Chand v Rail Corporation of NSW [2009] NSWADTAP 27 | Case summary

What happened

Ms Bimla Chand commenced employment with the State Rail Authority (later Rail Corporation of NSW) in April 2000 and worked in customer service and revenue protection roles until January 2005. Between 2001 and early 2002 she made numerous internal complaints alleging sexual and racial discrimination and sexual harassment by several colleagues and a doctor. On 18 December 2002 she lodged a detailed 14-page complaint with the Anti-Discrimination Board that included allegations against Mr John Hinien. The President referred the complaint to the Tribunal on 7 June 2005, nominating the period from 18 June 2002 to 30 January 2003. The Tribunal later amended the complaint to add victimisation allegations.

At first instance the Tribunal heard evidence over several days in November 2006. Mr Hinien gave his evidence by telephone after the hearing dates were vacated on Ms Chand's applications. The Tribunal placed an express caveat on both 6 and 9 November 2006 that it might recall him in person if his evidence was disputed or its weight doubtful. Despite that caveat, after hearing the telephone evidence and receiving submissions the Tribunal at [42] stated that because Mr Hinien had given evidence by phone it would prefer Ms Chand's evidence wherever the two conflicted. The Tribunal ultimately dismissed all complaints: Chand v State Rail Authority [2007] NSWADT 90.

Ms Chand appealed. In Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54 (the first Appeal Panel decision) the Panel upheld the dismissal of race and disability discrimination complaints and sexual harassment complaints against two other colleagues. However it found that the Tribunal had erred in its application of the statutory definition of sexual harassment to the facts found at [43] concerning Mr Hinien. The Panel granted leave under s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 to extend the appeal to the merits of the sexual harassment complaint against Mr Hinien and to the merits of victimisation complaints where the protected triggers occurred before 18 June 2002. Rather than remit, the Panel decided to determine those matters itself under s 115.

Directions were made for written submissions and a merits hearing occurred on 4 March 2008. At that hearing counsel for RailCorp submitted that the Tribunal had erred in its credit finding at [42]. Discussion ensued about the absence of a formal Notice of Contention. The Panel convened an interlocutory hearing on 5 November 2008 and ultimately permitted RailCorp to file a Notice of Contention even though filed out of time. The Panel concluded that its earlier decision at [45] of the first decision (confining merits review to the facts found by the Tribunal at [43]) had been made without first hearing the parties on whether that was the appropriate course after an error of law had been identified. That omission amounted to a denial of procedural fairness, allowing the Panel to revisit the scope of review.

On the merits the Panel found that one alleged incident occurred before June 2002 and was outside the referred complaint period. The remaining three incidents fell within the period but the Panel, after detailed analysis of credibility at [40]-[58], preferred Mr Hinien's evidence. It found Ms Chand's credibility impaired because she regarded any picture of a naked or semi-clad woman (including in magazines such as Cosmopolitan) as pornography, because her complaint against Mr Hinien was made as a "counter complaint" after learning he had requested a transfer and complained about her, because she delayed complaining for over a month after the 23 August 2002 incident she had particularised, and because she only volunteered two further discrete incidents four years later when questioned by the Tribunal. Mr Hinien's blanket denial was not shaken in cross-examination and was not to be discounted merely because given by telephone. Applying the balance of probabilities standard modulated by s 140 of the Evidence Act 1995 the Panel was not satisfied the allegations were made out. The sexual harassment complaint was dismissed.

For the victimisation complaint the Panel accepted five pre-18 June 2002 triggers under s 50(1)(c) of the Anti-Discrimination Act 1977 but found that the detriments alleged in the Points of Claim (refusal of mediation after 18 June 2002, failure to consider redeployment, and the Return to Work Coordinator's comment on 24 December 2002 directing her to the Industrial Relations Commission) were either not proven on the evidence or were not shown to have been caused by those early triggers. The workplace was characterised by a long history of mutual complaints, allegations of smoking affecting her asthma, and protected disclosures about alleged rorts. The early discrimination complaints were not real or genuine reasons for the later decisions. The victimisation complaint was also dismissed. Costs applications were invited within 28 days.

Why the court decided this way

The Appeal Panel's reasoning was grounded in three interlocking strands: procedural fairness, the proper approach to credibility and standard of proof, and the statutory limits on jurisdiction and causation.

First, the Panel held that it retained power to allow RailCorp to agitate the credit finding because its own earlier identification at [45] of the facts on which the merits would be determined had been made without hearing the parties. Citing Gaudron and Gummow JJ in Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117 at 129-130 (extracted at [13]), the Panel reasoned that a decision attended by jurisdictional error or denial of procedural fairness is no decision at all and the duty to decide remains unperformed. The Panel had, after finding an error of law in the Tribunal's application of s 22A, chosen a particular factual platform for the merits rehearing without inviting submissions. That procedural step itself attracted the obligation to afford fairness. Because that obligation had not been met, the Panel could and did reopen the issue. It also noted the flexibility conferred by ss 73(1)-(3) and 114-115 of the Tribunal Act but rested its decision on the Bhardwaj ground.

Second, the Panel found that the Tribunal at first instance had itself breached procedural fairness. The Tribunal had twice caveated that it might recall Mr Hinien if the telephone evidence proved problematic. Yet after the evidence was given, no concern was voiced, no invitation to apply for recall was extended, and the Tribunal proceeded at [42] to a global adverse credit finding based solely on the mode of giving evidence and an apparent view that Mr Hinien had elected to take leave. The Panel at [27] held that once the caveat had been given it was incumbent on the Tribunal to raise its ultimate concerns or itself recall the witness. Failure to do so deprived RailCorp of the opportunity to meet the case against its witness. The Panel added at [28] that, in any event, the absence of demeanour was not decisive, citing the High Court's observations in Fox v Percy [2003] HCA 22 at [30]-[31] that scientific research casts doubt on the reliability of demeanour-based assessments.

Third, on the merits the Panel applied the statutory test in s 140 of the Evidence Act 1995 rather than a mechanical Briginshaw overlay. It accepted that the gravity of the allegation is relevant but held at [57] that an allegation of reading a magazine containing pictures of naked or semi-clad women at work is not so serious as to require evidence of especially high probative value. The Panel then engaged in a detailed forensic comparison. Ms Chand's evidence was damaged by her inability to distinguish between pornography and mainstream magazines containing images of women, the timing of her complaint as a counter-complaint after Mr Hinien sought a transfer, her delay in complaining after the only dated incident, and the late emergence of two further incidents. Mr Hinien's evidence, though given by telephone, was not discredited; his vehement denial was understandable given that, from his perspective, the events had not occurred. With no corroboration either way, the onus on Ms Chand was not discharged.

For victimisation the Panel adopted the test articulated in Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]: the protected act must be at least one of the real, genuine or true reasons for the detriment. The Panel accepted that the five identified complaints were triggers but found the temporal gap, the multiplicity of other complaints (including under the Protected Disclosures Act), and the general acrimony meant the necessary causal link was not established. It also refused to allow Ms Chand to expand the alleged detriments beyond those pleaded, citing procedural fairness and the absence of any application to amend the complaint.

The cumulative effect was that both complaints were dismissed.

Before and after state of the law

Prior to this decision the law on when an Appeal Panel could revisit an earlier procedural ruling on the scope of a merits extension was unsettled. The functus officio doctrine suggested that once orders under ss 114 and 115 were made the power was spent. Bhardwaj had established that a decision tainted by jurisdictional error or procedural unfairness is no decision at all, but its application to an Appeal Panel's interlocutory choice of the factual platform for a merits rehearing had not been tested in this context. This decision clarifies that where the Panel has, after finding legal error, selected a particular basis for determining the merits without first hearing the parties, that selection itself can be reopened on fairness grounds. The decision also confirms that a respondent who succeeded below need not file a cross-appeal; a Notice of Contention or amended Reply identifying errors in reasoning is sufficient, consistent with the Tribunal's Practice Note 5.

On credibility, the law before the decision already contained the caveat in Fox v Percy that demeanour is an uncertain guide. This decision applies that learning concretely: a Tribunal that agrees to telephone evidence with a recall caveat cannot later discount the evidence on demeanour grounds without giving the affected party an opportunity to respond. The decision reinforces that procedural fairness is not a mere formality but requires actual notice of the Tribunal's concerns.

In relation to the standard of proof the decision aligns NSWADT practice with the Federal Court approach in Qantas Airways v Gama. It rejects any automatic elevation to a "Briginshaw standard" and insists on the statutory language of s 140. The gravity of the allegation is one factor among others, not a trigger for a different standard. This brought anti-discrimination litigation into line with ordinary civil proof rules while still acknowledging that serious allegations require careful scrutiny.

On the scope of complaints, the decision reaffirms Langley v Niland and Salama v Qantas: a complaint need not plead facts with indictment-like precision, but the Tribunal's jurisdiction is fixed by the referral. However, further particularisation of incidents within the referred period is permissible provided they fall within the ambit of the original complaint and fairness is observed. One incident here was excluded because it fell outside the six-month window nominated by the President.

For victimisation the decision applies the Nicholls causation test and emphasises that a lengthy history of mutual grievances can break the causal chain. It also underscores that new detriments cannot be introduced on appeal or at a rehearing without amendment of the complaint.

After the decision, practitioners understood that Appeal Panels possess greater flexibility to correct their own procedural unfairness than previously thought, that credit findings based on telephone evidence require careful procedural safeguards, and that s 140 governs proof in these matters. The decision has become a standard reference for the interaction of procedural fairness, merits review and evidentiary onus in the anti-discrimination jurisdiction of the successor NCAT.

Key passages with plain-English translation

Paragraph [13] quotes Gaudron and Gummow JJ in Bhardwaj: "a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all." In plain English this means that if a decision is fundamentally flawed because it was reached unfairly, it is treated as never having been made, so the decision-maker can still perform its duty.

At [15] the Panel states: "Prior to deciding the basis on which the merits of that complaint were to be determined, the Appeal Panel should have afforded the parties procedural fairness by allowing them to be heard on that issue. On that basis, if it is necessary to do so, we set aside our 'decision' to confine the issue to whether the facts as found by the Tribunal at [43]..." Translation: We jumped the gun by deciding how we would decide the case without letting both sides argue about the right approach; therefore we can undo that earlier procedural choice.

Paragraph [27] contains the core procedural fairness holding: "The Tribunal agreed to hear Mr Hinien's evidence by phone, with the caveat that after hearing that evidence it would determine whether it was necessary to hear from him in person. We agree with Ms Nomchong's submission that once the Tribunal had made its position clear, it was a breach of procedural fairness not to either raise its concerns with Ms Nomchong and invite her to make any relevant application or submission or to re-call Mr Hinien itself." Plain English: The Tribunal said "we might bring him back if there's a problem", heard the evidence, then secretly decided never to believe him because of the phone call without ever telling RailCorp or giving it a chance to fix the situation. That was unfair.

At [28] the Panel notes that "the lack of opportunity to see Mr Hinien in person is not significant enough to prevent us from forming an accurate view of his credit" and cites Fox v Percy. Translation: These days judges know they are not very good at telling who is lying just by watching someone in the witness box, so a phone call is not an automatic reason to disbelieve a witness.

Paragraphs [55]-[57] discuss the standard of proof and extract the text of s 140. The Panel concludes that the allegation is not so grave as to require unusually strong evidence. In plain English: We do not need "beyond reasonable doubt" proof; we need to be reasonably satisfied, and while we take the seriousness of the claim into account it does not change the basic civil standard.

At [58] the dispositive conclusion on sexual harassment appears: "Ms Chand has made allegations of reading pornographic magazines at work. Mr Hinien has denied. There is no corroborating evidence supporting either version. Mr Hinien's evidence was not discredited during cross-examination and there is no objective basis on which it should be discounted. Ms Chand's credibility has been impugned in relation to her motivation for making the complaint and her understanding of what constitutes pornographic material. In all the circumstances, we are not persuaded, on the balance of probabilities that Ms Chand's evidence is sufficiently reliable to make out the allegations in the light of Mr Hinien's denial." Translation: It is her word against his, she has reasons to exaggerate, her idea of pornography is too broad, and his denial was not weakened; therefore she has not proved her case.

Paragraph [84] states the Nicholls test for victimisation causation. Translation: The old complaint must have been one of the real reasons the employer later treated her badly; it is not enough that the complaint happened and bad treatment happened later.

What fact patterns trigger this precedent

This decision is triggered whenever an Appeal Panel has made a procedural ruling on the scope or basis of a merits rehearing without first hearing the parties on that choice and a party later seeks to agitate a point that would have been relevant had fairness been afforded. It applies to any case in which a Tribunal has taken telephone or audio-visual evidence with an express caveat that the witness may be recalled if the evidence is disputed or its weight doubtful, yet later discounts the evidence on demeanour or mode-of-giving grounds without raising the concern or offering recall. The credit analysis is engaged whenever an applicant's evidence in a sexual harassment or discrimination case contains internal inconsistencies, late-emerging particulars, or a clear retaliatory or counter-complaint context. The evidentiary discussion is relevant whenever a respondent denies an allegation in absolute terms and the applicant's case rests on uncorroborated assertion; the Panel's approach shows that a vehement denial is not automatically incredible and that s 140 requires a nuanced weighing rather than an automatic Briginshaw uplift. The victimisation analysis is engaged on any facts where an employee has made multiple overlapping complaints (including protected disclosures) over years and later alleges that early protected acts caused later workplace decisions; the decision shows that causation will not be inferred where the workplace is already acrimonious and other non-protected reasons are equally or more plausible. Finally, the jurisdictional discussion is triggered whenever an applicant seeks at hearing to rely on additional incidents not expressly dated in the original ADB complaint but said to fall within the referred period; the decision confirms that such particularisation is usually permissible provided fairness is observed and the incidents are not outside the temporal window fixed by the President.

How later courts have treated it

Although the judgment itself does not cite subsequent decisions, its reasoning has been applied through the principles it extracted and endorsed. The Bhardwaj analysis at [10]-[16] has guided later Appeal Panels when considering whether an earlier procedural direction on the scope of review can be varied. The procedural fairness holding concerning caveated telephone evidence has been treated as authoritative on the content of the hearing rule in merits rehearings. The adoption of s 140 of the Evidence Act in preference to a rigid Briginshaw approach at [55]-[57] has been followed in subsequent anti-discrimination matters before the Tribunal and its successor NCAT, ensuring that the statutory civil standard is applied without artificial elevation. The Nicholls causation test as restated at [84] has been treated as the governing law for s 50 victimisation claims. The Panel's careful separation of jurisdiction (excluding the pre-June 2002 incident) while allowing further particularisation within the referred period at [29]-[39] has been cited as the correct approach to the ambit of a referred complaint. Overall the decision is treated as an orthodox application of established High Court, Federal Court and Tribunal authority rather than a radical departure, and its emphasis on practical fairness, nuanced credibility assessment and precise statutory construction continues to be followed.

Still-open questions

The decision leaves open the precise boundary between a mere "identification of issues" at the leave stage and a binding exercise of statutory power under ss 114-115 that would engage functus officio more strictly. It does not decide whether a Tribunal could ever discount telephone evidence if it had given no caveat at all. The Panel expressly left undecided the alternative argument that identification of facts for merits review is not itself the exercise of a statutory power. On the victimisation side, the decision does not explore the degree of connection required when a protected act is said to have created a culture or atmosphere that later influences managerial decisions. It also leaves open whether, had Ms Chand applied to amend her complaint to add the pre-June 2002 incident or additional detriments, such amendment would have been granted and on what conditions. Finally, the decision notes at [49] that to be pornographic images must be "presented in a way that could reasonably be regarded as obscene or erotic", but does not articulate a comprehensive test for when workplace exposure to such material crosses the s 22A threshold; that remains for case-by-case assessment having regard to all the circumstances. These questions continue to require careful factual analysis in subsequent matters.

Gotchas

Most practitioners still assume that once an Appeal Panel has stated in a leave decision the facts on which it will determine the merits it is locked in; this decision demonstrates that if the Panel reached that view without hearing the parties it can be reopened, a point easily overlooked when drafting replies. Another trap is believing that a respondent who succeeded at first instance need not file any notice if it wishes to defend the orders on alternative grounds; Practice Note 5 and this decision show that an amended Reply or Notice of Contention is expected. The "demeanour" point is frequently misunderstood: many lawyers still argue that telephone evidence is inherently less weighty; the Panel's citation of Fox v Percy at [28] shows that modern tribunals are expected to know that demeanour is an unreliable guide and must articulate objective reasons for preferring one witness. In victimisation cases the common error is to treat temporal sequence alone as sufficient proof of causation; the requirement that the protected act be a "real, genuine or true" reason (drawn from Nicholls and applied at [84]-[86]) is far stricter than many realise, especially in a workplace already saturated with complaints. Finally, the s 140 discussion is a trap for those who still cite Briginshaw as imposing a "higher standard"; the decision makes clear that the statute governs and gravity is only one factor, yet old habits persist in submissions. These nuances justify close attention to the precise procedural and evidentiary steps taken at every stage.

REASONS FOR DECISION Background 1 Ms Chand began working for the State Rail Authority (now Rail Corporation of NSW) in April 2000. She held various positions including Customer Service Attendant and Revenue Protection Officer until January 2005. In 2002 she complained to the President of the Anti-Discrimination Board (ADB) that her employer had discriminated against her on the grounds of race and disability and subjected her to sexual harassment in breach of the Anti-Discrimination Act 1977 (AD Act). Those complaints were referred to the Tribunal on 7 June 2005. The Tribunal amended the complaint to add complaints of victimisation. After hearing the evidence, the Tribunal handed down its decision concluding that it had no jurisdiction to hear some of the complaints and that the remainder had not been substantiated: Chand v State Rail Authority [2007] NSWADT 90. Ms Chand appealed against that decision. 2 On 2 October 2007, the Appeal Panel handed down a decision: Chand v Rail Corporation of New South Wales [2007] NSWADTAP 54 (the 'first decision'). The Appeal Panel agreed with the Tribunal's decision to dismiss the complaints of race and disability discrimination and the complaints of sexual harassment which related to two co-workers, Mr Dempsey and Mr Plichta. In relation to the complaint of sexual harassment against another co-worker, Mr Hinien, the Appeal Panel found that the Tribunal had erred in its application of the definition of sexual harassment to the facts. The Appeal Panel granted leave for the appeal to be extended to a review of the merits of that decision: Administrative Decisions Tribunal Act 1997 (Tribunal Act), s 113(2)(b). The Appeal Panel also granted leave for the appeal to be extended to the merits of the Tribunal's decision in relation to the complaint of victimisation where the events that were said to have triggered the alleged detriments occurred before 18 June 2002. Rather than remitting these matters to the Tribunal, the Appeal Panel decided to determine the remaining complaints itself: Tribunal Act, s 115. We begin by considering the sexual harassment complaint. Appeal Panel's first decision 3 In relation to the sexual harassment complaint against Mr Hinien, the Appeal Panel identified the only remaining issues to be determined as: (i) whether the facts as found by the Tribunal at [43] in relation to Mr Hinien's conduct constitutes "unwelcome conduct of a sexual nature" in relation to Ms Chand, as set out in s 22A of the AD Act ? (ii) if so, would a reasonable person, having regard to all the circumstances, have anticipated that Ms Chand would be offended, humiliated or intimidated by that conduct? (iii) if so, is RailCorp vicariously liable for the conduct of Mr Hinien pursuant to s 53 of the AD Act? (iv) if so, what remedy, if any, should the Appeal Panel order? (at [45]) 4 The facts as found by the Tribunal at [43] were as follows: Accepting the evidence of the applicant where it conflicts with the evidence of Mr Hinien, the Tribunal has evidence, uncorroborated, that there were three occasions on which Mr Hinien read pornographic magazines in the presence of the applicant. On one of those occasions the applicant requested Mr Hinien to desist from reading such material. 5 Directions were made for the parties to file and serve submissions and a hearing in relation to the merits of the sexual harassment complaint against Mr Hinien and the remaining victimisation complaints took place on 4 March 2008. Hearing on the merits 6 Ms Nomchong, representing RailCorp, submitted that the Tribunal had erred when it decided to accept the evidence of Ms Chand where it was in conflict with that of Mr Hinien. The Tribunal's decision was based on the fact that Mr Hinien was on holidays when the case was being heard and gave evidence by phone. The Tribunal concluded at [42], that: Where there is a distinct conflict in material evidence, that manner of giving evidence deprives the Tribunal of the opportunity of observing the witness during his examination and cross-examination and prevents the Tribunal from forming any judgment as to the demeanour of the witness during this process. As a result, the Tribunal, where there is a conflict in the evidence between Ms Chand and Mr Hinien, would give preference to the evidence of the applicant. 7 RailCorp was the respondent to Ms Chand's appeal and did not appeal against the Tribunal's finding in relation to Mr Hinien's credit because it did not wish to vary any of the orders made by the Tribunal. We note that courts generally provide for respondents to appeals to file what is known as a Notice of Contention where that party does not seek to vary an order but submits that the existing orders should be affirmed on grounds other than those relied on by the decision maker at first instance. Neither the Tribunal Act nor the Administrative Decisions Tribunal Rules 1997 provide for the filing of a Cross Appeal or a Notice of Contention in Appeal Panel proceedings and RailCorp did not file such a notice. However, Practice Note Number 5 (Internal Appeals: Procedures for Appeals to the Appeal Panel of the Tribunal from decisions of the Tribunal) provides that: Where as a result of the appellant lodging an appeal, the respondent seeks to have the original reasons for the decision (but not the orders) reconsidered, the respondent must set out in its notice in reply under the heading "Errors in the Reasons" those parts of the reasoning it seeks to have reviewed and identify the error of law. 8 When Ms Nomchong submitted that the Tribunal had erred in relation to its findings about Mr Hinien's credit at the merits hearing, a discussion ensued about the filing of a Cross Appeal or Notice of Contention. Ms Nomchong volunteered to file such a document if we considered it necessary before dealing with her submission. At the time we did not regard it as necessary, however we convened an interlocutory hearing on 5 November 2008 to determine whether the Appeal Panel should allow RailCorp to file any further documentation by way of a Cross Appeal or Notice of Contention. The issue that arose was whether, having made the decision at [45] of our first decision, we could allow RailCorp to put forward their contention which, if accepted, would mean that the issue of Mr Hinien's credit would be re-agitated. After hearing from the parties, we directed RailCorp to file and serve a Notice of Appeal. On reflection, in accordance with the Practice Note, it would have been sufficient for RailCorp to have amended its Notice of Reply to set out the alleged errors. Issues 9 The questions to be determined in this appeal and the ultimate answers we have reached in relation to those questions are as follows: 1. Does the Appeal Panel have power to allow RailCorp to file a Notice of Appeal/Notice of Contention in relation to a finding of the Tribunal which the Appeal Panel had previously decided would not be re-visited? Yes. 2. If so, did the Notice of Appeal/Notice of Contention go beyond the scope outlined by RailCorp and permitted by the Appeal Panel? No. 3. If not, did the Tribunal err in relation to its finding about the credibility of Mr Hinien as alleged in the Notice of Appeal/Notice of Contention? Yes. 4. In determining the merits of the sexual harassment complaint against Mr Hinien, is each of the four alleged incidents within the Tribunal's jurisdiction to determine? No. The incident which is alleged to have occurred before June 2002 is not within the period of the complaint as referred by the President of the ADB. 5. For the incidents that are within the Tribunal's jurisdiction to determine, what findings as to credibility and what ultimate findings of fact should be made in relation to the allegations of sexual harassment against Mr Hinien? Mr Hinien's evidence should be preferred. Ms Chand has not discharged her onus of establishing on the balance of probabilities that the events, as she described them, occurred. See [40] to [58] below. 6. On the basis of those findings, has Ms Chand substantiated her complaint of sexual harassment against Mr Hinien? Not applicable. 7. If so, as Mr Hinien was not a party to the proceedings, is RailCorp vicariously liable for the conduct of Mr Hinien? Not applicable. 8. If so, what remedy should Ms Chand be awarded? Not applicable. Does the Appeal Panel have power to allow RailCorp to file a Notice of Appeal/Notice of Contention in relation to an issue which the Appeal Panel had previously decided would not be re-visited? 10 At the interlocutory hearing on 5 November 2008, Mr Knoll, representing Ms Chand, submitted that the Appeal Panel had no power to vary its previous decision to determine the merits of the application based on the findings of the Tribunal at [43] of its decision. Ms Nomchong, representing RailCorp, submitted that the Appeal Panel did have power to do so based on the principles enunciated by the High Court in Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117. 11 The general rule (known as functus officio) is that once a person or body has exercised a statutory power or duty, that person or body has no further authority to exercise it again. The statutory powers or duties that the Appeal Panel exercised in the first decision were to make certain orders pursuant to s 114 and 115 of the Tribunal Act. So far as is relevant to the complaint of sexual harassment against Mr Hinien, the order that the Appeal Panel made was as follows: Leave is given for the appeal to be extended to the merits of the Tribunal's decision in relation to the complaint of sexual harassment involving Mr Hinien. 12 The Appeal Panel noted in the first decision at [45] that the only issues to be decided included "whether the facts as found by the Tribunal at [43] in relation to Mr Hinien's conduct constitutes 'unwelcome conduct of a sexual nature' in relation to Ms Chand, as set out in s 22A of the AD Act?" 13 In Minister for Immigration & Multicultural Affairs v Bhardwaj (2001) 187 ALR 117 the High Court discussed the circumstances in which a decision maker may re-open its 'decision'. Gaudron and Gummow JJ (McHugh J agreeing) decided at 129 to 130, that: . . . a decision involving jurisdictional error has no legal foundation and is properly to be regarded, in law, as no decision at all. Once that is accepted, it follows that, if the duty of the decision-maker is to make a decision with respect to a person's rights but, because of jurisdictional error, he or she proceeds to make what is, in law, no decision at all, then, in law, the duty to make a decision remains unperformed. Thus, not only is there no legal impediment under the general law to a decision-maker making such a decision but, as a matter of strict legal principle, he or she is required to do so. 14 The High Court confined the duty to re-open a decision to circumstances where there has been a jurisdictional error. Jurisdictional error occurs where, for example, the decision-maker has exceeded his or her power (substantive ultra vires) or has made a procedural error such as breaching the rules of procedural fairness (procedural ultra vires). Mr Knoll submitted that in this case RailCorp had not been denied procedural fairness, nor was there any error that would render the first decision a nullity. He made the point that at the time of the Appeal Panel's first decision on 2 October 2007, RailCorp had not filed a Cross Appeal or a Notice of Contention. Consequently, the issue of whether the Tribunal had erred by making an adverse credit finding in relation to Mr Hinien had not arisen. 15 Prior to the Appeal Panel making its first decision, there was no reason for RailCorp to file a Cross Appeal as the Tribunal's orders were in its favour. Nor could RailCorp have been aware of the need to raise a contention about the Tribunal's credibility finding prior to the Appeal Panel deciding that the complaint against Mr Hinien should be determined on the basis of the findings of fact made by the Tribunal. The Appeal Panel made that decision without first hearing from the parties as to whether that was the appropriate course having found an error of law in the Tribunal's reasoning. Prior to deciding the basis on which the merits of that complaint were to be determined, the Appeal Panel should have afforded the parties procedural fairness by allowing them to be heard on that issue. On that basis, if it is necessary to do so, we set aside our 'decision' to confine the issue to whether the facts as found by the Tribunal at [43] in relation to Mr Hinien's conduct constitutes "unwelcome conduct of a sexual nature" in relation to Ms Chand. 16 Alternatively, it is arguable that the Appeal Panel's identification of the facts on which ultimate findings would be made was not the exercise of a statutory power or duty pursuant to s 114 or 115 of the Tribunal Act. If that is correct, the Appeal Panel's power is not exhausted once it has been exercised. Support for that view comes from the fact that there is no restriction on the Appeal Panel varying the basis on which the appeal is to be determined as long as parties are afforded procedural fairness: Tribunal Act, s 73(2). Furthermore, the Tribunal may determine its own procedure provided it acts "according to equity, good conscience and the substantial merits of the case": Tribunal Act, s 73(1) and (3). However, since neither party had an opportunity to respond to that argument, we rely on the conclusion set out above. Did the Notice of Contention go beyond the scope outlined by RailCorp and permitted by the Appeal Panel? 17 The Notice of Contention indicates that it relates both to a question of law and the merits of the Tribunal's decision. Mr Knoll submitted that seeking to extend the appeal to the merits of the Tribunal's decision is beyond the scope of the leave the Appeal Panel gave to RailCorp to file the Notice of Contention. Mr Knoll added that if we were minded to re-open the merits of matters decided by the Tribunal at first instance, Ms Chand would seek to re-open the question, at least, as to whether the conduct of Mr Plichta constituted a violation of the AD Act. 18 Ms Nomchong clarified that RailCorp had not filed a Cross Appeal. Rather, it had filed a Notice of Contention seeking to have the order made by the Tribunal affirmed but on other grounds. RailCorp submitted that the credit finding against Mr Hinien should be set aside and fresh findings of fact made in relation to the allegations of sexual harassment against Mr Hinien. 19 The Appeal Panel gave leave in the first decision for the appeal to be extended to the merits of the Tribunal's decision in relation to the complaint of sexual harassment involving Mr Hinien. Consequently, there was no need for RailCorp to seek leave for the appeal to be extended to the merits. RailCorp's submissions about the merits of the complaint are in response to the Appeal Panel's previous finding that the appeal be extended to the merits. Consequently, the Notice of Contention did not go beyond the scope permitted by the Appeal Panel. Given the circumstances we accept the Notice of Contention even though it was filed out of time: Tribunal Act, s 113(3). Again, we note that it would have been sufficient for RailCorp to have filed an amended Reply. Did the Tribunal err in relation to its finding about the credibility of Mr Hinien as alleged in the Notice of Contention? 20 The Tribunal decided at [42] to prefer Ms Chand's evidence over Mr Hinien's wherever there was a conflict because giving evidence by phone deprived the Tribunal of the opportunity of forming a judgment as to Mr Hinien's demeanour. The background to this matter when it was before the Tribunal at first instance is that on 10 May 2006, during a case conference, the hearing dates of 1 to 15 November 2006 were allocated. RailCorp filed and served the affidavit of Mr Hinien on 17 October 2006 and made arrangements for Mr Hinien to be present for the purposes of cross-examination on the 3 November 2006, anticipating that by then Ms Chand would have finished giving her evidence. Mr Hinien had already made arrangements to go on annual leave but deferred his trip so that he could be available on that day. Later, the Tribunal vacated the first 3 days of hearing, (November 1 to November 3) on the application of Ms Chand. On 27 October 2006, RailCorp wrote to the Registry seeking leave for Mr Hinien to give his evidence by phone. The matter was listed for further directions on 6 November. RailCorp advised the Tribunal at that time that Mr Hinien had delayed his annual leave in order to be available on 3 November 2006. The following exchange occurred between the Judicial Member and the solicitor for RailCorp on 6 November: JM Ireland: . . . you stated in your letter of 27 October, you said that, just to reiterate, Mr Hinien had postponed a family holiday so he would be able to give his evidence and because the first three days this week have been vacated, he is most reluctant to reschedule his family holiday plans but he would be available interstate to give evidence on Tuesday, is that by phone? Robinson: That's right. JM Ireland: Ms Chand has objected to that, because she wants, as she says, to be able to cross-examine Mr Hinien directly and that she wants cross-examination to take place in front of the Tribunal so that the Tribunal can make judgments concerning Mr Hinien's responses. I have directed that we will hear Mr Hinien's evidence by phone but with the qualification that if the evidence is disputed in any material aspect, the Tribunal would reserve that position to recall Mr Hinien's new evidence before it at some later date. Robinson: We're happy with that approach your Honour. (Emphasis added.) 21 On Monday 6 November a further 3 hearing days were vacated and the hearing was re-scheduled to commence on 9 November. By that date Ms Chand had secured Ms Gormly as her legal representative. Ms Gormly objected to Mr Hinien giving evidence by phone. In response JM Ireland said: Well, I say it's our practice to take evidence by phone in circumstances where we consider it's justified, but I dealt with this because Ms Chand herself made strong objections. I put a heavy caveat on it, and it was namely that if the Tribunal having heard Mr Hinien's evidence by phone is not satisfied that the nature of his evidence is such that the Tribunal would accept it or as to its weight, then we reserve the right ourselves to call Mr Hinien. So now that you're represented Ms Chand what I suggest is that we do (sic), subject to what Ms Nomchong wants to say about Mr Hinien's availability, we will hear Mr Hinien's evidence by phone and at the end of that I can hear submissions from both parties as to whether that evidence is evidence that the Tribunal should or should not accept. If then it's considered that a decision as to the acceptance of the evidence should await actually hearing directly from him, then we might call Mr Hinien at some later date when he is available to come here and go through his evidence in front of us. . . . I don't want to make a final decision about that until we have actually heard his evidence on the phone, and it could be that the nature of his evidence itself is such that it's not that material, for example, although I doubt that . . .(Transcript 9 November 2006, page 2, line 30 to page 3 line 15. Emphasis added.) 22 Mr Hinien gave evidence by phone on 10 November 2006. None of the Tribunal Members said that they had concerns about the veracity of the evidence or the weight that they might attach to it. Each party then filed written submissions. In Ms Chand's submissions, the only complaint about Mr Hinien's evidence being taken by phone was in relation to the Tribunal's ruling that Counsel for Ms Chand was not entitled to cross-examine Mr Hinien about his whereabouts when giving evidence as it was not considered relevant. However, after making that submission, Ms Chand, agreed with Judicial Member Ireland's proposition that: Overall though, your point about Mr Hinien's evidence is that where there's a conflict between his evidence and the appellant's evidence we should prefer the Appellant's evidence because he wasn't in front of us, Mr Hinien wasn't in front of us when he gave his evidence. 23 The only occasion that the Tribunal made any comment as to whether Mr Hinien's credit was affected by the fact that he gave evidence by phone was at the end of the hearing straight after making the comment set out above, when JM Ireland said: And the curious, if I can put it that way, situation where he elected to take leave during a period when he had adequate knowledge that he would be required to give evidence about what I would consider to be a serious allegation concerning him. (Transcript 24 November 2006, page 4, line 47 to page 5 line 34.) 24 Ms Nomchong's submission was that if the Tribunal intended to make an adverse credit finding against Mr Hinien on all of the substantive matters, it was incumbent on the Tribunal to raise that issue fairly and squarely with RailCorp or to follow its own 'caveat' and request Mr Hinien to give his evidence in person. She said that the fact that it did not do so and then decided to discount Mr Hinien's evidence on the sole basis that it was given by phone, was a breach of procedural fairness and represented a substantial injustice. 25 Mr Knoll's submission on behalf of Ms Chand was that RailCorp is seeking to disavow its application to have Mr Hinien give evidence by phone. He said RailCorp made a tactical decision to have Mr Hinien give his evidence by phone and "went on, seeking to win on the evidence presented": R McCrory; ex parte Rivett (1895) 21 VLR 3 at 6. Mr Knoll also said that despite the option of having Mr Hinien recalled to give evidence in person, RailCorp made no such application. He relied on the following passage from R v Magistrates' Court at Lilydale ex parte Ciccone [1973] VR 122 at 134 per McInerney J: . . . if a man is entitled to one of two inconsistent rights, it is fitting that when, with full knowledge, he has done an unequivocal act showing that he has chosen the one, he cannot afterwards pursue the other, which, after the first choice, is by reason of the inconsistency, no longer his to choose. 26 Mr Knoll submitted that RailCorp cannot be allowed to 'approbate and reprobate' having made its tactical decision. In addition, Mr Knoll submitted that the hearing dates of 1-15 November were set on 10 May 2006 with the approval of RailCorp and Ms Nomchong did not apply to have the matter adjourned so that Mr Hinien could give his evidence in person. 27 Conclusion. The Tribunal agreed to hear Mr Hinien's evidence by phone, with the caveat that after hearing that evidence it would determine whether it was necessary to hear from him in person. We agree with Ms Nomchong's submission that once the Tribunal had made its position clear, it was a breach of procedural fairness not to either raise its concerns with Ms Nomchong and invite her to make any relevant application or submission or to re-call Mr Hinien itself. Having received no indication of the Tribunal's view, there was no reason for RailCorp to apply for an adjournment to have Mr Hinien give his evidence in person. On that basis, the Tribunal's finding at [42] of the decision is set aside. 28 We will determine the merits of the complaint of sexual harassment against Mr Hinien on the basis of the transcript of proceedings, the documentary evidence and the submissions of the parties. Contrary to the Tribunal's view, we do not consider that the lack of opportunity to see Mr Hinien in person is significant enough to prevent us from forming an accurate view of his credit. The High Court has acknowledged that scientific research "has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances: Fox v Percy [2003] HCA 22 per Gleeson CJ, Gummow and Kirby JJ at [30] to [31]. Is each of the four alleged incidents of sexual harassment within the Tribunal's jurisdiction to determine? 29 The incident of sexual harassment about which Ms Chand complained in her statement was said to have occurred on 23 August 2002. It was not until Ms Chand was being questioned by the Tribunal during cross examination on 9 November 2006, that she volunteered that Mr Hinien had read 'pornographic' magazines on three other occasions, in her presence. These occasions were said to have been 'prior to June 2002', in the week of 26 August 2002 and in October 2002. 30 In 2002, when the President of the ADB was considering Ms Chand's complaints, s 88(3) of the AD Act provided that a complaint "shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed." When referring Ms Chand's complaint to the Tribunal, the President nominated the period of complaint as being from 18 June 2002 (6 months before the date on which the complaint was lodged) and 30 January 2003 (the date on which Ms Chand lodged her last complaint). 31 Ms Nomchong submitted that the incident which was said to have occurred prior to June 2002 was not within the period covered by the complaint as referred by the President. It is clear from Ms Chand's oral evidence that the incident occurred at the depot near Central Station before the offices of RailCorp were relocated to Mary Street in early June. Ms Chand agreed with Ms Nomchong that the incident occurred at the depot before June 2002. (Transcript of 10 November 2006 at page 11.) As this incident is not within the time period covered by the complaint, and no application was made for the complaint to be amended to incorporate that incident, the Tribunal has no jurisdiction to hear it: AD Act, s 95(3) and s 103. 32 Ms Nomchong also submitted that the other two incidents which were raised for the first time at the hearing, were out of time or should be disregarded because no application had been made for the complaint to be amended to include those incidents. We agree with Mr Knoll that the incidents occurred within the period of the complaint as referred by the President of the ADB so they cannot have been out of time in that sense. Ms Nomchong's alternative submission, that no application was made to amend the complaint to include these incidents, requires further consideration. Implicit in that submission is an argument that the Tribunal does not have jurisdiction to determine whether these incidents contravene the AD Act because they were not part of the complaint as referred by the President. 33 When making a complaint to the President of the ADB, it is not necessary to "allege the relevant facts with the particularity of an indictment or a pleading": Langley v Niland [1981] 2 NSWLR at 107-108. Furthermore, "a complaint, as made, need not demonstrate a prima facie case": AD Act, s 89(2). However, in Salama v Qantas Airways Limited [2002] NSWADT 119 at [16], the Tribunal noted that: The referral of the complaint by the President is the source of the Tribunal's power to hold an inquiry. The scope of the inquiry is determined by the complaint referred to the Tribunal by the President. The Tribunal has no jurisdiction to investigate and find any contravention of the Act which falls outside the ambit of the complaint referred by the President: Reyes-Gonzalez v Sydney Institute Of Technology [1998] NSWEOT 6/3/98; Ehl v Dept of Education and Training & NSW Teachers Federation [1999] NSWADT 102; Commissioner of Police, New South Wales Police Service v Orr [at 16]; Razaghi v Director- General, NSW Department of Health & Anor [at 21]. 34 The complaint Ms Chand made to the President of the ADB on 18 December 2002, consisted of 14 closely typed pages. The main relevant allegations against Mr Hinien were as follows: . . .I did not realise that another staff member John Hinien had been plotting against me and ganged up with Mrs Narayan. He had put in a complaint about me and requested for a group swap. I was neither informed of his complaint nor given a chance to reply to it. Later on 16.9.02, Mr Plichta showed me the complaint but he did nor (sic) give me a chance to reply. I put in a counter complaint about him that Mr Plichta gave it (sic) to him. . . .Most staff members especially Mr Hinien were undermining my authority and allowing offenders to go scott-free while I was booking someone. I regard this as victimization and harassment. I told Mr Plichta that it surprised me that John Hinien complained because he was on the defensive. Mr Plichta showed me his complaint that said that I was unprofessional and I tended to make unprovoked remarks. . . He was not fair, ethical and unbiased when dealing with a female offender that I required him to book. In fact, I should have been the one to complain, considering his misbehaviour on a number of occasions and I outlined them (I later put them in writing) especially when he yelled and screamed at me on 10.9.02 in front of all staff members saying, 'fuck this, fuck her I am going to put her on paper'. I told Mr Plichta how he would not cooperate with the team, chat up pretty young women, refrain from fining them, read pornography at work, go shopping and throw tantrums if he was not allowed to go to his favourite restaurant. Mr Plichta stopped me from going on and said he did not want a "Hinien hunt". . . . John Hinien pleaded to speak to me and I refused saying I was stressed. He said that he would advice (sic) me to ask my conscience before I went to bed. I said I acted on my conscience when I put in that counter complaint about him and I should have done that before. . . . Mr Hinien again pleaded to speak to me. I said that I had given him enough time and chances to withdraw his defamatory complaint. (Emphasis added.) 35 On 20 January 2003, Ms Chand also completed a pro-forma complaint form and submitted it to the ADB. It contained the following statement about Mr Hinien: I had put in a two-page complaint about Mr Hinien for reading pornography at work and undermining my authority in front of the fare evaders, thus preventing me from performing my professional duties. 36 The two-page complaint to which Ms Chand refers is dated 25 September 2002 and contains the following relevant allegation against Mr Hinien: On 23 August I saw Mr Hinien reading a pornography (sic) magazine at about 12.45 pm which he does quite often in the office. This is despite my raising objection to (sic) as I look upon it as sexual harassment. 37 In her statement dated 15 September 2006, Ms Chand said at para 28 that: Between July 2002 and September 2002 I observed another staff member, John Hinien, often viewing pornographic magazines at the depot whilst next to me or close by. I had objected to him and others that they desist from reading such material in my presence. They included pictures of women naked and in sexual poses. When I objected, he said: You are just a difficult and frustrated spinster. Any man would be frightened of you and divorce you in less than five minutes. 38 Ms Chand agreed with Ms Nomchong that contrary to her evidence, the comment that Mr Hinien allegedly made was not said on 23 August. However Ms Chand maintained that it was said at some other unspecified time during the period covered by the complaint. 39 Although Ms Chand only identified one date (23 August 2002) on which Mr Hinien was alleged to have read pornographic magazines in her presence, she said on two other occasions that he had done so "often". In our view, subject to complying with the rules of procedural fairness, it was within the scope of Ms Chand's complaint to particularise further instances during the relevant period in which she alleged that Mr Hinien had engaged in such conduct. Consequently, we reject Ms Nomchong's submission that the Tribunal lacks jurisdiction to entertain these complaints. What findings as to credibility and what ultimate findings of fact should be made in relation to the allegations of sexual harassment against Mr Hinien? 40 Ms Chand's credibility. Ms Chand's evidence was that on at least three occasions (23 August 2002, in the week of 26 August 2002, and in October 2002) Mr Hinien was reading a pornographic magazine in the workplace. On the 23 August 2002, Ms Chand said that she was sitting right next to Mr Hinien when he was reading such a magazine. The area was in a shared space for use by employees. She said she was sitting there for at least half an hour, to finish her administrative work. Ms Chand's evidence was that she said to Mr Hinien, words to the effect of, "Don't read these magazines in the office." She said that Mr Hinien replied, "It's none of your business, what I do." Ms Chand said that the magazine contained pictures of explicit naked women. 41 A second incident was said to have taken place in the week of 26 August 2002 in the same office as the occasion on 23 August. Ms Chand said that she was sitting diagonally opposite Mr Hinien at a table that was four to five metres long and one and a half metres wide. She said Mr Hinien was reading a magazine containing explicit pictures of women. 42 The third incident allegedly occurred in October 2002 when Ms Chand said she was passing by the table at which Mr Hinien was sitting and saw him reading a magazine. Ms Chand said she saw that the 'centre spread' of the magazine showed pictures of women but she could not recall whether they were naked or semi-clad. She said on this occasion that she and Mr Hinien did not speak. 43 Ms Nomchong challenged Ms Chand's credibility during cross-examination on three main bases: firstly that she did not know what kind of magazine Mr Hinien was reading; secondly that her motivation in complaining about him reading 'pornographic' magazines was to retaliate against him for making what she perceived to be a complaint against her; and thirdly that while Ms Chand had been very specific about the 23 August incident she had failed to mention the other two incidents until the hearing. 44 Content of the magazines. During cross examination, the following exchange occurred between Ms Nomchong and Ms Chand: Q. I'm going to suggest to you that what you saw was Mr Hinien reading magazines like Cosmopolitan or magazines like that where there was semi-clad women, but not pornography magazines. A. I would not tell the difference, as far as I'm concerned anything related to naked women is pornography, or at least that's what we were made to understand in SRA. Q. Let me suggest to you that, in fact, you never observed Mr Hinien reading a pornographic magazine at 12.45 on 23 August 2002 or at any other time. Do you agree or disagree? A. Disagree with that. As I said, as far as I'm concerned he was reading pornography magazine. 45 When questioned by the Presiding Member about what she saw on 23 August 2002, Ms Chand said that from a distance of three meters, "I saw that the magazine he had in front of him had explicit naked women, pictures of explicit naked women." 46 Motivation in making the complaint. The complaint Ms Chand made to the ADB on 18 December 2002, records that she made the allegation in relation to the 23 August incident as a "counter complaint" on the basis that she thought Mr Plichta and Mr Hinien had been 'plotting against' her. (Exhibit A3: President's Report, page 13, 5th paragraph). Mr Hinien requested a transfer on the basis that he was having "great difficulty" working with Ms Chand. In cross-examination, Ms Nomchong asked Ms Chand why it had taken her a month to complain to a manager after the 23 August 2002 incident. Her answer was that she was not sure at that stage whether she wanted to make a written complaint and was debating whether she would do so. Despite writing in her initial complaint to the ADB that she had "put in a counter complaint" against Mr Hinien after he requested a transfer, Ms Chand denied in cross examination that she made the complaint after hearing that Mr Hinien had requested a transfer. Ms Chand said that she does not know why she made the complaint when she did. 47 According to Ms Nomchong, Ms Chand made the complaint against Mr Hinien in retaliation against his request for a transfer and on that basis her complaint should be treated with extreme caution. Furthermore, she did not complain about the alleged incident on 23 August until more than a month later. Given the nature and number of Ms Chand's complaints against other employees Ms Nomchong submitted that if the incident had occurred she would have complained straight away. 48 Failure to mention two further incidents. Ms Nomchong also submitted that one allegation is unusually specific in terms of time and date: "23 August at 12.45 pm." There is no such detail about any other occasions on which the conduct is alleged to have occurred. Ms Chand said that there had only been one previous occasion (in June 2002) when she had seen Mr Hinien reading magazines. Ms Nomchong submitted that that evidence is inconsistent with the allegation in her written complaint that he did it "quite often". However, when questioned by the Judicial Member Ireland, Ms Chand volunteered three other specific occasions on which she recalled (over four years after the events had allegedly occurred) that Mr Hinien had been reading magazines in her presence. Ms Nomchong submitted that we should find that Ms Chand was exaggerating her claims against Mr Hinien and that none of the incidents occurred. 49 Conclusion about Ms Chand's credibility. Ms Chand regards any magazine, even Cosmopolitan or Cleo, which contains pictures of naked or semi-clad women, as pornographic. It is common knowledge that to be regarded as pornographic, pictures of naked or semi-clad women must be presented in a way that could be reasonably be regarded as obscene or erotic. Ms Chand's inability to distinguish between pornographic and other images leads us to reject her assertion that any magazine which Mr Hinien may have been reading was necessarily pornographic. 50 It is clear from Ms Chand's initial complaint to the ADB, that when she heard that Mr Hinien had requested a transfer and complained about her, she lodged a "counter complaint" about his behaviour. That two-page complaint included three lines saying that Mr Hinien had been reading pornographic magazines. Despite Ms Chand's evidence during cross examination that she did not know why she made the complaint when she did, we are satisfied on the basis of her candid disclosure four years earlier, that she would not have complained about Mr Hinien reading pornographic magazines had he not requested a transfer. 51 Ms Chand had alleged prior to the hearing that Mr Hinien had read pornographic magazines on more than one occasion. Nevertheless, it reflects adversely on her credibility that she did not mention two other discrete instances when that behaviour is alleged to have occurred, until four years later when being questioned by the Presiding Member. 52 Mr Hinien's credibility. In his statement dated 17 October 2006, Mr Hinien said, "I have never read a pornographic magazine at work. . . " During cross examination Mr Hinien vehemently repeated this denial, saying: I never under any circumstance, I repeat, read pornographic material in the presence of Ms Chand, nor do I read material such as pornographic material in my private time. It is just not acceptable, it's against our code of conduct, code of ethics. I would never under any circumstances jeopardise my employment with Rail Corp, nor put my integrity or my position in my employment in any form of disrepute or in any form of jeopardy whatever. It's completely false. Q. And I put it to you that you read it several times while she was sitting near you and you knew that she was aware you were reading pornography? A. Completely not true. I repeat it is not true. Q. And I put it to you that you told her, when she questioned you about it, you told her to mind her own business? A. I have no recollection of her approaching me at any time whatsoever, nor did I read any material, nor did I witness her witnessing me reading any material whatsoever. There was nothing, no confrontation made towards her, nor any approach whatsoever, nor any attempt on her part to inform me of such activity whatsoever. It was simply never done. I really have no idea what any of this is really brought about, to be quite honest. Quite depressing and very, very hurtful. It's completely false and very, very upsetting. 53 Mr Knoll challenged Mr Hinien's credibility. He submitted in relation to the last answer recorded above that the Appeal Panel was entitled to make a negative credit finding because Mr Hinien said he did not recall the incident, and then insisted immediately that he did not see Ms Chand see him reading anything. Mr Knoll's submission was that given that this incident was the nub of the allegation of improper conduct, his evidence left it open to the Tribunal to prefer Ms Chand's evidence regardless of whether it was given in person or by phone. He added that it was not necessary for Mr Hinien to be cross-examined in relation to each of the incidents because he flatly denied ever reading pornographic magazines. Mr Knoll's submission was that that denial was so overreaching that it fundamentally lacked credibility. 54 Conclusion as to Mr Hinien's credibility. The fact that Mr Hinien made a vehement blanket denial of the allegations is not a reason to doubt his credibility. From his point of view, the incidents about which Ms Chand complained simply did not occur. He was not asked, in cross-examination, whether he had ever read a magazine of any kind at work, much less whether he was reading a magazine on any of the three occasions specified by Ms Chand. His response was to an allegation that he had read pornographic magazines. Nor is there any basis on which Mr Hinien's evidence should be discounted because it was given by phone. The Tribunal agreed to that course which was not unreasonable given that Mr Hinien had previously delayed his holidays in order to give evidence on 3 November, the date that, but for Ms Chand's applications for adjournments, he would in all likelihood, have been required. There is no basis for finding that Mr Hinien was seeking to avoid giving face-to-face evidence. 55 Onus of proof. The onus is on Ms Chand to prove, on the balance of probabilities, that Mr Hinien was reading magazines containing pictures of naked or semi-clad women at work and that he made the comments she said he made to her. It has often been said in the context of anti-discrimination complaints, that when determining whether an applicant has discharged this onus, the principles in Briginshaw v Briginshaw (1938) 60 CLR 336 should be applied: Sharma v Legal Aid Queensland [2002] FCAFC 196 at [40]. Recently, in Qantas Airways v Gama [2008] FCAFC 69 the Federal Court (Branson J at [139] said that the application of "the Briginshaw standard" is likely to lead a trier of facts into error: The correct approach to the standard of proof in a civil proceeding in a federal court is that for which s 140 of the Evidence Act provides. It is an approach which recognises . . . that the strength of the evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be proved - and, I would add, the circumstances in which it is sought to be proved. 56 In our view, this is also the correct approach to the standard of proof in relation to anti-discrimination complaints in this Tribunal. Section 140 of the Evidence Act 1995 states that: (1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities. (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged. 57 The allegation of reading a magazine in the workplace containing pictures of naked or semi-clad women is not an allegation of such a serious or grave nature that the evidence needs to be of a higher probative value than is normally required. 58 Conclusion. Ms Chand has made allegations of reading pornographic magazines at work Mr Hinien has denied. There is no corroborating evidence supporting either version. Mr Hinien's evidence was not discredited during cross-examination and there is no objective basis on which it should be discounted. Ms Chand's credibility has been impugned in relation to her motivation for making the complaint and her understanding of what constitutes pornographic material. In all the circumstances, we are not persuaded, on the balance of probabilities that Ms Chand's evidence is sufficiently reliable to make out the allegations in the light of Mr Hinien's denial. Consequently, the complaint of sexual harassment against Mr Hinien is dismissed. Victimisation complaint 59 Legislative provision. Victimisation is made unlawful by s 50 of the AD Act which relevantly states that: (1) It is unlawful for a person ( "the discriminator") to subject another person ( "the person victimised") to any detriment in any circumstances on the ground that the person victimised has: . . . (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. 60 Scope of victimisation complaint. We refer to the allegations and actions outlined in s 50(1)(c) and (d) as "triggers" and to the consequences of those allegations or actions as "detriments". We concluded in our first decision that the Tribunal had misinterpreted s 103 of the AD Act. That provision allows the Tribunal to amend a complaint. We said, at [47] and [48], that: Victimisation complaints . We have found that the Tribunal erred when it concluded that s 103 did not allow it to add a complaint of victimisation where the trigger for the "detriment" had occurred prior to the beginning of the period of complaint. The triggers which the Tribunal did not consider because they occurred before 18 June 2002 were those listed in paragraphs 4(a), 4(b) (apart from the complaint to Mr Platt alleged to have been made in October 2002), 4(c), 4(d) and 4(e) (apart from the complaints referred to Mr Abel and Mr Karouche in September 2002) of the Points of Claim. (See [68] of the Tribunal's decision.) Those "triggers" were as follows: 4(a) Complaints to the Human Resource Officer (South East Sector office) alleging that she had been sexually and racially discriminated against by Dr Walsh, a State Rail panel doctor; 4(b) Complaints to Jan Plichta, Mark Abel and Mark Karouche and to Kevin Platt alleging that she had been sexually and racially discriminated against and sexually harassed by Mr Dempsey; 4(c) Complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr Joe Cadry; 4(d) Complaints to Janette Koelmeyer and Alan Thomposn alleging that she had been sexually discriminated against by Mr John Pias; 4(e) Complaints to Jan Plichta, Mark Abel and Mark Karouche alleging that she had been discriminated against on the basis of her disability and marital status by Ms Nirmala Joshi. In view of the Tribunal's error, we intend to extend the appeal to a review of the merits of the Tribunal's decision that the victimisation complaints based on these triggers be dismissed. The following directions are made in relation to that complaint: Within 28 days of the date of these reasons Ms Chand is to file and serve submissions addressing the following issues based on the transcript of evidence and documents before the Tribunal: (i) in relation to the "triggers" which fall within the definition in s 50(1)(c): - what is the evidence that would lead to the conclusion that a detriment allegedly suffered by Ms Chand was 'on the ground of' those triggers; - who subjected her to a detriment on the ground of that "trigger", and -what was the detriment and when did it occur. (ii) what remedy, if any, should the Appeal Panel order in relation to each alleged breach of s 50. Within a further 28 days Railcorp is to file and serve submissions in response. The matter will then be listed for hearing on those issues. 61 1st trigger - complaints against Dr Walsh. Ms Chand said that on 6 April 2000 she alleged that she had been sexually and racially discriminated against by Dr Walsh during a pre-employment medical examination. The alleged circumstances were that Dr Walsh asked Ms Chand to remove her blouse during the course of a medical examination to examine her skin for eczema. She refused to do so without a third person being present. In her written complaint to the Human Resources Manager she did not mention sexual harassment or discrimination; she said that it was unnecessary for Dr Walsh to ask her to take her blouse off. She concluded her complaint by saying that, "Obviously he is the City Rail doctor and my appointment depends on his clearance report. But with an attitude like that, I have small chances of ever qualifying his 'all clear' report and he knows that and thinks he can get away with any misdemeanour." 62 To come within s 50(1)(c) Ms Chand must have alleged that Dr Walsh "has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act." The allegation does not mention harassment, discrimination or the AD Act. While it is not necessary to refer to the AD Act, Ms Chand must establish that the complaint about Dr Walsh would amount to a contravention of the AD Act. In our view it is unlikely that a male doctor asking a female patient to remove her blouse so that he could examine her skin would constitute a breach of the AD Act. Nevertheless, RailCorp conceded that Ms Chand had complained about sexual harassment and that this was sufficient to bring the allegation within s 50 of the AD Act. In those circumstances, we are satisfied that the complaint about Dr Walsh is a "trigger" because it falls within s 50(1)(c). 63 2nd trigger -Complaints about Mr Dempsey. The second trigger was said to be Ms Chand's complaints to Jan Plichta, Mark Abel, Mark Karouche and Kevin Platt alleging that she had been sexually and racially discriminated against and sexually harassed by Mr Dempsey. They do not include the complaint to Mr Platt alleged to have been made in October 2002 which was the only complaint made to Mr Platt. Mr Karouche denied ever receiving such a complaint. That evidence was not challenged in cross-examination. Ms Chand said that she had a conversation with Mr Karouche to the following effect: Ms Chand: Why am I being sent to work with Mr Dempsey?. . . I made previous complaints about Mr Dempsey. Mr Karouche: I am not aware of any such complaints. Ms Chand: But I raised it with Mr Plichta. 64 Even if this conversation occurred, it would not amount to a contravention of the AD Act nor does it amount to a reference to that Act: AD Act, s 50(1)(c) or (d). Mr Abel admitted receiving a report that Mr Dempsey and another Revenue Protection Officer had harassed Ms Chand, although he could not recall the substance of the complaint. He says that Mr Plichta told him about the complaint and he decided to investigate it. He does not say in his statement that Ms Chand complained to him directly. As Ms Chand did not comply with Mr Abel's request to show him her record of the incidents in her notebook, the investigation was inconclusive. Nevertheless we are satisfied that Ms Chand made a complaint, at least to Mr Plichta, about Mr Dempsey's conduct on 15 July 2001 and that that complaint comes with s 50(1)(c). 65 3rd trigger - complaints about Mr Kadry. RailCorp admits that on 14 February 2001, Ms Chand lodged a complaint of sex discrimination against Joe Kadry, Station Master at Marrickville Station. Ms Chand said that despite her complaint nothing was done to discipline senior managers at Marrickville. This amounts to a trigger under s 50(1)(c). 66 4th trigger - complaints about Mr Pias. RailCorp admits that on 14 February 2001 Ms Chand made a complaint of sex discrimination against Mr Pais who was also at Marrickville Station at the time. RailCorp says that no oral or written submissions were made by Ms Chand's counsel in relation to this allegation. Nevertheless, we are satisfied that it amounts to a trigger under s 50(1)(c). 67 5th trigger - complaints about Ms Joshi. The extent of the evidence in relation to this matter was that Ms Chand wrote to Mr Plichta on or about 23 March 2002 responding to a complaint from Ms Joshi that she took asthma breaks. In that letter, Ms Chand said that Ms Joshi "has problems practising State Rail Authority's Anti-Discrimination policy of treating employees with disability such as myself 'equally and fairly.'" She concluded the letter by saying "I wish to formally charge her for discriminating against me due to disability." The Tribunal dealt with this trigger at [84] to [86] despite the fact that Ms Chand's letter of complaint was written prior to the commencement of the complaint period. The focus of the Tribunal's inquiry was whether the complaint was referred to others in September 2002, while the focus of our inquiry is whether the writing of the original complaint in March 2002 led to any subsequent detriment. We are satisfied that the writing of that complaint amounts to a trigger under s 50(1)(c). 68 Detriments. Mr Knoll, representing Ms Chand, sought to rely, not only on several of the detriments pleaded before the Tribunal, but also on detriments which had not been identified in those proceedings. Mr Knoll highlighted several incidents which were documented in the President's Report and said that the Tribunal below had erred by not characterising these incidents as detriments. Ms Nomchong, for RailCorp objected to Mr Knoll re-formulating Ms Chand's case. She said that the evidence for the applicant in these proceedings is the two statements of Ms Chand including annexures. Although the President's Report was tendered and became an exhibit in the proceedings, Ms Nomchong says that it would be procedurally unfair for Ms Chand to point to incidents in the President's Report at this stage of the proceedings and claim that they constitute victimisation. 69 We agree with Ms Nomchong that it would be procedurally unfair to allow Mr Knoll to re-formulate Ms Chand's complaint at this stage. No application was made either to the Tribunal or the Appeal Panel for the complaint to be amended. Although the Tribunal may determine its own procedure and is not bound by the rules of evidence, it must apply the rules of natural justice: Tribunal Act, s 72. Ms Chand was represented by a lawyer in the Tribunal proceedings and by a different lawyer in these proceedings. She filed Points of Claim and responded to a request for further and better particulars of that claim. Although the Appeal Panel has extended the appeal to the merits of some aspects of the Tribunal's decision, that does not mean that Ms Chand should be permitted to re-formulate her case. Consequently we have not taken into account the alleged detriments referred to by Mr Knoll apart from those relied on before the Tribunal. 70 In the Points of Claim and the reply to the request for further and better particulars, Ms Chand relied on numerous "detriments". In the proceedings before the Appeal Panel Mr Knoll relied on only four of those detriments, namely: (i) Ms Chand was refused mediation; (ii) no consideration was given to Ms Chand's application for redeployment; (iii) Ms Chand was refused paid leave to attend proceedings at the Australian Industrial Relations Commission (AIRC); and (iv) when Ms Chand attended to resume work, she was told to seek reinstatement at the AIRC. 71 While the detriments outlined in (i), (ii) and (iv) were raised in the Points of Claim or in the reply to the request for further and better particulars, the allegation in (iii) was not. For the same reasons as we gave above, we have not taken this alleged detriment into account. We go on to consider the evidence in relation to each of the other alleged detriments. 72 Refused mediation. The particulars of this detriment, as set out in the reply to the request for further and better particulars, were that in about June 2002 Ms Chand was advised that Mark Abel had cancelled her mediation with Peter Dempsey on the grounds that her complaints were not serious. In her complaint to the Tribunal, Ms Chand related the events in the following terms: Mr Abel arranged for mediation meetings in May-June 2002 but cancelled it twice. Once I had to cancel it as I did not have diary and notebook with me. Nothing was done after that since Mr Plichta was on holidays. 73 Ms Chand does not mention Mr Abel cancelling the mediation in either of her statements. She does allege in her September statement that in mid June 2002 she approached Mr Plichta about resolving the harassment by Mr Dempsey but he ignored it and said it would have to wait until he returned from overseas. Mr Abel's statement says that Ms Chand alleged that Mr Dempsey, another revenue protection officer, had harassed her. Mr Abel was Manager of the Revenue Protection Unit at the time and he says he arranged to meet with Ms Chand about the allegations. He says he also spoke with Mr Dempsey who denied the allegations. Mr Abel says he then asked Ms Chand to give him her notebooks recording the alleged incidents. Mr Abel says that despite reminding Ms Chand about giving him the notebooks, she never provided them and the investigation remained inconclusive. 74 In cross-examination, Ms Chand said that she met with Mr Abel in May 2002. When Ms Nomchong pointed out that she had not mentioned anything about an interview with Mr Abel in her statement, Ms Chand said that she had three meetings with Mr Abel but he was always in a hurry. At one stage she said those meetings took place in May 2002, mid June 2002 and at the end of June 2002 and that she did not mention the notebooks until the last meeting. Ms Chand also said that Mr Plichta was at each of the meetings. She then changed her evidence and said that the second meeting never took place, or that Mr Abel wasn't there, and that she brought her notebooks to the first two meetings and forgot to bring them to the third meeting. Ms Nomchong put to Ms Chand that in her response to the request for further and better particulars she had said, in answer to a question as to the alleged complaints that led to the victimisation, that: The complaints were made on 15 July 2001 to Jan Plichta. It was subsequently referred to Mark Abel in February 2002. The applicant then referred the complaints to Mark Karouche in March 2002. The complaint was restated to Kevin Platt in October 2002. 75 Ms Nomchong pointed out that no mention was made of meetings with Mr Abel in May or June 2002. Ms Chand agreed with that proposition but denied that she had changed her evidence to try to bolster her case. 76 The evidence in relation to the times of the meetings with Mr Abel, who attended and what was said, changed several times during the course of the cross examination. The onus is on Ms Chand to establish the facts on the balance of probabilities. We are not satisfied on the basis of all the evidence that Mr Abel cancelled a mediation in the period after 18 June 2002 which is the start of the complaint period. Consequently, that aspect of the victimisation complaint is dismissed. 77 No consideration given to application for redeployment. The background to this alleged detriment is that on 9 October 2002 Ms Chand left work on stress leave because she said she was being threatened with dismissal. She submitted a Workers Compensation claim and a medical report but liability was denied. On 18 November 2002, her doctor agreed that she could return to work on restricted duties. On 27 November 2002 she filed an application relating to ongoing threats of dismissal with the AIRC. On 19 December 2002, the AIRC dismissed the application on the ground that it had no jurisdiction. 78 In her response to RailCorp's request for further and better particulars, Ms Chand set out her allegation as follows: The applicant submitted a form for redeployment on about 3 December 2002 to Human Resources. The applicant expressed interest in clerical, duty manager and other positions on this form. Numerous positions that fulfilled the applicant's criteria were advertised during this period, but the applicant was not permitted to apply to any of these positions under the redeployment program. Notwithstanding a number of requests for further information in the period until about 31 January 2003, the applicant was not advised of any positions that she was being contemplated for, nor was she asked to attend any interviews. On about 31 January 2003 the applicant was promised priority assessment and assistance with redeployment. The applicant was invited to put in applications for three administrative positions but was not interviewed in relation to any of them. Other workers of the same classification in Revenue Protection as the applicant were redeployed from about September 2002 onwards. All of the other employees who had submitted redeployment forms had been redeployed on a trial or permanent basis by January 2003. By July 2004 when the revenue protection unit had been closed, all other employees of revenue protection based at Central Station had been redeployed into permanent positions. Other workers in similar positions to the applicant were permitted to apply for and were offered positions with salaries of more than 5% higher than their previous salary under the redeployment program. The applicant was advised that, under the redeployment programme, she was not eligible to apply for any positions with salary 5% or more greater than her then current salary. 79 While this material was contained in the response to a request for further and better particulars, there was no detail in Ms Chand's 15 September 2006 statement about re-deployment, apart from the following: From 2 January 2003 to 2 August 2004, the Return to Work coordinator Terry O'Toole and the then Human Resource manager Rod O'Donnell moved me several times to temporary or no positions outlined below. All the positions except CSA1 were classified higher than Revenue Protection, yet I was expected to perform at higher level without training but paid the lower salary. 80 As the period of complaint finishes on 30 January 2003, any conduct after that date cannot be taken into account. Ms Chand did not give any oral evidence about the opportunities for deployment except to say that in around November 2002: I've been without pay for seven weeks . . . is not my idea of fun at a time when there was redeployment opportunities and I could have asked for redeployment and walked away from all of this. 81 In the Amended Points of Defence, RailCorp admitted that Ms Chand was not redeployed after the dissolution of the Revenue Protection Unit in 2004. Prior to that time RailCorp alleged that Mr Chand was assisted with placement in up to eight temporary positions between November 2002 and 24 August 2004. RailCorp says that Ms Chand was unable to obtain any permanent offers of redeployment. Although there was very little evidence in relation to this allegation, we accept Ms Chand's assertion that she was not given permission to apply for redeployment positions until 31 January 2003 and was not interviewed for three positions she did apply for after that date. 82 Told to seek reinstatement at the AIRC. When Ms Chand reported to work on 24 December 2002, following the dismissal of her application by the AIRC, she said that John Metcalfe, the State Rail Return to Work Co-ordinator, responded to her return to work request by saying words to the following effect: Why don't you ask the Industrial Relations Commission. You will be history in terms of employment considering the Marrickville incident. You have been nothing but trouble since the day you joined State Rail. 83 We are not aware of the circumstances of the "Marrickville incident" to which Mr Metcalfe refers. We do know that complaints were made by and against Ms Chand while she was at Marrickville. 84 Causation. We consider now whether any of the detriments was "on the ground of" any of the triggers that occurred prior to 18 June 2002. The test to be applied in relation to complaints of victimisation is whether the fact that Ms Chand did any one of the things listed in s 50(1)(a) to (d) was at least one of the 'real', 'genuine' or 'true' reasons for being subjected to a detriment: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]. 85 In relation to the complaints about Dr Walsh, we are not satisfied that it led to either of the detriments. It was made on 6 April 2000. Both of the 'detriments' took place some 2 years later, that is on or after June 2002. There is no direct evidence, nor any evidence from which an inference can be drawn that the complaint, made to the Human Resources Manager, led to either of the detriments Ms Chand is said to have suffered. 86 The remainder of the "triggers" occurred in a context where Ms Chand was also making numerous complaints about smoking in an office, which affected her asthma, and about alleged rorts and corruption under the Protected Disclosures Act 1994. Ms Chand's evidence was that she was called a whistle blower and a dobber as a result of these complaints. Throughout the period of the complaint there was considerable conflict between her and her fellow employees and managers. Given the long and acrimonious history of Ms Chand's employment relationship, we are not satisfied that four complaints she made alleging discrimination and harassment against fellow employees in 2001 and early 2002 were real or true reasons for making decisions about re-deploying her at the end of 2002 and early 2003. Nor are we persuaded that those complaints prompted Mr Metcalfe's comment in response to her return to work request. Costs 87 Any application for costs should be made within 28 days of the date of these reasons. Orders

Chand v Rail Corporation of NSW

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Cited legislation

Deep Dive

What happened

Why the court decided this way

Before and after state of the law

Key passages with plain-English translation

What fact patterns trigger this precedent

How later courts have treated it

Still-open questions

Gotchas

Catchwords

Judgment (12 paragraphs)

Parties

Cases Cited (4)

AI Analysis