Tredinnick v Wentworth Area Health Service

[2000] NSWADT 172

CITATION:	Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Gregory Alan Tredinnick RESPONDENT Wentworth Area Health Service
FILE NUMBER:	991069
HEARING DATES:	05/07/2000
SUBMISSIONS CLOSED:	07/05/2000
DATE OF DECISION:	11/23/2000
BEFORE:	Goode P - Judicial Member; McDonald O - Member; Luger M - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Langley v Niland & Anor (1981) 2 NSWLR 104 Hill v University of New England (1990) EOC 92 – 291 Wensley v Technical and Further Education Commission [2000] NSWADT 142 Assal v Department of Health Housing and Community Services (1992) EOC 92-409 State Electricity Commission of Victoria v Rabel & Ors (1998) 1VR 102 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Khan v Macquarie University and Webster [1999] NSW ADT 100 General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 Tannock v State of New South Wales [1999] NSWADT 31
REPRESENTATION:	APPLICANT G Raffell, barrister RESPONDENT J Murphy, barrister
ORDERS:	The Respondent's application is dismissed.

Introduction

1 This is a preliminary application, in effect, seeking summary dismissal of Mr Tredinnick’s complaint. Since we have yet to hear any evidence in the case, our decision is not based on an assessment of the merits of Mr Tredinnick’s allegations.

2 At all relevant times, Mr Tredinnick was employed as a security officer with the Wentworth Area Health Service (“the Respondent”). He was based at the Nepean Hospital at Penrith.

3 He alleges that the Respondent unlawfully discriminated against him, in contravention of s 49ZH of the Anti Discrimination Act, 1977 (“the Act”), on the ground that he was presumed to be a homosexual. Although not specifically identified by the President of the Anti Discrimination Board (“the Board”) as possible breaches of the Act, Mr Tredinnick also alleges that he was sexually harassed by senior officers of the Respondent, in breach of s 22B of the Act, and further that he was vilified on the ground that he was presumed to be a homosexual, in breach of s 49ZT of the Act.

4 The Respondent seeks relief pursuant to s 111(1) of the Act and asks us to dismiss the entirety of the complaint. Although strictly the respondent to the present application, for convenience Mr Tredinnick is referred to as the Applicant. The Respondent submits that we should dismiss the complaint first, on the ground of the Applicant’s repeated failure to comply with the Tribunal’s directions and secondly, on the ground that the complaint is misconceived or lacking in substance. The relief sought by the Respondent is opposed by the Applicant.

Background

5 In order to address the various issues raised by the application, it is necessary to look briefly at the background to the complaint and its passage through the Board and the Tribunal.

6 The Board received a complaint from the Applicant on 21 April 1998 alleging that since about October 1996 he had been harassed by his co-workers on the ground that he was presumed to be a homosexual. He alleged that the harassment continued despite his repeated requests to the Respondent’s officers to have it stopped. He subsequently resigned from his position on 17 July 1998, maintaining that as a result of the conduct of his co-workers and the Respondent’s failure to do anything about it, he had no choice but to leave. Shortly thereafter, he moved to Tasmania to live.

7 The President of the Board conducted an investigation into the complaint and on 9 July 1999, referred it to the Tribunal in accordance with the provisions of s 94(1) of the Act.

8 On 18 August 1999, the complaint came before Judge Murrell. Standard directions were made by consent requiring the Applicant to file his points of claim, statements of evidence and any documents upon which he intended to rely (if not already contained in the President’s Report). The Applicant was represented by his solicitor, Mr Chate, and the Respondent was represented by Mr Murphy.

9 The Points of Claim were not filed as directed. By way of a partial explanation, Mr Raphael informed us that Mr Chate had misinterpreted the directions by wrongly assuming that provided the material was already set out in the President’s Report, it was not necessary to file any further documentation.

10 Notwithstanding the failure of the Applicant to comply with the standard directions, the Respondent filed its documentation on 13 October 1999, with the exception of its Points of Defence. Indeed, as was pointed out by Mr Murphy, the Respondent had no Points of Claim to which to respond. By letter dated 13 October 1999, the Respondent asked Mr Chate to file the Applicant’s Points of Claim as a matter of urgency and to contact Mr Raphael in relation to the estimated length of the hearing. No response was forthcoming.

11 At the instigation of the Respondent, the matter was listed for further directions on 5 April 2000. On that day, Judge Latham made standard directions requiring, inter alia, the Applicant to file and serve his Points of Claim and any other relevant documentation by 3 May 2000. Having listened to the tape of the proceedings of 5 April 2000, we are not satisfied that Her Honour said, either directly or indirectly, that if the Applicant failed to comply with her directions, the complaint would automatically be dismissed by the Tribunal pursuant to s 111(1) of the Act. Her Honour did however make it clear to the parties that if the Applicant failed to comply with her directions, that would be a matter the Respondent could advance in due course in support of an application to have the complaint dismissed under s 111(1).

12 By letter dated 22 May 2000 to the Registrar of the Tribunal, Mr Chate filed the Points of Claim (dated 16 May 2000) and the Applicant’s affidavit (sworn on 16 May 2000) and advised that both documents had been served on the Respondent. By letters dated 25 May 2000 and 7 June 2000, Mr Chate also filed affidavits sworn by Ms Maxwell and Mr Levi, respectively, and advised that they had been served on the Respondent.

13 As of 5 July 2000, the only outstanding material which had not been filed by the Applicant was an affidavit from Mr Booth. We were informed by Mr Raphael that if an affidavit was not forthcoming from Mr Booth, the Applicant’s case would proceed without it.

14 We address the Applicant’s failure to comply with the Tribunal’s directions in paras 37-41 to below. Before doing so, it is appropriate to briefly outline the nature of the Applicant’s case against the Respondent. The material has been drawn primarily from the Points of Claim and the Applicant’s affidavit. We have not found it necessary to give an exhaustive account of all the allegations; nor have we found it necessary to canvas the matters set out in the affidavits sworn by either the Applicant’s witnesses or the Respondent’s witnesses. (This is because we have taken the Applicant’s foreshadowed evidence at its highest : see para 35 below.)

The Applicant’s Case

15 In about September 1996, whilst at work, the Respondent’s Deputy Security Manager, Mr Carruthers, suggested to the Applicant that he was a homosexual and made homosexual jokes about him to other officers in his presence. Mr Carruthers also questioned the Applicant about his former role as a professional dancer.

16 In October 1996, some of the staff of the Nepean Hospital went to Mudgee for a social fishing trip over the weekend. It was not considered to be work related. We do not propose to set out the details of the allegations. Suffice to say, the Applicant alleges he was subjected to ridicule, abuse and contempt by various co-workers, including Mr Carruthers and the Respondent’s Security Manager, Mr Martin.

17 In the months following the fishing trip, the Applicant was accused by various co-workers, including Mr Martin and Mr Carruthers, of being:

“a poof, a faggot, of liking oral sex with men, liking to fuck men up the arse, and also receive the same.”

18 After another social fishing trip to the Hawkesbury River, during which Mr Carruthers and other co-workers called the Applicant “Bernice”, the Applicant was continually referred to as “Bernice” upon his return to work.

19 In February 1997, the Applicant complained about the conduct of his co-workers to another staff member, Mr Gillis. Consequently Mr Carruthers spoke to the Applicant and said he would “get this homosexual thing stopped”.

20 Thereafter, the conduct complained of was mainly limited to Mr Martin and Mr Carruthers.

21 During Easter of 1997, the Applicant attended a social barbecue at a co-workers home. We do not propose to set out the details of the allegations other than to say that Mr Carruthers was allegedly responsible for making a number of abusive remarks to the Applicant in the presence of his co-workers, his friends and several children.

22 In May 1997, when the Applicant and Mr Carruthers were both in the Emergency Department observing a psychiatric patient being restrained, Mr Carruthers, said to the Applicant in the presence of doctors and nurses:

“You’ve done well. I can see in your eyes you wanted to jump on his back and fuck him up the arse.”

23 In mid 1997, the Applicant told Mr Carruthers he wanted the conduct to cease. However, both Mr Carruthers and Mr Martin continued to make comments of a homosexual nature about him. Mr Martin, for example, said to the Applicant in November 1997, “you fuck your dog”. In late 1997, Mr Carruthers showed the Applicant a cartoon with the caption, “well here’s to another great year of sex rover”. On top of this, Mr Carruthers had written “weekend at Bernies”.

24 On the evening of 31 December 1997, the Applicant was present at a party held in the home of a co-worker. We do not propose to detail the conduct complained of. In essence, the Applicant alleges that both Messrs Martin and Carruthers subjected him to ridicule, abuse and contempt.

25 On 13 January 1998, the Applicant spoke to the Respondent’s Employee Relations Officer, Ms Walker, about the alleged harassment but did not make a formal complaint until 2 February 1998. A formal interview was conducted by the Respondent’s Director of Corporate Development, Mr Lindbeck, the following day.

26 As a result of the alleged conduct, the Applicant suffered emotional distress and ill health, in particular intestinal disorders, and was off work on sick leave from 5 March to 30 May 1998. After his return to work, he was ostracised and shunned by his co-workers and, after taking further sick leave, he eventually resigned on 17 July 1998.

Relevant Legislation

27 Section 111(1) of the Act provides:

“Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.”

28 Both the Act and the Administrative Decisions Tribunal Act, 1997 (“the Tribunal Act”) contain provisions which permit the Tribunal to dismiss a complaint before a full inquiry has been concluded.

29 Section 73(5)(h) of the Tribunal Act is couched in narrower terms than s 111(1) of the Act and provides that the Tribunal:

“may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.”

30 Although s 73(5) of the Tribunal Act and s111(1) of the Act are designed to operate together (see s111(3) of the Act), it is clear that the category “for any other reason” has been omitted from s 73(5)(h). The Respondent in the present case relies on s111(1), rather than s 73(5)(h), presumably because of its reliance, inter alia, on the Applicant’s failure to comply with the Tribunal’s directions.

31 Of the five specific descriptions which the Tribunal may give to a complaint it is asked to dismiss under s111(1) of the Act, the category “for any other reason” appears to be broader in scope than its four companion descriptions : see Langley v Niland & Anor (1981) 2 NSWLR 104 at 107; Hill v University of New England (1990) EOC 92 – 291 at 77,939 – 77,940; Wensley v Technical and Further Education Commission [2000] NSWADT 142. The descriptions “frivolous”, “vexatious”, “misconceived” and “lacking in substance” all belong to a common class and all refer to the insufficiency or to the absence of merit of the factual basis for the allegations made in a complaint. By way of contrast, as was observed by Hunt J. in Langley v Niland & Anor, the expression “for any other reason” is subject to a strong indication not to be read ejusdem generis with the categories preceding it (at 107).

32 The terms “misconceived” and “lacking in substance” have been considered by many courts and tribunals in the context of interpreting anti-discrimination legislation at both the State and the Commonwealth levels : see for example Assal v Department of Health Housing and Community Services (1992) EOC 92-409; State Electricity Commission of Victoria v Rabel & Ors (1998) 1 VR 102; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; and Khan v Macquarie University and Webster [1999] NSW ADT 100.

33 While there is no commonly accepted definition, we consider it is appropriate to describe a complaint as “misconceived” or “lacking in substance” if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit : see Langley v Niland & Anor at 107; Reyes-Gonzales v Sydney Institute of Technology at 6.

34 We are also of the view that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125; Tannock v State of New South Wales [1999] NSWADT 31 (11 May 1999)). The need for caution is even more apparent in cases where a s 111(1) application is made prior to the adducing of the Applicant’s evidence at the substantive hearing.

35 In the circumstances of the present case, in order to ascertain whether the complaint is “misconceived” or “lacking in substance”, we propose to take the Applicant’s foreshadowed evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act : see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18.

36 In essence, if we are of the view that the conduct complained of could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint is either “misconceived” or “lacking in substance”. If we are not so persuaded, clearly this ground of the Respondent’s application under s 111(1) of the Act must fail.

Repeated Failure to Comply with the Tribunal’s Directions

37 We now turn to the first ground of the Respondent’s application to consider whether we should dismiss the complaint for the reason that the Applicant has repeatedly failed to comply with the Tribunal’s directions.

38 Mr Murphy submits that the Applicant’s conduct in preparing his case displays a blatant disregard of the Tribunal’s directions, particularly those made by Judge Murrell on 18 August 1999, and therefore, that the Tribunal would be entitled to dismiss the complaint for this reason alone. In addition, he points to the fact that one of the Respondent’s witnesses, Mr Lindbeck, now lives interstate and is no longer employed by the Respondent.

39 Through Mr Raphael, we have been provided with a partial explanation for the Applicant’s failure to comply with Judge Murrell’s directions of August 1999 in that Mr Chate did not fully understand what was required of him. Mr Chate’s affidavit, prepared on 4 July 2000, also endeavours to provide some explanation for the delay in complying with Judge Latham’s directions of 5 April 2000 by pointing to the difficulties associated with the fact that the Applicant now resides in Deloraine, Tasmania, and that the town only has one Justice of the Peace.

40 Mr Raphael concedes that the partial explanation offered by the Applicant for failing to comply with the Tribunal’s directions is not satisfactory but submits that the Respondent cannot point to any real prejudice that it has suffered as a consequence of the Applicant’s non-compliance. He further submits that in these circumstances, the Applicant’s failure to comply is not an adequate reason for dismissing the complaint.

41 Having taken into account all the competing considerations, we are not persuaded that the circumstances associated with the Applicant’s failure to comply with the Tribunal’s directions constitute a sufficient reason for dismissing the complainant under s 111(1) of the Act. In reaching this view, we have been particularly influenced by the difficulties associated with the Applicant’s residency in Tasmania and the failure of the Respondent to point to any real prejudice which it has suffered, or is likely to suffer, as a consequence of the Applicant’s non-compliance. Having said this, we wish to add that the delay in the preparation of the Applicant’s case could well have been minimised if the Applicant’s solicitor, Mr Chate, had sought to clarify Judge Murrell’s directions by contacting the Tribunal Registrar.

Is the Complaint “misconceived” or “lacking in substance”?

42 The President of the Board referred the complaint to the Tribunal on the basis that the allegations of unlawful discrimination on the ground of the Applicant’s presumed homosexuality contravened s 49ZH of the Act. As mentioned above in para 3, the Applicant maintains that the Respondent’s conduct also constitutes sexual harassment (in breach of s 22B of the Act) and public vilification on the ground of presumed homosexuality (in breach of s 49ZT of the Act). The Respondent submits that even taking the Applicant’s foreshadowed evidence at its highest, the alleged conduct does not contravene any of the aforementioned sections of the Act. Accordingly, we should find that the complaint is “misconceived” or “lacking in substance” and dismiss the complaint.

43 For the purposes of the present application, we are satisfied that the conduct upon which the alleged breaches of ss 22B and 49ZT is based arises out of the same conduct as the alleged breach of s 49ZH. Accordingly, we are satisfied that we have jurisdiction to conduct an inquiry into the alleged contraventions because the general conduct in question was raised in the original complaint and was investigated by the President. See generally Reyes-Gonzales v Sydney Institute of Technology at 6.

44 In order to assess whether the complaint is “misconceived” or “lacking in substance”, we must examine whether the Applicant’s foreshadowed evidence could possibly amount to unlawful discrimination on the ground of presumed homosexuality, in contravention of s 49ZH of the Act. For present purposes, it will only be necessary to proceed to an examination of the alleged contravention of either s 22B or s 49ZT if we find that the foreshadowed evidence could not possibly contravene s 49ZH.

45 Section 49ZH(2) of the Act provides:

“It is unlawful for an employer to discriminate against an employee on the ground of homosexuality:
(a) in the terms of conditions of employment which the employer affords the employee;
(b) by denying the employee access, or limiting the employee’s access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment; or
(c) by dismissing the employee or subjecting the employee to any other detriment.”

46 Sections 49ZF and 49ZG of the Act are also relevant. In essence, s 49ZF states that a reference in the Act to “homosexuality” includes a reference to “presumed homosexuality”. Section 49ZG sets out what constitutes discrimination on the ground of homosexuality. Relevantly, s 49ZG states:

“(1) A person (“the perpetrator”) discriminates against another person (“the aggrieved person”) on the ground of homosexuality if, on the ground of the aggrieved person’s homosexuality . . . . . . 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 he or she did not think was a homosexual person . . . . . ., or
(b) . . . . . .
(2) For the purposes of sub-section (1)(a), something is done on the ground of a person’s homosexuality if it is done on the ground of the person’s homosexuality, a characteristic that appertains generally to homosexual persons or a characteristic that is generally imputed to homosexual persons.”

47 Section 4A of the Act makes it clear that provided the Applicant’s presumed homosexuality is one of the reasons for the Respondent’s conduct, the conduct will still be regarded as unlawful even though the presumed homosexuality is not the dominant or a substantial reason for the conduct.

48 In order to establish his case, the Applicant needs to prove, on the balance of probabilities, that the Respondent discriminated against him on the ground of his presumed homosexuality in one or more of the ways specified in s 49ZH(2). In doing so, the Applicant must prove, vicariously through the conduct of the Respondent’s officers, that the Respondent treated him less favourably than in the same circumstances, or in circumstances which are not materially different, it treats or would treat a person who is not presumed to be a homosexual.

49 Mr Murphy submits that even taking the Applicant’s foreshadowed evidence at its highest, the Respondent’s conduct could not possibly constitute a breach of any section of the Act. In relation to s 49ZG, he submits that there is no evidence that the Applicant was treated less favourably than the Respondent’s other security officers. He also places reliance on the fact that many of the alleged incidents occurred outside the work environment at private social functions and that these events were not organised by the Respondent.

50 Our findings below are confined to a consideration of the Respondent’s alleged conduct which occurred in the workplace, rather than at the various private social functions. While it may be that conduct outside the workplace can, in certain circumstances, contravene the Act, given the nature of the present application and the absence of full legal argument on the point, we do not consider it is either appropriate or necessary to take the alleged non-work related conduct into account.

51 Turning first to the Applicant’s claim that the Respondent’s conduct contravenes s 49ZH(2), we conclude that the foreshadowed evidence taken at its highest, is capable of demonstrating first, that the Applicant was treated less favourably than the Respondent’s other security officers and secondly, that there is a causal connection between the Applicant’s less favourable treatment and his presumed homosexuality. It is significant that much of the alleged conduct is attributable to Messrs Martin and Carruthers, both of whom held very senior positions with the Respondent and were responsible for the day to day supervision of the Applicant. It is also alleged that despite the Applicant’s requests for the conduct to stop, the conduct still continued.

52 The Applicant’s Points of Claim do not specify which of the particular heads of s 49ZH(2) is alleged to have been breached. Nevertheless, we conclude that the alleged conduct is capable, at the very least, of constituting a detriment within the meaning of s 49ZH(2)(c).

53 Accordingly, we are satisfied that the alleged conduct is capable of contravening s 49ZH(2)(c) and that the complaint is neither “misconceived” nor “lacking in substance”. It follows that we do not accede to the Respondent’s application to dismiss the complaint under s 111(1) of the Act.

54 In view of our conclusion, it is not necessary to determine at this stage whether the alleged conduct is also capable of contravening either s 22B or s 49ZT.

Orders

55 The Respondent’s application is dismissed.

Directions

56 The matter is to be relisted for further direction at a date to be fixed by the Registrar, in consultation with the parties.