//
[2008] QSC 77
General information, not legal advice.
Supreme Court of Queensland
2008-03-19
Jones J
Original judgment source is linked above.
[1] By this proceeding the appellant (hereinafter "Black & White Taxis) appeals against an order of the Anti-Discrimination Tribunal made on 19 December 2006. By that order the Tribunal dismissed an application by Black & White Taxis to join, in the complaint referred for the Tribunal's adjudication, a further party as a respondent to the proceeding pending before the Tribunal.
[2] The Tribunal had before it a complaint referred by the Anti-Discrimination Commission upon the request of the first respondent (hereinafter "the complainant"). His complaint was that the second respondent had racially vilified him by calling him, "a black bastard" at his residential unit and in the hearing of his neighbours. That allegation is denied by the second respondent who in turn asserts that the complainant abused him and also threatened him with a chair.
[3] This appeal invokes the statutory appellate jurisdiction of this Court as conferred under ss 217 and 218 of the Anti-Discrimination Act 1991 ("the Act") with the effect that an appeal may only be pursued on the question of law. Black & White Taxis assert that in dismissing its application for joinder, the Tribunal member erred in law by:-
[4] The second respondent was a taxi-cab driver. On 25 March 2005 he was attending premises in his taxi-cab having been despatched by Black & White Taxis to collect a fare paying passenger who lived in the same residential complex as the complainant. When he arrived at the complex he sounded his horn and this apparently gave some offence to the complainant which resulted in an altercation during which the offending words were alleged to have been used.
[5] The taxi-cab was identified by its markings as being part of the fleet of vehicles controlled by Black & White Taxis in Cairns. The second respondent also wore clothing which included epaulettes bearing the name of Black & White Taxis. The complainant identified Black & White Taxis as the "employer".[1] The formal complaint was lodged a few days later on 31 March 2005 in a form which was subsequently found to comply with s 136 of the Act.
The complaint was investigated by the Anti-Discrimination Commissioner who directed that both the second respondent and Black & White Taxis participate in a conciliation conference.[2] The complaint was not resolved by this process and the Commissioner, on the request of the complainant referred the matter to the Tribunal on 9 August 2005. The second respondent made a complaint of alleged racial vilification against the complainant and this complaint also was referred to the Tribunal.
The Tribunal accepted the referred complaints pursuant to s 175 of the Act and has itself undertaken a further conciliation conference with the three parties. This conference was unsuccessful and on 27 February 2006 the Tribunal ordered that the two referred complaints be heard together. At the same time the Tribunal ordered the complainant to file his witness statements by 13 March 2006 but he failed to do so, the default continuing up to the time of hearing.
[8] At the hearing, the Tribunal heard and then dismissed an application by the second respondent to have the complainant's case dismissed for non-compliance with the February 2006 order. In her consideration of the application by Black & White Taxis for it to be discharged from the complaint or alternatively for R & B Sandhar to be joined as co-respondents, the Tribunal member ultimately refused both parts of the application.
[9] R & B Sandhar were the lessees from the owner of the taxi licence and were thus responsible for the operation of the taxi under the licence. For convenience I will refer to them as "the owners".
[10] The Tribunal had before it the statement of evidence of Mr Robert Roberts, General Manager of Black & White Taxis, his evidence was to the effect that the person to whom the second respondent was answerable for his work related conduct was the owners. The owners were permitted to operate a taxi for hire in accordance with the provisions of the Transport Operations (Passenger Transport) Act 1994 and the Regulations and Standards made thereunder. In this heavily regulated industry the number of taxi service operators in a particular area is strictly controlled and there is a requirement that the operator affiliate with the person who "administers a taxi service". In the Cairns area that person is the appellant, Black & White Taxis.
[11] A taxi owner/operator may engage a duly licensed driver to drive the taxi-cab. The arrangement by which this is done is a matter of negotiation between them. The agreement is recorded in standard form known as a "Bailment Agreement" being executed, whereby the taxi service operator hires out the use of the taxi to the driver for one or more shifts per week. The proceeds of hire collected by the driver during a shift are shared between the driver and the operator pursuant to the Agreement. The actual terms of the contract between the second respondent and the owners in this instance was not put before the Tribunal. Whether this arrangement could be characterised as an employment might well be a moot point but for the purpose of considering a joinder it is reasonable to hold that there was some form of agency between the owners and the driver in the context of the hiring of the taxi by members of the public.
[12] Black & White Taxis has an agreement with each taxi owner/operator to provide booking and communication facilities. It receives bookings from members of the public and passes those details onto the driver of a taxi-cab then available for hire. Black & White Taxis charge a flat monthly rate to each owner/operator within its designated area. Black & White Taxis has no contractual relationship with the drivers and, specifically in this case, none with the second respondent. It regards the drivers as independent contractors who are free to choose when and where to work and what job offers to accept or refuse.[3]
As part of its service, Black & White Taxis also undertakes instruction and training for prospective drivers and provides a certificate of successful completion. The holding of such a certificate is a necessary prerequisite for a driver to obtain a "Driver Authority" under the relevant regulations. Black & White Taxis also have an anti-discrimination Policy and all employees and affiliated drivers are required to sign and to conform to the requirements of this policy. It can take disciplinary action for non-compliance with the policy.[4]
Generally speaking when a member of the public books a taxi-cab, the person has no means of knowing which taxi-cab will be despatched, who is the owner/operator of the taxi-cab, or which driver will be sent. The public's reliance is upon the booking agency to provide a taxi service which complies with the law. The driver relies upon the agency for accuracy in the details of the booking and the despatch and the booking agency relies on the driver to fulfil its commitment to the customer.
There being no contrary evidence about the relationship between these various contributors to the taxi-cab service, the question became whether the second respondent was employed by, or was an agent of, either Black & White Taxis or the owners or both, so as to give rise to vicarious liability.
[16] Vicarious liability arises pursuant to s 133 which is in the following terms:-
(ii) It is a defence to a proceeding for a contravention of the Act arising under subsection (i) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.[5]
For the purpose of the Act and pursuant to s 4 "agent" means "a person who has actual, implied or ostensible authority to act on behalf of another".
[17] Having heard the arguments, written and oral, of the solicitor representing Black & White Taxis, the Tribunal member said:-
"I can indicate now that I will advise the parties of my decisions on questions and I will deliver my reasons in writing later this week, but I would like the parties to know what the orders are in general terms which I am proposing to make."[6]
"I also accept that there is an arguable case that [the owners] are appropriate to be joined as respondents because it is quite arguable that [the second respondent] is the worker of [the owners] and/or the agent. Evidence about that will have to be given at the hearing...
So I propose to make formal orders along those lines. I won't be dismissing the complaint. I won't be removing Black & White Taxis as a respondent, but I will be making an order joining [the owners] and I will be making directions that the matter be listed for a hearing at the earliest possible time."[7]
[18] Those comments appear to have come at the end of the hearing and certainly after it was clear there would be no further submissions on behalf of Black & White Taxis. The Tribunal member delivered her decision with reasons on 19 December 2006. Noting that she had indicated during the hearing that she was inclined to order the joinder of the owners she had now determined "with the benefit of a consideration of the authorities and balancing all the relevant factors, that the application by black & White to join [the owners] should be dismissed."[8] She had concluded on the evidence that:-
"a. It is arguable that the second respondent was the agent of Black & White;
No argument is raised against those conclusions in this Appeal.
[19] The Tribunal member then stated the bases upon which she exercised her discretion namely:-
(ii) If joined the owners would have no opportunity to proceed through the conciliation processes unless further conference was ordered.
(iii) There was delay in seeking a joinder and no explanation for it.[10]
[20] The Notice of Appeal identifies six grounds which in argument before me crystallised into two contentions that the Tribunal's decision was affected by errors or law namely:-
2. The Tribunal denied procedural fairness to the appellant.
[21] Dealing with the latter of these contentions Mr Johnson of Counsel for Black & White Taxis contended that the learned Member's departure from the preliminary view which she formed at the hearing denied black & White Taxis the opportunity to be heard in response to matters that ultimately proved critical to the decision.
[22] Properly examined, two of the three bases which underpinned the change of mind on the part of the Tribunal member are not controversial. Firstly, if the Tribunal had ordered the joinder it may or may not have directed a further conciliation conference (s 180). Doing so may have caused inconvenience to the parties who had twice previously attempted conciliation.
[23] Secondly, the question of delay and the failure by Black & White Taxis to explain its delay were matters relevant to the exercise of the discretion and the opportunity for Black & White Taxis to be heard on this point had been given. There was no requirement for a Tribunal to give a further opportunity just because as a relevant consideration, delay takes on a greater or less weight during the discretionary process. Moreover, it is tolerably clear that the solicitor appearing for Black & White Taxis had completed her submissions before the comment was made by the member.
[24] The focus therefore falls upon the question of the Tribunal member's doubt about the scope of her jurisdiction to join a party. This issue does not appear to have been raised in argument at the hearing and certainly the Tribunal member expressed no such doubt when intimating informally what her orders would be. But doubt about the scope of Tribunal's power to join a new party is an ongoing concern for Tribunal members. In H v T[11] Member Savage SC said:-
"There has however been a consistent line of authority in this Tribunal, but the power of amendment, (found in s 178 of the Act, and the power of joinder in s 177, are very limited. That flows from the nature of the jurisdiction of the Tribunal. It is a jurisdiction to hear "referred" complaints. In Lumbergs v QSuper [2003] QADT 8, a decision of the now President of the Tribunal, and McKenzie v McKay and Others [2005] QADT 24, it has been found that if a matter falls outside the original complaint the Tribunal has no jurisdiction to entertain it, and, are fortiori, if the complaint is made against a person against whom it was not originally made. References to the decision in McKenzie, demonstrate that the matter is not without doubt. There I set out a number of decisions from other jurisdictions (where the jurisdiction given to the equivalent tribunal seem to be the same); to suggest that the view of the jurisdiction of the tribunal is purely a Queensland view. It is, I think, unnecessary to decide that question today. It is however a very significant factor in the determination of the present application, that there is a very significant doubt about the jurisdiction of the Tribunal to allow the joinder and determine the complaint. That question is important for an inferior tribunal, which should not determine its own jurisdiction."
[25] Some of the difficulty for the Tribunal member here no doubt stems from the fact that there was no contradictor to the application. Neither the complainant nor the second respondent took any issue with the joinder except that the complainant expressed concern about the delay in the past and the prospect of further delay that might be occasioned by the joinder.
The terms of the Tribunal's powers are widely expressed:-
The Tribunal may join a person as a party to a proceeding by giving the person reasonable notice."
[28] Despite the width of the power as expressed, its use has been constrained by the perceived limited nature of the Tribunal's statutory jurisdiction. A complaint comes to the Tribunal through a process ordained by the Act which requires:-
2. a decision by the Commission whether to accept or reject the complaint (s 141);
3. the Commission is to investigate the complaint (ss 155, 156);
4. if the Commissioner believes that a complaint may be resolved by conciliation, conciliation must be undertaken (s 158);
5. if the complaint is not or not likely to be resolved by conciliation the complainant is to be so advised (s 165);
6. the complainant may elect to require a referral of the complaint to the Tribunal (s 166).
"It is difficult to avoid the conclusion that the Tribunal's jurisdiction, which is statutory rather than inherent, is founded on referral of a complaint complying with the terms of s 136...This also founds consistency in what is investigated, is the subject of conciliation and is referred to the Tribunal and provides procedural fairness to all parties...
[30] The Tribunal has been imbued with certain express powers, including powers to join a new party and to amend a complaint. The consequence of making orders pursuant to those powers inevitably is to alter the terms of the "referred complaint". Hence there is "considerable tension between these powers and the limitation on the Tribunal's jurisdiction only to hear the complaint referred to it by the Commission. See Lundberg v QSuper (supra). The issue relating to the power to amend was canvassed in some detail by Member Savage SC in McKenzie v McKay & State of Queensland[15] and in H v T (supra) when he dealt with the power to join a new party. Member Savage argued for a literal interpretation of the specific powers, the exercise of which are discretionary in any event. He contended that the allowance of a further complaint by amendment would not per se defeat the statutory process and may well save expense and inconvenience that would attend a complainant having to make a further complaint.
The immediate difficulty with taking that as a general approach is that new allegations would come before the Tribunal without the benefit of the statutory processes of prior investigation and conciliation. The scheme of the Act in dealing with alleged contraventions is not adversarial and parties often appear without legal representation. The Tribunal is not a court, although the function it performs is quasi judicial. It is important there be some filtering of allegations and an assessment of whether conduct complained of could amount to a contravention of the Act. In saying that, I agree (adopting the words of Member Jackson in Rhodes v BI Gaming[16]) that "no pedantic approach should be made to the meaning or ambit of a complaint made by a lay person to the Commission".
The approach adopted in some other jurisdictions more expressly focuses on the contravention rather than the complaint. In New South Wales, the Supreme Court stated in Langley v Nyland[17] that whilst a complaint must allege a contravention of the Act, "it need not allege the relevant facts with the particularity of an indictment or a pleading". This statement was relied upon by the New South Wales Appeal panel in Commissioner of Fire Brigades v Lavery[18] to state:-
"A written complaint does not serve the purposes of a formal pleading. Rather, the purpose of a written complaint is to identify (directly or indirectly) an alleged contravention of the Act or the Regulation. The President's jurisdiction to investigate and the Tribunal's jurisdiction to hold an inquiry depend upon the claimed occurrence of what amounts to a contravention of the Act or the Regulations, and that claim must be apparent on the face of the written complaint."[19]
The President's jurisdiction referred to above is the same as that of the Commissioner for the purpose of Queensland legislation.
[33] In Victoria, the Court of Appeal in State Electricity Commission v Rabel & Ors[20] considered the minimum requirement to satisfy the jurisdictional fact for the Equal Opportunity Board (equivalent of the Tribunal) in the context of its making an order to strike out a complaint. Phillips JA (with whom Tadgell & Ormiston JJ agreed) noted that the Board correctly accepted that:-
"...in order to come within the Board's jurisdiction, a complaint "must assert with sufficient clarity facts that will attract that jurisdiction". It also said:- "...while a complaint is not to be construed in the same technical way as a formal pleading, and need not refer in technical detail to the specific provisions of the Act contravened or use the language of the Act in describing the discrimination complained of, it must contain the elements necessary to found the jurisdiction. One reason for this requirement is simply that a complaint must fall within the terms of the Act to be dealt with under Act..." (my emphasis)
The minimum requirement for the purpose of the Queensland Act is compliance with s 136 which has occurred in this case. Whilst the above passage does not define the full scope of the jurisdictional enquiry, the reference to "the necessary elements" is of note.
[34] By the time the referral by the Commissioner takes place, the true issues for the Tribunal's determination should have been distilled. These issues would include reference to any new features or new parties relevant to the contravention as identified in the written complaint. The Commission does not have power to make amendments or to join parties. Part of its investigation is to identify the issues relating to the contravention and this becomes the platform upon which the Tribunal's jurisdiction rests.
[35] What is actually referred to the Tribunal is a bundle of issues relating to a contravention of the Act. The Tribunal's task is to determine those issues and reach a conclusion as to whether there has been such a contravention. The issues may not have been stated with precision nor in detail but so long as an issue has been raised, even tangentially, and does relate to the contravention then it falls to be considered by the Tribunal. The express statutory powers to join parties, to amend the complaint and to deal jointly with complaints are procedural and thus intended to facilitate and complement the general purposes of the Act. Whilst acting within jurisdiction there is a wide discretion to deal with procedural matters.
[36] The purpose of the Act and the nature of the relief it provides suggests that the Court should favour an interpretation which gives most effect to the legislative objects. The legislation is both protective and remedial. It identifies a need "to ensure that the determinations of unlawful conduct are enforceable in the courts of law (s 5(c)). The Tribunal's function is importantly to determine whether the conduct does contravene the law. Consequently, the examination of a complaint should not be constrained or confined by a description of actions that may have been narrowly stated at the time of its making. It follows that the discretionary process of determining whether or not to amend a complaint or to join a party must find some basis in the contravention as referred and that fact is a question committed to the Tribunal for its decision. See Parisienne Basket Shoes Pty Ltd v Whyte[21].
In this instance Black & White Taxis relies upon the general law right to contribution between co-obligors which accrues in circumstances where one of a number of co-obligors pays more than his or her proportionate share of a co-ordinate liability. By virtue of s 133, if there is a contravention of the Act attracting vicarious liability, and the contravenor is an agent for more than one person then each of these persons would be jointly and severally liable with the contravenor. Mr Jonsson of Counsel contends that in such circumstances the general law entitlement would enable the co-obligor to obtain an equitable contribution from the other co-obligor. He concedes that the function of the Tribunal is prescribed by statute and it does not have the power to make orders for contribution between co-obligors but argues that because this is so, it is apt to attract the operation of the equitable doctrine in a court of competent jurisdiction.[22]
[38] It seems to me that the joinder sought to pursue this interest has little to do with the purpose of the act but rather is concerned only with the spreading of a potential liability to pay monetary compensation. A contravention by a particular person, whether personally, or vicariously pursuant to s 133 of the Act, is to be considered at the investigative stage by the Commission. Being seized of the issue at this stage would allow consideration of whether the person alleged to be vicariously liable, had a defence pursuant to s 133(2). Only if appropriate would the complaint be referred to the Tribunal and, if so, it may be as a separate contravention. Even if the complainant now instituted a complaint against the owners and it was referred as a separate complaint it would become a matter for the Tribunal whether to deal with the referred complaints jointly pursuant to s 179.
[39] The effect of what Black & White Taxis proposes here is to regard the referred complaint against the named persons as being open-ended if potential liability for the contravention can be shown in others. If there is a potential vicarious liability in other persons it is the specific relationship of that person to the second respondent and the availability to that person of any defence that would determine whether the referral should be made. The joinder sought by Black & White Taxis in this case is not, in my view, for the purpose of the Act nor does the Tribunal have the power to make orders favourable to Black & White Taxis. If it be the case that persons other than Black & White Taxis are derivatively liable for the second respondent's conduct, then it is a matter for the complainant to decide whether to initiate a further complaint. For persons other than the complainant any remedy must be pursued elsewhere. The stated purpose of the Act to ensure that determinations of unlawful conduct are enforceable in courts of law does not require the determination of issues for which the Tribunal can make no effective order.
[40] Following from my reasoning above, if the issue of the owners possibly being held vicariously liable arose (directly or indirectly) in the proceedings before the Commission, it is part of the bundle of issues now referred to and clearly within the Tribunal's jurisdiction to make orders for the joinder of the owners. If no mention of that issue has previously been raised, then it cannot be the subject of the referral upon which the Tribunal's statutory jurisdiction depends.
[41] The circumstances here called for the Tribunal to determine whether it had jurisdiction and then to decide how the discretion was to be exercised. The Tribunal member purported to exercise her discretion whilst holding a doubt about her power to do so. This, it seems to me, gives rise to error and requires the Court now to exercise its powers under s 218 of the Act.
[42] To this end it is necessary to know the scope of the referral, in particular whether the potential for the owners to be vicariously liable was raised before the Commissioner. If not, the Tribunal has no jurisdiction to make the order sought. If so, the discretion arises and must be exercised in the certainty that jurisdiction to make the order does exist. That jurisdictional fact should be readily determinable.
[43] Given that the material that Black & White Taxis presented to the Commission set out the details of the arrangements between that company and taxi cab owners, it seems to me highly likely that the topic of what persons were vicariously liable for the driver would have been canvassed. For the purpose of this application I am prepared to infer that the matter was raised before the Commission and thus was part of the bundle of issues referred for consideration by the Tribunal. If this were so, then the Tribunal member ought to have found that she had jurisdiction to determine the issue and proceed to exercise her discretion.
[44] Having found error as referred to above, I conclude that the Tribunal member's discretion has miscarried. The question then is whether the matter should be referred back to the Tribunal or as allowed by s 218 dealt with by this Court. I have decided that as the evidence before me is quite detailed and not likely to be expanded, I should deal with the application.
[45] Foremost amongst the factors touching upon the discretion is the fact that the joinder has, in my view, little relationship to the stated purposes of the Act as referred to in paragraph [39] above. Secondly, there is the matter of delay. The complaint was lodged on 31 March 2005 and the Commission referred the complaint to the Tribunal in August 2005. The matter was first raised before the Tribunal in October 2006, some one year and three months after the referral. There was a hearing by the Tribunal on 27 February 2006 when procedural orders were made for the two complaints to be joined together and for the complainant to provide witness statements. Some of the delay might then be attributed to the complainant's failure to comply but that fact did not prevent Black & White Taxis from raising the joinder question in February 2006 or at any time thereafter.
[46] Thirdly, the effect of any joinder would be to add significantly to that delay whilst Black & White Taxis and the owner identify the issues between them and deal with any interlocutory matters. One anticipates that there might well be an application by the owner to be discharged from a complaint which is raised not by a complainant but by a respondent. Whilst not expressing any view about the merits of such an application, it simply highlights that there is a potential for the existing serious delay to be further extended.
[47] Finally, it seems to me, that the facts of the case are in relatively small compass. It is the type of case which ought to be dealt with speedily and without allowing legal issues to introduce complexity which is against the spirit of the legislation.
[48] I would, therefore, in the exercise of my discretion refuse the application.
[49] I would also refuse any order for costs but I will delay pronouncing on this issue to allow the parties the opportunity to make written submissions in respect of costs within the next 21 days.
[22] The point was made in Hopper (supra) where Moynihan J said:-
"[61] The Act, however, makes no provision for apportionment. Apportionment of damages in accordance with the various parties' degree of fault is a creature of statute. It was first introduced into English Maritime Law in 1911 in lieu of a rule of equal division and more generally in Queensland by the Law Reform Act 1995... absent any applicable statutory provision there does not seem to have been any power to apportion."
Black & White (Quick Service) Taxis Ltd
Sailor & Anor