Wilde v Day

[2002] NSWADT 114

CITATION:	Wilde v Day [2002] NSWADT 114
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Taragh Wilde RESPONDENT Geoffrey Alan Day
FILE NUMBER:	021018
HEARING DATES:	07/05/02
SUBMISSIONS CLOSED:	05/07/2002
DATE OF DECISION:	05/07/2002
BEFORE:	Rees N - Judicial Member; Weule B - Member; Clayton S - 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 2 NSWLR 104 Simplot Australia Propriety Limited v Human Rights and Equal Opportunity Commission (1996) 69 FCR 90 Commonwealth v Sex Discrimination Commissioner (1998) 90 FCR 179 Commissioner of Police v Orr [2001] NSWADTAP 16 Prakash v Bobb Borg Enterprises Limited [1999] NSWADT 73 Khan v Macquarie University [1999] NSWADT 100 Maylor (No 1) v Mid North Coast Area Health Service [2001] NSWADT 117 State Electricity Commission v Rabel [1998] 1 VR 102 Mann v O'Neill (1996) 191 CLR 204 Sivananthan v Commissioner of Police [2002] NSWADT 45
REPRESENTATION:	APPLICANT In person RESPONDENT K Eastman, barrister
ORDERS:	1 The complaints of transgender vilification are dismissed; 2 No order for costs

1 The Tribunal is in a position to deliver its decision in relation to the application made by the respondent under section 111 of the Anti Discrimination Act that the complaint in this matter be dismissed. This statement of reasons will be transcribed and then made available to the parties in written form. In the course of giving these oral reasons we shall not unnecessarily delay matters by giving citations to cases. We shall refer to the names of cases but the citations can be added later for the purpose of accuracy.

2 The Tribunal has before it an application pursuant to section 111 of the Anti Discrimination Act by the respondent in this matter, Mr Day. Ms Eastman, of counsel, represents the respondent. Ms Wilde is not represented and has presented argument on her own behalf.

3 In order to provide a factual foundation for this application, Ms Eastman tendered, without objection, a number of documents which included the report from the President of the Anti Discrimination Board when referring the complaint in this matter, and also the report of the President of the Anti Discrimination Board in another matter, Wilde v The University of Sydney.

4 The Tribunal also had before it Points of Claim which had been prepared by the applicant, Ms Wilde, in these proceedings. Ms Eastman, for the respondent, prepared written submissions in support of her application under section 111 and provided the Tribunal with a number of authorities. The Tribunal, in accordance with what it sees as its statutory obligation, sought to explain to Ms Wilde, in plain English, the substance of the grounds for the section 111 application by the respondent. Having heard Ms Eastman's submissions, and the Tribunal's explanation of those submissions, Ms Wilde responded and opposed the section 111 application.

5 As we understand the respondent's application, there are two grounds upon which it is made. First, the Tribunal has no jurisdiction to deal with the complaint in this matter. Section 111 of the Act permits the Tribunal to dismiss a complaint at any stage of an inquiry when 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”. The submission that the complaint should be dismissed on the grounds of lack of jurisdiction we have construed to be one which falls within the meaning of the words "for any other reason" in section 111 of the Act. Secondly, it is submitted, in the alternative, that the complaint is misconceived and/or lacking in substance.

6 There are numerous decisions of this Tribunal and the courts that warn against exercising the power granted by the section 111, except with great caution. We are certainly mindful of those decisions. To dismiss a complaint at this very early stage of an inquiry is not something which should be done lightly but, at the same time, the Tribunal should not permit a complaint to proceed to full hearing with all the expense that that may entail if it is doomed to failure.

7 The first ground upon which it is submitted that we dismiss the complaint involves detailed consideration to be given to Part 9 of the Anti Discrimination Act, which is that part of the Act which deals with the process of making complaints about contraventions of the Act to the President of the Anti Discrimination Board and the subsequent referral of those complaints to this Tribunal for the purposes of an inquiry if the President is unable to resolve the complaint.

8 On numerous occasions various divisions of this Tribunal have drawn attention to some of the difficulties in interpreting various parts of Part 9 and the New South Wales Law Reform Commission in its Review of the Anti Discrimination Act also highlighted what it perceived to be a number of deficiencies in Part 9 of the Act. We simply endorse the remarks made by previous divisions of the Tribunal and the Commission because the arguments put to us in this case certainly require us to construe provisions in Part 9 which are not expressed with great clarity.

9 In making the submission that the Tribunal has no jurisdiction to deal with this complaint, Ms Eastman was at pains to point out that she was not asking the Tribunal to conduct a judicial review function of the exercise of powers by the President of the ADB because, of course, in cases of this nature, the Tribunal has no power to review the actions of the President of the board.

10 Ms Eastman drew attention to the letter in exhibit A (the President's report to the Tribunal) which, in this case, commenced the action taken by the applicant under the Anti Discrimination Act. There were, in fact, two letters written by Ms Wilde to the President of the Anti Discrimination Board on 23 April 2001. It is the second of those letters, a 5-page document, which, we believe, constitutes the complaint or complaints within the meaning of section 88 of the Anti Discrimination Act.

11 Ms Eastman has pointed out that these two letters are also found in the report of the President of the Anti Discrimination Board in the proceedings of Wilde v The University of Sydney (exhibit B in this particular application). Ms Eastman has argued that the President exercised all of the statutory functions and powers conferred upon him when, on 10 August 2001, he referred to the Tribunal the complaint or complaints which Ms Wilde had made against the University of Sydney in her letter on 23 April 2001.

12 Therefore, it was argued that from 10 August 2001 the President was functus officio and had no power, at some later date, to refer to the Tribunal anything associated with the letters which Ms Wilde had written to the President on 23 April 2001 complaining of a contravention or contraventions of the Anti Discrimination Act.

13 The authorities make it clear that whilst the initial complaint to the President of the Board must allege a contravention of the Act by another person it need not allege the relevant facts with the particularity of an indictment of pleading (see, the remarks made by Hunt J in Langley v Niland [1981] 2 NSWLR 104).

14 More recent cases have taken a particularly liberal view of the required minimum content of the initial complaint. The Federal Court, when dealing with similar provisions in Commonwealth anti-discrimination statutes concerning complaints to the Human Rights and Equal Opportunity Commission, has determined on a number of occasions that a complaint is valid if it contains nothing more than a broad allegation that another person has contravened the relevant Act (see, the decisions of Merkel J in Simplot Australia Propriety Limited v HumanRights and Equal Opportunity Commission (1996) 69 FCR 90 and Branson J in Commonwealth v Sex DiscriminationCommissioner (1998) 90 FCR 179). An Appeal Panel of this Tribunal recently took a similar view in Commissioner of Police v Orr [2001] NSWADTAP 16.

15 In our opinion it is not correct to equate a complaint with the document in which it is recorded. A complaint and the document which records it are separate things. A document may contain more than one complaint against more than one person. That is what has happened in this case. Ms Wilde, in her second letter to the President of the board on 23 April 2001, made a number of complaints against a number of different people, all within the boundaries of one document.

16 The President of the Board is entitled to deal with these complaints separately and, if he so chooses, to refer those complaints to this Tribunal for the purposes of an inquiry, at different times. In most circumstances it would be desirable for the President to deal with all of the complaints contained in the one letter, or one document, in the same referral to the Tribunal and it would seem that it would only be in exceptional circumstances that there may be sense and wisdom in the President referring separate complaints at different times, even though they were initially contained in the one document.

17 On the basis of the material before us we don't understand why the President has chosen to deal with multiple complaints against a number of people at different times, and by different referrals to the Tribunal, but we don't doubt that he has the power to do that. In her second letter of 23 April 2001, at page 4 of that document, Ms Wilde has, in our opinion, made two quite separate complaints of transgender vilification against Mr Day, the respondent in these proceedings. We believe that is what the President has referred to us, but we take the view that we are not bound by the President's characterisation of what he has referred. It is the task of the Tribunal to characterise what has been referred to it.

18 The Tribunal believes that it has before it two complaints of transgender vilification made by Ms Wilde against Mr Day. These are the complaints that we are dealing with today and we believe that those complaints are validly before this Tribunal. We have jurisdiction to deal with them. Accordingly, we believe that the first ground advanced in support of the application under section 111 of the Act fails.

19 The second ground, as we understand it, is that the complaints, as we have now characterised them, are misconceived and/or lacking in substance and therefore should be dismissed pursuant to section 111.

20 There are numerous cases in which the meaning of the terms "misconceived" and "lacking in substance" have been discussed (see,Prakash v Bobb Borg Enterprises Limited [1999] NSWADT 73, Khan v Macquarie University [1999] NSWADT 100, Maylor (No 1) v Mid North Coast Area Health Service [2001] NSWADT 117, and Commissioner of Police v Orr [2001] NSWADTAP 16). In keeping with the statements made in these earlier cases we propose to proceed on the basis that, in broad terms, "misconceived" means a misunderstanding of legal principle, and "lacking in substance" means an untenable proposition of law or fact. These meanings are drawn from a judgment of Ormiston J in the Victorian Court of Appeal in the case of State Electricity Commission v Rabel [1998] 1 VR 102 at 108-109, when that Court was dealing with analogous provisions in Victorian equal opportunity legislation.

21 Transgender vilification is dealt with in section 38S of the Anti Discrimination Act. There are a number of elements to a complaint of transgender vilification set out in subsection (1); and there are a number of exceptions to liability set out in subsection (2). In this case we hold concerns about Ms Wilde’s capacity to satisfy us of all of the elements of transgender vilification set out in subsection (1), other than the requirement that there must be an act done by “a person”. In view of the conclusion that we have reached in this case we believe it necessary to deal with only one of the elements which must be proved in order for the Tribunal to be satisfied that the respondent has performed transgender vilification contrary to section 38S of the Act.

22 The second of the elements which must be proved is that a person has performed a “public act”, which is defined in section 38R of the Act. In this case the alleged contraventions of the Act, set out in Ms Wilde's letter to the President of the Anti Discrimination Board, dated 23 April 2001, were a statement which the respondent, Mr Day, made to a police officer on 23 September 2000 and a statement which Mr Day is alleged to have made to a court official on 21 November 2000 when taking out a summons in order to institute proceedings for an apprehended violence order.

23 In dealing with any section 111 application, we must, as the Tribunal said in Prakash v Bobb Borg, take the applicant's allegations at their highest point. We must accept everything which the applicant has said is true and ask ourselves whether the applicant could possibly succeed. It seems to us that it would not be possible for the Tribunal to find that a statement made to a police officer in the course of that police officer's investigations for the possibility of instituting proceedings, or a statement made to a court official for the purposes of instituting proceedings for an apprehended violence order could constitute a “public act”, as that term is defined in section 38R of the Anti Discrimination Act.

24 If we are incorrect in this conclusion, and if there is some substance to the submission made to us by Ms Wilde that whilst a statement to a police officer in the circumstances that we have outlined, or a statement to a court official in the circumstances that we have outlined cannot constitute a “public act”, but a later distribution of those documents to other people can constitute a “public act”, we believe it is appropriate for us to consider one of the exceptions to liability set out in section 38S(2) of the Act. As we said earlier, the effect of subsection (2) of section 38S is that even if all of the elements of section 38S(1) are made out, there is no contravention of the Act if the respondent is able to prove that his or her behaviour falls within one of those exceptions.

25 One of the exceptions set out in paragraph (b) of subsection (2) is a communication to which the defence of absolute privilege would apply in proceedings for defamation. The concept of absolute privilege, as it applies in relation to communications made in association with court proceedings, was recently explained by the High Court in Mann v O'Neill (1996) 191 CLR 204. From our reading of the majority judgments in that case it seems clear that the defence of absolute privilege extends to protect communications made to court officials when a person is commencing legal proceedings. We are also persuaded, on the basis of the general principles enunciated in Mann vO'Neill and on the basis of the additional authorities to which Ms Eastman has referred us, that communications to a police officer in contemplation of criminal proceedings being instituted by that police officer also fall within the concept of absolute privilege, as it has been defined by the High Court in Mann v O'Neill.

26 Therefore both of the statements about which Ms Wilde has complained, a statement to a police office on 23 September 2000 and a statement to a court official on 21 November 2000, fall squarely within the defence of absolute privilege. Consequently, even if we accept Ms Wilde's case at its highest it is clear that the respondent in these proceedings, in relation to the substance of the two complaints made against him of transgender vilification, would be able to rely upon the defence of absolute privilege as set out in section 38S(2)(b) of the Anti Discrimination Act.

27 Therefore, we must conclude that these complaints are both “misconceived”, in that they involve a misunderstanding of legal principle, and “lacking in substance”, in that they involve untenable propositions of law or fact. The complaints before us must be dismissed.

28 Ms Eastman has asked us to make an order for costs in favour of the respondent. In this Tribunal, unlike civil litigation in the courts, there is no rule of law or practice that the loser should usually pay the costs of the successful party.

29 On a number of occasions the Tribunal has considered the circumstances in which costs should be awarded against a losing party. Quite recently a division of the Tribunal had the opportunity to address this issue in relation to a successful application under section 111 in the case of Sivananthan vCommissioner of Police [2002] NSWADT 45. Having considered what was said in those earlier cases about the circumstances in which the discretionary power to order costs should be exercised, we are not persuaded that in the circumstances of this case and on the basis of the information before us that we should make any order for costs.

30 The orders of the Tribunal are as follows:

(1) The complaints of transgender vilification are dismissed.

(2) No order as to costs.