United Bonded Fabrics Pty Ltd v Roseman

[2000] NSWADTAP 13

Appeal Panel

CITATION:	United Bonded Fabrics Pty Ltd -v- Roseman (EOD) [2000] NSWADTAP 13
PARTIES:	APPLICANT United Bonded Fabrics Pty Ltd RESPONDENT Gregory Roseman
FILE NUMBER:	009001
HEARING DATES:	10/05/2000
SUBMISSIONS CLOSED:	05/10/2000
DATE OF DECISION:	07/26/2000
DECISION UNDER APPEAL:	Refusal of application pursuant to s.111
BEFORE:	Latham M - DCJ (Deputy President); Bell N - Judicial Member; Edwards K - Member
CATCHWORDS:	no evidence - opportunity to be heard
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	991043
DATE OF DECISION UNDER APPEAL:	12/10/1999
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Qantas Airways Ltd v Gubbins (1992) Ileris and Comcare [1999] AATA 647 Shulver v Sherry (1992) 28 ALD 570 Casey v Repatriation Commission (1995) 39 ALD 34 Ex parte Bott (1933) 50 CLR 228 Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 A & B v Director of Family Services [1996] ACTSC 48 Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1
REPRESENTATION:	APPELLANT A Moses, barrister RESPONDENT In person
ORDERS:	1. The appeal is upheld; 2. The orders of the Tribunal are set aside; 3. The Appellant's application under s.111 is remitted to a differently constituted Tribunal for hearing.

1 This is an appeal under s.113 of the Administrative Decisions Tribunal Act 1997 (the ADT Act) brought by United Bond Fabrics Pty Ltd (the Appellant) against a decision of the Tribunal to refuse an application under s.111 of the ADT Act for the dismissal of the complaint of Gregory Roseman (the Respondent). Whilst the application appeared to have come before a differently constituted Tribunal on a number of occasions before 2 December 1999, it is clear from a reading of the transcript of the proceedings on 2 December that those prior occasions concerned preliminary matters and that the application was heard in its entirety on that day. The Respondent was unrepresented, while the Appellant was represented. The Tribunal‘s decision was handed down on 10 December 1999.

2 Apart from refusing the application, the Tribunal also ordered that the Respondent’s complaint be referred to the Anti-Discrimination Board for investigation. The Tribunal was of the view that the Board had never conducted an investigation of the Respondent’s complaint, owing to the fact that he had instituted proceedings in the Industrial Relations Commission of NSW (the IRC) contemporaneously with his complaint to the Board in June 1997. Be that as it may, it is doubtful that the Tribunal had the power to make such an order. It is not necessary for present purposes to decide that question.

3 The appeal was heard on 10 May 2000. At the conclusion of the hearing the Panel made orders setting aside the orders of the Tribunal and remitting the application under s.111 for hearing before a differently constituted Tribunal. The Panel now publishes its reasons.

The Course of the Proceedings before the Tribunal

4 The circumstances giving rise to the hearing of this matter are set out at paras. 2 to 6 inclusive of the Tribunal’s decision. They need not be repeated here. It is sufficient to note that the Respondent’s complaint to the Board and to the Tribunal was in the nature of unlawful discrimination by his employer, the Appellant, leading to his ultimate dismissal.

5 At the heart of the application under s.111 was a Deed of Release executed on or about 11 December 1997 by the Respondent as a result of the conciliation of the Industrial Relations proceedings. The Respondent received the equivalent of twelve weeks pay on the basis that he “release[d] and discharge[d] the Company [the Appellant] from all Claims (with the exception of workers’ compensation Claims) which [he] has, or which but for this Deed, could, would or might at any time have or have had against the Company in respect of or arising out of, either directly or indirectly, the Employment or the Termination.” (Clause 3 of the Deed) “Claims” was defined as “all claims, demands, suits, causes of action, damages, debts, costs, verdicts and judgments whatsoever whether at law or in equity or under any statute.” (Clause 1.1) The Deed was before the Tribunal as Attachment 5 to the President’s Report of 5 May 1999, as were copies of correspondence between the Board and the Appellant’s representatives and the Board and the Respondent (Attachments 1-4 and 6-12 inclusive). These were tendered and relied upon by the Appellant.

6 There was one letter to which no reference was made, either in the course of the hearing, nor in the Tribunal’s decision, namely Attachment 11 dated 23 October 1998 from the respondent’s then solicitors, White Barnes, to the Board. It conveyed the Respondent’s instructions that he was not aware of the effect of his execution of the Deed at the time he signed it. White Barnes accordingly expressed the tentative view that the Respondent should not perhaps be bound by the Deed. This was the only document included in the President’s Report which contained any assertion that the Respondent was unaware of the effect of the Deed on any further action that he might wish to take in respect of the Appellant’s alleged discrimination. There was, however, an indication that the Respondent understood the Deed may not be available to him in support of his complaint to the Board. In Attachment 4, a letter from the Respondent to the Board dated 23 December 1997, the Respondent wrote, “[i]n the Deed of Release a clause exists forbidding each party to publicise the terms in the Deed unless permissible by law. I need you to furnish me with a written reply if the Anti-Discrimination Act permits agreements previously entered into at law to be submitted as evidence or supportive evidence in cases before it.”

7 The transcript of the hearing on 2 December 1999 reveals that the Respondent had been requested, on an earlier occasion when the matter had been before the Tribunal, to provide a “statement” as to why he did not consider himself bound by the Deed. A letter from the Respondent dated 22 November 1999 addressed to the Tribunal Registry with attached notes and a copy of a letter (undated) addressed to a Mary Turco, Solicitor, apparently constituted part of this “statement”. The other part consisted of a letter from the Respondent to the Tribunal Registry dated 26 November 1999 with annexures, those being a report dated 24 November 1999 under the hand of a Dr. Donohoe and the doctor’s notes taken at the time of consultation on 15 October 1999. The Appellant objected to the letter of 26 November and its annexures being received into evidence by the Tribunal. After some argument, the Tribunal admitted those documents. A further document titled “A Personal Assessment” by Rev. Formosa dated 2 June 1999 was also included in the tender.

8 The letter of 22 November 1999 asks that the Board complete its report “via interviewing the other factory workers” so that it might assist the Respondent’s workers compensation claim. The attached letter addressed to Ms. Turco included an account of what occurred at the IRC and the statements that “my judgment and comprehension was probably blurred by my medication but I’m 100% sure nobody said that I would have to stop seeing the anti-discrimination board” and that he had signed the Deed after advice from Rev Formosa, his counsellor/neighbour, that the Deed would not affect the complaint to the Board.

9 The letter of 26 November 1999 and its attached report from Dr. Donohoe was potentially significant in respect of the Respondent’s attempt to go behind the terms of the Deed. Dr. Donohoe expressed the view that the Respondent “would not have been in a fit state of mind to understand … agreements or their potential consequences” in the period from October to December 1997. This opinion constituted the only evidence independent of the Respondent which went to the issue of his understanding of the effect of the Deed. The Appellant’s objection to its admission was understandable. The Respondent’s letter of 26 November 1999 indicated that Dr. Donohoe’s availability for the hearing on 2 December could only be considered on Wednesday 1 December. It was implicit that the doctor would not be available for cross-examination before the Tribunal. The Appellant put the Respondent on notice by letter of 30 November that they would object to the tender of the document on the basis that the author was not available for cross-examination.

10 Three further documents were relied upon by the Appellant. They were a copy of the transcript of proceedings before the IRC on 5 December 1997, its extempore decision of the same date and a letter from the Respondent to the Appellant dated 11 December 1997, which acknowledged the Respondent’s execution of the Deed.

11 This was the totality of the evidence before the Tribunal on the hearing of the Appellant’s application. The Tribunal heard submissions from the Appellant’s representative. In effect, the Appellant’s case was that the Deed of Release was executed by the Respondent in circumstances which demonstrated that his complaint to the Board and any other claim alleging discrimination in his employment were within the contemplation of the parties to the Deed at the time of its execution. The only claim exempted from the terms of the Deed was the Respondent’s cause of action in the Workers Compensation jurisdiction. The Deed barred the Respondent from pursuing any claim before the Tribunal. In any event, the Appellant submitted, there was no substance to the Respondent’s complaint on the evidence available to the Tribunal.

12 At the conclusion of the Appellant’s submissions, the Tribunal invited the Respondent to “tell [it] why … [he] should be allowed to continue with these proceedings” (T/S p.14.50). There followed an exchange between the Tribunal and the Respondent in the course of which the Respondent said a number of times that the relief he sought from the Tribunal was an order requiring the Board to complete its report into the circumstances surrounding his dismissal (T/S pp.15.30, 16.05, 16.50, 17.10, 17.35, 18.40, 20.15). His particular grievance was that the Board had ceased any investigation into his complaint when it became aware of the terms of the Deed. He said on three occasions that he was not interested in compensation from the Tribunal (T/S p.16.50, 17.15, 22.35) although on another occasion he appeared to leave the door open to a claim for compensation (T/S p. 17.50). The Respondent specifically addressed the execution of the Deed at pp.21-22 of the transcript. As noted above, the Tribunal appeared to overlook the contents of Attachment 11 to the President’s Report. Nothing said by the Respondent however, really went beyond an account of the events at the IRC and in the six months thereafter. No oral evidence was given or called by the Respondent.

13 In reply, the Appellant submitted, accurately, that the Respondent’s case was misconceived in that he was looking for evidence to support a worker’s compensation claim, rather than seeking to maintain a complaint of unlawful discrimination (T/S p.23.30).

14 The Tribunal retired briefly. On resumption, the Tribunal reserved its decision.

The Tribunal’s Decision of 10 December1999.

15 The Tribunal referred to Qantas Airways Ltd v Gubbins (1992) , placing reliance on those parts of the judgments which held that the words of a release are limited to matters specifically within the contemplation of the parties at the time the release was executed. After noting that the scheme of the Anti-Discrimination Act and the powers of the Tribunal were not limited to an award of damages, the Tribunal went on to consider the content of the submissions made to it by the Appellant and the Respondent as though those submissions constituted evidence of the parties’ intentions at the time of the execution of the Deed (para. 21).

16 The Tribunal then made three findings of fact, based on that “evidence”. The first was that the Respondent did not intend the Deed to prevent the continued investigation of his complaint by the Board. The second was that he did not intend to make any further claim by way of damages before the Tribunal. The third was that the Appellant’s intention in requiring the Respondent to execute the Deed was to prevent any further claim for damages.

The Basis of the Appeal

17 The Appellant relies upon three errors of law which it says were committed by the Tribunal, namely :

That it denied natural justice to the Appellant in that the third finding of fact was not advanced by the Respondent, nor was it raised by the Tribunal in the course of the proceedings so that the Appellant had the opportunity to respond. More particularly, this constituted a denial of procedural fairness.

That the third finding of fact was not available on the evidence.

That its construction of the Deed was contrary to the evidence.

Principles of Law

18 The first two errors of law advanced by the Appellant have a common genesis, that is, the Tribunal’s reliance upon s. 73(2) of the ADT Act. Some examination of the meaning and application of this provision is necessary for the purposes of this appeal.

19 Section 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.”

20 The provision has a counterpart in s 33(1) of the Administrative Appeals Tribunal Act 1975 (Clth) (the AAT Act ), although it does not refer to natural justice. Section 98 of the Victorian Civil and Administrative Tribunal Act 1998 is in similar terms to the ADT Act. (See also s 208 Anti-Discrimination Act 1991 (Qld); s 23(2) Equal Opportunity Act 1984 (SA); s 120 Equal Opportunity Act 1984 (WA); s 87(4) Ant-Discrimination Act 1998 (Tas); s 90(1) Ant-Discrimination Act 1992 (NT).

21 In Ileris and Comcare [1999] AATA 647 a useful summary of the authorities and the principles to be extracted therefrom appear in the course of a decision which examines the effect of s 33(1) of the AAT Act. In brief, they are :-

22 A provision which allows a tribunal to disregard the formal rules of evidence dispenses wi th the need for material to meet strict criteria of admissibility before it becomes evidence in the proceedings. The material must nonetheless be relevant to the issues in the proceedings in the sense that it is capable of establishing the existence or non-existence of relevant facts.

23 Shulver v Sherry (1992) 28 ALD 570 ; Casey v Repatriation Commission (1995) 39 ALD 34

24 Such a provision does not justify any departure from the requirement to observe procedural fairness or the rules of natural justice. Procedural fairness obliges the tribunal to give a fair opportunity to a party to meet material, adverse to that party’s interests, which has been admitted into evidence, by testing that evidence in cross-examination and/or by calling evidence to contradict it and/or being heard in respect of it by way of submissions.

25 Ex parte Bott (1933) 50 CLR 228 ; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139 ; A & B v Director of Family Services [1996] ACTSC 48 ; Casey

26 Section 73(2) of the ADT Act represents a legislative statement of 2 above.

27 An extensive statement of the requirements of procedural fairness in the context of a tribunal not bound by the rules of evidence appears in Re Saverio Barbaro and Minister for Immigration and Ethnic Affairs (1980) 3 ALD 1 at 4.

“In informing itself on any matter in such manner as it thinks appropriate, the Tribunal endeavours to be fair to the parties. It endeavours not to put the parties to unnecessary expense and may admit into evidence evidentiary material of a logically probative nature notwithstanding that that material is not the best evidence of the matter which it tends to prove. But the Tribunal does not lightly receive into evidence challenged evidentiary material concerning a matter of importance of which there is or should be better evidence. And the requirement of a hearing and the provision of a right to appear and be represented carries with it an implication that, so far as is possible and consistent with the function of the Tribunal, a party should be given the opportunity of testing prejudicial evidentiary material tendered against him . It is generally appropriate that a party should have an opportunity to do more than give evidence to the contrary of the evidence adduced on behalf of the other party. He should be given an opportunity to test the evidence tendered against him provided that the testing of the evidence seems appropriate in the circumstances and does not conflict with the obligation laid upon the Tribunal to proceed with as little formality and technicality and with as much expedition as the matter before the Tribunal permits.”

28 It is trite law that a denial of natural justice or a failure to observe the requirements of procedural fairness vitiates the decision.

Errors of Law Established

29 The first observation which flows from the above is that the submissions made to the Tribunal by the Appellant and the Respondent do not constitute evidence within the terms of s 73(2). There was evidence of a documentary nature before the Tribunal, but no other evidentiary material was admitted. It was not open to the Tribunal to treat the submissions as evidence.

30 The comment at para 21 of the Tribunal’s decision that the submissions as to what occurred at the conciliation proceedings “were not made from the witness box, were not under oath and were not the subject of cross-examination [but] … were made in the presence of the other party and were capable of and indeed were the subject of rebuttals” demonstrates the flaw in the Tribunal’s approach to the resolution of a central factual dispute in the application. That central factual dispute was what was in the contemplation of the parties at the time of the execution of the Deed.

31 There was evidence admitted in the Respondent’s case which was relevant to a determination of what was in the contemplation of the Respondent, viz Attachment 11 to the President’s report, the contents of the Respondent’s letter to Ms Turco and Dr Donohoe’s report of 24 November 1999. Whilst the Appellant objected to Dr Donohoe ’s report being received into evidence in the absence of the doctor being made available for cross-examination, no point was taken by the Appellant in respect of the remaining evidence. Be that as it may, no complaint is made to this Panel on this aspect of the proceedings before the Tribunal.

32 The Appellant’s complaint turns on the third finding of fact by the Tribunal, that is, that the Appellant’s intention in requiring the Respondent to execute the Deed was to prevent any further claims for damages. To put it another way, the Tribunal found that the Appellant did not intend to prevent the Respondent from pursuing a complaint before the Board or the Tribunal, provided the remedy sought did not include the payment of damages.

33 The reasoning which lead to this finding appears at paras 22 and 23 of the Tribunal’s decision. There are two bases upon which the Tribunal relies, the first being that the Board and the Tribunal are not limited to an award of damages in resolving a complaint. As a statement of the legal position, no exception can be taken to that, but it does not and cannot provide any evidence of what was in the Appellant’s contemplation at the time of the execution of the Deed.

34 The second basis is more problematic. The Tribunal refers to the submissions, the transcript of the proceedings before the IRC and the correspondence. Only the latter two constitute evidence. The only correspondence before the Tribunal capable of shedding any light on the intention of the Appellant at the time the Deed was executed was Attachments 5 and 7 to the President’s report. Attachment 5 was a letter dated 27 July 1998 from the Appellant’s representative to the Board enclosing a copy of the Deed of Release. Attachment 7 was a letter dated 3 September 1998 from the Appellant’s representative to the Board enclosing a copy of the Respondent’s application to the IRC, a copy of contemporaneous notes taken by the Appellant’s representative during the pre-hearing conference before a Commissioner on 5 December 1997, a copy letter from the Respondent to the Appellant dated 14 October 1997 and a copy medical certificate dated 13 October 1997. These documents were relied upon by the Appellant to support a determination that the Deed was intended to incorporate settlement of the Respondent’s complaint of discrimination and that the issue of discrimination was adequately addressed during the settlement discussions. Nothing in these documents provides any basis for a finding that the Appellant’s intention at the time of Deed’s execution was to restrict the Respondent to future claims in respect of remedies other than damages.

35 Turning then to the transcript of the proceedings before the IRC, the most salient part appears at pp 2-3, where the Commissioner is recorded as saying (addressing the Respondent) “Do you understand that by firstly, the signing of the Deed of Release and the acceptance of the offer that has been put today, that that is in full and final settlement of this matter ?” to which the Respondent replies “Yes, sir”. Later the Appellant’s representative is recorded as saying “The last thing Commissioner is that the Deed of Release will show that’s it’s in full and final settlement of all claims either that could or would or may have been made out of the employment, save and except for a workers compensation claim … so it’s not just this claim, it’s all other claims except workers compensation.”

36 Before dealing with this aspect of the evidence it is pertinent to note again the terms of the Deed of Release and in particular the definition of “claims” set out above.

37 There is nothing in the transcript of the IRC proceedings or the Deed of Release which would permit the Tribunal to reach the conclusion it did with respect to the Appellant’s intention. Indeed, a proper construction of the Deed of Release and the passage from the transcript set out above (which repeats the terms of the Deed) tends to an entirely different conclusion. The Tribunal appears to have inferred that because the Appellant’s representative specifically mentioned the workers compensation claim, which is solely monetary in nature, and failed to make any specific reference to the Respondent’s complaint of discrimination, which may not involve monetary compensation, then the terms of the Deed were only intended by the parties to relate to claims involving the payment of damages. That inference flies in the face of the definition of “claims” in the Deed and also ignores s 234 of the Workplace Injury Management and Workers Compensation Act 1998 which prohibits contracting out of a worker’s entitlement to a workers compensation claim. The exception of the workers compensation claim from the terms of the Deed was mandated by statute. It could have absolutely no bearing on the Appellant’s intentions with respect to the Deed.

38 The transcript of the hearing before the Tribunal contains no reference, either direct or indirect, to the possibility that the Appellant’s intention in respect of the Deed was only to prevent the Respondent from future claims for damages. One of the very last remarks made by the Tribunal to the Appellant’s representative was “it may well be that the Deed of Release is effective to do exactly what you’ve said to the Board that it had done” (at p 23). If there was a time to canvass with the Appellant an alternative construction of the Deed, the Appellant would be justified in thinking that the time had come and gone. The Appellant was never confronted with the interpretation of the evidence before the Tribunal subsequently relied upon by the Tribunal in publishing its reasons.

Conclusion and Orders

It follows that all three errors relied upon by the Appellant have been made out. The appeal is upheld. The orders of the Tribunal are set aside and the Appellant’s application under s.111 is remitted to a differently constituted Tribunal for hearing.