision of French J should be allowed and the appellant should be permitted to amend her grounds of review is to be determined according to whether the appellant can demonstrate that there are arguable grounds for review and that she is not merely mounting an impermissible challenge to the merits of the Commission’s decision.”
This approach evidences a fundamental misunderstanding of the nature of an appeal pursuant to s 24 of the Federal Court of Australia Act 1976 (Cth).
In Petreski v Cargill (1987) 18 FCR 68, the Full Court of the Federal Court (Sheppard, Kelly and Neaves JJ) said at 77:
“Appeals to this Court are not by way of rehearing, but are in the nature of appeals stricto sensu: see Duralla Pty Ltd v Plant (1984) 2 FCR 342 per Smithers J (at 349-353), Northrop J (at 360-365) and Beaumont J (at 366-367).”
In Magarditch v Australia & New Zealand Banking Group Ltd [1999] FCA 806, the Full Court of the Federal Court (Spender, French and Kenny JJ) said at par 104:
“An appeal is a remedy given by statute and, in consequence, the powers of courts of appeal vary, depending upon the statute pursuant to which those powers are given: cf CDJ v VAJ (1998) 157 ALR 686 at 706 par 95 per McHugh, Gummow and Callinan JJ and at 735 par 186 per Kirby J. A distinction is sometimes drawn between an appeal in the strict sense and an appeal by way of re-hearing. The distinction is discussed in a number of cases in the High Court, as, for example, in Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 and in Mickelberg v The Queen (1989) 167 CLR 259. It is also discussed in this Court, as, for example, in Duralla Pty Ltd v Plant (1984) 2 FCR 342 and in Petreski v Cargill (1987) 18 FCR 68. An appeal to this Court is not an appeal by way of rehearing: see Duralla Pty Ltd v Plant (supra) at 352 per Smithers J (with whom Beaumont J agreed) and 364-5 per Northrop J. It has been said that the task of an appellate court in determining an appeal in the strict sense is to decide ‘the correctness or otherwise of the decision under appeal in the light of the evidence and issues as they were before the court whose decision is in question’: see Mickelberg (supra) at 298 per Toohey and Gaudron JJ. That is indeed the primary task of a Full Court of this Court exercising appellate jurisdiction. Parliament has made it clear, however, that the appellate powers of the Federal Court are not limited to the hearing and determination of an appeal in the strict sense: Chamberlain v The Queen (1984) 153 CLR 521 at 526 per Gibbs CJ and Mason J and Duralla (supra) at 352 per Smith J (sic) and 364 per Northrop J. Sections 27 and 28 augment the powers of the Court in the appellate jurisdiction that derives from s 24 of the Federal Court of Australia Act. Thus, the Court in its appellate jurisdiction has power to draw inferences of fact and to receive further evidence (s 27), to set aside a jury verdict and order a new trial (s 28(1)(e) and (f)) and to give such judgment as in all the circumstances the Court thinks fit (s 28(1)(b)). It has been said, in relation to criminal appeals, that the Federal Court of Australia Act confers a ‘wide discretion to ensure that justice is done’: Chamberlain (supra) at 529 per Gibbs CJ and Mason J. We do not think the position is different in relation to civil appeals.”
The only utility of the formulation of grounds to attack the decision of the Commission contained in the Minute of Proposed Re-amended Application for an Order of Review is that it might indicate that an opportunity to amend would not be futile, in that arguable grounds were available for review of the Commission’s decision and that, were the appeal from the dismissal of the application to be allowed and the appellant given leave to amend her application for an order of review, that review might not be a sterile exercise.
With that consideration in mind, the only grounds which truly are able to be argued are whether the learned primary judge erred in failing to grant to Ms Thompson an opportunity to submit redrafted “grounds for review”, and whether the learned primary judge erred in his finding that the grounds of review in the amended application before him sought an impermissible review of the merits of the findings of fact made by the Commission or were otherwise untenable.
Nissan has filed a motion that the notice of appeal be dismissed as incompetent, asserting that the appellant does not challenge the correctness of the decision of the learned primary judge. While that view is available on one reading of the notice of appeal, counsel for the appellant submitted “there are… a few aspects in respect of which his Honour erred, but substantially we say that we had been denied the opportunity to argue all that was available to be argued and could be raised on behalf of this appellant.”
It is convenient to deal first with the ground alleging error in failing to grant an opportunity to resubmit redrafted grounds for review. Since that aspect of the appeal is an appeal from the exercise of a discretion by the primary judge, it is necessary to have regard to the history of the matter.
On 22 March 1991 the appellant lodged a complaint with HREOC alleging that she had been subject to sexual harassment whilst employed by Nissan between 6 February and 31 August 1985 at premises of Nissan in Adelaide. The complaint was therefore lodged some 4½ years after the relevant employment had come to an end. The complaint is now in respect of conduct that occurred approximately fourteen years ago. Nissan was notified that the Commissioner had decided to conduct an inquiry into the matter on 23 December 1991, despite the fact that the twelve months period for lodgment under the Act had expired. On 21 July 1995 the complaint was referred to the Sex Discrimination Commissioner for a hearing. Nissan applied for the matter to be dismissed pursuant to s 79 of the Act. On 13 March 1996 Nissan’s application for dismissal was dismissed.
Ms Thompson alleged that Nissan was liable to her in respect of sexual harassment and discrimination in employment, both by virtue of its direct act in dismissing her from employment and, pursuant to s 106 of the Act, whereby the employer is vicariously liable for the unlawful acts of its employees. Commissioner McEvoy heard the appellant’s complaint on 4, 5, 6 and 7 February 1997. Further submissions were received on 21 April 1997 and on 13 June 1997, after an attempt at conciliation had proved unsuccessful. Commissioner McEvoy handed down her decision on 18 December 1997, dismissing Ms Thompson’s complaint and providing extensive written reasons occupying some 81 pages.
Commissioner McEvoy found that during the course of her employment Ms Thompson was subjected to sexual harassment in a number of respects. The Commission found that Ms Thompson was dismissed from her position on 23 August 1985 and given one week’s pay in lieu of notice, and further that Nissan’s business where Ms Thompson was employed had been sold and the ownership was transferred to the new purchasers the week after Ms Thompson’s dismissal. Commissioner McEvoy also found that shortly after her dismissal, Ms Thompson returned to work for the Manager of Nissan, Mr Peasnell, for a short period on a casual basis. The Commission found that Ms Thompson “is suffering from a significant psychiatric illness with both high anxiety and depressive symptoms which have persisted over a lengthy period of time and certainly since her first hospitalisation in late 1988”. Her first medication associated with these symptoms was in 1986. Commissioner McEvoy found:
“There have been a number of significant difficulties in [Ms Thompson’s] personal circumstances since 1985 which have created stress and unhappiness for her: these include the sexual harassment to which she was subjected when employed by Nissan in 1985; the stresses and difficulties which she encountered at her next employment at ANZ Executor and Trustee; the difficulties surrounding the birth of her child and his early months; her husband’s traumatic loss of employment and subsequent lengthy dispute with his former employer which in [Ms Thompson’s] view was unsatisfactorily and unfairly settled; and the gradual disintegration of her marriage and loss of intimacy with her husband accompanied with some problems in her relationship with her son and loss of expectation from her marriage; and difficulties in her subsequent relationship.”
Commissioner McEvoy said:
“The central issue in dispute in this matter has been whether the ‘cause’ of [Ms Thompson’s] present medical condition is to be found in the sexual harassment to which she was exposed when employed by Nissan in 1985.”
Commissioner McEvoy said:
“Having carefully considered the evidence it is my view that it is not possible to conclude that [Ms Thompson’s] undoubtedly severe medical condition from which she now suffers is traceable to the distress and offensive events of the sexual harassment in 1985. In my view, there have been too many other distressing and unhappy and difficult events in her life since that time, the consequences of which cannot be discounted but which, in my mind, must have contributed significantly to her present medical condition.”
She expressed the view that there were a number of factors (which she identified) which militate against the view that Ms Thompson’s present medical condition was triggered by the sexual harassment she experienced at Nissan, Adelaide. Commissioner McEvoy said:
“Accordingly, I make no finding as to the cause or, indeed, even what has specifically contributed to [Ms Thompson’s] condition.”
In an important finding, Commissioner McEvoy said:
“…[Ms Thompson’s] evidence was that it was made very clear to her that her dismissal from employment was not because of any lack of competence on her behalf, although she gave evidence that Mr Peasnell had said he had not seen any evidence of the ‘radiant personality’ which was referred to in her references. However, [Ms Thompson] was quite clear that there was no question of her competence and this was reflected in the reference which she later received and the invitation from Mr Peasnell to return to work with him again. Accordingly, I am not satisfied that [Ms Thompson] was dismissed by Nissan from her employment as a result of her taking objection to the offensive conduct within the workplace. Further, I am not satisfied that, although [Ms Thompson] was quite probably disadvantaged in her employment in the sense that she became unhappy there and may have lost enthusiasm for, and interest in, her work, this is not the disadvantage which she complains (sic) and it did not lead to her dismissal.”
Later the Commissioner found:
“I am satisfied that [Ms Thompson] suffered damage as a result of the behaviour of Nissan’s employees in 1985. I am quite satisfied that she suffered significant injury to her feelings and significant humiliation.”
On 16 January 1998 an application was filed on behalf of Ms Thompson for an order of review pursuant to the ADJR Act of the decision by HREOC. On 24 February 1998 that application for an order of review was amended.
Nissan filed a notice of motion on 5 March 1998, seeking to have the amended application dismissed on the ground that no reasonable basis was disclosed for the application in the various grounds alleged in the amended application. The amended application attacked the decision of the Commission on the ground that it took into account irrelevant considerations, failed to take into account relevant considerations, acted unreasonably, made errors of law and lacked evidence or other material to justify certain of its findings. The primary judge in his reasons for judgment said:
“The motion to dismiss is brought primarily on the bases that the matters of which the applicant complains are not reflected in the reasons for decision or are outside the scope of judicial review.”
That motion was heard on 11 March 1998. It appears that the written submissions which detailed the bases for Nissan’s complaint concerning the deficiencies in the grounds in the amended application were given to counsel for Ms Thompson only a short time before that hearing. At the conclusion of submissions by counsel on behalf of Ms Thompson in resistance to the strike-out motion, counsel said:
“Finally, your Honour, and despite my submissions, if your Honour does consider that this application is inadequate, I would submit that it is not appropriate for the applicant to lose her appeal in this matter and there should be an opportunity to redraft the grounds of appeal having regard to the objections raised by my learned friend in which I am only aware in detail in relation to the submissions filed today and I have had no opportunity to redraft under those circumstances.”
On 9 April 1998 the learned primary judge dismissed the amended application for an order of review on the basis that it essentially constituted an invitation to the Court to engage in a merits review of the findings of fact of the Commission. It was therefore outside the function of the Court under the ADJR Act. His Honour said at the conclusion of his reasons:
“The test upon a motion to strike out an application for failure to disclose a cause of action or a basis for review or, as in this case, the absence of any reasonable basis, is well established. The application must be manifestly untenable. For the reasons I have already outlined, I am of the view that this application falls into that category. It is essentially an invitation to the Court to engage in merits review of the findings of fact of the Commission. That is not the function of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth).
For these reasons, the amended application will be struck out.
In the course of his submissions counsel for the applicant submitted that in the event the motion were successful the applicant should be given an opportunity to submit redrafted grounds for review having regard to the objections raised.
I am not inclined to accede to that request. The objections raised were not matters of form but went to the substance of the grounds upon which review is sought. They covered a range of the available grounds under the Administrative Decisions (Judicial Review) Act. In my opinion the application should be dismissed with costs.”
It is apparent that the learned primary judge had detailed knowledge of the material and reasons of the Commission and addressed seriatum each of the grounds of the amended application. His Honour was also fully aware of the history of the litigation. The request by counsel at the end of his submissions on the motion to strike out was of a general kind and sought merely a general right to replead. No particular or specific matter not covered in the grounds of the amended application were referred to by counsel in the course of argument as being a possible ground for a redrafted application for an order of review. The learned primary judge, in the exercise of his discretion, declined to accede to that request.
Before this court could interfere with the discretionary judgment of the primary judge to decline the request to submit redrafted grounds for review, it has to be demonstrated that the discretion miscarried. At the highest for the appellant it is said that if the opportunity had been granted, it would have been possible to formulate arguable grounds of review. It is not correct to say that the “discretion to refuse the appellant leave to amend miscarried if there are arguable grounds of review disclosed in the Minute of Proposed Re-amended Application”, nor is it correct to say that “whether the appeal from the decision of French J should be allowed…is to be determined according to whether the appellant can demonstrate that there are arguable grounds for review…”. The reference by French J to the fact that “the objections raised were not matters of form but went to the substance of the grounds upon which review is sought” indicates that his Honour was alive to the question of whether a proper basis for review might be established. In our opinion, no basis has been demonstrated to lead to the conclusion that the exercise of the discretion by his Honour miscarried.
The second aspect of the appeal is whether his Honour’s conclusions concerning the untenability of the pleaded grounds of review in the amended application were wrong. Counsel for the appellant ultimately submitted that French J was in error on this basis only in two respects. The first being the complaint that the Commission had erred in failing to find Ms Thompson had suffered a disadvantage within the meaning of the then s 28(3)(b) of the Act. The second being the complaint that there was no evidence to justify the Commission’s finding that the termination of the appellant’s employment was for a reason other than her reaction to and objection to the sexual harassment she experienced.
In the amended application before French J, par 3(ii)(e) was the ground which stated:
“The making of [the] decision was an improper exercise of the power conferred by the enactment…in that in reaching its finding that the termination of the Applicant’s employment was unrelated to the proved unwelcome conduct of a sexual nature of the Respondent’s employees and that accordingly, there had been no unlawful conduct under Section 28 of the Act:
…
(ii)the Commission failed to take the following relevant considerations into account:
(e) that the Applicant suffered a disadvantage in connection with her employment within the meaning of Section 28(3)(b) of the Act, being her loss of enjoyment in that employment by reason of her taking objection to the sexual harrassment (sic) to which she was subjected.”
The ground 6(iv) of the amended application was:
“The decision to dismiss the Application involved errors of law namely;
…
(iv)the Commission’s failure to find that the Applicant’s loss of enjoyment in her employment by reason of her objection to the sexual harrassment (sic) to which she was subjected was in itself a disadvantage in connection with her employment within the meaning of Section 28(3)(b) of the Act;”
The ground contained in par 3(ii)(e) is an allegation that the Commission, in reaching its finding that the termination of Ms Thompson’s employment was unrelated to the sexual harassment, failed to take into account as a relevant consideration that the applicant had suffered a disadvantage in connection with her employment, being her loss of enjoyment in that employment.
That complaint is not an allegation that the Commission should have found, and failed to find, that the applicant suffered a disadvantage in connection with her employment constituted by the loss of her enjoyment in that employment “by reason of her objection to the sexual harassment to which she was subjected”. However, according to the argument of counsel for the appellant before us on the appeal, this failure was the error into which the Commission fell. Similarly, the ground in par 6(iv) of the amended application is a complaint that the decision of the Commissioner to dismiss the application involved an error of law constituted by the Commission’s failure to find that the applicant’s loss of enjoyment in her employment was in itself a disadvantage in connection with her employment. It is not a complaint that the Commission erred because it should have found, and failed to find, that the applicant had suffered a disadvantage within the meaning of s 28(3)(b) of the Act, being the loss of her enjoyment in that employment “by reason of her taking objection to the sexual harassment to which she was subjected”.
The Commission said in its reasons:
“[Ms Thompson’s] case is that because she objected to the behaviour directed towards her she did suffer a disadvantage in that she was dismissed from her employment. …[Ms Thompson’s] evidence is that she was dismissed because of her reaction to this conduct:…”
The disadvantage that was the core of her case in the Commission was her dismissal from employment.
Section 28(3)(b) of the Act then relevantly provided:
“A person shall, for the purposes of this section, be taken to harass sexually another person if the first-mentioned person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or engages in other unwelcome conduct of a sexual nature in relation to the other person, and-
…
(b)as a result of the other person’s rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person’s employment or work or possible employment or possible work.”
The Commission said:
“If [Ms Thompson’s] dismissal was a result of her taking objection to the conduct then clearly an unlawful act pursuant to section 28 will be established.”
The crucial findings by the Commission are expressed in the following passages:
“Although [Ms Thompson’s] evidence on this point has been very consistent and despite the fact that there is no contrary evidence from Nissan, I have some difficulty in accepting that [Ms Thompson’s] dismissal was as a result of her reaction to the harassment.”
And:
“I am not satisfied on the balance of probabilities that [Ms Thompson] was dismissed from her employment as a result of her objection to the conduct of other employees towards her. I am not satisfied that her dismissal related to this conduct or her objection to it at all.”
French J dealt with par 3(ii)(e) by commenting:
“It was said, however, that the applicant’s case was never put on this basis as the Commission pointed out at p 74, paragraphs 1 and 2 of the reasons.”
This is a reference to the finding by the Tribunal earlier set out that Ms Thompson “was quite probably disadvantaged in her employment in the sense that she became unhappy there and may have lost enthusiasm for, and interest in, her work,”. Before French J, counsel for Ms Thompson (who was not her counsel on this appeal) accepted that the appellant had not put her case to the Commission in terms of the disadvantage pleaded in par 3(ii)(e) and par 6(iv) of the amended application. Counsel had there submitted:
“Notwithstanding that it was an argument that was not raised by the applicant, it is a matter that the Commissioner should have taken into account in finding that there was a disadvantage as a result of the harassment within the meaning of s 28(3)(b), leaving aside any question of dismissal.”
The short submission is that French J erred in holding that, because the appellant had not put her case to the Commission on the basis pleaded in par 3(ii)(e) and par 6(iv), the grounds raised in those paragraphs were manifestly untenable.
Quite simply, the Commission had no obligation to find a case that was not suggested as being the case which the applicant wished to make, and the Commission did not err in law in failing to find a case which was not the case pleaded, or the case argued before the Commission. The contrary view would involve the real likelihood of the denial of natural justice to the respondent to the complaint which Ms Thompson had made to the Commission pursuant to s 50 of the Act. It is important to note that s 81(1) of the Act then relevantly provided:
“After holding an inquiry, the Commission may -
(a)dismiss the complaint the subject of the inquiry; or
(b)find the complaint substantiated and make a determination,…”
The respondent cross-examined and made a decision as to whether to call evidence on the basis of the case that the complainant alleged against it.
In any event, on their proper construction, grounds 3(ii)(e) and 6(iv) of the amended application do not allege that the Commission erred in failing to find disadvantage constituted by her becoming “unhappy”, and “may have lost enthusiasm for, and interest in, her work,” or constituted by “the loss of her enjoyment in that employment”.
As to the no evidence point, the complaint is that the Commission erred in failing to find that [Ms Thompson] was dismissed from her employment as a result of her taking objection to the conduct of other employees towards her, when there was no evidence to suggest it was for any other reason.
French J dismissed this part of the amended application as a challenge to a finding of fact which could not succeed. A fair reading of his Honour’s reasons for judgment reveals that his Honour’s opinion was that there was evidence entitling the Commission to reach that finding of fact. French J noted that the Commission:
“…had regard to [Mr Peasnell’s] request to her to come back and work for him on a casual basis. This, in my opinion, was linked to the Commission’s finding that it was not satisfied on the balance of probabilities that the applicant was dismissed from her employment as a result of her objection to the conduct of other employees towards her.”
The request, after the termination of Ms Thompson’s employment with Nissan, that she come back and work for Mr Peasnell on a casual basis is some evidence that she was not dismissed from her employment as the result of her taking objection to the conduct of other employees towards her. There was, of course, other evidence before the Commission relevant to the question of the reason for her dismissal, being the evidence relevant to the change in ownership of the dealership. There was evidence supporting the Commission’s finding of fact in this respect, as his Honour inferred in the passage in his reasons set out above. No error has been demonstrated in his holding that this ground of review was untenable.
For the above reasons, the appeal should be dismissed.
I certify that the preceding thirty-seven (37) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justices Spender, Cooper and R D Nicholson. Associate:
Dated: 15 July 1999
Counsel for the Appellant: Mr E M Corboy Solicitor for the Appellant: Legal Aid WA Counsel for the Respondent: Ms F P Hampel Solicitor for the Respondent: Freehill Hollingdale & Page Date of Hearing: 16 & 17 November 1998 Date of Judgment: 15 July 1999
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