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[2022] ACAT 22
ACT Civil and Administrative Tribunal
2022-03-18
Original judgment source is linked above.
CASINO CANBERRA LIMITED ACN 051 204 114 v KIDMAN (Appeal) [2022] ACAT 22
Catchwords: APPEAL - discrimination - Original Tribunal found that employer discriminated against an employee - whether Original Tribunal erred in deciding that employee was engaged in industrial activity, and the employer treated the employee unfavourably because of the industrial activity - whether Original Tribunal erred in ordering employer to pay employee a sum of general damages - whether the sum ordered was appropriate - whether the Original Tribunal erred in ordering the employer to pay the employee's legal costs for the second day of hearing - whether the amount of costs ordered was appropriate - appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 8, 26, 30, 48, 82
Discrimination Act 1991 ss 4A, 7, 8, 10, Dictionary
Fair Work Act 2009 (Cth) ss 346, 360
Legislation cited: ACT Civil and Administrative Tribunal Procedure Rules 2020 r 45
ACT Civil and Administrative Tribunal Directions 2009 (repealed) pt 4, r 8
Cases cited: Abraham v Thomas [2020] ACAT 41
Alexander v Home Office [1988] 1 WLR 968
Applicant 202053 v Employers Mutual Limited [2022] ACAT 9
Australian Capital Territory v Wang [2019] ACAT 65
Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd [2014] NSWCA 395
Birkett Investments Pty v Streatfield Investments Pty Ltd [2016] ACTSC 323
Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32
Brown v Guss (No 2) [2015] VSC 57
Campbell v Blackshaw & Evans [2017] ACAT 64
CFMEU v BHP Coal Pty Ltd [2014] HCA 41
CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96
Collector of Customs v Pozzolanic [1993] FCA 356; (1993) 43 FCR 280
Complainant 201823 v Insurance Australia Group Ltd trading as NRMA [2019] ACAT 64
Complainant 201922 v Barac [2020] ACAT 37
Cooley v Australian National University [2007] ACTDT 2
Council of the Law Society of the Australian Capital Territory v LP 201920 [2021] ACAT 16
Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Harada v Barnes & Anor [2021] ACAT 66
Harrison v P & T Tube Mills Pty Ltd [2009] FCA 220
He v Qin & Ors [2021] ACAT 129
House v The King [1936] HCA 40
In the Estate of Shirley Eileen Kendall [2020] ACTSC 42
Kallinicos v Hunt [2005] NSWSC 1181
Kidman v Canberra Casino Ltd ACN 051 204 114 [2020] ACAT 50
Koehler v Cerebos (Australia) Ltd [2005] HCA 15
Kovac v The Australian Croatian Club Limited (No. 2) [2016] ACAT 4
Kwesius and ACT Health [2008] ACTDT 3
McManus v Scott-Charlton [1996] FCA 904
Mitchell v Burrell [2008] NSWSC 772
Nationwide News Pty Ltd v Naidu [2007] NSWCA 377
Nester v ACT Fire Brigade [2004] ACTDT 2
O'Brien v Dunsdon (1965) 39 ALJR 78
Oliver v Registrar, of Domestic Animals Act 2000 [2021] ACAT 93
Phillips v Australian Capital Territory [2021] ACAT 22
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Purvis v New South Wales [2003] HCA 62
QE Family Pty Ltd ACN 138 123 154 v QBE Insurance Limited ACN 000 000 948 & Anor [2021] ACAT 117
Rep v Clinch [2021] ACAT 106
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82
Rose v Telstra Corporation Limited [1998] AIRC 1592
Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
Tam v Du [2019] ACAT 94
The Australian Capital Territory v Phillips [2021] ACAT 122
The Queen, on the application of Davey v Silverstein and Ors [2020] VSCA 233
Whiting and ACT Health and Calvary Health Care (ACT) Ltd [2008] ACTDT 1
Williams v The Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65
V v Elringtons Pty Ltd [2018] ACAT 23
List of
Texts/Papers cited: Macquarie Dictionary (7th ed, 2017)
David Ipp, "Lawyers' Duties to the Court" (1998) 114 Law Quarterly Review 63
1. This appeal raises issues about whether an employer discriminated against an employee because of industrial activity undertaken by the employee and if so, what orders should be made in relation to the employer.
2. Bryan Kidman (the respondent) is employed fulltime by Casino Canberra Ltd (Casino Canberra or the appellant) as an inspector. He is also a delegate of the United Workers Union[1] (the Union). In 2019, the Union was engaged in communications with Casino Canberra about the proposed acquisition by Blue Whale Entertainment Pty Ltd (Blue Whale) of a majority shareholding in Aquis Entertainment Ltd (Aquis) which owns the Canberra casino. Those communications concerned the possible implications of the proposed sale of shares for the negotiation of an enterprise agreement and other aspects of job security, wages, or conditions of employees of Casino Canberra.
3. In August 2019, Mr Kidman was interviewed by The Canberra Times. An article published on 6 August 2019 reported him as saying that employees were in the dark about staffing levels, wages, and conditions ahead of the looming shift in the ownership structure of the casino. Some statements attributed to him appeared as quotes.
4. Two days after the article was published, Casino Canberra wrote to Mr Kidman setting out its concerns about particular statements attributed to him in the article. The letter set out specific questions in relation to some statements and requested answers to those questions. The letter stated that, having regard to any response he might provide, the author of the letter might determine on a preliminary basis that Mr Kidman had not met the Casino Canberra's required standards of behaviour and that it might be appropriate that the matter proceed to formal performance counselling.
5. Mr Kidman contended that the action taken by Casino Canberra in writing to him in those terms constituted discrimination by treating him unfavourably because of his industrial activity.
6. A senior member of the ACT Civil and Administrative Tribunal (the Original Tribunal) heard the claim of discrimination under the Discrimination Act 1991 (Discrimination Act).
7. On 6 July 2020, the Original Tribunal made the following orders in relation to Casino Canberra (the respondent to the proceedings):
1. The respondent has contravened section 10(2) of the Discrimination Act 1991 by subjecting the applicant to unfavourable treatment in his employment because of his industrial activity.
2. The respondent shall display a copy of these orders on all of the employee notice boards located within the Casino premises, for a period of 14 days from receipt of these orders.
3. The respondent shall pay to the applicant general damages in the amount of $4,000, on or before 14 days from the date of these orders.
4. The respondent shall pay to the applicant legal costs in the amount of $4,620, on or before 14 days from the date of these orders.
8. Casino Canberra complied with Order 2,[2] but appealed against the other orders. In its application for appeal, Casino Canberra did not specify what orders it was seeking. Nor did it identify such orders at the hearing of the appeal.[3] However, it is clear from the detailed submissions made by Casino Canberra that, in essence, it wanted the appeal to be allowed and Orders 1, 3 and 4 made by the Original Tribunal to be set aside.
9. The circumstances surrounding the proposed purchase of shares in Aquis, the communications between the Union and Casino Canberra, and the communications between Casino Canberra and Mr Kidman which gave rise to the proceedings before the Original Tribunal are set out in some detail in the reasons for decision of the Original Tribunal.[4] It is not necessary to repeat all of that information. For the purpose of the appeal, it is appropriate to note the following salient facts drawn from those reasons for decision, and the evidence.
10. Mr Kidman has been employed by Casino Canberra since March 2003, and fulltime as an inspector since 10 November 2008. His contract of employment with Casino Canberra requires him to comply with Casino Canberra's workplace policies and procedures, which include the Casino Canberra - Employee Handbook and the Aquis Entertainment Limited - Code of Conduct.
11. On or about 21 December 2018, Casino Canberra informed its employees that a transaction had been entered into by which Blue Whale had agreed to acquire a majority shareholding in Aquis. Blue Whale had a business association with the investment manager of the SB & G Hotel Group (Australia) Fund, the owner of the Crowne Plaza Hotel located adjacent to Casino Canberra. In correspondence between Casino Canberra and the Union, the share transfer transaction was generally referred to as the sale of the casino.[5]
12. On 4 July 2019, the Union wrote to Casino Canberra on behalf of the workers and made a formal request to commence bargaining to negotiate an enterprise agreement under the Fair Work Act 2009 (Cth). On 4 July 2019, the Union wrote a second letter to Casino Canberra stating:
We have read reports that Blue Whale are considering outsourcing the management of the casino to an external manager with the intention that both the Casino and Plaza come under a single management structure.[6]
The Union requested a meeting to discuss the impact of the proposed (post sale) restructure on its members employed at both Casino Canberra and Crowne Plaza.
While the sale of Casino Canberra Ltd is pending, we have not determined a position in relation to the commencement of bargaining (and presently, we do not anticipate doing so).
Our preference is that any bargaining process not be initiated until after the sale transaction is completed (and the new ownership is in place)...
As things stand, comments in the press regarding what Blue Whale may be planning (after completion of the transaction):
14. On 8 July 2019, the Union wrote to Casino Canberra stating that its members remained "concerned given the reports of a looming restructure which have appeared in the media". The Union asked Casino Canberra to relay to Blue Whale the following request:
United Voice is seeking an undertaking from Blue Whale that following the finalisation of the sale it will:
1. Remain bound by the existing enterprise agreement ... and specifically, not reduce wages or existing penalty rates for Casino Canberra employees.
2. Not contract out any work currently performed in house at the Casino (cleaning, security, food and beverage).
3. Not implement forced redundancies or disadvantage existing employees.
4. Not implement changes to hours or rosters and / or reduce the hours of casuals.[8]
15. On 15 July 2019, Casino Canberra wrote to the Union and conveyed the following reply from Blue Whale:
16. By that time neither Casino Canberra nor Blue Whale had given the Union any undertaking about maintaining staff job security, wages or conditions after the sale of the shares. Although the Union had reminded Ms Gallaugher by letter dated 4 July 2019 that the Casino Canberra Enterprise Agreement 2016-2019 (Enterprise Agreement) "reached its nominal expiry date on 30 June 2019", the parties understood that the Enterprise Agreement continued to operate until it was replaced by a new agreement or terminated.[10]
17. In early August 2019, Mr Kidman participated in an interview with a journalist from The Canberra Times about the proposed sale and its implications for employees at the Casino.
18. An article published in The Canberra Times on 6 August 2019 attributed certain statements to Mr Kidman, some of them in quotation marks. A copy of that article was in evidence before the Original Tribunal and is Attachment A to these reasons for decision.
19. On 8 August 2019, Casino Canberra wrote to Mr Kidman. The letter, which is Attachment B to these reasons for decision (the 8 August letter), was signed by Shane Maundrell, Compliance Manager and In-house Legal Counsel for Casino Canberra. It set out Casino Canberra's concerns about particular statements attributed to Mr Kidman in the article. In particular, the letter stated:
(a) That the statement, "If they won't give us an undertaking about the conditions, then there must be a reason for that," may be in breach of the "Your Behaviour" section of the Casino Canberra's Employee Handbook where it is stated that "As a Casino Canberra team member you must always adhere to the following standards: ... Do not spread or support rumours/gossip";
(b) that the statement, "We are not being told anything, we've had no information." misrepresents the communications that have passed between management and staff in relation to the sale process.
20. The 8 August letter set out some specific questions in relation to the comments and asked Mr Kidman to answer those questions. The letter offered him "an opportunity to explain all relevant circumstances, as you see them, pertaining to the comments attributed to you in the Article." Enclosed with the letter was a copy of Casino Canberra's Staff Performance Counselling and Discipline Policy.
21. Under the heading "Way forward", the 8 August letter concluded:
Having regard to any response you provide to me, I may determine:
22. Casino Canberra's Employee Handbook: Playing by the Rules: workplace conduct, policies and procedures, under the heading "Your Conduct in The Workplace," notes that all staff of Casino Canberra are required to comply with the Aquis Entertainment Limited - Code of Conduct. The Handbook sets out detailed rules relating to the conduct of employees of the Casino Canberra in the workplace.
23. Under the heading "Your Behaviour" the Handbook includes:
As a Casino Canberra team member you must always adhere to the following standards:
24. A copy of the Aquis Entertainment Limited - Code of Conduct provides at clause 18:
Adherence to this Code and Aquis Entertainment's policies is a condition of employment at Aquis Entertainment. Breaches of the Code may be subject to disciplinary action including termination of employment, if appropriate.
25. The Casino Canberra Staff Performance Counselling and Discipline Policy states:
Canberra Casino aims to ensure that concerns or issues regarding work performance or conduct, are properly addressed with staff members and that any consequent formal performance counselling and/or disciplinary action, is handled appropriately, fairly and consistently, and is in line with principles of natural justice.[11]
It provides in clause 2.2 that it may be appropriate for formal performance counselling be provided to a staff member before other disciplinary action is taken.
26. On 14 August 2019, Mr Kidman wrote to Casino Canberra with replies to the questions asked by Casino Canberra in the 8 August letter.
27. On 16 August 2019, Casino Canberra replied by letter which included:
Having regard to your response, I have concluded:
28. On 15 August 2019, Ms Erryn Cresshull (an organiser for the Union) lodged a complaint on behalf of Mr Kidman with the ACT Human Rights Commission. The complaint alleged that Mr Kidman was "threatened" by Casino Canberra "as a result of industrial activity." According to the complaint, the action caused Mr Kidman "an enormous amount of stress" particularly as he is a "long standing employee and a union delegate responsible for representing and speaking up for others." It also stated that Mr Kidman believed his position "is threatened" and he was "being forced into a situation" where he could "no longer participate in industrial activity."
29. By letters dated 23 September 2019, the Discrimination Commissioner advised Ms Cresshull and Mr Maundrell that she had decided that conciliation was unlikely to be successful as a means of resolving the complaint and she was therefore finalising the complaint.
30. At the request of Ms Cresshull, the Discrimination Commissioner referred the complaint to the tribunal.
31. After hearing the matter, the Original Tribunal released its written reasons for decision on 6 July 2020, found in favour of Mr Kidman and made the orders set out at paragraph [7] above.
32. Casino Canberra's amended application to appeal sets out numerous grounds in relation to Orders 1, 3 and 4. Casino Canberra made detailed written and oral submissions in relation to those grounds.
33. It became apparent, however, that the issues raised by the appeal are, in essence, whether the Original Tribunal erred in deciding that:
(a) Mr Kidman was engaged in "industrial activity" when he participated in the interview with The Canberra Times;
(b) Casino Canberra treated Mr Kidman unfavourably;
(c) Casino Canberra treated Mr Kidman unfavourably because of that industrial activity;
(d) Casino Canberra should pay Mr Kidman a sum money as compensation for the detriment he suffered; and
(e) Casino Canberra should pay legal costs incurred by Mr Kidman in relation to the second day of the hearing before the Original Tribunal.
34. The first three issues have to be resolved by reference to relevant sections of the Discrimination Act. Sections 7 and 8 are found in Part 2 of the Discrimination Act - "Discrimination to which the Act applies".
35. Section 8 of the Discrimination Act includes the following definition:
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
36. Section 7 of the Discrimination Act provides:
(1) This Act applies to discrimination on the ground of any of the following attributes (a protected attribute):
37. Section 10 of the Discrimination Act is found in Part 3 of the Act "Unlawful Discrimination", Division 3.1 "Discrimination at work". The heading to section 10 is "Applicants and employees". Section 10(2) provides:
(2) It is unlawful for an employer to discriminate against an employee -
(a) in the terms or conditions of employment that the employer affords the employee; or
(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training or to any other benefit associated with employment; or
(c) by dismissing the employee; or
(d) by subjecting the employee to any other detriment.
38. The fourth and fifth issues fall to be decided respectively by references to section 53E of the Human Rights Commission Act 2005 and section 48 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act), which are quoted later in these reasons for decision (at paragraphs [168], [229] and [230]).
39. The hearing proceeded under section 82(b) of the ACAT Act as a review of the decision of the Original Tribunal. The parties and the Appeal Tribunal referred to the written and oral evidence and submissions made to the Original Tribunal. No additional or fresh evidence was provided to the Appeal Tribunal.
40. Each party was legally represented. Each party provided written submissions and their legal representative made oral submissions to the Appeal Tribunal. Casino Canberra provided a particularly detailed critique of the Original Tribunal's reasons for decision. It included specific instances of what Casino Canberra described as "multiple factual errors, frequent misrepresentation or misunderstanding of evidence and irrelevancy."[14] Although that part of the submission is referred to specifically later (see paragraphs [119] and [120]), the Appeal Tribunal had regard to it in preparing other parts of these reasons for decision.
41. We have done so bearing in mind the statements made in decisions and judgments in relation to:
(a) what constitute adequate reasons for decision; and
(b) the role of an appeal tribunal when considering the reasons of an original tribunal.
42. Those authorities have been collated and analysed in two recent decisions of differently constituted appeal tribunals.[15] Without quoting complete passages from those decisions it is sufficient to note that they include the following propositions (citations omitted).
43. As to (a), it is unnecessary for a judge to refer to all evidence led in proceedings or to indicate which of it is accepted or rejected. Nor is it necessary for reasons to be lengthy or elaborate. No mechanical formula can be given in determining what reasons are required. These authorities are increasingly applied in a tribunal context, where some decisions historically made by courts are now made. While the public interest in the provision of reasons remains the starting point, the objectives of timeliness and efficiency mandated by the ACAT Act oblige the Tribunal to approach the preparation of written or oral reasons in a proportionate manner.[16] The standard by which the adequacy of reasons must be determined is relative to the nature of the decision itself and the decision-maker. It is not necessary to refer to every piece of evidence. When considering the adequacy of the reasons the decision must be read as a whole.
44. As to (b), the cautions expressed in Collector of Customs v Pozzolanic[17] as to overzealous scrutiny of reasons for administrative decisions also resonate in the quasi-judicial tribunal context. It is not the role of an appeal tribunal to pore over written or transcribed oral reasons searching for possible inadequacies but rather to consider whether, taken as a whole, the reasons disclose that the original tribunal fell into error. A tribunal at first instance should not feel obliged to slavishly record every detail of the evidence given by every witness, or to set out fine nuances or points of distinction, in order to demonstrate to a hypothetical appeal tribunal or court that due consideration and weight has been given. The primary audience for reasons remains the parties, and reasons which set out the necessary elements in a manner proportionate to the context of the matter will ordinarily be sufficient.
45. The role of an appeal tribunal in appeals by way of review (or rehearing) under section 82(b) of the ACAT Act has been described by differently constituted appeal tribunals in a series of recent decisions. It is not necessary to repeat what was written there. We simply note that it is clear from those decisions and the judgments of courts cited in them that, in summary:
(a) An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal).
(c) The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d) The appellate court (or an appeal tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).
(e) In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.[18]
46. In short, an appellant must show that the original tribunal committed an error of fact or law that was material to the result.[19]
47. The following reasons for decision address each of the issues listed at paragraph [33] above having regard to the written and oral submissions made by the parties in light of those principles.
Issue 1: Was Mr Kidman engaged in 'industrial activity'?
48. Having considered the submissions by the parties and the evidence, the Original Tribunal concluded that:
(a) Mr Kidman was a Union delegate who was authorised to attend the interview with The Canberra Times.[20]
(b) The workers at the casino were concerned about what might happen to their jobs in terms of employment once the sale of the casino had been completed, the Union had raised concerns with the current management and the prospective buyer and they were not satisfied with the information they had received.[21]
(c) Exerting public pressure on an employer is a commonplace and legitimate industrial activity, and obtaining publicity by participating in interviews with a local newspaper is lawful activity often used by industrial unions to advance the views and interests of their members.[22]
(d) Mr Kidman was engaged in a lawful activity on behalf of the Union and was representing or advancing the views and interests of members of the Union and therefore his activities fall within the definition of 'industrial activity' in the dictionary to the Discrimination Act.[23]
49. Casino Canberra conceded that the United Workers Union is an 'industrial organisation' within the meaning of the Discrimination Act, and that Mr Kidman's participation in the interview with The Canberra Times was, or amounted to, a lawful activity.
50. However, Casino Canberra took issue with aspects of the Original Tribunal's reasoning and whether relevant questions of fact were answered.
51. First, Casino Canberra submitted that the Original Tribunal made no finding about whether Mr Kidman's participation in the interview was organised or promoted by the Union, and that no evidence was received from any officer or employee of the Union or from the journalist named as the author of the article. In Casino Canberra's submission, although the Original Tribunal:
(a) quoted from Mr Kidman's written statement that he was a delegate of the Union and involved in promoting Union campaigns;
(b) referred to Mr Kidman's oral evidence about his role as a Union delegate, but noted that he was not questioned as to his actual authority to speak to The Canberra Times as a representative of the Union;
(c) quoted from a letter to Casino Canberra from the Union on 12 August 2019 which stated that Mr Kidman is a Union delegate "and has a legitimate entitlement to represent and advance the views, claims and interests of United Voice members"; and
(d) concluded on the evidence that Mr Kidman was a Union delegate who is authorised to attend the interview with The Canberra Times,
none of that establishes that the interview participation was organised or promoted by the Union.
52. Second, Casino Canberra submitted it was not clear from The Canberra Times article whether, in participating in the interview, Mr Kidman was "advancing the views, claims or interests" of the members of the Union. Indeed, it submitted, it was entirely unclear what he was doing by participating in the interview. In particular:
(a) in specified statements attributed to Mr Kidman in the article ("If they won't give us an undertaking about the conditions, then there must be a reason for that," and "We are not being told anything, we've had no information.") it is entirely uncertain who are the "us" and "we", noting merely that Mr Kidman appears to be generally referring to employees and workers of Casino Canberra not merely those who may be members of the Union;
(b) there was no evidence that Mr Kidman was representing the views of any member of the Union other than himself; and
(c) the Original Tribunal made no finding as to whether, over and above Mr Kidman, any members of the Union were employed by Casino Canberra.
53. In Mr Kidman's submission, his participation in The Canberra Times interview fell squarely within the definition of 'industrial activity' in the Discrimination Act because he was both participating in a lawful activity organised by a union and was representing the views of his fellow Union members. Contrary to Casino Canberra's submissions:
(a) there was evidence from Mr Kidman that the Union contacted The Canberra Times and that he was interviewed in his capacity as a Union delegate - and there was no other reason why The Canberra Times would have spoken to him;
(b) there was evidence from Mr Kidman about the existence of other Union members at the casino, his role in representing them as a delegate, his knowledge of their concerns about the sale and, in particular, the absence of guarantees in respect of job security, and the fact that he participated in the interview "to support the Union's campaign and to represent the views of members ... to put pressure on the companies, to get them to come to the table."[24]
54. Mr Kidman submitted that the comments attributed to him in the article reflected those concerns and that intention. Casino Canberra had advanced no basis to challenge the Original Tribunal's findings to this effect at paragraph [39] of the reasons for decision.
55. The dictionary to the Discrimination Act provides that:
industrial activity means any of the following:
(a) being or not being a member of, or joining, not joining or refusing to join, an industrial organisation or industrial association;
(b) establishing or being involved in establishing an industrial organisation or forming or being involved in forming an industrial association;
(c) organising or promoting or proposing to organise or promote a lawful activity on behalf of an industrial organisation or industrial association;
(d) encouraging, assisting, participating in or proposing to encourage, assist or participate in a lawful activity organised or promoted by an industrial organisation or industrial association;
(e) not participating in or refusing to participate in a lawful activity organised or promoted by an industrial organisation or industrial association;
(f) representing or advancing the views, claims or interests of members of an industrial organisation or industrial association.
56. The action taken by Mr Kidman in participating in an interview by The Canberra Times about the concerns in relation to the possible consequences of the proposed sale of shares did not fall within those parts of the definition found in paragraphs (a), (b), and (e). The question is whether his action came within any or all of paragraphs (c), (d) and (f).
57. In particular, the issue for the Appeal Tribunal is whether Mr Kidman was:
(a) organising or promoting a lawful activity on behalf of the Union;
(b) participating in a lawful activity organised or promoted by the Union;
(c) representing or advancing the views, claims or interests of members of the Union who were employed by Casino Canberra.
58. According to Mr Kidman's witness statement dated 2 December 2019 (Exhibit A1):
(a) as a delegate of the Union, Mr Kidman is "involved in promoting union campaigns";
(b) Mr Kidman was involved in a process by which the Union collected petitions from workers saying that they wanted to bargain with Casino Canberra;[25]
(c) over 90 of around 180 workers signed the petition which was provided to Casino Canberra on 30 August 2019;
(d) on or around 8 July 2019, he was informed that the Union had asked both Casino Canberra and Blue Whale by letter dated 8 July 2019 for "undertakings that staff would not lose any pay or conditions, and in respect of job security;"[26]
(e) Casino Canberra and Blue Whale refused to give the undertaking;[27]
(f) in early August 2019, the Union's media team contacted The Canberra Times about Casino Canberra's refusal to provide the undertaking requested on 8 July 2019;
(g) The Canberra Times arranged an interview between Mr Kidman and journalist Dan Jervis-Bardy;
(h) Mr Kidman attended the interview; and
(i) Mr Kidman understood that he was participating as the Union delegate "to support the Union's campaign and to represent the views of members. I considered it important to put pressure on the companies, to get them to come to the table."
59. We acknowledge that Casino Canberra disputed aspects of that evidence or submitted that there was no independent evidence to support it. However, it might be thought that it is part of the role of a Union delegate to participate in activities such as media interviews that provide a forum to represent and advance the views, claims or interests of Union members who were employees of Casino Canberra. It is also reasonable to infer in the circumstances that The Canberra Times would not have interviewed Mr Kidman other than in his role as a Union delegate.
60. In The Canberra Times article, the journalist referred to Mr Kidman as "a delegate for the hospitality workers' union, United Voice," as well as someone who had "worked on the casino's gaming floor for more than 16 years."
61. In his letter dated 14 August 2019 to Mr Maundrell in reply to the 8 August letter, Mr Kidman stated:
I spoke to the Canberra Times as the union delegate at Canberra Casino, and my comments were to represent the views and concerns that I understood United Voice members at our workplace had about the upcoming sale.
62. In addition, the National Secretary of the Union wrote a letter dated 12 August 2019 to Casino Canberra in response to the letter of 8 August in which she stated:
The comments Mr Kidman made to the Canberra Times were in his capacity as a union delegate, and intended to represent the views and concerns of United Voice members at Casino Canberra.
63. The Appeal Tribunal understands that Casino Canberra does not necessarily dispute those statements about Mr Kidman but submits that he did not provide any or enough independent evidence of his status as a Union delegate, that his participation in the interview was organised or promoted by the Union, that he spoke with The Canberra Times in his role as Union delegate, that there were employees of Casino Canberra who were members of the Union and that he was advancing their views, claims and interests.
64. We make two observations in relation to that submission. First, at every stage of the process leading to the present proceedings, the Union acted for Mr Kidman, on the basis that he is its delegate and he had spoken with The Canberra Times in that role. In particular:
(a) on 12 August 2019, the Union's National Secretary wrote to Ms Gallaugher as Acting CEO of Casino Canberra, in response to the 8 August letter describing Mr Kidman in the terms quoted earlier and requested Ms Gallaugher to, among other things, acknowledge the rights of the Union's delegate to represent and advance the views, claims and interests of members;
(b) a Union organiser lodged the complaint to the Human Rights Commission on behalf of Mr Kidman and later requested that the unresolved complaint be referred to the Tribunal; and
(c) the Union provided representation for Mr Kidman at the hearing before the Original Tribunal.
65. Second, although the Original Tribunal had to make findings based on evidence, the Original Tribunal:
while ensuring that the Original Tribunal observed natural justice and procedural fairness.[30]
66. The Appeal Tribunal is satisfied that there was sufficient information before the Original Tribunal to provide a factual basis for the finding made by the Original Tribunal that Mr Kidman's actions fell within the definition of 'industrial activity' in the dictionary to the Discrimination Act, because he was participating in a lawful activity organising the Union and was representing or advancing the views, claims or interests of members of the Union who are employed by Casino Canberra.
67. We also note that, although Mr Maundrell did not cross-examine Mr Kidman in relation to that evidence, the following questions suggest (or are premised on) Mr Kidman being involved in industrial activity in the interview with The Canberra Times:
Did the casino say to you it was concerned you had spoken to the Canberra Times?
Since 16 August have you engaged in industrial activity at Casino Canberra?
Have you continued to - since 16 August have you continued to represent the views and interests of fellow members?
Have you continued to participate in lawful activity organised by the union?
Have you promoted lawful activity on behalf of the union?
Has the casino taken any issue with any of that?[31] [replies omitted]
68. Those questions do not determine the issue before the Original Tribunal or the Appeal Tribunal, but their premise that Mr Kidman was involved in industrial activity at the casino in August 2019 is consistent with the conclusion reached by the Original Tribunal.
69. The Appeal Tribunal is satisfied that the Original Tribunal did not err in concluding that Mr Kidman's participation in The Canberra Times interview came within the definition of 'industrial activity'. This aspect of the appeal has not been made out and so is dismissed.
Issue 2: Did Casino Canberra treat Mr Kidman 'unfavourably'?
70. The Original Tribunal described the question whether Casino Canberra had treated Mr Kidman unfavourably as a question of fact involving an objective test. More specifically, the question is whether the writing of the 8 August letter to Mr Kidman was unfavourable treatment of him. In other words, did Casino Canberra treat Mr Kidman unfavourably?[32] The Original Tribunal stated that, in determining this matter, it must have regard to the contents of the letter and the context in which it was written and sent to Mr Kidman. The Original Tribunal also noted that lawful action can be unfavourable treatment,[33] and that the fact that the letter was the first step in a process of disciplinary action, and that it was properly neutral in its terms, cannot prevent the writing of the letter from being unfavourable.[34]
71. The Original Tribunal agreed that it was plainly adverse to Mr Kidman's interest to commence and carry on investigations of the nature set out in the letter. The imposition of requirements to respond and the potential negative impact on his employment status was a clear detriment to him as an employee. The Original Tribunal was satisfied on the evidence that Casino Canberra had treated Mr Kidman unfavourably, or had subjected him to unfavourable treatment.[35]
72. In summary, there were two limbs to Casino Canberra's submissions. The first raised evidentiary issues. Casino Canberra submitted that there was no evidence before the Original Tribunal:
(a) to suggest that any "process had been initiated by writing the letter" dated 8 August 2019;
(b) that sending the letter "was the first step in a process of disciplinary action" or amounted to "instigating an investigation"; or
(c) that there was any "imposition of requirements to respond" to the letter.[36]
(a) its conduct in writing the letter was no more than an exercise in seeking clarification from Mr Kidman;
(b) the letter was plainly not the first step in a process of disciplinary action; and
(c) at its highest, the letter merely requested a response from Mr Kidman.
74. In its submission, the key passages of the 8 August letter recited facts about the interview, outlined concerns on the part of Casino Canberra, put questions to Mr Kidman and offered him an opportunity to explain all relevant circumstances as he saw them. The 8 August letter was the exercise of an employer's right to ask questions of an employee arising from statements that the employee has been reported to have made in the media that are about their employment. In Casino Canberra's submission, it matters not that the employee may have some association with an industrial organisation or even, in doing so, happens to be participating in activity "organised or promoted by an industrial organisation or industrial association" or "advancing the views, claims or interests of members of an industrial organisation or industrial association." In support of that submission, Casino Canberra cited: McManus v Scott-Charlton [1996] FCA 1820; (1996) 70 FCR 16 at 28-29 (McManus); Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44, 53 at [19]; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471, 478 at [23]-[27]; Harrison v P & T Tube Mills Pty Ltd [2009] FCA 220; (2009) 181 IR 162, 232 at [282]; Rose v Telstra (1998) 45 AILR 3-966 at [20]; Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] [2012] HCA 32; (2012) 248 CLR 500 at 523 (Barclay); CFMEU v BHP Coal Pty Ltd [2014] HCA 41; (2014) 253 CLR 243 (BHP Coal).
75. Casino Canberra also submitted that the part of the 8 August letter dealing with the "Way forward" simply amounted to a request. It was not a requirement that Mr Kidman respond. He was entirely free not to respond. Had he not responded, that lack of response may have led to Mr Maundrell to determine to do things referred to later in the letter. But Mr Maundrell may not have done so. At the time of the 8 August letter, it was mere speculation how Mr Maundrell might act. Hence, at that point there was no detriment (in the dictionary sense of loss, damage, or injury) occasioned to Mr Kidman. Nor had there been any declaration of an intention or determination to inflict punishment on him. The letter expressly stated that Mr Maundrell had not reached any view (even a preliminary view) about whether Mr Kidman had met Casino Canberra's required standards of behaviour. The letter concluded with a contingent possibility. There was no loss, damage, or injury to Mr Kidman, nor any threat of such.
76. Second and more fundamentally, Casino Canberra submitted that the Original Tribunal did not explore the sense of 'unfavourable treatment' required to establish a breach of the Discrimination Act in the context of employment or (to use the heading to Division 3.1 of Part 3 of the Act) "Discrimination in work." The applicable section of the Discrimination Act is section 10(2)(d) which provides that "It is unlawful for an employer to discriminate against an employee - ... by subjecting the employee to any other detriment." The reference to "other" detriment is a reference to the types of detriment set out in the preceding paragraphs (a), (b) and (c) which are not relevant to this case. The word 'detriment' is not defined in the Discrimination Act, although it is used 13 times in the Act, including 10 times in the phrase "any other detriment." Its dictionary meaning is "loss, damage, or injury" or "a cause of loss or damage."[37]
77. In Casino Canberra's submission, the question for resolution by the Original Tribunal was not merely whether Mr Kidman was treated unfavourably by Casino Canberra or whether Casino Canberra proposed to treat Mr Kidman unfavourably. Rather, the question is whether Casino Canberra, in writing to Mr Kidman in the terms of the 8 August letter, subjected him to any detriment or threatened to do something detrimental to him.
78. The conduct relied on as unfavourable treatment is the process commenced by Casino Canberra's 8 August letter. In Mr Kidman's submission the letter was the first step in a disciplinary investigation. He was being asked to show cause as to why such a process should not commence. The letter went beyond an "opportunity to clarify", which is evident by the express reference to the disciplinary policy which was annexed to the letter. Casino Canberra's attempt to suggest otherwise is disingenuous. In addition, Mr Kidman gave evidence that the letter caused him personal distress. That was, in itself, the imposition of a detriment.[38]
79. Further, the letter could not be characterised as "neutral treatment." It involved only unfavourable consequences to Mr Kidman and, in that sense, is unfavourable treatment.[39] No error is apparent in the Original Tribunal's conclusion to that effect.
80. In Mr Kidman's submission, the legal question is whether, viewed objectively, the consequence of the relevant treatment was unfavourable to him. The test is universal. It does not change in the employment context. Nor does it require the treatment to be unlawful or unusual. Indeed, the Original Tribunal accepted Casino Canberra's evidence that letters of this kind were an ordinary part of its human resources processes when it needed to investigate concerns about employees potentially leading to disciplinary action.
81. For the purposes of the present case, the relevant components of section 8(2) and 10(2) of the Discrimination Act (quoted at paragraphs [35] and [37]) provide that a person directly discriminates against an employee if the person treats the employee unfavourably because the person has one or more protected attributes by subjecting the employee to detriment. A careful reading of these sections, as interpreted and applied in other cases discussed below, identifies the following aspects of this part of the scheme:
(a) The tribunal must be satisfied that the person was treated 'unfavourably' by being subjected to some detriment.
(b) Whether a person was treated unfavourably can be ascertained by reference to the consequences of that treatment for, or the effect of the treatment on, the person.
(c) Whether a person was treated unfavourably is determined by reference to the effect of the treatment on that person, not by a comparison of the treatment of the person with the treatment of others.
(d) The treatment is direct discrimination if the person was treated unfavourably 'because' the person has one or more of the protected attributes.
82. Unfavourable treatment is fundamental to a successful claim for direct discrimination. The Discrimination Act does not include any definition of 'unfavourably', 'unfavourable' or 'unfavourable treatment'. The Macquarie Dictionary defines 'unfavourable' to mean "not favourable; not propitious; disadvantageous; adverse."
83. A body of case law has developed which gives meaning to the term. In Prezzi, Patricia Anne and Discrimination Commissioner[40] (Prezzi) President Curtis said:
If the consequence for the aggrieved person of the treatment is unfavourable to that person, or if the conditions imposed or proposed would disadvantage that person there is discrimination where the treatment is given or the condition is imposed because of the relevant attribute possessed by the aggrieved person.[41]
84. In Cooley and Australian National University,[42] a claim brought in the then ACT Discrimination Tribunal, Deputy President Peedom said:
A detriment involves some loss, damage or injury (see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 and Sivananthan v Commissioner of Police [2001] NSW ADT 44 at 41) and is broad enough to cover any disadvantage, as long as it is real and not illusory. Whether a detriment has been suffered is to be determined objectively and not by the subjective perceptions of either the complainant or the respondent. (see Ellis v Mount Scorpus Memorial College [1996] VADT 16 (29 March 1996)).
85. In summary, for the purpose of this case, 'unfavourable treatment' is treatment that is disadvantageous or detrimental to the complainant. 'Unfavourable treatment' may encompass acts or omissions which result in some detriment, being loss, damage or injury to the complainant.[43] Although detriment is encompassed by that term, it is also identified separately in section 10(2) where there is discrimination in relation to an employee.
86. The third aspect was dealt with in Prezzi where President Curtis stated:
The ACT Discrimination Act ... does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. All that is required is an examination of the treatment accorded the aggrieved person or the conditions upon which the aggrieved person is or is proposed to be dealt with.[44]
[22] ...While the term "disadvantage" might be thought to imply comparison, it does not necessarily do so. The context in which it is used may invite comparison; the same dictionary gives it as "any state, circumstance, opportunity" as where it is clear that what is in issue is comparative treatment, but it may also be used in a context where comparison is absent. The Macquarie Dictionary defines "disadvantage" as "absence or deprivation of advantage; any unfavourable circumstance or condition". The primary meaning of "advantage" does not import comparison; the same dictionary gives it as "any, state, circumstance, opportunity or means specially favourable to success, interest or any desired end" ...
[24] It is thus unnecessary to inquire whether a complainant with a particular attribute has been dealt with less favourably, because of that attribute, than persons without that attribute. All that is required is whether the consequences of the dealing with the complainant are favourable to the complainant's interests or are adverse to the complainant's interests, and whether the dealing has occurred because of a relevant attribute of the complainant. The same inquiry must be made where what is in issue is a condition or proposed condition of dealing with the complainant by the person who is the subject of a complaint. ... [47]
88. The issue of unfavourable treatment is a question of fact with an objective rather than a comparative test. In the Original Decision, the Original Tribunal wrote:
The Discrimination Act does not define 'unfavourable treatment' or what is meant by 'treats or proposes to treat another person unfavourably'. The Discrimination Act does not invite a comparison between the way in which a person who has a particular attribute is treated compared with a person without that attribute or who has a different attribute. In other words, it does not ask: "were you treated less favourably than others?" It asks, "were you treated unfavourably?" This is an objective test. It calls for an examination of the treatment accorded to the complainant. If the consequence of the treatment is unfavourable to that person there is 'unfavourable treatment' and the question then turns to the reason for that unfavourable treatment, and whether it is because of the attributes they possess.[48]
89. A differently constituted tribunal has noted[49] that, when considering the meaning of the expression "treats ... unfavourably" in section 15(1) of the Equality Act 2010 (UK), the Supreme Court of the United Kingdom observed that no element of comparison was involved. Rather, "section 15 appears to raise two simple questions of fact: what was the relevant treatment and was it unfavourable to the claimant?"[50]
90. Those questions need to be answered before considering whether Casino Canberra's treatment of Mr Kidman (if unfavourable) was 'because of' a particular attribute. That issue is considered later in these reasons for decision.
91. In his oral submissions on behalf of Casino Canberra, Mr Wilson repeated that Casino Canberra was entitled to seek to address with Mr Kidman the public statements attributed to him about his employment because he was an employee. If Mr Kidman was saying things in public about his employer that his employer reasonably considered were false or misleading or inaccurate it had a right to address them with him, irrespective of whether he was involved in industrial activity. Casino Canberra "simply sought some clarity about what he had said."[51] Mr Wilson submitted that the fact that someone speaks as a union delegate, or purports to speak as a union delegate, does not provide immunity on an employee from an employer being able to do something about it if the employer legitimately has a concern about what an employee was doing or saying in connection with his employment.[52]
92. However, the issue in this case is not whether Casino Canberra was entitled to seek clarification from an employee, or even to take performance management or disciplinary action in relation to an employee. On the basis that it could do so, the issue is whether it proceeded appropriately in respect of Mr Kidman in the circumstances on 8 August 2019. Or, to express the issue in terms of the Discrimination Act, did Casino Canberra treat, or propose to treat. Mr Kidman unfavourably[53] by subjecting him to detriment?[54]
93. Those submissions by Casino Canberra summarised above do not address the basis on which the unfavourable treatment issue arises in this case. The alleged unfavourable treatment was not that Casino Canberra sought some clarity about what it considered to be inaccurate statements made by Mr Kidman, particularly in the context of previous communications with him and the Union. The alleged unfavourable treatment was that Casino Canberra sought that clarity by way of the 8 August letter. In other words, the unfavourable treatment was not that it sought responses from Mr Kidman but the way in which it sought those responses.
94. Despite Casino Canberra seeking to characterise the 8 August letter as seeking clarification before Mr Maundrell formed a preliminary view about how he would characterise the statements attributed to Mr Kidman, the letter:
(a) expressly stated that "We [presumably Casino Canberra] are concerned" that two of three quoted sentences from The Canberra Times article may have been made by him in breach, respectively, of the "Your Behaviour" section of Casino Canberra's Employee Handbook or the Aquis Entertainment Limited - Code of Conduct;
(b) requested that Mr Kidman answer specific questions in relation to the two sentences;
(c) offered him an opportunity to explain all relevant circumstances, as he saw them, pertaining to the comments attributed to him in The Canberra Times article;
(d) requested Mr Kidman to provide a written response to the correspondence by 5pm on 15 August 2019 or attend an interview with Mr Maundrell to address the correspondence;
(e) advised that Mr Kidman was to respond in either way "with a view to [Mr Maundrell] forming a preliminary view as to whether or not [Mr Kidman] ... met the Casino's required standards of behaviour";
(f) advised Mr Kidman that, having regard to any response he provided, Mr Maundrell "may determine ... on a preliminary basis that [Mr Kidman] have not met the Casino's required standards of behaviour" and that "in the circumstances, it is appropriate that the matter proceed to formal performance counselling" in the terms set out in paragraphs 2.3 - 2.7 of Casino Canberra's Staff Performance and Discipline Policy, a copy of which was enclosed;
(g) advised Mr Kidman that if he did not respond in either way, Mr Maundrell would "proceed" based on the information available to him;
(h) asked Mr Kidman to treat the matter as strictly confidential (other than for the purpose of seeking advice from his Union and/or other representatives); and
(i) advised Mr Kidman that "Any breach of confidentiality may be considered to be a disciplinary matter."
95. A copy of the letter was sent to Lyndal Ryan of United Voice.
96. Mr Wilson for Casino Canberra sought to downplay the effect of the language used in the 8 August letter. He contended that people who act on behalf of an employer in taking issue with what an employee has done or said in public about their employer do so informed by their background and personality and their particular concerns. In the present case, Mr Maundrell is a lawyer. Had he been a human resources person one "might expect a letter like this or the way it was dealt with to be in a different way." Mr Wilson also submitted that, from a procedural fairness point of view, Mr Kidman should "be told exactly what is concerning his employer and also what the employer might do about it, and that's all the letter does. ... Otherwise ... it's not really fair for an employee not to be told what the person on behalf of the employer is thinking and construing in this way." He continued, "Our minds might differ as to whether then what a perfect way of doing this is, but, nonetheless, my submission... is that this was a fair way of doing things."[55] The 8 August letter was, he submitted, "merely a request." Mr Maundrell "just wanted to get Mr Kidman's reasons for making the public comment about his employer."[56]
97. By contrast, Ms Saunders for Mr Kidman described the 8 August letter as "a high-handed piece of correspondence" which was "contentious" and "forceful in tone" which could not be "simply excused" on the basis that "all lawyers write like that."[57] In her submission, the letter was the commencement of an investigation that involved disciplinary action, the letter alluded to that and asked Mr Kidman to respond or there would be consequences. Mr Kidman read the letter in "its actual terms."[58] Whether or not the letter was otherwise lawful, Mr Kidman experienced detrimental treatment.
98. We have concluded that this issue has to be determined by reference to the terms of the 8 August letter, rather than what Casino Canberra submitted was the purpose of the letter. Whether someone else might have cast the letter in different language, or indeed might not have included parts of it, is not the point. The letter is what it is.
99. It was not a standard or template letter. In cross-examination, Mr Maundrell gave evidence that, when performing his role as an investigator of alleged conduct that might lead to disciplinary action, there is no template letter. Rather, he writes a fresh letter depending on the nature of the allegation and the nature of the inquiry - which might include concern that something might have happened - and questions are asked so that he could "form a view as to whether there is a prima facie issue." Although such letters might have some common aspects, each is drafted in light of the circumstances of the particular case.
100. That evidence indicates why Mr Maundrell took a particular approach in relation to Mr Kidman and serves to reinforce the impression created by the terms of the letter that, depending on whether, what and when answers were provided, Mr Maundrell might move to the first step (and potentially beyond) of the performance management and disciplinary processes.
101. Mr Maundrell's approach to his task, coupled with the operation of section 8(2) of the Discrimination Act which requires the Tribunal to consider whether Mr Kidman was treated unfavourably (not to compare his treatment with how others were treated), reinforces the need to consider the 8 August letter in its own terms and context. As Mr Wilson said, it told Mr Kidman exactly what was concerning his employer and what his employer might do about it depending on whether, when or how Mr Kidman responded - options that were potentially to his disadvantage. Importantly, it went beyond seeking clarification of what Mr Kidman was intending to suggest, infer or convey by his statements to The Canberra Times. The 8 August letter used language which flagged the possibility that Mr Kidman's behaviour might have been in breach of Casino Canberra's expected standards of behaviour and foreshadowed at least the possibility of performance management and disciplinary action.
102. In terms of section 8(2) of the Discrimination Act, the relevant treatment was to formally request that Mr Kidman answer certain questions by a certain date. The request was made in the context of the Staff Performance and Discipline Policy that was expressly referred to in the letter and which might be invoked depending on whether he answered the questions and what those answers were. The first component of that scheme was performance management, a process that would proceed in its own terms but might precede disciplinary action.
103. If, as Casino Canberra submitted, the letter was no more than an exercise in seeking clarification from Mr Kidman, then:
(a) it could have approached Mr Kidman informally to seek clarification; or
(b) a letter (perhaps a truncated and slightly recast version of the 8 August letter) could have been used.
104. Although Casino Canberra stated that the 8 August letter was not the first step in a process of disciplinary action, it was not merely a request for a response from Mr Kidman. By referring to, and enclosing a copy of, the Staff Performance Counselling and Discipline Policy, Casino Canberra expressly put its request for clarification in the context of the Policy. It was made clear to Mr Kidman that whether or not he responded by the due date and how he did or did not respond would be viewed through the lens of the Policy. The letter also expressed concern that one of three sentences quoted in the article may have been in breach of the Aquis Entertainment Limited - Code of Conduct. As noted earlier, clause 18 of it states that breaches of the Code may be subject to disciplinary action including termination of employment.
105. The 8 August letter was expressed in terms which suggested that Mr Maundrell had at least formed an interim view that, on their face, certain statements attributed to Mr Kidman (as an employee) might be in breach of the published behavioural standards or code of conduct.
106. Mr Maundrell's concerns were reduced to writing before, it seems, there was any attempt by him or any other representative of Casino Canberra to contact Mr Kidman informally. There might be a question whether (in the terms of the Staff Performance Counselling and Discipline Policy, quoted at paragraph [25]) the "issues regarding work performance or conduct [were] properly addressed" with the employee before "any consequential formal performance counselling and/or disciplinary action" occurred. Presumably Casino Canberra considered that the 8 August letter properly addressed the issues which it had with Mr Kidman.
107. Mr Maundrell's questions were framed by reference to published standards and the Policy, the breach of which could result in disciplinary action by Casino Canberra. The 'Way forward' part of the 8 August letter expressly referred to proceeding to formal performance counselling and suggested that, if Mr Kidman failed to respond, Mr Maundrell might have enough "information" to enable him to proceed more formally in relation to him.
108. Consequently, the 8 August letter could be described as treating Mr Kidman unfavourably by identifying a detriment (in the form of performance management or possibly disciplinary action) to which he might be subject depending on whether, when and how he answered the questions.
109. The import of Mr Kidman's evidence was that he read and understood the 8 August letter in that way. He gave evidence that he had attended many disciplinary meetings as a representative for Casino Canberra workers and was very familiar with Casino Canberra's processes.[59] There was also evidence that Mr Kidman had experienced aspects of the performance management and disciplinary processes.[60] His evidence was that, from his dealings with Casino Canberra HR as a Union delegate he "recognized" the 8 August letter as "the beginning of a process which would potentially lead to disciplinary action." Mr Kidman "understood" that he was "being asked to show cause as to why this process should not begin." He became "very stressed," experienced physical and emotional effects, was afraid he was going to be disciplined or even lose his job, and he had trouble sleeping (between 8 and 16 August 2019). That was the nature of the detriment (in the sense of loss or damage) to him.
110. In all the circumstances it is reasonable to conclude that an employee in Mr Kidman's position (who was also a union delegate) would feel the impact of the 8 August letter in the context of a power imbalance between themself as an employee and their employer, when their actions as a union delegate were the subject of such correspondence expressed to relate to their conduct as an employee. That might produce apprehension about the security of that person's employment and any advancement as an employee.
111. If, as Mr Kidman contended, the letter also had a "chilling effect" on him as a union delegate who would otherwise be involved in industrial activities, the detriment to him could also include loss (or potential loss) of reputation as an effective delegate.
112. The evidence about the extent of the impact of the 8 August letter on Mr Kidman is considered when dealing with compensation issues later in these reasons for decision (see paragraphs [176] to [194]). It is sufficient to note here that, in the context of his roles as an employee and as a Union delegate, Mr Kidman read the letter in that way. His response was consistent with how an employee who is also a union delegate might be expected to react.
113. We are satisfied that there was sufficient evidence for the Original Tribunal to conclude that Casino Canberra had treated Mr Kidman unfavourably, or had subjected him to unfavourable treatment, by subjecting him to detriment. The Original Tribunal did not fall into error. This aspect of the appeal has not been made out and so is dismissed.
Issue 3: Did Casino Canberra treat Mr Kidman unfavourably 'because' of his industrial activity?
114. The Original Tribunal considered the evidence, including evidence from Mr Maundrell and his subjective intention in writing the letter. In determining what weight to afford such evidence, the Original Tribunal stated it was entitled to take into consideration the demeanour of the witness, whether there was more than one reason for writing the letter, and whether contrary inferences were available on the facts. The Original Tribunal noted that the letter to Mr Kidman was copied to the Union. The questions posed in the letter referred extensively to the correspondence between Casino Canberra and the Union. The Original Tribunal stated that, in this respect, the letters seem to be as much a rebuttal of the comments made in The Canberra Times article as an explanation or examination of the alleged wrongful conduct of Mr Kidman.[61]
115. The Original Tribunal concluded that Mr Kidman did not spread or support rumours in breach of the Casino Canberra - Employee Handbook because:
(a) the prohibition on spreading or supporting rumours was primarily directed to conduct that takes place in the workplace (that is, on the casino premises) and Mr Kidman did not give his interview in the workplace or as part of his work duties but as an aspect of his Union activities, and it is clear from the words of the article in The Canberra Times that he was speaking as a delegate for the Union;[62]
(b) the statements attributed to Mr Kidman in the article accurately reflected the content of the correspondence between Casino Canberra and the Union and hence were not 'rumours' as defined[63] (that is, they were neither "without certainty as to facts" or "unconfirmed gossip"), and accurately reflected the lack of information and/or negotiations between current management of the casino and the staff/Union.[64]
116. Further, the Original Tribunal did not accept, and described as "disingenuous," the explanation given by Mr Maundrell that, upon reading The Canberra Times article he immediately formed the view that Mr Kidman had breached the prohibition on spreading rumours.[65] Consequently, the Original Tribunal was unable to accept that the sole, or any, motivation for writing the letter to Mr Kidman was a belief that his comments, as reported in the article, were a breach of the Casino Canberra - Employee Handbook and/or the Aquis Entertainment Limited - Code of Conduct.[66]
117. The Original Tribunal was satisfied on the evidence that Casino Canberra had discriminated against Mr Kidman by subjecting him to unfavourable treatment because of his industrial activity. She noted that Casino Canberra had conceded that the article was "unflattering" to the casino, and regarded as adverse to the interests of the casino and the parties to the proposed sale of the casino. The Original Tribunal was satisfied that the necessary causal link could be established by inference from the evidence and concluded, "The unfavourable treatment occurred because the applicant had engaged in industrial activity."[67]
118. Casino Canberra submitted that the findings of the Original Tribunal did not and could not reasonably establish that Casino Canberra sent the 8 August letter to Mr Kidman 'because' he:
(a) "participate[ed] in ... a lawful activity organised or promoted by an industrial organisation or industrial association;" or
(b) was "representing or advancing the views, claims or interests of members of an industrial organisation."
119. In support of that submission, Casino Canberra made very detailed criticisms of the Original Tribunal's reasons for decision, referring to what it described as "multiple factual errors, frequent misinterpretation and misunderstanding evidence and irrelevancy."[68]
120. The critique included taking issue with how the Original Tribunal characterised particular statements by Mr Maundrell and his demeanour, how she described aspects of the corporate operations of the casino (in terms of the respective roles of Casino Canberra, Aquis, and potentially Blue Whale), how she represented the contents of correspondence between the Union and Casino Canberra, how she represented the 8 August letter, whether she understood the nature of the proposed share transaction or the nature and effect of the existing Enterprise Agreement, or the distinction between performance management and disciplinary action under the relevant documents.
121. It was open to Casino Canberra on appeal to identify as many relevant alleged errors of fact that it could in the reasons for decision of the Original Tribunal. However, as stated earlier (see paragraphs [41] to [44]), it is unnecessary for an original tribunal to refer to all evidence led in proceedings or to indicate which of it is accepted or rejected. Further, the role of the Appeal Tribunal is not to pore over the reasons to search for possible inadequacies or identify every alleged error made by the Original Tribunal. Rather, we need to consider whether, taken as a whole, the reasons disclose that the Original Tribunal fell into error and whether any such error or errors materially affected the outcome that the Original Tribunal reached.
122. It is apparent that the Original Tribunal put a gloss on some of Mr Maundrell's statements and drew some inferences from, and reached some conclusions about, the evidence that Casino Canberra considers were unwarranted. To some extent, criticism of such aspects of the Original Tribunal's reasons for decision could be made of any fact-finding court or tribunal which seeks to summarise and analyse evidence rather than recount it verbatim. So too, the criticism that the Original Tribunal made observations about Mr Maundrell's demeanour without identifying specific evidence that fitted that description.
123. The role of an appeal tribunal was summarised earlier (at paragraphs [43] to [46]) and it is necessary to bear those propositions in mind when considering the detailed critique proffered by Casino Canberra. One of them is for an appeal tribunal to make proper allowance for the advantage that an original tribunal has in seeing and hearing witnesses. Findings of fact based on assessment of witnesses will not be lightly overturned.
124. The real issue for the Appeal Tribunal is whether any such errors, misunderstandings, or misinterpretations (if established) were material to the conclusions reached by the Original Tribunal and hence, taken individually or collectively, provide a basis for overturning the outcome. Although we have considered the alleged errors listed in Casino Canberra's written submissions, we will refer or allude to only some of them in what follows (as we have done elsewhere in these reasons for decision).
125. Having set out its criticism of the Original Tribunal's decision in considerable detail, Casino Canberra contended that, irrespective of the nature of or how one characterises the 'activity' that was the interview participation by Mr Kidman, the reason why (or 'because') Casino Canberra through Mr Maundrell wrote the 8 August letter was because the following statements attributed to Mr Kidman:
(a) "If they won't give us an undertaking about the conditions, then there must be a reason for that" and
(b) "We are not being told anything, we've had no information",
raised matters about which Casino Canberra had "concerns." It was seeking clarification from Mr Kidman in relation to those statements.
126. In relation to the first statement, Casino Canberra submitted that Mr Maundrell pointed out in the 8 August letter that, in its email to the Union of 15 July 2019, Casino Canberra had explained the reason why "they [that is, Blue Whale] won't give us an undertaking about the conditions." Given that the Union had been provided with "the reason" given by Blue Whale, Mr Maundrell had the right to ask Mr Kidman why he had made a public comment that suggested that Blue Whale was not being forthright and had some "ulterior reason(s)" for not giving an undertaking.
127. As to the second statement, Casino Canberra submitted that information had been provided to its staff and to the Union in relation to the transactions with Blue Whale,[69] including Blue Whale's response to the Union's request for undertakings. In the 8 August letter, Mr Maundrell was seeking to clarify whether Mr Kidman might have misrepresented those communications. Among other things, the Union (of which Mr Kidman professed to be a delegate) had been told "something" and had been provided with information.
128. We also note that, in cross-examination, Mr Maundrell acknowledged that the article in The Canberra Times "raised issues that certain casino employees have" and suggested that "the tactic potentially" was to apply pressure on Casino Canberra to give employees the assurances they want. However, he described the article as "neutral" said that he did not "perceive it as pressure."[70] He resisted the suggestion that Mr Kidman's reported comment that "they" would not give an undertaking about the conditions was unflattering to Casino Canberra and Aquis. Rather, he interpreted the comment as "potentially referring" to Blue Whale, who was the party that had been asked to give the undertakings.[71]
129. Casino Canberra submitted that the fact that Mr Kidman may have spoken to The Canberra Times as the Union's delegate at the casino is irrelevant. That did not give him licence to say things that may be contrary to his obligations under the Casino Canberra - Employee Handbook or Code of Conduct or more generally to his employer. Nor did it prevent his employer from sending him the 8 August letter asking him why he had said what he had said, particularly in light of all the prior communication between Casino Canberra and the Union, Casino Canberra and its employees, and Mr Maundrell and Mr Kidman (as outlined at paragraphs [19]-[28] of Mr Maundrell's witness statement). Further, the 8 August letter and the 16 August 2019 email are entirely consistent in terms of the reason why Casino Canberra wrote the 8 August letter.
130. In summary, Casino Canberra submitted that all of the evidence (the objective facts) points to Casino Canberra not doing what it did in regard to the 8 August letter 'because' Mr Kidman was participating in industrial activity.
131. The legal propositions which Casino Canberra cited to support that conclusion were:
(a) the legislative purpose under the Discrimination Act of protecting employees from detriment because they have participated in industrial activity is to be balanced against an employer's right to regulate the conduct of its employees under the general law: see McManus at 28-29; Koehler v Cerebos (Australia) Ltd [2005] HCA 15; (2005) 222 CLR 44, 53 at [19]; Nationwide News Pty Ltd v Naidu [2007] NSWCA 377; (2007) 71 NSWLR 471, 478 at [23]-[27]; Harrison v P & T Tube Mills Pty Ltd [2009] FCA 220; (2009) 181 IR 162, 232 at [282];
(b) the latter right includes the right to regulate the conduct of employees "after hours" or outside the workplace where the out of hours conduct has a relevant connection to the employment relationship: see McManus; Rose v Telstra (1998) 45 AILR 3-966 at [20] - which it plainly did here, as Mr Kidman was making public comment about his employer;
(c) employees are not immune from such regulation if the conduct occurs while they are engaging in industrial activity: see Barclay at 523; BHP Coal.
132. Mr Kidman submitted that the finding of fact that the unfavourable treatment was taken 'because of' the industrial activity should not be disturbed on appeal unless the Appeal Tribunal is satisfied that it was not reasonably open to the Original Tribunal to make the finding. In his submission, it was entirely open to the Original Tribunal to reject Casino Canberra's evidence that Mr Kidman's industrial activity played no role in its decision to send the 8 August letter.
(a) as the letter makes plain, the decision to send the letter was expressly triggered by the industrial activity;
(b) one of the alleged breaches of the Code of Conduct was that Mr Kidman did not "act in the best interests of Aquis Entertainment," yet that was an almost inevitable feature of industrial activity, which inherently involves the conflicting interests of labour and capital;
(c) the alternative explanations put forward by Casino Canberra were not credible for the reasons set out by the Original Tribunal at paragraphs [52]-[66] of the reasons for decision;
(d) establishing a breach of policy requires both a disingenuous reading of The Canberra Times article and a tortuous construction of the policies;
(e) as Casino Canberra's CEO, Ms Gallaugher, knew about and was quoted as responding to Mr Kidman's comments, it is difficult to believe that the sole trigger for Casino Canberra's actions was Mr Maundrell coming across the article while reading The Canberra Times website and becoming alarmed about "gossip"; and
(f) as many of the Original Tribunal's findings of fact were influenced by her assessment of Mr Maundrell's demeanour as a witness, particular caution should be exercised before disturbing those findings on appeal.
134. Further, Mr Kidman submitted, the central flaw in Casino Canberra's case is that it relies on a view that the test for causation in the present case turns on subjective intent as prescribed by the Fair Work Act 2009 (Cth). As the Original Tribunal observed,[72] that is completely different legislation. Consequently, to the extent that the appeal relies on that argument, it must fail.
135. Section 8(2) of the Discrimination Act states:
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes. [emphasis added]
136. The "protected attributes" listed in section 7(1) of the Discrimination Act include "industrial activity."
137. Section 4A(2) of the Discrimination Act provides that, in that Act, a reference to doing an act 'because of' a particular matter includes a reference to doing an act 'because of' two or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for doing the act.
138. In the present case, the effect of section 8 and section 4A(2) together is that Casino Canberra discriminated against Mr Kidman if:
(a) it treated him unfavourably; and
(b) industrial activity was a reason (even if not the dominant or substantial reason) for treating him unfavourably.
139. The question on appeal is whether the Original Tribunal erred in deciding that Casino Canberra treated Mr Kidman unfavourably 'because of' his industrial activity. To answer that question involves an understanding of the requirement of causation in these sections of the Discrimination Act. In other words, what does 'because of' mean in that statutory context?
140. Causation is a question of fact. As the Original Tribunal observed, the Discrimination Act imposes an objective test for causation. The applicant must establish a direct causal link between the unfavourable treatment and the attribute of the complaint, in this case 'industrial activity.'[73]
141. In Applicant 202053 v Employers Mutual Limited,[74] when considering what the words 'because of' in section 4A require, a differently constituted tribunal surveyed in detail some judgments of the High Court and decisions of the tribunal and the New South Wales Civil and Administrative Tribunal.[75] It is not necessary to repeat what was stated there. It is sufficient to note that, starting with the judgment of the High Court in Purvis v New South Wales[76] (Purvis), that tribunal concluded that the central question is: why was the aggrieved person treated in the way that he or she was? That is a question of fact which is to be answered considering all relevant circumstances. If the answer is that they were treated unfavourably 'because of' a protected attribute, the unfavourable treatment is direct discrimination even if there were other reasons for the treatment.[77]
142. In Purvis, the High Court considered the operation of sections of the Disability Discrimination Act 1992 (Cth), section 5(1) of which provided:
5.(1) For the purposes of this Act, a person ('discriminator') discriminates against another person ('aggrieved person') on the ground of a disability of the aggrieved person if, because of the aggrieved person's disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability. [emphasis in original]
143. The key passage from Purvis is the following statement by Justices Gummow, Hayne and Heydon:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".[78]
144. In the subsequent case of Barclay, the High Court considered the operation of:
(a) section 346 of the Fair Work Act 2009 (Cth) which, in summary, prohibits an employer from taking adverse action against an employee "because" that employee is an officer or a member of an industrial association, or "because" that employee engages in or proposes to engage in particular kinds of industrial activity; and
(b) section 360 of that Act which provides that a person takes action for a particular reason if the reasons for taking that action include that reason.
145. Chief Justice French and Justice Crennan described the task of a court in a proceeding alleging a contravention of section 346 as being "to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason."[79] Their Honours stated that the "question of why an employer took adverse action against an employee is a question of fact arising from the operation of the interdependent provisions of the Fair Work Act."[80] Citing the passage from Purvis quoted above, their Honours continued:
...the central question remains "why was the adverse action taken?"
This question is one of fact, which must be answered in the light of all the facts established in the proceeding.[81]
146. Justices Gummow and Hayne stated that the use of the term 'because' in the expression "because the other person engages ... in industrial activity" invites "attention to the reasons why the decision-maker so acted."[82] Their Honours referred to a passage from the judgment of Justices Gummow, Hayne and Heydon in Purvis (concerning section 10 of the Disability Discrimination Act 1992 (Cth)) that:
if an act is done for two or more reasons, one of which is the disability of a person, even if it not the dominant or a substantial reason for doing the act, the act is taken to be done for that reason.[83]
147. As noted earlier, the combined effect of section 8 and section 4A(2) of the Discrimination Act in this case is that Casino Canberra discriminated against Mr Kidman if:
(a) it treated him unfavourably; and
(b) industrial activity was a reason (even if not the dominant or substantial reason) for treating him unfavourably.
148. Having decided that the Original Tribunal did not err in concluding that Casino Canberra treated Mr Kidman unfavourably, the question for the Appeal Tribunal is whether the Original Tribunal erred in concluding that Casino Canberra treated him unfavourably 'because of' his industrial activity, in the sense that industrial activity was a reason (even if not the dominant or substantial reason) for treating him unfavourably. As that question must be answered in light of all the facts established in the proceedings, we turn to the evidence before the Original Tribunal.
149. It is clear that the 8 August letter was written in response only to the publication of the article in The Canberra Times, quoting and referring to statements made by Mr Kidman. At the time of the interview, Mr Kidman was both an employee and a union delegate. The article described Mr Kidman both as someone who had worked at the casino for more than 16 years and as a delegate of the Union. It attributed to Mr Kidman knowledge of what the Union had approached Aquis about, what the Union had been told and how the Union had responded to Aquis.
150. The interview occurred after the nominal expiry date of Enterprise Agreement had passed. Casino Canberra had expressed a "preference ... that any bargaining process not be initiated until after the sale transaction is completed (and the new ownership is in place)." Although the Enterprise Agreement continued to operate until replaced by a new agreement or terminated, it was understandable that the Union would press for assurances and undertakings about the wages and conditions of Casino Canberra employees in the immediate future, at least to the extent that existing wages and conditions would continue. The Union's concerns were properly conveyed to Blue Whale (as the potential purchaser of shares) and to Casino Canberra which had entered into the existing Enterprise Agreement and with which the Union would expect to negotiate. In circumstances where (as in this case) the proposed sale had not occurred and could not be completed until a step or steps beyond the control of the negotiating parties remained to be taken (that is, Blue Whale had to pass a probity review process with the ACT Government), the Union had sought undertakings that existing wages and conditions would be preserved.
151. In its submissions on appeal, Casino Canberra contended that the completion of the sale of shares would not have affected its contractual or statutory obligations toward the employees under the Enterprise Agreement. There was to be no change of employer. Casino Canberra submitted that the Union might not have understood the nature of the share transaction.[84]
152. The Canberra Times article referred to the Enterprise Agreement. It seems that so far as the Union was concerned (whether or not it understood the implications of the share transfer), the issues raised in the article were more pressing because the notional expiry date of the Enterprise Agreement had passed and neither Casino Canberra nor Blue Whale had given respectively the reassurances or undertakings requested by the Union. The companies anticipated the completion of the sale of shares. But the sale had not been completed by that date. Casino Canberra had advised the Union that while the sale was pending it had "not determined a position in relation to the commencement of bargaining" and did not anticipate doing so. Its preference was that any bargaining process not be initiated until after the sale transaction was complete and the new ownership was in place. Blue Whale had stated (via Casino Canberra) that it was "premature for Blue Whale to enter into any discussion regarding detailed staffing plans, or indeed to provide any form of undertaking in relation to any of the points" in the Union's letter. Consequently, at that stage (and despite the continuing operation of the Enterprise Agreement) the assurances that Casino Canberra gave its employees were based on the expectation that the sale would proceed, and Blue Whale would do what it had said.
153. In that context we note that, in addition to the first sentence quoted from The Canberra Times article, the 8 August letter referred to and quoted from an email on 15 July 2019 from Casino Canberra to United Voice and asked Mr Kidman a question by reference to that letter. It is reasonable to infer that Casino Canberra understood that Mr Kidman was familiar with the content of that email and that is why the question was asked.
154. Further, it is apparent from The Canberra Times article that prior to its publication Casino Canberra was aware of Mr Kidman's statements and that those statements were made in the context of the Union's concerns. The article reported that the acting chief executive of Casino Canberra and Aquis, Ms Gallaugher:
(a) said that it was premature to start negotiations with the Union before the government's probity review was finalised and the sale approved;
(b) rejected Mr Kidman's claims that employees had been left in the dark; and
(c) stated that their employees were regularly updated in staff meetings on the state of the transactions and had been reassured directly about their job security and potential opportunities would exist for all of them and the business on completion of probity.
155. Whether or not Ms Gallaugher had communicated with Mr Maundrell about her reported responses, he would have read them when reading what Mr Kidman was reported to have said. That suggests that he would not have written to Mr Kidman only as an employee who might have spoken contrary to particular provisions of the Casino Canberra - Employee Handbook and Aquis Entertainment Limited - Code of Conduct.
156. The fact that the 8 August letter was written to Mr Kidman in relation to his responsibilities and obligations as an employee does not obviate the fact that the timing and content of the letter were prompted by Mr Kidman's statements in the course of industrial activity as a union delegate. Had the interview not occurred and been reported in The Canberra Times:
(a) Mr Maundrell would not have had any reason to write the 8 August letter to Mr Kidman; and
(b) there is no evidence to support a finding that Mr Kidman would have made (or would have had reason to make) such statements outside the workplace.
157. Having regard to the circumstances surrounding the writing of the 8 August letter, the contents of The Canberra Times article and the contents of the 8 August letter, it is reasonable to conclude that Casino Canberra commenced a process in relation to Mr Kidman in response to, and hence 'because of', the industrial activity undertaken by him.
158. In treating Mr Kidman unfavourably because of his industrial activity Casino Canberra unlawfully discriminated against him. The discrimination did not involve the terms or conditions of employment that Casino Canberra offered to Mr Kidman. Casino Canberra did not deny him opportunities for promotion, transfer or training or to any other benefits associated with employment. Casino Canberra did not dismiss him. The unfavourable treatment was something different. In terms of section 10(2)(d) of the Discrimination Act, Casino Canberra subjected Mr Kidman to another detriment by the way it responded in relation to his industrial activity (see paragraphs [93] to [113] above) and hence discriminated against him in a way that was unlawful by operation of subsection (2)(d).
159. The Original Tribunal did not err in deciding on the evidence that Casino Canberra had discriminated against Mr Kidman by subjecting him to unfavourable treatment because of his industrial activity. Consequently, that part of the appeal is dismissed.
160. We also note that the fact that the issue which might have led to performance management (or possibly disciplinary action) was resolved within eight days of the 8 August letter suggests that had Casino Canberra treated Mr Kidman's comments as an example of industrial activity and sought clarification or explanation of them (rather than raising issues in the context of a potential disciplinary process in relation to him as an employee) there might have been no complaint of discrimination.
Issue 4: Should Mr Kidman be awarded monetary compensation?
The applicant gave evidence that he believed, based on his experience in human resources matters within the casino, that the outcome of any investigation might have serious consequences for him; and that the conduct of the respondent caused him personal distress, stress and sleepless nights.[85]
There is no evidence before the Tribunal that the personal distress, stress and sleepless nights amounted to a mental illness or injury, and the applicant concedes that the effect on him was minimal. Nevertheless, the applicant has been subject to unfavourable treatment by the respondent and is entitled to compensation.[86]
and ordered Casino Canberra to pay Mr Kidman general damages in the amount of $4,000.
163. Before the Original Tribunal, Casino Canberra submitted that the Original Tribunal could not make an order for compensation under section 53E(2)(c) of the Human Rights Commission Act 2005 because Mr Kidman had not suffered financial loss or damage. Casino Canberra also submitted that, even if the Original Tribunal could make a compensation for other types of loss or damage, Mr Kidman had not provided independent evidence of any detriment caused to him by Casino Canberra's actions. Casino Canberra submitted that there was no medical evidence of any stress or lack of sleep experienced by him, or that those things were attributable to the 8 August letter. Further, it pointed to records which showed that Mr Kidman had attended work, completed his shifts and had not taken personal or sick leave in the period 5 to 25 August 2019.[87]
164. On appeal, Casino Canberra submitted that the award made by the Original Tribunal was excessive and entirely punitive. No damages should have been awarded.
165. In support of that submission, Casino Canberra contended that, on the evidence before the Original Tribunal, the alleged conduct by Casino Canberra:
(a) had a "minimal effect" on Mr Kidman;
(b) had no effect on him being able to continue to attend work with Casino Canberra;
(c) had no "effect on worker participation of this kind", whether "chilling" or otherwise;
(d) was carried out on a confidential basis by management of Casino Canberra;
(e) lasted eight days from beginning to end; and
(f) did not result in a negative outcome for Mr Kidman.
166. There were two limbs to Mr Kidman's submissions in relation to this issue. First, he contended that the decision to award compensation and the amount of that compensation is a discretionary decision. Casino Canberra had not identified any error of the kind set out in House v The King[88] which is necessary for an appeal against the decision of that nature. Rather, Casino Canberra was simply agitating its displeasure at the result.
167. Second, it appears that the Original Tribunal considered the absence of any claim in respect of actual injury and the minimal nature of the damage. Mr Kidman submitted that the award of $4,000 is at the "extreme lower end of the scale" and cannot be said to be "manifestly excessive" such that intervention by the Appeal Tribunal would be warranted.
168. Section 53E of the Human Rights Commission Act 2005 provides:
Kinds of orders - unlawful acts under the Discrimination Act
(a) the commission refers a complaint to the ACAT under this division; and
(b) the ACAT is satisfied that the person complained about engaged in an unlawful act.
(2) The ACAT must make 1 or more of the following orders:
(a) that the person complained about not repeat or continue the unlawful act;
(b) that the person complained about perform a stated reasonable act to redress any loss or damage suffered by a person because of the unlawful act;
(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
(3) In making an order under subsection (2) (c), the ACAT must consider:
(a) the person's right to equality before the law and the impact of the discrimination on the enjoyment of that right;
(b) the inherent dignity of all people and the impact of the discrimination on the person's dignity;
(c) the public interest in ensuring an appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights;
(d) the nature of the discrimination; and
(e) any mitigating factors. [emphasis added]
169. The Original Tribunal was satisfied that Casino Canberra "engaged in an unlawful act" under the Discrimination Act. Consequently, the Original Tribunal ordered Casino Canberra to pay a stated amount by way of "compensation for any loss or damage suffered by" Mr Kidman "because of the unlawful act."
170. Having upheld the Original Tribunal's conclusion that Casino Canberra engaged in an unlawful act in relation to Mr Kidman, the issues for the Appeal Tribunal are:
(a) whether the Original Tribunal should have made an order that Casino Canberra pay a sum by way of compensation to Mr Kidman, and
(b) if it should have made such an order, whether the Original Tribunal should have ordered Casino Canberra to pay Mr Kidman the amount stated ($4,000).
171. Those issues must be resolved by reference to section 53E.
172. The power to make an order under section 53E(2)(c) can only be exercised where the person suffered "loss or damage because of the unlawful act." If the person did not suffer loss or damage because of the unlawful act, then the Tribunal could not make an order for the payment of an amount by way of compensation. If the person suffered such loss or damage, the Tribunal may (indeed must) make an order for the payment of the appropriate amount by way of compensation.
173. In making an order for compensation, the Tribunal "must" consider:
(a) the impact of the discrimination on Mr Kidman's enjoyment of his right to equality before the law;
(b) the impact of the discrimination on Mr Kidman's inherent dignity (which is the inherent dignity of all people);
(c) the public interest in ensuring the appropriate balance between the right to equal and effective protection against discrimination and equality before the law without distinction or discrimination and other human rights;
(d) the nature of the discrimination; and
(e) any mitigating factors.
174. The amount of compensation that the Original Tribunal awarded to Mr Kidman was (as the cases quoted later indicate) determined by the Original Tribunal in the exercise of its discretion. For that reason, Mr Kidman submitted that the Appeal Tribunal be guided by the principles set out in the judgment of the High Court in House v The King.[89]
175. Those principles and their operation to internal tribunal appeals were discussed in detail by an appeal tribunal in Council of the Law Society of the Australian Capital Territory v LP 201920.[90] It is not necessary to repeat what was stated there. For present purposes we note that that appeal tribunal set out following principles on which an appeal tribunal should decide an appeal from a discretionary decision by an original tribunal:
(a) The decision of the Original Tribunal was an exercise of discretionary power.
(b) There is a strong presumption in favour of the correctness of the decision appealed from.
(c) The decision should be affirmed unless the Appeal Tribunal is satisfied that the decision is clearly wrong.
(d) It is not enough that members of the Appeal Tribunal consider that they would have exercised the discretionary power differently if they had comprised the Original Tribunal, or that they would prefer a different result from that favoured by the Original Tribunal.
(e) The Appeal Tribunal may be satisfied that the decision of the Original Tribunal was wrong if the Original Tribunal:
(i) acted upon a wrong principle;
(ii) gave weight to extraneous or irrelevant matters;
(iii) failed to take into account some material consideration;
(iv) failed to give weight (or sufficient weight) to a relevant consideration; or
(v) made a mistake as to the facts or if the result is so unreasonable or plainly unjust that the Appeal Tribunal may infer that the Original Tribunal failed properly to exercise the discretion reposed in it under section 53E of the Human Rights Commission Act 2005.
(f) The existence of an error of law or fact on the part of the Original Tribunal is an indispensable condition of a successful appeal.
(g) If the Appeal Tribunal is satisfied of one or more of the matters referred to in (e), it may exercise its discretion in substitution for the decision of the Original Tribunal.
176. As noted earlier, the evidence from Mr Kidman about the impact on him of the action by Casino Canberra was that (based on his experience in human resources matters within the casino) he believed that the outcome of any investigation by Casino Canberra might have serious consequences for him, and that the conduct of Casino Canberra caused him personal distress, stress, and sleepless nights.
177. The length of the period in which Mr Kidman might have considered that he was directly treated unfavourably by Casino Canberra is apparent from the correspondence between Mr Kidman and Mr Maundrell in relation to the 8 August letter.
178. On 14 August 2019, Mr Kidman wrote a letter to Mr Maundrell setting out his answers to Questions 1 and 2 in the 8 August letter.[91] On 16 August 2019, Mr Maundrell sent an email to Mr Kidman (copied to Ms Gallaugher and two named officers of the Union) in which he thanked Mr Kidman for his reply to the 8 August letter and stated:
Having regard to your response, I have concluded:
179. Mr Maundrell then set out further information by way of clarification, including to address what he described as Mr Kidman's "misapprehension" about what the Union had sought from Casino Canberra.
180. The evidence before the Original Tribunal indicates that Mr Kidman's reaction to and characterisation of the 8 August letter was predicated on:
(a) his understanding of the workplace policy that applied to employees at the Casino Canberra; and
(b) his belief that the policy did not apply to him when he was speaking as a Union delegate.
181. His evidence also indicated that his view about the implications for him of Casino Canberra's letter of 16 August 2019 might not have been identical to Casino Canberra's understanding or intention.
182. First, Mr Kidman professed to be familiar with Casino Canberra's Staff Performance Counselling and Discipline Policy and Casino Canberra's disciplinary processes.[92] However, he told the Original Tribunal that he had "no idea" about the distinction in that Policy between performance counselling and disciplinary action.[93] His evidence was that he did not understand "Just this bit" of the Policy because "it's legal sort of speak and I don't understand some of it."[94]
183. When asked for his understanding of the interaction, if any, between disciplinary action and performance counselling, Mr Kidman stated "Well, it's all disciplinary action as far as I can see."[95] Mr Kidman expressed the view that the 8 August letter contained "a threat" that Casino Canberra was "taking this to performance counselling" and that he took performance counselling to be "action against" him.[96] He continued, "Yes, there was a threat of taking action against me. And that was the whole thing about the whole lot of it."[97]
184. When pressed, and referred to passages in the Policy, he agreed that "it makes a clear distinction between the concepts of performance counselling, formal written warning and termination".[98] It seems, however, that that distinction was not clear to him from the terms of the 8 August letter.
185. Second, Mr Kidman stated repeatedly that the Aquis Entertainment Limited - Code of Conduct and the Employee Handbook applied to him as an employee of Casino Canberra but not when he was speaking as the Union's delegate.[99]
186. Third, Mr Kidman agreed that the 8 August letter foreshadowed performance counselling as a possible outcome depending on his response to the questions[100] (or, as the Appeal Tribunal understands it, Casino Canberra's satisfaction with his responses). He also agreed that, after he responded to that letter on 14 August 2019, Casino Canberra responded to him to the effect that it was not necessary to take the matter to counselling.[101]
187. He acknowledged that the email from Casino Canberra on 16 August 2019 meant that he was not under disciplinary action.[102]
188. However, according to Mr Kidman, although Mr Maundrell's letter of 16 August 2019 stated that it was not necessary to take the matter to performance counselling, he understood that to mean that "there was an inference some place along the way that it was. So to take something away and not go on with it means there must have been something there to take away."[103]
189. Mr Kidman said (incorrectly) that "it states somewhere that ... I was going to get under disciplinary action." He also stated that the 8 August letter contained "a threat to me that you were taking this to performance counselling."[104] That inference could be drawn from the letter.
190. Mr Kidman also expressed the view that Casino Canberra's approach to disciplinary matters is "Different in each case."[105]
191. It appears that Mr Kidman's understanding of the stages of potential and actual disciplinary action improved during the hearing before the Original Tribunal. However, it seems that when he received the 8 August letter he conflated the possibility of performance management with disciplinary action, and that prompted his initial reaction to the letter.
192. Fourth, it also appears from Mr Kidman's witness statement that Mr Maundrell's letter of 16 August 2019 did not remove completely his apprehension and that the unfavourable treatment could have an ongoing effect on him. Mr Kidman stated:
It was clear to me that the Casino still maintained that I had behaved inappropriately. ... [T]he experience was very upsetting, and might cause me to think twice before putting my hand up to be the face of a union campaign in the workforce again.[106]
193. That evidence should be assessed in light of Mr Kidman's answers to the questions asked in cross-examination by Mr Maundrell, referred to at [67] above. In summary, Mr Kidman said that Casino Canberra had not said to him that it was concerned that he had spoken to The Canberra Times. Since 16 August 2019, he had continued to represent the views and interests of fellow members of the Union, had continued to participate in lawful activity organised by the Union, and had promoted lawful activity on behalf of the Union in pursuit of enterprise bargaining. He did not think that Casino Canberra had taken issue with any of that.[107]
194. The Original Tribunal noted that Mr Kidman conceded that the effect on him was "minimal" but "nevertheless" concluded that Mr Kidman had been "subject to unfavourable treatment" by Casino Canberra and "is entitled to compensation."[108] The evidence about the physical and psychological effects of the 8 August letter comprised written and oral statements by Mr Kidman. There was no medical or other independent evidence to corroborate those assertions. But they were not seriously challenged by Casino Canberra in cross-examination other than in the questions referred to immediately above. The fact that Mr Kidman attended work and did not take sick leave in the period 5 to 25 August 2019 indicates that the effect on him of the 8 August letter was not severe. However, it does not mean that he suffered no detriment.
195. Given that the Original Tribunal had the benefit of hearing from Mr Kidman, and hence was able to assess directly the apparent impact of the unfavourable treatment on him, the Appeal Tribunal has no reason to set aside the Original Tribunal's conclusion to the extent that it was reached by reference to section 53E(2).
196. The Original Tribunal's reasons for decision do not expressly state whether all of the factors in section 53E(3) provided the basis for awarding the compensation and how the amount of compensation was calculated. It is possible to infer that the general conclusion reached by the Original Tribunal is referable to the factors specified in section 53E(3)(a) to (c).
197. The Original Tribunal also quoted, and apparently accepted, Mr Kidman's submissions that:
although the ultimate consequences for Mr Kidman were relatively minimal, the matter is nonetheless serious. The right to participate in industrial activity, including here the agitation for the protection of existing rights and conditions in uncertain times, is an important economic and political rights of employees. The manner in which Canberra Casino has elected to conduct itself has a chilling effect on worker participation of this kind, and should be appropriately addressed.[109]
198. The Original Tribunal characterised the submission as being relevant to section 53E(3)(c) and (d).
199. It can be reasonably inferred that the Original Tribunal considered all of the factors listed in section 53E(3). The Appeal Tribunal is not satisfied that the Original Tribunal erred in deciding to order Casino Canberra to pay Mr Kidman an amount of compensation.
200. The final issue is whether the Original Tribunal should have set the amount of compensation at $4,000. The Original Tribunal quoted the following passage from the decision of a differently constituted tribunal in Kovac v The Australian Croatian Club Limited (No 2)[110] (Kovac (No 2)):
In assessing the damages that should be awarded to the applicant, the Tribunal acknowledges the respondent's submission that there is no fixed amount or range of damages that might be awarded. Each case must be considered in the light of its own facts and assessment made of the amount which can be fairly regarded as reasonable compensation for the injuries and disabilities which particular applicant has sustained from the unlawful act having regards as far as possible to the general standards prevailing in the community.[111] As commented by the respondent, calculating general damages in discrimination type claims is a difficult exercise and reliance is placed on the 'good sense' of the tribunal.[112] As stated by the Anti-Discrimination Tribunal of Tasmania in Power v Bouy:[113]
Ultimately, each matter must be decided on its own facts, but the award must conform to a general pattern established by precedent and can neither be manifestly excessive nor manifestly inadequate. It must fall within a range defined by those two parameters, and provide proper compensation for what has been suffered.[114] [citations retained]
201. Those passages illustrate the tension between:
(a) there being no fixed amount or range of amounts that might be awarded as compensation, with each case being decided on its facts to assess what is reasonable compensation; and
(b) each award conforming to a general pattern (or range) established by precedent so that the amount awarded is neither manifestly excessive nor manifestly inadequate.
202. In Kovac (No 2), the tribunal continued:[115]
Therefore, it is clear that some comparison with decided cases is appropriate. In this respect, the applicant provided a table of comparable verdicts which formed an annexure to its submissions.[116] Conversely, the respondent argued that the Tribunal should follow House & Anor v Queanbeyan Community Radio Station (House)[117] where the successful applicants were subjected to racial discrimination in the assessment of their membership for a volunteer position in a community radio station. In House Neville FM considered that an appropriate award of damages of $6000 should be given to each of the applicants, together with an award of costs in their favour.[118] [citations retained]
203. By contrast, as noted above, the parties' submissions to the Appeal Tribunal on the issue of the amount of compensation were sparse. Casino Canberra submitted that no award should be made. Mr Kidman submitted that the award of $4,000 is at the "extreme low end of the scale" (without giving examples where awards were made in comparable circumstances to indicate what that scale might be) and cannot be said to be "manifestly excessive" such that intervention of the Appeal Tribunal would be warranted.
204. The Appeal Tribunal acknowledges that the award of an amount of compensation for acts of discrimination in circumstances such as applied to Mr Kidman is a matter of discretionary judgment, but that discretion must be exercised reasonably having regard to the circumstances of the case. References to a "scale" might connote a sense of precision or certainty which (as the passages quoted above indicate) does not exist.
205. The Appeal Tribunal has conducted some research of the amounts awarded in some other cases. That survey was not comprehensive. It did not identify a decision or decisions which involved circumstances that were identical or very similar to those in this case.
206. The amounts of compensation awarded by differently constituted ACT tribunals in the previous 18 years have included $1,000 (for discrimination in the delivery of sexual services at a brothel to a person because of his disability),[119] $2,500 (for unfavourable treatment in the workplace by denying the complainant particular rostered work shifts because of a workplace injury, resulting disability and compensation claim),[120] $5,000 together with reinstatement (for wrongful suspension from work because of a presumed psychiatric disability),[121] $5,000 (for vilification on the basis of the complainant's gender identity as a transgender woman),[122] and $9,000 (for worsening an employee's mental state as a result of discriminatory conduct over a period of approximately two years and where an apology had already been given).[123]
207. Much larger awards have included approximately $18,000 (for unfavourable treatment in the workplace, including working beyond contracted hours for no pay because of her immigration status),[124] $47,500, including $10,000 for hearing expenses, and reinstatement (for unfavourable treatment in the workplace, including by presuming impairment, denying procedural fairness, transferring the complainant to non-operational duties, and the denial of employment entitlements associated with operations role),[125] and approximately $60,000, comprising $30,000 for special damages and $30,000 for general damages (where a person was deprived of membership of a particular club and received associated unfavourable treatment because of his political conviction).[126]
208. The Appeal Tribunal acknowledges that some of those orders were made more than a decade ago and, if made today in the same circumstances, the amounts of compensation would likely be larger.
210. Bearing in mind the principles in House v The King summarised earlier, we are not satisfied that the Original Tribunal was wrong in any of the ways listed at paragraph [175](e) above. Rather, we have concluded that, having regard to the evidence of Mr Kidman about the effect on him of the 8 August letter, the context of the unfavourable treatment, the relatively brief period during which he experienced the immediate impact of that letter, and the amounts awarded in somewhat similar circumstances in other cases, the amount awarded by the Original Tribunal was not one which is out of line with other awards for unfavourable treatment in the workplace. Consequently, this aspect of the appeal is dismissed.
Issue 5: Should Casino Canberra be ordered to pay Mr Kidman's costs of the second day of the hearing?
211. The Original Tribunal found, pursuant to section 48(2)(b) of the ACAT Act, that Casino Canberra had "caused unreasonable delay" while the Original Tribunal was dealing with the matter and therefore it was appropriate that Casino Canberra pay Mr Kidman's costs occasioned by the adjournment of the hearing from 10 February 2020 until 6 March 2020.[129] The Original Tribunal quantified Mr Kidman's legal costs in the amount of $4,620.
212. The Original Tribunal noted that, when the matter came on for hearing on 10 February 2020, the Original Tribunal raised problems that might occur as a result of Casino Canberra being represented by Mr Maundrell who was also its only witness. The hearing commenced, but it became apparent that, in cross-examination, Mr Maundrell was having difficulty in separating cross-examination from giving evidence and arguing with Mr Kidman. The Original Tribunal determined that the difficulties that would be faced by Casino Canberra when Mr Maundrell was giving evidence, being cross-examined, and representing Casino Canberra during his own evidence would inevitably cause unfairness to both parties, but especially to Casino Canberra. The hearing was adjourned to a later date to allow Casino Canberra to engage independent legal counsel.[130]
While the Tribunal commonly deals with unrepresented litigants, who often give evidence in their own matter, it is not usual for those unrepresented litigants to engage in vigorous cross examination of others giving evidence. In this case, each witness had supplied a written witness statement and would have expected to be cross examined in relation to that evidence. An Australian lawyer, with extensive experience, ought to have appreciated the difficulties that would arise should he be giving evidence from the bar table, cross examining witnesses for the other party and be subject to cross examination himself. The assessment of the matter as simple and straightforward demonstrates the problems associated with a party being its own legal adviser. The Tribunal has an obligation to ensure procedural fairness, and I determined, taking into account the advocacy style of Mr Maundrell, that the issues to be decided by the Tribunal depended on an assessment of the evidence given by two witnesses, the credibility of those witnesses and weighing up the evidence of those witnesses in relation to the reason for the conduct of the respondent. I concluded that the requirements of procedural fairness necessitated an adjournment so that the respondent could obtain independent legal advice and representation.[131]
(a) there was no ability on the part of the Original Tribunal to award costs against Casino Canberra; and
(b) if costs are to be awarded, they should be awarded against Mr Kidman and his counsel.
Casino Canberra also challenged the amount of costs awarded by the Original Tribunal.
215. In support of those contentions, Casino Canberra repeated its detailed and lengthy written submissions to the Original Tribunal dated 20 March 2020. It is not necessary to recite those submissions in detail when dealing with the appeal.
216. In respect of the first limb of its submissions, Casino Canberra contended, in summary:
(a) There is no evidence that Casino Canberra "caused unreasonable delay" while the Original Tribunal "was dealing with the application," and hence the adjournment was not required or "caused" by anything that Casino Canberra did or did not do.[132]
(b) It is entirely irrelevant whether, as counsel for Mr Kidman submitted, it was unorthodox for Mr Maundrell to act as an advocate and be a material witness in the case.[133]
(c) Casino Canberra was lawfully entitled to have Mr Maundrell do what he was doing and proposing to do at the hearing.[134]
(d) Section 30 of the ACAT Act provides that a "person may, in relation to an application before the tribunal, ... be represented by a lawyer."
(e) On 19 November 2019, Casino Canberra filed and served an Authority to Act for a Corporation in the approved form stating that Mr Maundrell had authority to act on its behalf in proceedings before the Tribunal.[135]
(f) At all material times Mr Maundrell was a lawyer, as he has been admitted to the legal profession, is in-house counsel for a corporation (although he does not hold a practising certificate), and he was entitled, in the ordinary course of his employment, to act as advocate for someone in a proceeding before a tribunal when he received no fee, gain or reward for acting other than his ordinary remuneration as an employee.[136]
217. In oral submissions to the Appeal Tribunal, Mr Wilson reiterated that Mr Maundrell is a lawyer who was entitled to represent Casino Canberra at the hearing.[137] He also stated:
As in the majority of such cases before the tribunal, the respondent to the hearing, to the application at first instance, represented itself. That, to state the bleeding obvious, is the case with most matters before ACAT, at least in my experience.[138]
Mr Maundrell was doing what he was entitled to do on both scores that I have mentioned and the tribunal deals with any if arising out of a representative also giving evidence every day of the week by the tribunal.[139]
219. In respect of the second limb of its submissions, Casino Canberra contended, in summary:
(a) The adjournment of the hearing was caused solely by unreasonable delay or obstruction by Mr Kidman through his counsel and her instructing lawyer while the Original Tribunal was dealing with the application.[140]
(b) In particular, the entire catalyst for the adjournment was Mr Kidman's counsel's statement for the first time after the luncheon adjournment on the first day of the hearing that she had "a concern" as to how the "respondent's evidence... is going to unfold given that Mr Maundrell is the only material witness and acting as advocate".[141]
(c) The only reason for that statement was that there was "a real risk of contaminating the evidence," a risk that was never explained.[142]
(d) Mr Kidman's counsel expressed the opinion that it was "highly unorthodox for a material witness to act as an advocate ... let alone where that person is a lawyer, has previously been a legal practitioner, and where questions of credit are plainly relevant".[143]
(e) It is entirely irrelevant whether, as counsel for Mr Kidman submitted, it was unorthodox for Mr Maundrell to act as an advocate and be a material witness in the case.[144]
(f) On 19 November 2019, Casino Canberra filed and served an Authority to Act for a Corporation in the approved form stating that Mr Maundrell had authority to act on its behalf.[145]
(g) Mr Kidman, his counsel and instructing lawyer were actually aware on and from 23 December 2019 at the latest (that is, seven weeks before the hearing on 10 February 2020):
(i) that Mr Maundrell was entitled to respond and conduct the proceeding on behalf of Casino Canberra, no other lawyer had been authorised to conduct the proceedings on behalf of Casino Canberra, Mr Maundrell was going to conduct the proceeding on behalf of Casino Canberra, and Mr Maundrell was also to be a witness (indeed the sole witness) for Casino Canberra at the hearing; and
(ii) of the precise nature and content of the evidence in chief that Casino Canberra would be leading through Mr Maundrell at the hearing.[146]
(h) On and from 23 December 2019, it was open for Mr Kidman to apply to the Original Tribunal for an order seeking the removal of Mr Maundrell as the authorised representative of Casino Canberra under part 4, rule 8 of the ACAT Directions 2009 (until 2 February 2020) or under rule 45 of the ACT Civil and Administrative Tribunal Procedures Rules 2020 (after 3 February 2020).[147]
(i) Mr Kidman, his counsel and instructing lawyer did nothing until after the luncheon adjournment on the first day of the hearing and, even then, did not apply for an order under rule 45 or advance other grounds but merely expressed a 'concern' about the continuation of Mr Maundrell as the authorised representative of Casino Canberra.[148]
(j) The 'concerns' raised by Mr Kidman's counsel in relation to the Legal Profession Act 2006 were entirely baseless.[149]
(k) Counsel raised the 'concerns' in circumstances where there were no reasonable grounds to have raised them and, in doing so, "caused unreasonable delay or obstruction before while the tribunal was dealing with the application" and, if she had not done so, there would have been no delay in the proceedings on 10 February 2020.[150]
(l) It is not to the point that the Original Tribunal seems to have been attracted to what Mr Kidman's counsel's 'concerns' were.[151]
(m) Further, Mr Kidman's counsel was in breach of rule 65 of the New South Wales Barristers Rules by alleging a matter of fact amounting to criminality or other serious misconduct on the part of Mr Maundrell.[152]
220. At the hearing of the appeal, Casino Canberra's representative also submitted that the Original Tribunal, rather than Casino Canberra, caused the delay in dealing with the application. He contended that any delay that occurred was "by reason of comments and objections that were respectively made by" the Original Tribunal and counsel for Mr Kidman. "So if there was unreasonable delay and anybody caused it, it was either the tribunal itself - and I mean no personal disrespect - or, as I say in the written submissions, the applicant's counsel."[153]
221. At the hearing of the appeal, Casino Canberra not only challenged the Original Tribunal's power to make an order for costs against Casino Canberra but also the amount of the award that it was ordered to pay. Casino Canberra drew attention to the written submissions made on behalf of Mr Kidman to the Original Tribunal that Casino Canberra pay costs occasioned by the delay including counsel's fees to re-familiarise herself with the matter, travel from Sydney and attend for a second day, being $4,200 plus GST. As noted earlier, the Original Tribunal ordered Casino Canberra to pay Mr Kidman's legal costs in the amount of $4,620.
222. Casino Canberra described the order as one for the payment of costs on a full indemnity basis and submitted that, if (contrary to its primary submission) any order for costs is made, the order should be in the ordinary form of costs to be assessed or agreed.[154]
223. In respect of the first limb of Casino Canberra's submissions, Mr Kidman relied on section 48(2)(b) of the ACAT Act under which the Tribunal may order costs where it considers that a party "caused unreasonable delay" while the Tribunal was dealing with an application. In particular, he submitted that Casino Canberra elected to have its sole witness act as its advocate. Mr Maundrell elected to conduct the hearing in a manner which persuaded the Original Tribunal that the matter could not proceed fairly. Significantly, Mr Kidman submitted, the apprehended unfairness was particularly to Casino Canberra.
224. In his submission, the problems with the unorthodox approach taken by Casino Canberra should have been obvious to anyone, particularly Mr Maundrell who relied on his legal qualifications and experience and knew the nature of the cross-examination that he considered necessary. The only identified reason for Casino Canberra proceeding in that manner was a desire by Casino Canberra to save its own costs. The delay caused when its approach "inevitably backfired" was, in this context, "unreasonable."
225. Mr Kidman submitted that he should not have to bear the additional costs occasioned by Casino Canberra's "failed experiment." Rather, he submitted, the Original Tribunal's order was within power and entirely justified.
226. In respect of the second limb of the submissions advanced by Casino Canberra, Mr Kidman submitted that there was no basis on which a costs order would be made against him. He was not responsible at all for the delay. In his submission, the contention to the contrary merely emphasises the unreasonable manner in which Casino Canberra conducted itself throughout the proceedings.
227. In relation to the amount of costs which Casino Canberra was ordered to pay, counsel for Mr Kidman submitted that:
(a) the award of costs is made in the exercise of a discretionary power and involves a great degree of subjectivity;
(b) although the usual order is that costs be paid as agreed or assessed, that is not the only order that can be made;
(c) as a matter of law, the order made was within the discretion available to the Original Tribunal;
(d) the order was not an indemnity costs order; and
(e) if the Appeal Tribunal were to vary the order in the terms suggested by Casino Canberra and the parties could not agree, the costs assessment would take into account time spent by the instructing solicitor, so the outcome could be different.[155]
228. The appeal against the costs order made by the Original Tribunal, and the suggestion that any order for costs should have been in favour of Casino Canberra rather than against it, must be decided by reference to the terms of section 48 of the ACAT Act as interpreted by the ACT Supreme Court.
(1) The parties to an application must bear their own costs unless this Act otherwise provides or the tribunal otherwise orders.
230. Section 48 continues, so far as is relevant to this appeal:
_(2) However - _
(a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant--
(i) the filing fee for the application; and
(ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or
(b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application - the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or...
231. The scope and operation of section 48 of the ACAT Act was considered in detail by Penfold J in CIC Australia Ltd v Australian Capital Territory Planning and Land Authority_._[156] Her Honour identified the four main elements of section 48 as:
(a) That the default position is that the parties bear their own costs.
(b) That the default position may be varied by provisions of the ACAT Act.
(c) That the default position may be varied by an order of ACAT.
(d) That in four specified circumstances, ACAT may make particular costs orders.[157]
232. Her Honour concluded that section 48 "confers a narrow costs power on ACAT ... to make only the orders specified in s 48(2) and only in the circumstances specified in that provision."[158]
233. Adopting that interpretation to the circumstances of this appeal, the appeal against Order 4 can only succeed if the order was not made under section 48(2)(b).
234. The costs aspect of the appeal raises five issues:
(a) Was Mr Maundrell a legal practitioner at the time of the hearing?
(b) If so, was Mr Maundrell acting as a legal representative of Casino Canberra at the hearing?
(c) If so, was it appropriate for Mr Maundrell to act as Casino Canberra's legal representative and also to be its sole witness in the proceedings?
(d) If it was not appropriate for Mr Maundrell to act as counsel and also be its sole witness, did Casino Canberra cause "unreasonable delay" while the Original Tribunal was dealing with Mr Kidman's application?
(e) If so, was the amount of legal costs that Casino Canberra was ordered to pay Mr Kidman an appropriate sum?
235. In relation to (a), Casino Canberra's written and oral submissions went into considerable detail about Mr Maundrell's status as a legal practitioner. Although the Appeal Tribunal was not provided with formal documentation of his legal qualifications and admission to practice, there was no dispute with the contention made by Casino Canberra's lawyer in the appeal proceedings that at all material times Mr Maundrell was a lawyer. We have proceeded to hear and decide this aspect of the appeal on the basis that he was, and presumably still is, a lawyer although he does not currently hold a practising certificate.
236. In relation to (b), it is apparent, and we accept, that at all material times Mr Maundrell was acting in his role as in-house legal counsel for Casino Canberra.
237. The Appeal Tribunal understands that the expression 'in-house counsel' is a term of art which can cover people with legal qualifications who do not hold a practising certificate. Regulation 8 of the Legal Profession Regulation 2007 provides that an Australian lawyer is entitled to use the name, title or description of 'counsel' when "the Australian lawyer, not holding an Australian practising certificate, provides legal services to his or her employer, or to a related entity, in the ordinary course of his or her employment and for no fee, gain or reward other than his or her ordinary remuneration as an employee." Section 7 of the Legal Profession Act 2006 defines 'Australian lawyer' to mean "a person who is admitted to the legal profession under this Act or a corresponding law."
238. Email correspondence from Mr Maundrell, including the email to which was attached his Authority to Act for a Corporation, described Mr Maundrell as "Compliance Manager & In-House Legal Counsel." In particular, we accept that, using the terms of section 30 of the ACAT Act in relation to its application before the Original Tribunal, Casino Canberra was "represented by a lawyer". In those circumstances, neither Casino Canberra nor Mr Maundrell can be described as a self-represented litigant.
239. In relation to (c), the issue is not whether Casino Canberra is entitled to be represented in proceedings before the tribunal by a lawyer, in particular by its in-house counsel (irrespective of whether he held or holds a current practising certificate), or whether Mr Maundrell was authorised to act for Casino Canberra in the present proceedings. The issue is whether it was appropriate for Mr Maundrell to represent Casino Canberra as a lawyer when he was the sole witness for Casino Canberra and the matters about which he was to give evidence and make submissions involved his actions as an employee of Casino Canberra.
240. The parties did not refer the Appeal Tribunal to any judicial authorities about whether it is appropriate for a party's legal representative to also be the sole witness to give evidence on behalf of the party. The Appeal Tribunal has considered relatively recent judgments of superior courts on this issue, including one to which the Original Tribunal referred at the hearing on 6 March 2020.[159]
241. Support for the approach taken by the Original Tribunal is found in the judgment of the New South Wales Court of Appeal in Barrak Corporation Pty Ltd v The Kara Group of Companies Pty Ltd[160] (Barrak). The Court considered the circumstances in which, in the proceedings before the original court, a person acted as the solicitor for the plaintiff in the initiation and conduct of proceedings in which he knew that he was himself to be the plaintiff's principal witness on factual matters at the heart of the controversy between the parties. At the time, the rules of professional conduct which applied were that, unless there were "exceptional circumstances" justifying the practitioner's continuing retainer by the practitioner's client, the practitioner "must not act or continue to act in any case in which it is known or becomes apparent that the practitioner will be required to give evidence material to the determination of the contested issues before the court."
242. In the lead judgment, Justice Adamson wrote that, irrespective of whether the solicitor's conduct amounted to professional misconduct or unsatisfactory professional conduct within the meaning of the Legal Profession Act 2004 (NSW), it was "desirable" to "make some observations about what occurred in the instant case for the guidance of the profession generally."[161] Her Honour wrote:
It is necessary to emphasise the risk posed to the administration of justice in New South Wales by solicitors remaining on the record when they are, or may be, witnesses in proceedings. This risk is heightened when they have a personal interest in the outcome of litigation beyond recovery of their fees. Courts rely on legal practitioners to discharge their duties to remain objective and professional in the preparation and presentation of proceedings. Such duties are susceptible to compromise where a practitioner is also a witness and even more so when he or she has a financial interest in the outcome: see, for example the observations made by Brereton J in Mitchell v Burrell [2008] NSWSC 772 at [20].[162]
243. Having observed that there had been an amendment to the relevant rule, her Honour noted that she did not discern any change in the "purpose of the provision, which is to protect the administration of justice by circumscribing the circumstances in which a solicitor who is, or may be, required to give evidence in proceedings is permitted to act."[163]
244. In agreeing with Adamson J, Barrett JA expressed concern that the practitioner saw nothing untoward in his acting as solicitor for the plaintiff in these proceedings, and stated that the purpose of the rule:
...sought to underwrite the practitioner's primary duty to the court as one of its officers concerned in the administration of justice; and, to that end, to eliminate a particular form of influence or interest that, of its nature, might compromise the practitioner's ability to discharge that duty.[164]
245. Sackville A-JA agreed with the orders proposed by Adamson J and with her Honour's comments concerning the conduct of the solicitor. He also agreed with the additional observations of Barrett JA on the matter.[165]
246. That conclusion is reinforced by two subsequent judgments of the Victorian Supreme Court.
247. In the first, Brown v Guss (No 2),[166] it was submitted that Mr Guss was in a conflict of interest in acting for the defendant as well as being a witness on substantive matters in the proceeding. The solicitors for the plaintiff had raised the issue with him. Justice McMillan quoted[167] from an article on "Lawyers' Duties to the Court" written in 1998 by Justice Ipp which stated, among other things that it is:
undesirable for a lawyer to appear as a witness in the same case as he is instructing solicitor (and, a fortiori, counsel). ... The reason for this is that the lawyer would be in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence...
The integrity of the adversarial system is dependent on lawyers acting with perfect good faith, untainted by divided loyalties of any kind. This is central to the preservation of public confidence in the administration of justice.[168] [emphasis added]
248. Justice McMillan quoted from the judgment in Barrak emphasising the risk posed to the administration of justice by solicitors remaining on the record when they are witnesses in the proceedings. His Honour noted that, in Mitchell v Burrell[169] although Justice Brereton did not accept that a solicitor being a material witness of itself necessarily justified restraining a solicitor from continuing to act, Justice Brereton said:
the line is crossed only when the solicitor has a personal stake in the outcome of the proceedings or in their conduct, beyond the recovery of proper fees for acting, albeit that the relevant stake may not necessarily be financial, but involves the personal or reputational interest of the solicitor, as will be the case if his or her conduct and integrity come under attack and review in the proceedings. The presence of such circumstances will be a strong indication that the interests of justice - which in this field involve clients being represented by independent and objective lawyers unfettered by concerns about their own interests - require the lawyer to be restrained from continuing to act.[170]
249. Justice McMillan concluded that Mr Guss had not acted with the independence required of a solicitor and had an interest in the result "additional to his interest in doing his best" for the defendant to have success in the proceeding. Various matters were relevant to Mr Guss's conduct, his involvement as a witness in the proceeding, his reputational interest, and his independence in advising the defendant as his solicitor.[171]
250. In the subsequent case of The Queen, on the application of Davey v Silverstein and Ors,[172] the Victorian Court of Appeal, immediately before quoting from Barrak with approval, wrote:
It is unarguable that it is most undesirable that a legal practitioner, who might be called as an important witness in a proceeding, should not act, or appear as counsel, in the proceeding. That proscription is particularly pertinent in the case of a legal practitioner who not only acts for a party in the proceeding, but also appears on behalf of that party at the trial of the proceeding. It is reflected in r 27.02 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015.[173] [emphasis added]
251. In that case, the lawyer while acting as the legal representative of two parties gave evidence on behalf of himself and those parties at the trial. He had previously represented to the Court that he and the parties would maintain their right to silence in the trial.[174] Although the Court of Appeal concluded that there had been no miscarriage of justice, they wrote:
In the present case, it was quite unsatisfactory that the first respondent was an important witness on behalf of the defence of each of the respondents, while at the same time acting for them, and appearing on their behalf in the trial of the proceeding.[175]
252. We acknowledge that the circumstances in the present case were not identical to those in the cases just cited, particularly as Mr Maundrell does not hold a current practising certificate. However, the principles set out in the passages quoted are apposite. Mr Maundrell had direct links with Casino Canberra as its in-house legal counsel. As an employee of Casino Canberra and the author of the 8 August letter he gave evidence about key issues in the case involving how and why he had acted on behalf of Casino Canberra. His conduct and integrity were in issue and hence he had a personal or reputational interest in the outcome of the case. Despite that, he was Casino Canberra's advocate at the start of the hearing. It was not appropriate for him to act as counsel in the proceedings.
253. The issue was considered in 2020 by the ACT Supreme Court in In the Estate of Shirley Eileen Kendall[176] (Kendall). The proceedings involved a dispute about the validity of a will of the deceased testator and an application for the revocation of the grant of probate of the disputed will. One of the testator's sons sought orders of the Supreme Court to restrain a named solicitor (who had prepared the disputed will) and her firm from acting for the estate in litigation relating to the validity of the will.
254. Acting Justice Crowe quoted from the judgment of Brereton J in Kallinicos v Hunt[177] (Kallinicos) setting out principles which have been quoted with approval in other judgments including by the ACT Supreme Court in Birkett Investments Pty v Streatfield Investments Pty Ltd.[178] His Honour described the solicitor's evidence as "likely to be crucial" or "critical" to the determination of whether the testator knew and approved of the contents of the disputed will.[179]
255. In making the order sought, his Honour expressed the view that continuing to act for the executor would place the solicitor in the situation where she would be testifying in circumstances where she owed an obligation of loyalty to the executor, at the same time having an interest in defending her own conduct and credibility, and discharging her obligations as an officer of the Court. These conflicts would be greatly lessened if the solicitor was giving evidence other than as the solicitor for the executor in the litigation in which that evidence is relied upon to support the validity of the will. Further, his Honour expressed the view that fair-minded and reasonably informed members of the public would conclude that the due administration of justice, including the appearance of the process, would require that the solicitor should be prevented from continuing to act as the solicitor for the executor in this litigation.[180]
256. His Honour was "conscious of the exceptional nature of the jurisdiction and the need for caution." However, he took into account the particular circumstances of this case and the need for the Court to be able to rely to the greatest extent possible on the independent evidence of the solicitor.[181]
257. The Original Tribunal referred to the judgment in Kendall at the original hearing of this case.[182] The judgment provides strong support to the views she expressed about Mr Maundrell's dual roles initially in the proceedings.
258. The position becomes even more clear (in relation to solicitors) in light of the ACT Law Society Legal Profession (Solicitors) Conduct Rules 2015 which provide:
Rule 27 - Solicitor as material witness in client's case
27.1 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court, the solicitor may not appear as advocate for the client in the hearing.
27.2 In a case in which it is known, or becomes apparent, that a solicitor will be required to give evidence material to the determination of contested issues before the court the solicitor, an associate of the solicitor or a law practice of which the solicitor is a member may act or continue to act for the client unless doing so would prejudice the administration of justice. [emphasis added]
259. The Commentary[183] on rule 27.1 states that rule 27.1 "is a rule of strict application that requires the solicitor to not appear as an advocate for the client if the solicitor is required to give evidence."
260. The Commentary provides more detail in relation to rule 27.2, stating that the reason for the rule "is that the solicitor would be in a position of apparent conflict between the duty to advance the interests of the client and the duty to the court to give impartial evidence which may prejudice the administration of justice."
The test to be applied in determining whether continuing to act would prejudice the administration of justice is an objective one. The question is whether a fair minded and reasonably informed member of the public would conclude that the proper administration of justice requires that the solicitor should be prevented from continuing to act for the client, in the interests of the protection of the integrity of the judicial process and the due administration of justice, including the appearance of justice.
262. The Commentary notes that, in making its determination on whether continuing to act would prejudice the administration of justice, a court must balance this apparent conflict of duties with other considerations affecting the due administration of justice, such as:
(a) due weight being given to the public interest in a litigant not being deprived of the solicitor of their choice without due cause; and
(b) the timing of the application, which may be relevant (the cost, inconvenience or impracticability of requiring a solicitor or law practice to cease to act may provide a reason for refusing to grant relief).
263. In that context, the jurisdiction of a court to exercise its power to restrain a solicitor or law practice from acting is exceptional and is exercised with caution.
264. Crowe AJ described rule 27.2 as "entirely consistent with the principles taken from Kallinicos" which he applied in Kendall.[184]
265. Rule 27 and the Commentary reinforce the Appeal Tribunal's conclusion that the rationale for that rule and the rules in New South Wales and Victoria, as expressed in judicial decisions in relation to them, is relevant the ground of appeal in this case. Indeed rule 27.1 could not be clearer in providing that a solicitor may not appear as an advocate for a client where that solicitor will be required to give evidence material to the determination of a contested issue.
266. On the basis of those authorities and the circumstances in which the hearing progressed on the first day, was are satisfied it was inappropriate for Mr Maundrell to act as counsel for Casino Canberra in the proceeding before the Original Tribunal. Accordingly, we can find no error in the decision of the Original Tribunal, in the circumstance of the case, to adjourn the proceedings to a later date in order that Casino Canberra obtain independent legal representation.
267. In reaching that conclusion, we do not suggest that a litigant in person who is a legal practitioner cannot appear and give evidence in their own case. In those circumstances, the litigant could be separately represented by a legal practitioner or could present their own case. The fact that they happen to be a legal practitioner neither prevents them appearing as a self-represented litigant nor, of itself, makes that appearance inappropriate.
268. The next question is whether the Original Tribunal should have ordered Casino Canberra to pay Mr Kidman's costs of the adjournment.
269. Casino Canberra's submission in relation to issue (d), that the delay in the proceedings was caused by Mr Kidman and his lawyers (together with the Original Tribunal) rather than by Casino Canberra, must be rejected.
270. Counsel for Mr Kidman raised concerns at two points in the proceedings. First, during Mr Maundrell's cross-examination of Mr Kidman, counsel referred to Mr Maundrell giving evidence from the bar table as part of that process. She continued:
I'll clarify the objection for the record. Normally this wouldn't be a difficulty. It's just the unusual position of having the central witness as advocate. It creates problems when my friend, rather than asking questions, gets into an exchange, including asking Mr Kidman questions. As a witness of course he shouldn't ask questions, but often when they are in that position they are less disciplined. It's not strictly an objection; it's just a comment for the record.[185]
271. Second, after Mr Kidman was excused as a witness and before moving to the evidence for Casino Canberra, counsel said to the Original Tribunal:
... there are some concerns that I need to put on the record, and it's about how that evidence is going to unfold, given that Mr Maundrell is the only witness of fact, a material witness, and acting as advocate. I appreciate this has been an issue for some time but I've become more concerned over the course of the morning. Important to realise that we're not talking about a self-represented individual here, which is when that circumstance is often managed by the tribunal. This is Casino Canberra. It's made that decision - it's a forensic decision it has made. It creates a difficulty for the applicant because I have some concerns about how objections are going to play out. This isn't a criticism, but the style taken is discursive. It's a question of style but in the witness box it has a real risk of contaminating the evidence. The alternative is there is no-one available to make objections, which is equally unfair.[186]
Counsel also raised an issue about whether Mr Maundrell as advocate needed a practising certificate.
272. The Original Tribunal separately expressed concerns about Mr Maundrell's dual roles.[187]
273. Mr Maundrell stated that the motivation for him representing Casino Canberra at the hearing "was purely about costs." Casino Canberra did not want to incur external legal costs of a matter which it thought was "very simple and straightforward". Mr Maundrell also indicated that, if counsel for Mr Kidman wanted an adjournment, Casino Canberra would agree to an adjournment.[188]
274. Were it not for Mr Maundrell's participation in the proceedings in two critical roles for Casino Canberra, there would have been no reason for either Mr Kidman and his lawyers or the Original Tribunal to have held the concerns about whether the hearing ought to continue. His participation in both roles, and the way he performed them, gave rise to those concerns which, in turn, precipitated the adjournment.
275. Further, we are not persuaded by the contention that the award of costs should be denied because Mr Kidman did not seek an order to remove Mr Maundrell as the authorised representative of Casino Canberra. Again, no authority was cited in support of that submission. We note, however, that in Brown v Guss (No 2)[189] it was contended that because the plaintiff did not make an application to restrain Mr Guss from acting for the defendant, the plaintiff could not later complain about his continued role as solicitor. In that case, the solicitors for the plaintiff had raised the issue with the solicitor of being a material witness, yet he continued to act on his client's behalf.
276. McMillan J wrote that the submission "misses the point" and continued:
It is not the responsibility of the lawyers to incur further costs in an application to remove a solicitor when they have already done him the service of bringing a potential conflict to his attention. It is the responsibility of Joseph Guss to ensure that he is not in a position of conflict, either actual or perceived, where his professional independence can be called in to question.
To contend that the plaintiff should have sought to restrain Joseph Guss from acting as the defendant's solicitor, in my view, abrogates not only the responsibility of Joseph Guss, but also his duty to the court.[190]
277. Although the circumstances which gave rise to those observations were not identical to the issue raised in Casino Canberra's submission on the present appeal, the passage quoted lends some support to the proposition that it was for Casino Canberra not Mr Kidman to ensure that Casino Canberra had appropriate representation or that its legal representative acted appropriately.
278. For those reasons, we are satisfied that the Original Tribunal was not in error in deciding that Casino Canberra through its representative "caused unreasonable delay" while the Original Tribunal "was dealing with the application."
279. Finally, we turn to issue (e), whether the amount of legal costs that Casino Canberra was ordered to pay Mr Kidman was an appropriate sum or, more precisely, comprised "the reasonable costs of the other party arising from the delay".[191]
280. As is clear from the reference earlier to section 48 of the ACAT Act, there are limited circumstances in which the Tribunal can make an order for costs. As both parties appear to acknowledge, the order made by the Original Tribunal in this case was unusual for that reason and also in its form. We are not satisfied, however, that the order made was beyond power by not falling within the scope of section 48(2)(b).
281. It is also clear from section 48(2)(b) of the ACAT Act that the award of costs by the tribunal is discretionary. If the precondition is satisfied, the tribunal "may" order one party to pay the "reasonable costs" of the other party. The amount awarded by the Original Tribunal was directly related to specified costs incurred by Mr Kidman arising from the delay. Casino Canberra did not suggest that the amounts were unreasonable for the legal work undertaken or the expenses incurred. Further, as counsel for Mr Kidman pointed out, it is not clear whether the amount awarded would have been different (and might have been larger) if the order was that costs be assessed if they could not be agreed by the parties.
282. In the present case, the Appeal Tribunal could vary Order 4 made by the Original Tribunal and order that the sum to be paid by Casino Canberra to Mr Kidman for his costs be as agreed by the parties or, in the absence of agreement, as assessed by the Appeal Tribunal. Either way, but particularly if the parties could not agree and had to make submissions to the Appeal Tribunal, the parties would be put to extra cost to reach finality on the sum. That additional cost is likely to exceed the difference (if any) between the amount awarded by the Original Tribunal and the sum finally determined by agreement or otherwise.
283. Given that the amount ordered by the Original Tribunal:
(a) was directly related to specific costs incurred by Mr Kidman arising from the delay; and
(b) was not shown to be excessive or plainly wrong;
the Appeal Tribunal is not satisfied that it should exercise its discretionary power and vary Order 4 made by the Original Tribunal in the exercise of its discretionary power. Accordingly, that part of the appeal is dismissed.
284. For the reasons set out above, the Appeal Tribunal has decided that the Original Tribunal was not in error in deciding that:
(a) Mr Kidman was engaged in 'industrial activity' when he participated in the interview with The Canberra Times;
(b) Casino Canberra treated Mr Kidman 'unfavourably' when it sent him the 8 August letter;
(c) Casino Canberra treated Mr Kidman unfavourably 'because of' that industrial activity;
(d) Casino Canberra should pay Mr Kidman the sum of $4,000 as compensation for the detriment he suffered; and
(e) Casino Canberra should pay $4,620 for legal costs incurred by Mr Kidman in relation to the second day of the hearing before the Original Tribunal.
Attachment A: Canberra Times article, 6 August 2019[192]
Casino Canberra workers in limbo as sale looms - by Dan Jervis-Bardy
Casino Canberra workers say they are in limbo as the venue prepares to change hands.
Bryan Kidman, who has worked on the casino's gaming floor for more than 16 years, said employees were in the dark about staffing levels, wages and conditions ahead of a looming shift in the ownership structure of the city casino.
Blue Whale Entertainment is awaiting ACT government approval on a complex deal which will see it become the majority shareholder in the companies which own and operate the casino, Aquis Entertainment Limited and Casino Canberra Limited.
The government is completing a probity review of the deal, which marks the final step in the approval process. The company's board and shareholders have already green-lighted the proposal, which was announced in December.
A government spokesman could not put a time frame on the completion of the review.
Mr Kidman, who is a delegate for the hospitality workers' union, United Voices, said neither Aquis or Blue Whale had provided workers with written assurances about their employment conditions once the deal was complete.
Mr Kidman said the union approached Aquis earlier this year seeking to negotiate a new pay deal, as the existing agreement was due to expire on June 30.
The union was told that talks would not start until the sale was complete, prompting it to ask for a "letter of intent" stating that existing working conditions would be retained under the new owners.
It also sought guarantees that, following the sale, there would be no forced redundancies, changes to hours or rosters or any outsourcing of work.
The old agreement has since expired, although the conditions will remain in force until a new deal is struck.
"If they won't give us an undertaking about the conditions, then there must be a reason for that," Mr Kidman said.
"There is just the uncertainty of not knowing what our conditions are going to be. People are a bit worried in the hospitality industry because of what has happened in the past.
"We are not being told anything, we've had no information."
The acting chief executive of Casino Canberra and Aquis, Allison Gallaugher, said it was premature to start negotiations with the union before the government's probity review was finalised, and the sale approved.
However, Ms Gallaugher said Blue Whale had intentions to grow the business, which she said could "only be a good thing for all our employees".
She rejected Mr Kidman's claims that employees had been left in the dark.
"Our employees are regularly updated in staff meetings on the status of the transaction and have also been reassured directly regarding their job security and the potential opportunities which will exist for all of them and the business, on completion of probity," she said.
A government spokesman said while it could not force Blue Whale to retain staffing levels or conditions, it hoped it would "consider the wellbeing of their existing employees during the transition".
The Canberra Times reported in March that Blue Whale would consider outsourcing the management of the venue if the deal was approved.
The company has also forecast updates at the casino, including new restaurants and upgrades to gaming facilities.
Casino management also recently re-stated talks with the ACT government about its $330 million expansion proposal, after the bid was knocked back last year.
Attachment B: Letter from Casino to Mr Kidman, 8 August 2019
Article in the Canberra Times dated 6 August 2019
I refer you to the article which appeared in the Canberra Times on 6 August 2019 - under the heading "Casino Canberra workers in limbo as sale looms" - the terms of which are set out in Attachment to this letter ("Article").
The Article attributes a number of comments to you in connection with Casino Canberra, including:
"If they won't give us an undertaking about the conditions, then there must be a reasons for that," Mr Kidman said.
"There is just uncertainty of not knowing what our conditions are going to be. People are a bit worried in the hospitality industry because of what has happened in the past.
"We are not being told anything, we've had no information."
(1) as described in the first sentence quoted above from the Article, may have been made by you in breach of the "Your Behaviour" section of the Casino's Employee Handbook, Relevantly, at page 25, it is stated that:
As a Casino Canberra team member you must always adhere to the following standards:
(2) as described in the third sentence quoted above from the Article, misrepresents the communications that have passed between management and staff in relation to the sale process. In this regard, under the Aquis Entertainment - Code of Conduct[193] it is stated that:
(a) Each Aquis Entertainment employee is responsible for complying with this Code both in detail and in spirit. Everyone must:
- (I) Act in the best interests of Aquis Entertainment;
- (II) Act with integrity - being honest, ethical, fair and trustworthy in all business dealings and relationships;
1. In relation to the comment, described in the first sentence quoted above from the Article:
(a) We note that on 15 July 2019, the Casino sent an email to United Voice, stating:
We have referred to your queries [in relation to the Casino sale] to Blue Whale who have replied in the following terms:
(b) were you intending to suggest (or infer) that there must be some ulterior reason(s) to those which had been put by the Casino to United Voice (as described in paragraph 1(a) above)?
(c) if your answer to paragraph 1(b) is "yes", are you able to:
- clarify the basis you had for making this suggestion?
- explain your view as to whether the comment is consistent with the following requirement:
As a Casino Canberra team member you must always adhere to the following standards:
2. In relation to the comment, described in the third sentence quoted above from the Article, can you please clarify:
(a) were you intending to convey that the Casino has provided no information to Casino staff in relation to the sale process?
(b) If the answer to paragraph 2(a) is "no", can you please explain what you were intending to convey by your comment?
In the first instance, and with a view to me forming a preliminary view as to whether or not you have met the Casino's required standards of behaviour, I request that:
Having regard to any response you provide to me, I may determine:
To ensure that this process can be conducted as fairly as possible, please treat this matter as strictly confidential. Any breach of confidentiality may be considered to be a disciplinary matter. However, in saying that, we do recognise that you may seek advice from your union and/or other representatives.
Should you have any other queries relating to this matter, please contact me on 02 6243 3704.
[2] Transcript of appeal proceedings 18 November 2020 page 3
[3] The President invited each party to provide a particular form of order or orders they were seeking if that extended beyond that the appeal be upheld or dismissed: transcript of appeal proceedings 18 November 2020 page 3
[4] Kidman v Canberra Casino Ltd ACN 051 204 114 [2020] ACAT 50 at [1]- [18]
[5] See for example, correspondence from the Union to Casino Canberra dated 4 July 2019 and 6 July 2019 and the emails from Mr Maundrell to the Union on 5 July 2019 (which made three references to the 'Sale of Casino Canberra') and 15 July 2019.
[7] Exhibit A1 annexure BK 02, email to United Voice from Shane Maundrell dated 5 July 2019
[8] Exhibit A1 annexure BK 04, letter to Shane Maundrell from United Voice dated 8 July 2019
[9] Exhibit A1 annexure BK 05, email to Lyndal Ryan from Shane Maundrell dated 15 July 2019 at 11:25
[10] See, for example, witness statement of Shane Robert Maundrell dated 23 December 2019 at paragraph [18], transcript of original proceedings 10 February 2020 page 27, transcript of appeal proceedings 18 November 2020 pages 21-22
[11] Staff Performance Counselling and Discipline Policy at [1.2]
[12] Exhibit A1 annexure BK 11, letter to Bryan Kidman from Shane Maundrell dated 16 August 2019
[13] 'Industrial activity' is defined in the dictionary to the Discrimination Act - quoted at paragraph [55]
[14] Appellant's submissions on appeal at paragraph [50], with specific items listed and described at paragraphs [51]-[123]
[15] Campbell v Blackshaw & Evans [2017] ACAT 64 at [57]- [60]; The Australian Capital Territory v Phillips [2021] ACAT 122 at [125]- [126]
[18] See for example, V v Elringtons Pty Ltd [2018] ACAT 23 at [23]; Harada v Barnes [2021] ACAT 66 at [8], [10]; Oliver v Registrar, of Domestic Animals Act 2000 [2021] ACAT 93 at [10]- [17]; Ezekiel-Hart v Council of the Law Society of the Australian Capital Territory [2021] ACAT 116 at [10]; QE Family Pty Ltd ACN 138 123 154 v QBE Insurance Limited ACN 000 000 948 & Anor [2021] ACAT 117 at [5]; The Australian Capital Territory v Phillips [2021] ACAT 122 at [34]; He v Qin & Ors [2021] ACAT 129 at [43]
[19] Tam v Du [2019] ACAT 94 at [22], citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]- [39] (per Refshauge J); Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]- [55]
[20] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [37]
[21] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [39]
[22] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [39]
[23] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [40] citing paragraphs (c) and (f) of the definition of 'industrial activity'.
[24] Statement of Bryan Kidman dated 2 December 2019 at paragraph [25]
[25] See also transcript of original proceedings 10 February 2020 pages 29-30, 33
[26] The letter was addressed to Casino Canberra and asked Casino Canberra to pass on to Blue Whale the Union's request for an undertaking in relation to four specified matters. The Union also stated, in relation to bargaining, that it appreciated Casino Canberra's preference not to enter bargaining until the sale transaction is complete. The Union would consider its position and respond in time.
[27] The letter from Casino Canberra dated 15 July 2019 set out Blue Whale's replies to the request for undertakings which included the statement "It is premature for Blue Whale to enter into any discussions regarding detailed staffing plans, or indeed to provide any form of undertaking in relation to any of the points in your letter." Casino Canberra noted the Union's stated position in relation to bargaining.
[31] Transcript of original proceedings 10 February 2020 page 54
[32] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22]
[33] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [30]
[34] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [27]
[35] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [31], [32]
[36] Appellant's submissions on appeal dated 21 September 2020 at [20]-[23]
[37] Macquarie Dictionary (7th ed, 2017) 'detriment' (def 1, 2)
[38] See Cooley and Australian National University [2007] ACTDT 2 at [45]
[39] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
[41] Prezzi at [22], affirmed in Edgley v Federal Capital Press of Australia Pty Ltd [2001] FCA 379; Sirohi v Director-General, Justice and Community Safety Directorate [2019] ACAT 84
[43] Cooley v Australian National University [2007] ACTDT 2 at [44]; See also Prezzi at [22], affirmed by the Federal Court in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379 at [54]- [57]
[46] [1996] ACTAAT 132 at [22], [24], and later approved by Beaumont ACJ (with whom Higgins and Gyles JJ agreed) in Edgely v Federal Capital Press of Australia Pty Ltd [2001] FCA 379
[47] Australian Capital Territory v Wang [2019] ACAT 65 at [185]
[48] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [22], citing Complainant 201823 v Insurance Australia Group Ltd trading as NRMA [2019] ACAT 64 at [6]- [7]; See also Prezzi at [22]
[49] Applicant 202053 v Employers Mutual Limited [2022] ACAT 9 at [15]
[50] Williams v The Trustees of Swansea University Pension & Assurance Scheme [2018] UKSC 65 at [12]
[51] Transcript of appeal proceedings 18 November 2020 pages 10-11, 15
[52] Transcript of appeal proceedings 18 November 2020 pages 16, 19
[55] Transcript of appeal proceedings 18 November 2020 page 25
[56] Transcript of appeal proceedings 18 November 2020 page 26
[57] Transcript of appeal proceedings 18 November 2020 page 31
[58] Transcript of appeal proceedings 18 November 2020 pages 30-31
[59] Statement of Bryan Kidman dated 2 December 2019 at paragraph [5]. It was apparent that Mr Kidman did not have such familiarity with some aspects of Casino Canberra's processes, see transcript of original proceedings 10 February 2020 pages 18, 20
[60] Witness statement of Shane Robert Maundrell dated 23 December 2019 at paragraphs [47]-[50]; evidence of Bryan Kidman, transcript of proceedings 10 February 2020 page 55
[61] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [55]- [57]
[62] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [58]
[63] Macquarie Dictionary, (7th ed, 2017) 'rumour' (def 1, 2)
[64] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [59], [64]
[65] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [59]
[66] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [65]
[67] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [66]
[68] Appellant's submissions on appeal dated 21 September 2020 at paragraph [50], see specific issues listed and described at paragraphs [51]-[123]
[69] See witness statement of Shane Robert Maundrell dated 23 December 2019 at paragraphs [18]-[34]
[70] Transcript of original proceedings 6 March 2020 page 110
[71] Transcript of original proceedings 6 March 2020 page 120
[72] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [48]
[73] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [41]
[75] Applicant 202053 v Employers Mutual Limited [2022] ACAT 9 at [16]- [32]
[77] Applicant 202053 v Employers Mutual Limited [2022] ACAT 9 at [28]- [30], [32]
[83] Barclay at [102], citing Purvis at [169]
[84] Appellant's submissions on appeal dated 21 September 2020 at [87], [88]
[85] Kidman v Canberra Casino Ltd ACN 051 204 114 [2020] ACAT 50 at [70], see also at [29]
[86] Kidman v Canberra Casino Ltd ACN 051 204 114 [2020] ACAT 50 at [70]
[87] Transcript of original proceedings 6 March 2020 page 150, witness statement of Shane Robert Maundrell dated 23 December 2019 at paragraph [45], annexure SRM-18
[88] [1936] HCA 40; (1936) 55 CLR 499
[89] [1936] HCA 40; (1936) 55 CLR 499
[90] [2021] ACAT 16 at [62]- [66]
[91] See Attachment B of these reasons for decision.
[92] Transcript of proceedings 10 February 2020 page 18; witness statement of Bryan Kidman dated 2 December 2019 at paragraph [5]
[93] Transcript of original proceedings 10 February 2020 pages 18, 20
[94] Transcript of original proceedings 10 February 2020 page 20
[95] Transcript of original proceedings 10 February 2020 page 59
[96] Transcript of original proceedings 10 February 2020 page 45
[97] Transcript of original proceedings 10 February 2020 page 45
[98] Transcript of original proceedings 10 February 2020 page 21
[99] Transcript of original proceedings 10 February 2020 pages 13-15, 39-40, 43
[100] Transcript of original proceedings 10 February 2020 page 43
[101] Transcript of original proceedings 10 February 2020 page 45
[102] Transcript of original proceedings 10 February 2020 page 46
[103] Transcript of original proceedings 10 February 2020 page 45
[104] Transcript of original proceedings 10 February 2020 page 45
[105] Transcript of original proceedings 10 February 2020 page 58
[106] Witness statement of Bryan Kidman dated 2 December 2019 at [35], [37]
[107] Transcript of original proceedings 10 February 2020 page 54
[108] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [70]
[109] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [68]
[111] Respondent's submissions dated 26 March 2015 at [100], citing Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82 at [90], affirming O'Brien v Dunsdon (1965) 39 ALJR 78
[112] Alexander v Home Office [1988] 1 WLR 968
[116] Applicant's submissions dated 4 March 2015 annexure A
[119] Complainant 201922 v Barac [2020] ACAT 37
[120] Whiting and ACT Health and Calvary Health Care (ACT) Ltd [2008] ACTDT 1
[121] Kwesius and ACT Health [2008] ACTDT 3
[122] Rep v Clinch [2021] ACAT 106
[123] Phillips v Australian Capital Territory [2021] ACAT 22
[124] Abraham v Thomas [2020] ACAT 41
[125] Nester v ACT Fire Brigade [2004] ACTDT 2
[129] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [77]
[130] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [72]- [73]
[131] Kidman v Casino Canberra Ltd ACN 051 204 114 [2020] ACAT 50 at [76]
[132] Respondent's submissions dated 20 March 2020 at [7], [12]
[133] Respondent's submissions dated 20 March 2020 at [18]
[134] Respondent's submissions dated 20 March 2020 at [18]
[135] Respondent's submissions dated 20 March 2020 at [41]
[136] Respondent's submissions dated 20 March 2020 at [21], [45]-[58], quoting the Legal Profession Act 2006 sections 7, 16 and the Legal Profession Regulation 2007 regulation 8
[137] Transcript of appeal proceedings 18 November 2020 pages 9, 25
[138] Transcript of appeal proceedings 18 November 2020 page 8
[139] Transcript of appeal proceedings 18 November 2020 page 36
[140] Respondent's submissions dated 20 March 2020 at [13]
[141] Respondent's submissions dated 20 March 2020 at [15]-[16]
[142] Respondent's submissions dated 20 March 2020 at [16]
[143] Respondent's submissions dated 20 March 2020 at [17]
[144] Respondent's submissions dated 20 March 2020 at [18]
[145] Respondent's submissions dated 20 March 2020 at [41]
[146] Respondent's submissions dated 20 March 2020 at [42]
[147] Respondent's submissions dated 20 March 2020 at [42]
[148] Respondent's submissions dated 20 March 2020 at [43]
[149] Respondent's submissions dated 20 March 2020 at [59]
[150] Respondent's submissions dated 20 March 2020 at [64]
[151] Respondent's submissions dated 20 March 2020 at [64]
[152] Respondent's submissions dated 20 March 2020 at [60]-[63]
[153] Transcript of appeal proceedings 18 November 2020 page 9
[154] Transcript of appeal proceedings 18 November 2020 pages 5-7, 10
[155] Transcript of appeal proceedings 18 November 2020 pages 33-34
[157] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96 at [37]
[158] CIC Australia Ltd v Australian Capital Territory Planning and Land Authority [2013] ACTSC 96 at [82]
[159] Transcript of original proceedings 6 March 2020 page 71
[167] Brown v Guss (No 2) [2015] VSC 57 at [155]
[168] David Ipp, "Lawyers' Duties to the Court" (1998) 114 Law Quarterly Review 63
[170] Mitchell v Burrell [2008] NSWSC 772 at [20]
[171] Brown v Guss (No 2) [2015] VSC 57 at [158]
[173] The Queen, on the application of Davey v Silverstein and Ors [2020] VSCA 233 at [118]
[174] The Queen, on the application of Davey v Silverstein and Ors [2020] VSCA 233 at [119]
[175] The Queen, on the application of Davey v Silverstein and Ors [2020] VSCA 233 at [115]
[177] [2005] NSWSC 1181 at [76], [84], [87]
[182] Transcript of original proceedings 6 March 2020 page 71
[183] ACT Law Society, Legal Professions (Solicitors) Conduct Rules 2015: Commentary and Guidelines, page 49
[185] Transcript of original proceedings 10 February 2020 pages 29-30; see also page 35, line 21
[186] Transcript of original proceedings 10 February 2020 page 61
[187] Transcript of original proceedings 10 February 2020 pages 61-63, 65
[188] Transcript of original proceedings 10 February 2020 page 63
[190] Brown v Guss (No 2) [2015] VSC 57 at [153]- [154]
[192] This is the version of the article downloaded and enclosed with Casino Canberra's letter to Mr Kidman dated 8 August 2019. This version differs in some respects from the version in the printed edition of The Canberra Times.
[193] Refer also to the Casino's Employee Handbook (at page 25) under the heading "Aquis Entertainment - Code of Conduct".
[194] Please note that our questions assume you were accurately quoted.
[195] As used in the Employee Handbook, we consider "rumour" to have its ordinary meaning. For instance: A story or piece of information that may or may not be true, but that people are talking about
CASINO CANBERRA LIMITED ACN 051 204 114
KIDMAN
(1993) 43 FCR 280
(1965) 39 ALJR 78
(1996) 70 FCR 16
(2005) 222 CLR 44
(2007) 71 NSWLR 471
(2009) 181 IR 162
(2012) 248 CLR 500
(2014) 253 CLR 243
(1936) 55 CLR 499