Winter and Commissioner Of Western Australian Police Service

[2006] WASAT 87

WINTER and COMMISSIONER OF WESTERN AUSTRALIAN POLICE SERVICE [2006] WASAT 87

Last Update :06/04/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 87
Published:
Act:	EQUAL OPPORTUNITY ACT 1984 (WA)
Case No:	EOA:117/2005	Heard:	13 DECEMBER 2005
Coram:	MS J TOOHEY (SENIOR MEMBER)	Delivered:	31/03/2006
No Pages:	13	Judgment Part:	1 of 1
Result:	The Tribunal does not have jurisdiction to inquire into complaints which were not accepted by the Commissioner or were not included in the complaint to the Commissioner
Category:	B

Parties & Catchwords


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : HUMAN RIGHTS ACT : EQUAL OPPORTUNITY ACT 1984 (WA) CITATION : WINTER and COMMISSIONER OF WESTERN AUSTRALIAN POLICE SERVICE [2006] WASAT 87 MEMBER : MS J TOOHEY (SENIOR MEMBER) HEARD : 13 DECEMBER 2005 DELIVERED : 31 MARCH 2006 FILE NO/S : EOA 117 of 2005 BETWEEN : SCOTT WINTER

Applicant

AND

COMMISSIONER OF WESTERN AUSTRALIAN POLICE SERVICE
Respondent

Catchwords:

Equal Opportunity Act 1984 (WA) ­ Impairment ­ Jurisdiction ­ Whether the Tribunal can inquire into complaints refused by the Commissioner for Equal Opportunity as out of time ­ Whether the Tribunal can inquire into complaints not in the original complaint to the Commissioner

Legislation:

Equal Opportunity Act 1984 (WA), s 83, s 83(1), s 83(4), s 83(5), s 89, s 89(1), s 90, s 90(1), s 90(2), s 93, s 93(1), s 107(3), s 127

(Page 2)

State Administrative Tribunal Act 2004 (WA), s 9, s 9(a), s 32, s 32(2)(b)

Result:

The Tribunal does not have jurisdiction to inquire into complaints which were not accepted by the Commissioner or were not included in the complaint to the Commissioner

Category: B

Representation:

Counsel:

Applicant : N/A
Respondent : N/A

Solicitors:

Applicant : Ms Roche
Respondent : State Solicitor's Office

Case(s) referred to in decision(s):

Chaisty and City of Perth [2004] WAEOT 3
French v Sydney Turf Club & Anor [1999] NSWCA 195
MacDonald v Puplick & Ors Matter No 30090/97 [1998] NSWSC 428 (12 June 1998)
McAuliffe v Puplick (1996) EOC 92-800
Moran v WA Police Service, unreported, EOT of WA; 5 May 2003
Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140
Nestle Australia Ltd v The President and Members of the Equal Opportunity Board and Others [1990] VR 805
Wollongong City Council v Bonella &Ors [2002] NSWADTAP 26
Zinni v Coventry Group Ltd, unreported, EOT of WA, 21 March 2002

Case(s) also cited:

Nil

(Page 3)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 On 18 March 2004 the applicant complained to the Commissioner for Equal Opportunity (the Commissioner) that his employer had discriminated against him unlawfully on the ground of impairment contrary to the Equal Opportunity Act 1984 (the Act). His complaint concerned events dating back to 2000.

2 The Act provides that a complaint must be lodged within 12 months of occurring. The Commissioner has discretion, on good cause being shown, to extend that period. In this case the Commissioner refused to accept that part of the complaint which concerned events before 18 March 2003. She investigated that part which concerned events within the 12 month limit but, after investigation, dismissed that part of the complaint as lacking in substance. At the applicant's request she referred that part of the complaint to the Tribunal.

3 The question for the Tribunal was whether it has jurisdiction to inquire into a complaint as it was lodged with the Commissioner or as it was referred to it by the Commissioner; further, whether the Tribunal has jurisdiction to inquire into a complaint that was not made to the Commissioner but was raised later, before the Tribunal.

4 The Tribunal found that the Commissioner's refusal to extend the time for making a complaint to her is not reviewable by the Tribunal. It decided its jurisdiction is limited to the complaint referred to it by the Commissioner and cannot include matters not in the complaint to her.

5 The applicant argued that the requirement in s 9 and s 32 of the State Administrative Tribunal Act 2004 (WA) that the Tribunal act fairly, equitably and according to the substantial merits of each case means it must give the applicant latitude and accept any complaint made by him. The Tribunal did not accept that argument. It found that it was bound to act according to those principles when inquiring into complaints within its jurisdiction, but those principles do not allow it to assume jurisdiction it does not have. While the Tribunal can hear evidence of any matter relevant to its inquiry, any complaint outside its jurisdiction cannot substantiate a finding of unlawful discrimination.

(Page 4)

The issue

6 These proceedings arise out of a complaint by the applicant that the respondent unlawfully discriminated against him in employment on the ground of impairment.

7 The complaint comes before the Tribunal by way of a referral from the Commissioner for Equal Opportunity (the Commissioner) pursuant to s 90(2) of the Equal Opportunity Act 1984 (WA) (the Act).

8 A preliminary question has arisen which is whether the Tribunal has jurisdiction to inquire into a complaint as it was made to the Commissioner or whether its inquiry is confined to those matters referred to it by the Commissioner.

9 A related issue arises as to whether matters not included in the original complaint can form part of the Tribunal's inquiry.

Background

10 On 18 March 2004 the applicant lodged with the Commissioner a complaint of unlawful discrimination by his (then) employer, the Commissioner of Police. The applicant alleged he had been medically retired from the Police Service as a result of his suffering from Post Traumatic Stress Disorder, and cited incidents dating back to early 2000.

11 On 28 April 2004 the Commissioner wrote to the applicant advising him that the Act requires a complaint of unlawful discrimination to be lodged within 12 months of the alleged act of discrimination occurring (see s 83(4)). She further advised she could accept a complaint outside the 12 month period on "good cause" being shown by the complainant (see s 83(5)). The Commissioner invited the applicant to provide reasons for the delay in making his complaint about matters which occurred before 18 March 2003, outside the 12 month period.

12 In a response dated 24 May 2004, the applicant gave his reasons for the delay. He submitted that the catalyst for his dismissal, an incident which happened in January 2003, was only three months outside the 12 month limit. He acknowledged that other incidents were well outside the 12 month limit, but cited the depressive illness with which he had been diagnosed as the principal explanation for the delay.

13 On 30 August 2004 the Commissioner wrote again to the applicant advising that she could not investigate the out of time allegations of his complaint. She did not detail her reasons but said her decision was not

(Page 5)

based on the merits of the complaint, but on factors including the reason for delay in making the complaint, the length of the delay, the prejudice to the applicant if he was not able to pursue his complaint, and the prejudice to the respondent if she accepted the complaint. She further advised that she would investigate the allegations in the applicant's complaint that were within the 12 month time period.

14 The Commissioner proceeded to investigate those matters that she had accepted. In the course of her investigation certain amendments were made to the complaint that are not important here. On 21 December 2004 the Commissioner advised the applicant in writing that, after reviewing his complaint, she had decided that it was lacking in substance and, accordingly, she was dismissing it pursuant to s 89 of the Act.

15 On 31 March 2005, the Commissioner referred the complaint to the Tribunal at the applicant's request, pursuant to s 90(2) of the Act.

16 The Tribunal held a directions hearing on 10 June 2005 and ordered parties each to file a Statement of Issues, Facts and Contentions, and to attend a compulsory conference on 22 August 2005. On 8 August 2005 the applicant filed and served his Statement of Issues, Facts and Contentions.

17 By letter dated 22 July 2005 the respondent raised various objections to the contents of the applicant's statement and asked the Tribunal to list the matter for directions to be made about the filing and serving of written submissions, oral argument as to the Tribunal's jurisdiction to inquire into matters in the applicant's Statement which the Commissioner had refused to accept as out of time, and also matters raised in the Statement that were not in the complaint to the Commissioner at all. Parties subsequently filed written submissions on the question of jurisdiction and on 13 December 2005, the Tribunal heard oral argument on the point.

18 At the directions hearing on 13 December 2005, Mr Sefton of the State Solicitor's Office appeared for the respondent and Ms Roche appeared for the applicant. These reasons concern only the question of jurisdiction, and not the merits of the applicant's complaint.

19 The respondent objects to those matters contained in par 59(b), par 59(e), par 59(g), par 59(h) and par 61(x)-(z) of the applicant's Amended Statement of Issue, Facts and Contentions filed with the Tribunal on 21 September 2005.

(Page 6)

20 It is not in dispute that the Tribunal can determine whether a complaint is within its jurisdiction: Zinni v Coventry Group Ltd,unreported, EOT of WA, 21 March 2002, per President Johnson QC at [15] and [17]; see also Nestle Australia Ltd v The President and Members of the Equal Opportunity Board and Others[1990] VR 805.

21 It is also not in dispute that the applicant's complaint to the Commissioner concerned a series of events at various times between 2000 and 2003. Nor is it in dispute that, in so far as the applicant's complaints relate to alleged acts of unlawful discrimination occurring before 18 March 2003, they were not lodged within the 12 month time limit required by s 83(4) of the Act.

The applicant's submissions

22 The applicant submits that the Tribunal has jurisdiction to inquire into any matter in the complaint that was lodged with the Commissioner, including any alleged act of discrimination which occurred more than 12 months before the complaint was lodged, and any other complaint that arose later in the course of the Commissioner's investigation. In effect, the applicant says that a decision of the Commissioner not to exercise her discretion under s 83(5) is irrelevant to proceedings before the Tribunal. The applicant submits that it was not the intention of the legislature to proscribe or limit the Tribunal's inquiry to matters referred by the Commissioner; that to do so would be to allow the Commissioner to determine the jurisdiction of the Tribunal.

23 The applicant further submits that his complaints to the Commissioner concern a series of unlawful acts comprising a course of continuing conduct over a long period, and that the Tribunal cannot adequately conduct its inquiry without considering those matters.

24 Finally, the applicant argues that the Tribunal is bound by s 9(a) of the State Administrative Tribunal Act2004 (WA)(the SAT Act) to make decisions fairly and according to the substantial merits of the case, and by s 32(2)(b) of the same Act to act according to equity, good conscience and the substantial merits of each case. Further, that, as the Act is beneficial legislation, latitude must be given so as to promote its object and purpose, especially where a party is self-represented.

25 In support of these submissions the applicant cites Lovejoy v Myer Stores and Anor (1996) EOC 92-813 at 79,010; Chaisty and City of Perth [2004] WAEOT 3 at [19]; McAuliffe v Puplick (1996) EOC 92-800; and Zinni (above) per President Johnson QC at [28].

(Page 7)

The respondent's submissions

26 The respondent submits that a decision by the Commissioner not to exercise her discretion under s 83(5) is not reviewable by the Tribunal; as the Commissioner declined to extend the time pursuant to s 83(5) and accept the out of time complaints, any matter that occurred before 18 March 2003 cannot form part of the complaints which the Tribunal inquires into. Further, that the Tribunal cannot inquire into matters that were not in fact before the Commissioner, and which were complained of later to the Tribunal.

27 The respondent argues that s 107(3) of the Act means that jurisdiction in the Tribunal is limited to inquiring into a complaint or matter referred to it by the Commissioner. The respondent says the Tribunal can hear evidence, if it is relevant, about matters not accepted by the Commissioner, or not part of the complaint to her, when inquiring into matters properly within its jurisdiction, but those acts cannot of themselves ground findings of unlawful discrimination.

28 The respondent says that s 83 provides for a complaint which alleges a contravention of the Act. Section 83(4) provides that a complaint must be made within 12 months after the alleged contravention. The respondent says that, even though a number of matters may be complained of in one document, and therefore might be said to constitute one complaint, they may nevertheless constitute various alleged contraventions of the Act, and should be treated separately; if an alleged contravention is not complained of within 12 months, it is not a valid complaint for the purposes of s 83.

29 The respondent says that, subject to its relevance, the Tribunal can hear evidence of matters alleged to have occurred before 18 March 2003 when inquiring into matters properly within its jurisdiction. To that extent, the respondent does not take issue with matters referred to in the applicant's Statement of Issues, Facts and Contentions, if they are relevant to matters which the Tribunal has jurisdiction to inquire into them; however, any act of alleged unlawful discrimination outside the 12 month period cannot of itself constitute an unlawful act of discrimination.

The scheme of the Act

30 A person alleging a contravention of the Act may lodge a complaint with the Commissioner: s 83(1).

(Page 8)

31 A complaint lodged under s 83(1) must be lodged within 12 months after the date on which the contravention of the Act which is the subject of the complaint is alleged to have been committed: s 83(4). On good cause being shown, the Commissioner has discretion to accept a complaint lodged more than 12 months after the event.

32 The Commissioner must investigate each complaint lodged with her under s 83 and can obtain information and make various directions for the purposes of investigating and attempting to conciliate the complaint.

33 At any time during her investigation the Commissioner may dismiss a complaint for reasons including that it is frivolous, vexatious, misconceived or lacking in substance: s 89. If the Commissioner dismisses a complaint, the complainant can, by notice given within 21 days, require her to refer the complaint to the Tribunal.

34 Where the Commissioner has been unable to resolve a complaint by conciliation, and is of the opinion that it should be referred to the Tribunal, she must do so: s 93(1).

35 The Tribunal must hold an inquiry into any matter referred to it by the Commissioner and, where it finds a complaint substantiated, can make various orders in the complainant's favour: s 107(3) and s 127.

Reasons for decision

36 For the reasons set out below, the Tribunal does not accept the applicant's submissions. It finds that it cannot inquire into alleged contraventions of the Act which occurred before 18 March 2003, and it cannot inquire into alleged contraventions not included in the original complaint to the Commissioner.

37 The objectives of the Tribunal include achieving the resolution of disputes fairly and according to the substantial merits of the case; it must act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms: SAT Act s 9(a) and s 32(2)(b).

38 The Tribunal has power to determine whether or not a complaint is within its jurisdiction: Zinni (above); see also Nestle Australia (above). But that is not to say that it can assume jurisdiction which it does not in fact have. The requirement to act fairly and equitably is to do so within the bounds of the Tribunal's jurisdiction. It does not permit the Tribunal to extend those bounds because to do so might somehow seem "fair" to

(Page 9)

one or other party. The Tribunal can determine whether a matter is within the limits of its jurisdiction; it cannot itself set those limits.

39 The authorities cited by the applicant do not support its submissions. Each can readily be distinguished from these proceedings. Indeed, to the extent that they are applicable to this inquiry, the authorities clearly support the respondent's case.

40 Lovejoy is not authority for the propositionthat the Tribunal can deal with matters refused by the Commissioner. In that case, the Victorian Anti-Discrimination Tribunal, considering legislation in almost identical terms, found that:

"[A]n act occurring more than 12 months before the date of lodgement of the complaint cannot be relied on to found an act of discrimination, but can be taken into account to determine the context and surrounding circumstances of an alleged act of discrimination that is within time." (at 79,010)

41 In Chaisty (above), the Commissioner had accepted a complaint which included matters more than 12 months before it was lodged. It was not clear whether the Commissioner had formally exercised her discretion under s 83(5) in accepting the out of time complaints, but the Western Australian Equal Opportunity Tribunal was satisfied that she had in fact accepted them. On this basis, the complaint referred to it for inquiry under s 107(3) included allegations outside the 12 month period. The case is quite different from the present one. Moreover, the Tribunal found it could not review a decision of the Commissioner under s 83(5). The Tribunal further found that it could not inquire into matters that were not lodged with, and investigated by, the Commissioner.

42 In Zinni (above), the Commissioner had dismissed a complaint as lacking in substance pursuant to s 89(1) of the Act. The complainant had 21 days within which to notify the Commissioner that he required her to refer the complaint to the Tribunal for inquiry: s 90(1). At issue before the Tribunal was whether the complainant had in fact notified the Commissioner within 21 days. The Western Australian Equal Opportunity Tribunal found the terms of the complainant's notice did not disclose a request to refer the complaint to the Tribunal and, absent that referral, found it had no jurisdiction to inquire into it. In reaching its decision the Tribunal stated that it was mindful that the Act is beneficial legislation and that latitude must be given especially to self-represented complainants but, even so, it did not find for the complainant.

(Page 10)

43 McAuliffe also cited by the applicant, is not relevant here. In that case, the Supreme Court of NSW held that the President of the Anti-Discrimination Board, the equivalent of the Commissioner for Equal Opportunity here, when deciding whether to accept an out of time complaint, cannot consider the merits of the complaint but only whether good cause is shown for the delay; prejudice to the applicant is a relevant consideration. McAuliffe is not authority for the proposition that prejudice to the complainant should be considered by the Tribunal in deciding whether it can inquire into matters not accepted by the Commissioner and therefore not referred to the Tribunal.

44 A decision by the Commissioner not to accept a complaint about an alleged contravention more than 12 months old is not reviewable by this Tribunal: Moran v WA Police Service, unreported, EOT of WA; 5 May 2003 at [23-24]; see also Najdovska & Ors v Australian Iron and Steel Pty Ltd (1985) EOC 92-140 at 76,386. Alleged contraventions of the Act which the Commissioner has declined to investigate are not part of the complaint before her and are not part of any subsequent referral to the Tribunal.

45 The Tribunal's jurisdiction is enlivened by a referral by the Commissioner under s 90 or s 93 together with "a report relating to her investigation … into the complaint". The report generally includes copies of the original complaint and correspondence. In the present case, matters were also raised in correspondence in the course of the Commissioner's investigation which were not included in the original complaint. However, the fact that the report accompanying the referral includes information about those matters does not mean that the Tribunal can inquire into them.

46 What is in fact referred by the Commissioner will vary from case to case, and it may be that the Tribunal has to give the complainant the benefit of any doubt as to what is actually referred for inquiry: see, for example, Chaisty (above). However, where, as in this case, there is no question as to what the Commissioner accepted as in time, and therefore what she referred to the Tribunal, that is the end of the matter.

47 To read "the complaint" in s 107(3) as comprising the complaint lodged with the Commissioner, even where the Commissioner refused to accept some or all of it, would undermine the scheme and intention of the Act which is clearly to limit complaints which can be brought under it to those which happened less than 12 months before, unless good cause can be shown.

(Page 11)

48 Courts and Tribunal have consistently decided that they have jurisdiction only in relation to what is referred by the Commissioner for inquiry. Where the Commissioner declines to extend time under s 83(4), any alleged act of discrimination that occurred more than 12 months before the complaint cannot form part of the Tribunal's inquiry: see, for example, French v Sydney Turf Club & Anor[1999] NSWCA 195 at [14] per Giles JA, Meagher JA concurring (in which the NSW legislation mirrored the WA legislation save for the requirement that a complaint be lodged within 6 months of an alleged contravention); see also Wollongong City Council v Bonella &Ors [2002] NSWADTAP 26 at [72]-[75].

49 Nor can the Tribunal inquire into alleged contraventions of the Act which occurred afterthe complaint was lodged with the Commissioner: MacDonald v Puplick & OrsMatter No 30090/97 [1998] NSWSC 428 (12 June 1998).

50 The Tribunal does not accept that the out of time matters complained of by the applicant constituted a continuous course of conduct such that it can inquire into them. A complaint will be within time as long as the contravention was continuing on a date 12 months before the complaint to the Commissioner. That date is "the date on which the contravention … is alleged to have occurred" for the purposes of s 83(4). Unless the Commissioner had exercised her discretion under s 83(5), any continuing contravention which occurred more than 12 months before lodging the complaint cannot form part of the complaint or part of the Tribunal's inquiry: Najdovska (above) per Barbour J at 76,385, cited with approval in Wollongong (above) at [86] and [87].

51 The applicant is not precluded, by the making of one complaint, from lodging subsequent complaints of later conduct. But those complaints cannot be added to the original complaint before the Commissioner, or that being considered by the Tribunal, and each must be lodged with the Commissioner within 12 months of occurring.

52 Nothing precludes the Tribunal from hearing evidence of any matter that it considers relevant to the inquiry before it, and its inquiry is not limited, or the applicant prejudiced, by this decision. There is no reason why the Tribunal's inquiry into complaints within its jurisdiction is compromised. It may be that evidence of acts which occurred well before the complaint was lodged with the Commissioner will be relevant to the Tribunal's inquiry; it may be that matters not complained of originally but which happened later, or were only complained of later, will also be

(Page 12)

relevant. However, none of those matters can themselves ground a finding of unlawful discrimination within the meaning of the Act.

Conclusion

53 Matters referred to in par 59(b), par 59(e), par 59(g), par 59(h) and par 61(x)-(z) of the applicant's Amended Statement of Issues, Facts and Contentions filed with the Tribunal on 21 September 2005 cannot ground a finding of unlawful discrimination because they were either out of time and refused by the Commissioner, or they were not in the complaint to the Commissioner. Evidence of those matters can be heard by the Tribunal if it considers them relevant to the complaints which it has jurisdiction to inquire into.

54 The Tribunal does not have jurisdiction to inquire into matters complained of in par 59(b), par 59(e), par 59(g), par 59(h) and par 61(x)-(z) of the applicant's Statement for the purposes of deciding whether they substantiate a finding of unlawful discrimination. It orders the applicant to file and serve, within 21 days of the date of this order, an amended Statement of Issues, Facts and Contentions with those paragraphs deleted and with any necessary consequential amendments.

Orders

(i) The Tribunal does not have jurisdiction to inquire into matters complained of in par 59(b), par 59(e), par 59(g), par 59(h) and par 61(x)-(z) of the applicant's Amended Statement of Issues, Facts and Contentions filed with the Tribunal on 21 September 2005;

(ii) The applicant is to file and serve, within 21 days of the date of this order, an amended Statement of Issues, Facts and Contentions with the paragraphs referred to in Order 1 deleted and with any necessary consequential amendments;

(iii) Within 21 days of service of the applicant's amended Statement of Issues, Facts and Contentions the respondent is to file with the Tribunal a Statement of Issues, Facts and Contentions which it says arise in these proceedings.

(Page 13)

I certify that this and the preceding [54] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

MS J TOOHEY, SENIOR MEMBER