Von Stalheim v Anti-Discrimination Tribunal (No 2)
[2021] TASSC 46
•28 September 2021
[2021] TASSC 46
COURT: SUPREME COURT OF TASMANIA
CITATION: Von Stalheim v Anti-Discrimination Tribunal (No 2) [2021] TASSC 46
PARTIES: VON STALHEIM, Kurt
v
ANTI-DISCRIMINATION TRIBUNAL
DELOITTE TOUCHE TOHMATSU
FILE NOS: 589/2007, 778/2007
DELIVERED ON: 28 September 2021
DELIVERED AT: Hobart
HEARING DATE: 16 August 2018
JUDGMENT OF: Blow CJ
CATCHWORDS:
Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Judicial review of decisions of tribunal reviewing rejection and dismissal of complaints – Whether complaint was in relation to the same matter as an earlier complaint that had lapsed.
Anti-Discrimination Act 1998 (Tas), s 73.
Fencott v Muller (1983) 152 CLR 570; Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16, 209 CLR 373; CGU Insurance v Blakeley [2016] HCA 2, 259 CLR 339; Palmer v Ayres [2017] HCA 5, 259 CLR 478; Rizeq v Western Australia [2017] HCA 23, 91 ALJR 707; Burns v Corbett [2018] HCA 15, 265 CLR 304, referred to.
Aust Dig Human Rights [53]
REPRESENTATION:
Counsel:
Applicant: In person
Respondents: No Appearance
Attorney-General: S Nicholson
Solicitors:
Attorney-General: Director of Public Prosecutions
Judgment Number: [2019] TASSC 46
Number of paragraphs: 77
Serial No 46/2021
File Nos 589/2007
778/2007
KURT VON STALHEIM v ANTI-DISCRIMINATION TRIBUNAL,
DELOITTE TOUCHE TOHMATSU
REASONS FOR JUDGMENT BLOW CJ
28 September 2021
In 2003 the applicant, Kurt Von Stalheim, made two complaints to the Anti-Discrimination Commissioner concerning an accounting firm, Deloitte Touche Tohmatsu ("Deloittes"). The first complaint was made in June 2003. The Commissioner conducted an investigation, and subsequently dismissed that complaint. The second complaint was made in July 2003. A delegate of the Commissioner rejected that complaint without an investigation. The applicant made two applications to the Anti-Discrimination Tribunal, seeking reviews of the decision to dismiss the first complaint and the decision to reject the second complaint. Each of those decisions was reviewed by the tribunal in 2007. For each review, the tribunal was constituted by a single member, Mr M Brett. He is now a judge of this Court.
On 30 July 2007 he made a decision that the Commissioner's delegate made a correct decision in rejecting the second complaint. On 26 September 2007 he made a decision that the Commissioner made a correct decision in dismissing the first complaint.
By originating application 589/2007, the applicant has sought judicial review of the first tribunal decision, which related to the second complaint. By originating application 778/2007 he has sought judicial review of the second tribunal decision, which related to the first complaint. The tribunal and Deloittes were named as respondents to each application. Neither of the respondents has taken any part in these proceedings. The Attorney-General intervened in each application pursuant to s 39 of the Judicial Review Act 2000 and was represented by counsel at the hearing of the applications. I heard them together. Counsel for the Attorney-General submitted that both applications should be dismissed.
The relevant provisions of the Anti-Discrimination Act 1998 ("the Act") can be summarised as follows:
· Section 16 prohibits discrimination by one person against another on any of various grounds that are listed in the section. Those grounds include age, gender, disability and "irrelevant criminal record": s 16(b), (e), (k) and (q).
· Sections 17 to 21 prohibit other forms of conduct including, amongst others, sexual harassment, victimisation, and inciting hatred: ss 17(2), 18(1), and 19 respectively.
· Section 60(1) permits complaints to be made to the Commissioner about discrimination or prohibited conduct in certain circumstances. Under s 60(1)(a), a complaint may be made by a person against whom discrimination or prohibited conduct was directed.
· Under s 64(1), the Commissioner may reject a complaint if it is trivial, vexatious, misconceived, or lacking in substance, or if it does not relate to discrimination or prohibited conduct, or, in certain situations, if other remedies are or have been available. Under s 64(1)(f), the Commissioner may reject a complaint if the subject matter of the complaint has already been adequately dealt with by the Commissioner or certain other authorities.
· Under s 65(2), a person whose complaint has been rejected by the Commissioner may apply to the tribunal for the rejection to be reviewed.
· Section 65(4) provides that, if no application for the review of the rejection is made within 28 days after receipt of a statement of reasons for the rejection, the complaint lapses.
· Under s 69(1), the Commissioner may investigate a complaint.
· Under s 71(1), on the completion of an investigation, the Commissioner must either dismiss the complaint, refer it for conciliation, or refer it to the tribunal for an inquiry.
· Under s 71(3), a complainant whose complaint has been dismissed may apply to the tribunal for the dismissal to be reviewed.
· Under s 72(1), if, on reviewing the rejection or dismissal of a complaint, the tribunal is satisfied that the Commissioner made a correct decision in rejecting or dismissing the complaint, the complaint lapses.
· By virtue of s 73, a complainant whose complaint lapses under s 65(4), s 71(5) or s 72(1) "is not entitled to make another complaint in relation to the same matter".
· Under s 75(1), the Commissioner or an authorised person may direct a person to take part in a conciliation conference. Under s 75(2), it is an offence to fail to comply with such a direction without a reasonable excuse.
· Under s 76(1), if an agreement is reached to resolve a complaint, the Commissioner or authorised person is to record the terms of that agreement. Under s 76(2), the record is then to be signed by each party.
The first tribunal decision
The learned tribunal member provided written reasons for affirming the decision of the Commissioner's delegate to reject the complaint of July 2003. It appears from those reasons that the factual background to that decision was as follows:
· During the years 1996 to 2001, the applicant made a number of applications to Deloittes for employment in accounting positions. All of those applications were unsuccessful.
· In and before 2002, the applicant made a series of complaints to the Commissioner, asserting that Deloittes had contravened the Act in rejecting his applications.
· The first of those complaints was known as complaint no 0427. In respect of that complaint, a conciliation conference was conducted by an authorised person, an agreement was reached, and the agreement was recorded in the form of a document executed by the parties. The execution of the document apparently satisfied s 76(2) of the Act.
· The second and third complaints were known as complaint no 01/528 and complaint no 01/616. Each of those complaints was rejected for investigation. The applicant applied for a review of each rejection, apparently pursuant to s 65(2). He subsequently purported to withdraw both review applications. At that time the Act did not contain any provisions as to any mechanism for the withdrawal of complaints from review by the tribunal.
· The fourth complaint was known as complaint no 02/740. That complaint was rejected for investigation. The applicant did not apply under s 65(2) for the rejection to be reviewed.
It appears from the reasons of the Commissioner's delegate that he rejected the complaint of July 2003 on the following grounds:
· He concluded that the document that formalised the agreement to resolve complaint 0427 precluded the applicant from making a further complaint.
· He concluded (incorrectly) that complaints 01/528 and 01/616 had lapsed as a result of the applicant withdrawing his review applications, and that that precluded him from making a fresh complaint in relation to the same subject matter.
· He concluded that complaint 02/740 had lapsed, and that s 65(4) precluded the applicant from making a fresh complaint in respect of the same subject matter.
· He concluded that the July 2003 complaint was misconceived, lacking in substance, and vexatious within the meaning of s 64(1) of the Act.
· He concluded that significant portions of the subject matter had already been adequately dealt with by the Commissioner within the meaning of s 64(1)(f) of the Act.
The learned tribunal member was not satisfied that the delegate was correct in relation to complaints 0427, 01/528 and 01/616. He affirmed the delegate's decision on the following bases:
· He concluded that, because complaint 02/740 was rejected for investigation and the applicant had not applied for that rejection to be reviewed, that complaint had lapsed under s 65(4), and s 73 prohibited the applicant from making another complaint in relation to the same matter.
· He concluded that, as a result, the delegate's conclusion as to the applicability of s 65(4) was correct.
· He rejected a submission that s 73 did not bar a new complaint about the same conduct if that new complaint was based on evidence that was not previously available. He held that new evidence did not make a further complaint one about a different "matter".
There is no dispute as to complaint 02/740 having been rejected, nor as to the applicant not having applied for the review of that rejection. The critical question, therefore, is whether the complaint of July 2003 related to "the same matter" as complaint 02/740. If it did, the first tribunal decision is unimpeachable.
The word "matter" in s 73 means "a single justiciable controversy". That interpretation is supported by a number of cases: Fencott v Muller (1983) 152 CLR 570 at 603; CGU Insurance v Blakeley [2016] HCA 2, 259 CLR 339 at [27]; Burns v Corbett [2018] HCA 15, 265 CLR 304 at [70]; Re McBain; ex parte Australian Catholic Bishops Conference [2002] HCA 16, 209 CLR 373 at [62]; Rizeq v Western Australia [2017] HCA 23, 91 ALJR 707 at [52]; Palmer v Ayres [2017] HCA 5, 259 CLR 478 at [27].
In complaint 02/740, the applicant asserted that Deloittes had unlawfully discriminated against him on the grounds of age and gender during the years 1997 to 2002 inclusive in relation to employment. He provided a seven page statement in support of his assertions. On the first page he said:
"The positions which form the basis of this complaint are trainee and graduate positions filled between 1/1/1997 – 30/1/02."
In the complaint of July 2003, the applicant wrote:
"I have applied for Trainee and Graduate accounting positions with Deloitte Touche Tohmatsu since May 1996. During the period of 1996-2001 all of these positions went to younger females. The people who obtained the trainee positions were less well qualified than my self [sic] was. This firm's representative settled this complaint as a result of dishonesty, assisted by the dishonesty of the commissioner's delegates."
Both complaints related to a series of unsuccessful employment applications over several years up to and including 2002. There is an inconsistency between them, in that complaint 02/740 specified 1 January 1997 as the starting date, whereas the complaint of July 2003 specified May 1996 as the starting date. Despite that inconsistency, I am satisfied on the balance of probabilities that the two complaints related to the same series of employment applications, regardless of whether the first such application was in May 1996, January 1997, or some other month. It is simply implausible that the applicant did not want to complain about anything that happened prior to 1997 when he lodged complaint 02/740, but then decided to include events from 1996 when he filed the July 2003 complaint.
It follows that, because of the provisions of s 73 of the Act, it was simply not open to the Commissioner's delegate to consider the merits of the July 2003 complaint. The applicant was not entitled to make that complaint, and the delegate was obliged to dismiss it. The learned tribunal member was correct in affirming the delegate's decision. Because the decision was unimpeachable, it is not necessary for me to address the grounds of review relied on by the applicant or his submissions relating to the relevant originating application.
It follows that originating application 589/2007 must be dismissed.
The second tribunal decision
The second tribunal decision relates to a complaint by the applicant that was received in the office of the Anti-Discrimination Commissioner on 17 June 2003. The applicant complained that Deloittes had discriminated against him and/or victimised him by refusing to consider, properly or at all, applications for employment made by him between 1996 and 2003. He asserted that Deloittes had acted in that way because of a rumour that he was a paedophile, his age, his gender, a disability, and prior complaints to the Anti-Discrimination Commissioner about similar matters.
The complaint was first considered by a delegate of the Commissioner. On 18 September 2003 the Commissioner wrote to the applicant notifying him that her delegate had decided to accept part of the complaint for investigation, but to reject the balance of the complaint. The complaint was accepted for investigation only to the extent that it alleged discrimination on the ground of "irrelevant criminal record", contrary to s 16(q) of the Act. The delegate's decision involved an error of law. The Act does not permit the Commissioner or a delegate to accept part of a complaint for investigation and reject the balance for investigation. However, as the learned tribunal member observed, when a decision is made to investigate a complaint pursuant to s 69(1), there is no obligation to investigate every aspect of the complaint.
On 15 March 2004 the Commissioner notified the parties that the investigation was complete, and that the complaint alleging discrimination on the ground of an "irrelevant criminal record" was dismissed. That decision was made by the Commissioner, not a delegate. The next day the applicant applied to the tribunal pursuant to s 71(3) of the Act for a review of the decision to dismiss the complaint.
The learned tribunal member conducted a hearing for the purpose of the s 71(3) review. During that hearing the applicant made two allegations which led to the learned tribunal member issuing notices requiring the attendance of witnesses to give evidence.
The first allegation was that a police sergeant had informed the applicant that a partner in Deloittes had said that he knew about the applicant's prior convictions before the applicant commenced making applications for employment. The applicant said that he had been told this by the sergeant in June 2004, and that the sergeant had said that the partner made the comment in or about May 2004.
The sergeant gave evidence at the tribunal hearing. He produced parts of the police file relating to a complaint made by the applicant to the police as to the possibility of a detective inspector having provided information to a human resources director at Deloittes about his criminal history. The tribunal member received copies of records of interview between the sergeant and three individuals from Deloittes. They did not contain any evidence to support the complaint about the detective inspector. The sergeant gave evidence that he had not made the statement that the applicant had attributed to him, or said anything similar.
The second allegation concerned a solicitor who had acted for Deloittes on an application for a restraint order against the applicant. The applicant asserted that she had told him that Deloittes had told her of his criminal record. She gave evidence at the tribunal hearing to the effect that she had spoken to the applicant at Court in May 2004, but she denied mentioning his criminal record, and denied having received any information from Deloittes about him having a criminal record.
The learned tribunal member concluded that the allegations that Deloittes had rejected the applicant's employment applications on the basis of an irrelevant criminal record were completely unsubstantiated and were the product of speculation. He also concluded that the rest of the complaint did not warrant investigation. He agreed with the reasons given by the Commissioner's delegate for concluding that the only substantial aspect of the complaint that required further investigation was the allegation concerning an irrelevant criminal record. The delegate's reasons for that conclusion were summarised by the learned tribunal member as follows:
"(a)That significant portions of the claim lack substance within the provisions of section 64(1)(a) of the Act.
(b)That significant portions of the subject matter of the claim have already been adequately dealt with by the Commissioner within the provisions of section 64(1)(f) of the Act.
(c)That section 73 operates to prevent the investigation of matters that have already been dealt with by the Commissioner and lapsed.
(d)Parts of the claim relate to a matter that has been the subject of a deed of settlement in a previous claim.
(e)Some parts of the claim relating to discrimination on the basis of an irrelevant criminal record are outside the time limit on complaints prescribed by section 63(1)."
In his originating application relating to this decision, the applicant sought review on 22 grounds. Grounds 4 and 10 were not pursued. I will address each of the other grounds, but first I need to address three interlocutory applications.
The interlocutory applications
Over the years the applicant made a number of interlocutory applications. Three of them were adjourned, to be dealt with at the hearing of his originating applications.
The first two of those interlocutory applications were filed on 25 and 26 March 2013. Those applications did not set out proposed orders in a conventional way. For example, the interlocutory application of 25 March 2013 began with the following:
"The Kurt Von Stalheim applies for the following orders:
a. Deloitte being in possession of a document that showed less favourable treatment upon the basis of a prescribed attribute failed to fulfil its duty to inform the tribunal of this fact, which caused the decision to be affected by fraud and thus invalid."
The two applications appear to set out findings of fact, or of mixed fact and law, that the applicant wanted the Court to make. The nature of the proposed findings, or so called orders, suggests that the applicant wanted the Court to conduct a hearing de novo into his complaint of 17 June 2003. However that would be inconsistent with the role of the Court in judicial review proceedings. The Court's job "is not to determine the case on its merits … but to review only for contravention of an Act, breach of natural justice or other illegality": Aronson, Groves and Weekes, Judicial Review of Administrative Action and Government Liability, 6th ed, at [3.300].
The grounds upon which judicial review may be sought are listed in s 17(2) of the Judicial Review Act. That subsection reads as follows:
"(2) The application may be made on any one or more of the following grounds:
(a) that a breach of the rules of natural justice happened relating to the making of the decision;
(b) that procedures that were required by law to be observed relating to the making of the decision were not observed;
(c) that the person who purported to make the decision did not have jurisdiction to make the decision;
(d) that the decision was not authorised by the enactment under which it was purported to be made;
(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;
(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);
(g) that the decision was induced or affected by fraud;
(h) that there was no evidence or other material to justify the making of the decision;
(i) that the decision was otherwise contrary to law."
Each of the so-called orders in the two interlocutory applications involves an assertion either of fraud or of failing to take into account relevant considerations. However those assertions all relate to the "irrelevant criminal record" issue, and each appears to relate to factual assertions that were either not made to the learned tribunal member or, if made, rejected as speculative and unsupported by evidence. Those first two interlocutory applications should therefore be dismissed.
The third of the interlocutory applications was filed on 18 December 2015. On that occasion the applicant applied for orders in the following terms:
"1That the previous submissions for the matter of 589/2007 be disregarded.
2That the hearing for 589/2007 be adjourned until the filing of submissions.
3That new evidence be heard.
4That the previous order be adjourned until the filing of the relevant submissions for the matter.
5That the hearing of various matters including constitutional matters be heard separately.
6That the previous matter be adjourned until the filing of submissions for that matter.
7That the hearing of the application for 778/2007 be adjourned until the filing of written submissions for the matter.
8That the damage to my shoes be taken as evidence.
9That the damage to my boots be taken as evidence."
At the hearing of the originating applications I permitted the applicant to adduce evidence in the form of affidavits and to make submissions. Paragraph 14 of his affidavit sworn on 17 December 2015 contained evidence about damage to two pairs of shoes and a pair of boots. In the circumstances, there is no need for me to make any of the orders sought in the application of 18 December 2015. It can be dismissed.
Ground 1
This ground reads as follows:
"1 During the course of the hearing, Deloitte provided information that contradicted the written declarations made by Deloittes and relied upon by both the Commissioner and Tribunal, accordingly both the decision of the Anti Discrimination Commissioner and the Review decision of the Anti Discrimination Tribunal are affected by fraud."
This ground relates to the issue concerning the detective inspector. On 16 January 2007 Deloittes was represented at the tribunal hearing by a legal practitioner. He told the learned tribunal member that there may have been a conversation between the inspector and a human resources person from Deloittes about the applicant having some convictions of a sexual nature. The learned tribunal member investigated the applicant's allegation about the detective inspector and made a finding that was open to him. There was no fraud. Ground 1 must fail.
Ground 2
This ground reads as follows:
"2 The admissions of prior knowledge made by Mr Daly that contradicted the evidence before the Commissioner were not heard and taken into account in the decision leading to an incorrect decision being made."
Mr Daly was counsel for Deloittes at the tribunal hearing. He is now the Deputy Chief Magistrate.
The learned tribunal member made a finding that there was nothing in the police file or the sergeant's evidence that would assist the applicant to establish his complaint. That finding was reasonably open to him. This ground must also fail.
Ground 3
This ground reads as follows:
"3 The admissions of prior knowledge made by Mr Daly warranted the exclusion of the statements made to the Anti Discrimination Commissioner on the basis of their false nature and by failing to exclude these declarations from consideration the Tribunal fell into legal error, compounded by taking false statements into account."
The applicant contends that there were undisclosed discussions that tended to discredit statements provided by individuals from Deloittes. That is purely speculative. This ground therefore cannot succeed.
Grounds 5, 6 and 7
These grounds read as follows:
"5 By denying the applicant to present any component of his case, the tribunal's decision is in breach of the rules of natural justice. Further, the decision and conduct of the Tribunal was so riddled with Natural Justice problems that it is fatally flawed.
6 The Tribunal having refused to allow written submissions to be provided and having refused to hear verbal submissions outside the restricted bounds allowed by the tribunal during the Hearing, then made a decision outside those same restricted bounds and by doing denied the Complainant the opportunity to be heard on the issues that it was deciding. By doing so the Tribunal denied the Applicant all opportunity to argue his case, in a manner so appalling that no court can allow this decision to remain in place without bring (sic) disrepute onto the legal system.
7 The Tribunal has, by acting in an arbitrary and tyrannical manner, has engaged in an exercise of power that is so unreasonable that no reasonable person could so exercise the power, in determining how the matter will be dealt with."
By virtue of s 87(4)(a) of the Act, the tribunal is bound to observe the rules of natural justice. It therefore owed the applicant a duty of procedural fairness. The hearing took place over nine days, commencing in March 2005 and ending in April 2007. The applicant was given many opportunities to present evidence and make submissions. On 10 August 2007 the applicant applied to re-open his case in order to present evidence and make submissions in relation to those parts of his complaints that had been the subject of the so-called partial rejection by the Commissioner's delegate. That application was refused. The learned tribunal member rightly concluded that the applicant was seeking to re-argue issues that were the subject of complaints that had lapsed. These grounds are without merit.
Ground 8
This ground reads as follows:
"8 The Tribunal improperly exercised its power to allow for legal representation by acting in accordance with a rule without having any regard for the merits of the matter the subject of the exercise of the discretionary power. Further, he also, by incorrectly identifying the law relating to both the exercise of a discretionary power generally and the admittance of legal representation in particular made an error of law in the course of his conduct."
At the time of the tribunal hearing the Act did not contain any provisions about the representation of parties at tribunal proceedings. It must follow that the tribunal had a discretion to allow Deloittes to be represented by a lawyer. It cannot be said that the applicant was denied procedural fairness as a result of Deloittes being represented by a lawyer, rather than a non-lawyer.
This ground does not appear to relate to any of the possible grounds listed in s 17(2) of the Judicial Review Act. It must fail.
Ground 9
Grounds 9 reads as follows:
"9 The tribunal fell into Jurisdictional error when determining that it lack (sic) the authority to conduct a review to make a decision on a decision made without authority but which purports to be a decision that affects a person rights and privileges."
Ground 9 refers to the decision of the Commissioner to dismiss the first complaint. She had the authority to make that decision. Ground 9 must therefore fail.
Grounds 11-12
These grounds read as follows:
"11 The Tribunal fell into jurisdictional error when failing to determine that the primary issues pursuant to the Anti Discrimination Act are less favourable treatment, and/or conditions practices or unreasonable requirements and the secondary issue is whether or not a prescribed attribute is a factor in the conduct.
12 The Tribunal has misconceived its jurisdiction when failing to understand that it is the factual matrix supporting a complaint that gives rise to the ability to complain and not the attributes in a legal sense."
Grounds 11 and 12 have no merit. It is clear that the learned tribunal member understood that the investigation of a complaint alleging discrimination contrary to s 16 involved investigating the conduct alleged, the relevant attributes of the complainant, and the relationship between those attributes and the alleged conduct.
Grounds 13-17
These grounds read as follows:
"13 The tribunal fell into legal error when determining the meaning and or application of the provisions of the Anti Discrimination Act 1998, namely ss 64(1)(a), 64(1)(f), 73, 63(1), s 72(3), s 87 as well as the effect of the deed of release. When upholding the Commissioner application of these provisions in dismissing the complaint (sic)
14 The tribunal has misconceived its jurisdiction when failing to understand that it is the factual matrix supporting a complaint that gives rise to the ability to complain, and not the attributes in a legal sense.
15 The tribunal committed an error in law when determining paragraph 17 of its decision, since it failed to identify the fact that inquisitorial Tribunal's [sic] deal with factual problems, to which applies the law rather than legal matter as presented to a Court.
16 The tribunal committed an (sic) Jurisdictional error and an error of law when determining the meaning of matter rather than subject matter, as determined in paragraph 17 of its decision.
17 The tribunal has sought to deny its jurisdiction by deciding that it cannot with matters that fall within its jurisdictional (sic), and as such it has committed an error in law and also fallen into jurisdictional error."
These grounds all relate to the meaning of the word "matter" in s 73 of the Act. Prior to 2013 that section read as follows:
"73 A complainant whose complaint lapses under section 65(4), section 71(5) or section 72(1) is not entitled to make another complaint in relation to the same matter."
The learned tribunal member said the following about the meaning of "matter" in s 73 in his reasons at [17] and [18]:
"17It may well be that the word 'matter' in section 73 is wide enough to in fact encompass the entirety of this complaint, including the parts of it which relate to the actions based on having heard the 'paedophile' rumour. It seems to me that that 'matter' as it appears in section 73, bears the meaning attributed to that word in cases such as Fencott –v– Muller (1983) 152 CLR 570 and Gregory –v– Philip Morris Limited (1998) 80 ALR 455 ie 'a single judicial [sic] controversy'. The 'judicial controversy' is the complaint (02/740), the conduct was a course of conduct ie treating the Complainant unfavourably on the basis of prescribed attributes. The unfavourable treatment consisted of the regular rejection and indeed failure to consider, his applications for employment. In my opinion, the 'matter' is the course of conduct, ie the ongoing failure to properly consider his applications for employment. It does not become a different 'matter' merely because there is a further rejected application if that application forms part of the same course of conduct. Further, it will not make that course of conduct a different 'matter' because the Complainant can point to a different or further attribute for the unfavourable treatment. On this basis, the whole of his complaint is part of the ongoing course of conduct which was the subject of the prior lapsed complaint 740/02 and accordingly would be barred by section 73 in any event.
18However, in case I am wrong about this insofar as the complaint deals with the 'paedophile' allegations, I will consider this aspect of the complaint on the assumption that it is a separate 'matter' to that dealt with in the prior lapsed complaints."
The learned tribunal member was no doubt correct in interpreting "matter" as meaning "a single justiciable controversy". I have already referred to the relevant authorities.
The Act is a piece of beneficial legislation. There are situations in which ambiguities in such legislation should be resolved in favour of the class of persons intended to be benefited by the legislation – in this case persons who have been, or claim to have been, discriminated against on the basis of attributes listed in s 16. It was therefore appropriate for the learned tribunal member to treat the allegation of discrimination on the basis of an irrelevant criminal record as a separate matter from any matter to which s 73 applied. There is no merit in grounds 13-17 inclusive.
Ground 18
This ground reads as follows:
"18 The Tribunal has failed to understand its role and powers when conducting a review of a dismissal and also the role of the parties to its proceedings, in this case a review of a dismissal of a complaint."
The role of the tribunal in conducting a review of the rejection or dismissal of a complaint under the Act was analysed by Porter J in State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48, 19 Tas R 54 at [39]-[49]. The main points that emerge from that analysis are as follows:
·The review is a comprehensive merits review, not confined to the material that was before the Commissioner.
·The tribunal may take into account such material as it thinks fit.
·The investigative process involves an initial screening of complaints which may lead to them being rejected or dismissed.
·A successful review of a rejection results in the complaint being investigated by the Commissioner.
·A successful review of a dismissal results in an inquiry.
·The question for the tribunal is what decision ought to have been made, and the tribunal has to address the same issues as the Commissioner.
·The tribunal has to decide whether the Commissioner's decision was the correct one based on the material before the tribunal. The extent of such material is to be governed by relevance.
This ground must also fail. The learned tribunal member clearly understood the fundamentals about his role in conducting a review of the dismissal of a complaint, his powers under s 72(1) and (3), and the rights of the parties to participate in the hearing relating to the review.
Ground 19
This ground reads as follows:
"19 The Tribunal has committed an error of law when ignoring the Supreme Court's decision of Martin v Medical Complaints Tribunal [2006] TASSC 73. This decision made it clear that positions are not taken during the course of an inquisitorial tribunal proceeding."
Martin v Medical Complaints Tribunal [2006] TASSC 73, 15 Tas R 413 concerned two issues. Evans J held that, because that tribunal was not bound by the rules of evidence, it had a discretion to receive DNA evidence that would be inadmissible in a court because of a breach of a provision in the Forensic Procedures Act 2000. He also held that the failure to put to a patient that she had somehow planted Dr Martin's DNA in her vagina did not give rise to a significant possibility that the outcome of the proceedings would have been affected. There is a parallel between the role of the Medical Complaints Tribunal, which was required to hold formal inquiries into complaints referred to it about medical practitioners, and the role of learned tribunal member in conducting a s 71(3) review. However the subject matter in Martin made that case completely irrelevant to the proceedings before the learned tribunal member.
Grounds 20 and 21
These grounds read as follows:
"20 The Tribunal has failed to under stand [sic] the inquisitorial nature of its jurisdiction and the effect of this nature on the type of evidence obtained, and whether or not witness [sic] are actually required for the purpose of obtaining evidence.
21 The Tribunal has committed a Jurisdictional error in failing to understand the Commissioners [sic] role and functions in relation to its own role and functions, resulting in it seeking to obtain evidence that it need not have obtained, did not have the power to obtain, and may never have needed to obtain."
In his reasons at [30], the learned tribunal member acknowledged that there may be some question as to whether he had the power to issue notices requiring the attendance of witnesses. That question arose because the tribunal was conducting a review rather than an inquiry. Under s 13 of the Act, the tribunal has two functions. One function is to conduct inquiries: s 13(a). The other function is to conduct reviews of decisions of the Commissioner: s 13(b). The tribunal has a power, by written notice, to require any person to appear before it to give evidence: s 87(2). That provision is located in Division 4 of Part 6 of the Act. That Division relates to inquiries. However s 87 is in general terms, and is not expressly limited in its scope to inquiries. By virtue of s 8A(1) of the Acts Interpretation Act 1931, an interpretation of s 87 that promotes the purpose or object of the Act is to be preferred to one that does not. In my view the existence of a power to require the attendance of witnesses for the purpose of reviews conducted by the tribunal would promote the purposes and objects of the Act. It follows that the tribunal had the power to issue notices to witnesses in this case.
The applicant contends that, in conducting the review, the tribunal should have made enquiries as to who the partners in Deloittes were, who they employed, and what merits those employees had. I disagree. It was reasonable for the learned tribunal member to investigate only the allegation concerning "irrelevant criminal record", and to go no further than he did investigating facts for the purpose of the review.
There is nothing in the decision of the learned tribunal member to suggest that he misunderstood the nature of the review that he was required to undertake. These grounds must fail.
Ground 22
This ground reads as follows:
"22 The Tribunal's proceedings were so lengthy and the delay in producing the actual decision was so long that the Applicant was subject to both a breach of the Rules of Natural Justice and also Abuse of Power, resulting in a decision that was riddled with factual flaws. In short he could not even remember his own proceedings and then purported to make a sound decision."
The applicant contends that there was an inordinate delay on the part of the tribunal, and that that delay resulted in an invalid decision. He relies on the High Court's decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 77, 228 CLR 470.
That case concerned proceedings in the Refugee Review Tribunal concerning a refusal to grant protection visas to a family from Bangladesh. The tribunal conducted oral hearings in May 1998 and December 2001. In January 2003 it handed down a decision affirming the decision to refuse the visas. The decision was based on the assessment of the applicants' credibility. By majority, the High Court decided to set aside the tribunal's decision on the basis that the delay resulted in the applicants being denied a fair hearing. However, as Gleeson CJ observed at [5], the circumstances in which delay, of itself, will vitiate proceedings, or a decision, are rare.
As I have said, the review proceedings were listed before the tribunal on nine days over a period of about 25 months. The first two days were in May 2005. The third day was in March 2006, when the tribunal relisted the matter as the result of the applicant having taken no further action to advance the matter. Thereafter the matter was listed on 5 June, 6 July, 7 August and 21 November 2006, and on 16 January and 13 April 2007. The decision was given on 26 September 2007, more than five months after the last day of the hearing.
There was a degree of complexity to the review hearing. The applicant was unrepresented. Deloittes were represented by counsel. Submissions were made and rulings given as to the nature of the review, the admission of further evidence, access to police files, and evidence allegedly withheld from the Commissioner. The delay was unfortunate but understandable. The outcome of the review did not depend upon an assessment of credibility. There is nothing to indicate that the learned tribunal member forgot anything of relevance. This ground must fail.
A jurisdictional issue
The applicant has pointed out that there may be a jurisdictional problem if some or all of the partners in Deloittes are residents of States other than Tasmania. In Burns v Corbett (above), the High Court held that, for constitutional reasons, the Civil and Administrative Tribunal of New South Wales, which is not a court, did not have jurisdiction in relation to a matter between residents of different States. The Anti-Discrimination Tribunal is not a court. It therefore does not have jurisdiction to exercise judicial power in relation to any matter between the applicant and any residents of States other than Tasmania. However I need not make enquiries as to the identities and places of residence of the partners in Deloittes for two reasons. First, for the reasons stated above, the only appropriate course is for me to dismiss the three interlocutory applications and the two originating applications. Secondly, the proceedings before the learned tribunal member were proceedings of an administrative character, as distinct from proceedings in which the tribunal was asked to exercise judicial power.
History of these proceedings
It is appropriate that I explain how this has come about that I am delivering a judgment in 2021 in relation to two applications that were filed in 2007.
The applications were filed in August and October 2007. There were directions hearings that year before Master Holt (as he then was). At the last of those directions hearings, the applicant said that he needed a transcript of the tribunal proceedings but could not afford to pay for one.
The next significant development was on 24 April 2009 when Crawford CJ conducted a directions hearing in relation to the two applications. On that occasion counsel for the Attorney-General failed to appear. The applicant sought leave to discontinue the proceedings. Crawford CJ did not grant leave, but suggested that he file notices of discontinuance. That did not happen.
In May 2010 the applicant made an application by letter, for the two originating applications to be heard separately. There was a directions hearing on 10 May 2010, but counsel for the Attorney-General failed to appear. The application was adjourned sine die.
In April 2011 the applicant filed an interlocutory application seeking orders that there be a rehearing of the review proceeding, and seeking orders for witnesses to give evidence and produce documents in the proceedings in this Court. Those orders were refused by a judge in April 2011.
In May 2013 the second originating application came before me and I heard argument on a preliminary point as to whether or not the tribunal's decision was a decision of an administrative character for the purposes of the Judicial Review Act. The applicant made excellent submissions, and persuaded me that it was. I ruled accordingly on 3 June 2013: Von Stalheim v Anti-Discrimination Tribunal [2013] TASSC 24.
On the day of that ruling I gave directions as to the material that the applicant was to file and serve before his applications were heard. I gave him 35 days to file the required material. However it took him well over three years to comply with my directions.
He made the three interlocutory applications in 2015 and 2016. All of them were adjourned, to be dealt with at the same time as the final hearing of his two originating applications.
Counsel for the Attorney-General filed an outline of submissions in May 2017. The matters were pending in the Launceston Registry. After encountering various difficulties about listing a hearing in Launceston, I conducted a hearing in Hobart on 16 August 2018. The applicant made oral submissions all day, and did not finish. I permitted him to make the rest of his submissions in writing. I directed that those submissions were to be filed and served on or before 31 October 2018. They arrived in three instalments. The last of the documents, which related to the Tasmanian Constitution, Magna Carta, contempt powers and procedural weaknesses, amongst other things, was filed on 21 February 2019. I subsequently decided that I did not need to hear counsel for the Attorney-General as to any of the applicant's submissions.
I acknowledge that I have taken far too long to determine these proceedings. Until now I have given priority to matters that I have regarded as more pressing and more important. At times during the last two years my judgment writing has been delayed as a result of the COVID-19 pandemic, a fractured wrist, and serious illness in my family. These applications do not involve any assessment of oral evidence or credibility. They involve the assessment of written submissions. The applicant's submissions are thorough, lengthy, often misconceived, and sometimes hard to understand. To the best of my knowledge he has not contacted the Court staff about the delay on my part.
Conclusion
For the reasons stated, the two originating applications and all outstanding interlocutory applications are dismissed.
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