Correy v St Jospehs Hospital Ltd [2009] NSWADT 40 | Case summary

REASONS FOR DECISION 1 This matter was originally heard by the Tribunal in 2007. The relevant history is set out in our decision cited as Correy v St Joseph's Hospital Ltd [2007] NSWADT 104 [2007] NSWADT 104 and the decision of the Appeal Panel, St Joseph's Hospital Ltd v Correy (EOD) [2008] NSWADTAP 4. 2 The Appeal Panel has remitted to the Tribunal one point to be determined, namely Ms Correy's claim of victimisation. The only issues to be resolved are whether the necessary causal connection exists between the detriment suffered by Ms Correy and any of the matters set out in s 50(1) of the Anti -Discrimination Act 1977 (the Act) and, if so, what, if any, relief should be granted. 3 One of the members of the Tribunal, as originally constituted, Ms Greenhill, was unavailable to determine the remitted matter. By consent the Tribunal was reconstituted (s 79 of the Administrative Decisions Tribunal Act 1997). Ms Lowe replaced Ms Greenhill. 4 The remitted matter was determined 'on the papers' with the consent of the parties. Each provided written submissions. Complaint of Victimisation 5 Section 50 prohibits the victimisation of persons who, among other things, complain that they have been subject to unlawful discrimination. It is unlawful for an alleged discriminator to subject another person to a detriment on the grounds that he or she has brought proceedings under the Anti-Discrimination Act against the alleged discriminator or any other person, given evidence or information in connection with any anti-discrimination proceedings brought against the alleged discriminator, or alleged that the alleged discriminator has done something which would amount to a contravention of the Act. It is also unlawful for an alleged discriminator to subject a person to a detriment if he, she or it, knows or suspects that the person intends to do any of those things or has done any of them. 6 A person who complains of victimisation bears the onus on the Briginshaw standard of establishing a causal connection between a detriment that he or she has suffered and the conduct, such as a complaint, which is said to have triggered the retaliatory or punitive response by the alleged discriminator. 7 In our original decision, we found that Ms Correy had been subjected to a detriment, namely, being rostered to work in the Aged Care Psychiatry and Neurosciences ('Geri. Psych') Unit and the continuing decision not to place her back in the Palliative Care Unit (PCU). That finding was undisturbed by the Appeal Panel (St Joseph's Hospital Ltd v Correy at [72]). 8 The Appeal Panel also left undisturbed our finding that the 'trigger' for the victimisation had been established, namely the allegations of discrimination made by Ms Correy to the Hospital's managers (at [68]). Causation 9 The issue remitted to us on appeal is whether the necessary causal connection exists between Ms Correy's allegations of discrimination and the detriment she suffered. 10 In our original decision, we expressed the test to be applied, in the following terms: 134 Why was Ms Correy rostered to work in Geri. Psych? To succeed in her complaint of victimisation, Ms Correy must establish that the Hospital rostered her in Aged Care Psychiatry and/or decided not to return her to the PCU 'on the ground' that she had done, or intended to do, one of the things set out in paragraphs (a) to (d) of s 50(1), or alternatively, suspected that she might do one of those things. 135 The meaning of the words 'on the ground of' in the context of s 50(1) of the Act has previously been the subject of detailed consideration by this Tribunal. (See for example, Sivananthan v Commissioner of Police, New South Wales Police Service at [43] and Kennedy v Director-General, NSW Department of Industrial Relations [2002] NSWADT 186 at [167]) For the purpose of this decision we adopt the test set out in Sivananthan v Commissioner of Police, NSW Police Service (at [43]), 'it is sufficient if the unlawful reason, that is the fact that the complainant had lodged complaints of … discrimination, had a real causative effect in the sense that but for its presence the act complained of would not have occurred'. 11 No issue has been taken with that formulation of the test. 12 The Appeal Panel also left undisturbed our reliance on circumstantial evidence (at [74]). 13 In our original decision we stated: 136 A number of people within the Hospital were aware that Ms Correy had strong objections to working in this Unit. Night manager, Patricia Cosgrove, knew of Ms Correy's concerns, as did Ms McCarthy whom Ms Correy informed on 7 June 2005. Ms McCarthy had briefed Mr Geoghegan. In a letter to Mr Geoghegan dated 16 June 2005, Ms Correy wrote: I have previously mentioned to Kathy McCarthy of my concerns about working in a locked ward, as a result of a previous domestic violence circumstance that I have been subjected to. On occasions when I have had to work in this Unit for a shift I have found it extremely distressing and on occasions have been physically ill. It would not be tenable for me to have to work in such an environment on a regular basis. 137 On 5 July, Ms Correy's solicitors wrote to Mr Geoghegan and detailed the discussions between the parties and the voluminous correspondence that had been exchanged. They pointed out that due to 'physical and emotional trauma' Ms Correy was unable to work in the Aged Care Psychiatry on an 'on-going basis'. They wrote: The Hospital's attempts to have our client work in the Aged Care Psychiatry and Neurosciences Unit on an ongoing basis despite her informing you that she had previously suffered serious physical and emotional trauma, which may cause further psychological injury, is a concern in relation to the Hospital's duty to provide our client with a safe environment of work. 138 In reply, Mr Geoghegan rejected the accusation that Ms Correy had been discriminated against. He wrote, 'Ms Correy has rarely been asked to work in the Aged Care Psychiatry and Neurosciences Unit. I will note that to date Ms Correy has not submitted a formal request regarding her objection to working in this area'. 139 On 27 July 2005, Mr Geoghegan wrote to Ms Correy and provided the August roster. Of the 10 shifts allocated, none were in the PCU and eight were in Aged Care Psychiatry. The following day Mr Geoghegan wrote and advised that that roster contained an error. Under the amended roster all but one shift was in Aged Care Psychiatry. 140 The decision to roster Ms Correy in the Aged Care Psychiatry Unit could not be seen as simply the Hospital refusing to budge from an entrenched position. Even if no vacancy existed in the PCU, it did not follow that the only choice available to the Hospital was the Aged Care Psychiatry Unit as there were two other Units where Ms Correy could have been rostered. 141 To better understand the basis of this decision, it is necessary to identify those involved in preparing the rosters that saw Ms Correy rostered in Aged Care Psychiatry. When they were drawn up, Ms Cocks' involvement had ended. While Ms McCarthy in her capacity as Acting Director of Nursing signed off on the July roster (Mr Geoghegan was on leave at the time), on her account once lawyers became involved, her involvement ceased. 142 Somewhat surprisingly, none of the Hospital's witnesses could identify who prepared the July and August rosters. Ms Cosgrove and Ms McCarthy denied any involvement, as did Mr Geoghegan. While we accept Mr Geoghegan's claim that, consistent with his usual role, he had not prepared the August roster, nevertheless on two separate occasions he signed off on a roster, which directed Ms Correy to work in the very ward he knew she believed she could not work in. In cross-examination, Mr Geoghegan conceded that contrary to what was set out in his statement (Exhibit R 1 para. [42]) Ms Correy had requested in writing to be exempted from working in Aged Care Psychiatry. There can be no issue that he knew this when the August roster was distributed: Ms McCarthy had told him so in early June, as did Ms Correy in mid-June and her solicitors some three weeks later. His evidence was that he had no reason to doubt the veracity of Ms Correy's objection and that he would generally attempt to accommodate requests of this sort. 14 We then noted that: 143 In cross-examination, Mr Geoghegan initially said he 'could not answer' why he had signed off on the offending August roster. The following day he said in evidence that the decision had to be seen in context of his letter to Ms Correy, dated 29 June 2005, in which he wrote: 'Every consideration would be taken in relation to your future requests'. He said it was his belief that closer to the day the roster might have changed and Ms Correy's request accommodated. He agreed however that Ms Correy had not been told this. 144 Mr Geoghegan proffered as one possible explanation for why he signed off on the August roster Ms Correy's use of the word 'regular' ('It would not be tenable for me to have to work in such an environment on a regular basis' [emphasis added]). He went on to concede however that seven out of eight shifts could be seen as 'regular'. 145 None of the Hospital witnesses in our view have provided a satisfactory explanation for why three rosters were drawn up which saw Ms Correy working in the one ward she had a strong objection to working in. We agree with the argument put for Ms Correy that the Hospital's argument about her use of the word 'regular' is nothing more than an exercise in semantics. Ms Correy and her solicitors had made it abundantly clear on repeated occasions that she had a strong objection to working in a locked psychiatric ward. 147 The history in this matter makes clear that the Hospital's managers were aware from early March 2005 that Ms Correy believed that the decision not to return her to the PCU constituted discrimination. She repeatedly made that accusation throughout the protracted negotiations that ensued. She made it abundantly clear to the Hospital that she would not let the issue rest and consistent with the entry made in his diary in mid-June, Mr Geoghegan believed she intended to 'take the matter further'. No doubt the appearance of Ms Correy's lawyers on the scene escalated the dispute. It is telling that Mr Geoghegan had been instructed to stop negotiating with Ms Correy not long after correspondence was received from them. 148 There is no direct evidence that any of the Hospital's decision-makers rostered Ms Correy in 'Geri. Psych.' because she made and persisted in her allegations of discrimination. The issue therefore to be determined is: does the evidence taken as a whole support such an inference? Ms Correy's case against the Hospital is circumstantial. Circumstantial cases are often described as being like cables made of a number of strands. The ultimate question is whether, considering all the evidence that has been presented, do the various strands in Ms Correy's cable support the inference that it is more likely than not that she was subjected to the detriment she suffered because she had made the allegation of discrimination? In short, does the preponderance of evidence support that hypothesis? 149 One of the more mysterious and, indeed, disturbing features of the case, regarding the Hospital's role, is that it has proffered no explanation why, after Ms Correy made her complaint, the vast majority of shifts she was offered were in the very ward she found most awkward and distressing to work in. This is particularly disturbing because Ms Correy had made numerous requests to management, that she not be rostered in the particular ward she found difficult; she had provided unambiguous and plausible reasons for those requests; the requests had been received and acknowledged by Management; and specific assurances had been given that her requests would be taken into account. 150 The Hospital has not called any of the witnesses who might reasonably be expected to have the relevant information. 15 None of those findings or observations have been criticised by the Appeal Panel. 16 The Appeal Panel also held that the rule in Jones v Dunkel (1959) 101 CLR 298 may be applied in these proceedings. In that case, Windeyer J, quoting Wigmore on Evidence, elucidated what we will call 'the rule'. He said (at pp 320-321): The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which made some other hypothesis a more natural one than the party's fear of exposure. But the propriety of such an inference in general is not doubted." 17 His Honour went on to say (at p 321): This is plain commonsense… Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case. 18 The Court of Appeal in Manly Council v Byrne and Anor [2004] NSWCA 123 said that if a witness is not called two different types of results might follow (at [51]): The first is that the tribunal of fact might infer that the evidence of the absent witness, if called, would not have assisted the party who failed to call that witness. The second is that the tribunal of fact might draw with greater confidence any inference unfavourable to the party who failed to call the witness, if that witness seems to be in a position to cast light on whether that inference should properly be drawn. 19 The Appeal Panel held that we had correctly applied the rule when we decided that since the Hospital did not call the people who actually prepared the rosters, an inference could be drawn that their evidence would be of no assistance [to the Hospital] (at [81]). It held that this was the limit of the application of the rule in the circumstances of this case. Allegation not put in cross-examination 20 Counsel for the Hospital contended that the evidence did not establish a causal connection between any suspicion or belief on the Hospital's part that Ms Correy may make a complaint under the Anti-Discrimination Act and any action it took and furthermore that this suggestion was not even put to Mr Geoghegan in cross-examination. 21 Before addressing these submissions it is necessary to make some brief comments about the trigger relied on by Ms Correy in respect of her claim of victimisation. 22 The trigger relied on by Ms Correy was not, as Counsel for the Hospital seems to suggest, the suspicion that she might make a complaint or lodge a formal complaint with the Anti-Discrimination Board. Rather it was that she had made complaints and allegations of unlawful discrimination to the Hospital's managers. The Appeal Panel left undisturbed our finding that a 'trigger' had been established. The Panel said (at [68]): Conclusion. We accept that the rostering decisions occurred before Ms Correy lodged a formal complaint with the Anti-Discrimination Board on 25 August 2005. However, the Tribunal found as a matter of fact, that the Hospital's managers were aware from early March 2005 that Ms Correy believed that the decision not to return her to the PCU constituted discrimination. There was evidence that Ms Correy alleged discrimination and victimisation in the meeting on 7 June 2005. There is no need for a formal complaint to have been made in order for the provisions of section 50 to apply. 23 Mr Geoghegan was cross-examined at length about why he signed off on the August roster which saw Ms Correy directed to work in the Aged Care Psychiatric Unit in all but one shift. However, as the Hospital points out, it was not explicitly put to him that Ms Correy had been rostered to work in that Unit because she had made complaints of discrimination. 24 Nevertheless, the Hospital was on notice of the general claim that Ms Correy had been victimised both before and after she made a formal complaint to the Anti-Discrimination Board. In her written complaint to the Board dated 24 August 2005, particulars of the nature of her complaint were set out. She alleged that between 7 June and 2 August 2005 she had been the victim of unlawful discrimination and victimisation by her employer, the Hospital. In support of these complaints she annexed the correspondence between the Hospital and herself and her lawyers. She had made clear to Mr Geoghegan and others that in her view she was unable to work in the Aged Care Psychiatric unit. 25 On 5 July 2005, in a solicitor's letter addressed to the attention of Mr Geoghegan, marked 'URGENT', the Hospital was put formally on notice that Ms Correy was alleging that she had been subjected to acts of direct and indirect discrimination based on her gender and carer's responsibilities. He was told that the Hospital was alleged to have contravened in the Anti-Discrimination Act. It stated: The Hospital's attempts to have our client work in the Aged Care Psychiatry and Neuroscience Unit on an ongoing basis despite her informing you that she has previously suffered serious physical and emotional trauma, which may cause further psychological injury, is concern in relation to the Hospital's duty to provide our client with a safe environment of work. Our client has a well founded concern that having to work in the unit on an ongoing basis will cause her unreasonable levels of stress and anxiety. This may lead to a more serious and/or permanent injury. In the circumstances it is unreasonable and inappropriate for our client to be rostered in this particular unit on any type of regular basis. 26 The letter went on: In summary the issues that our client has raised with you and are an ongoing concern for her are: 1. The Hospital have discriminated against our client on the basis of her gender and responsibilities as carer; 2. The Hospital have breached the Industrial Relations Act (and most likely her contract of employment) in relation to her return to work from a period of maternity leave; 3. The Hospital are willing to risk our client's ongoing health by placing her in an unsafe environment of work; - 4. The Hospital have failed to communicate and/or consult with her in a reasonable and appropriate manner about the continuing existence of her pre-maternity leave role and/or the provision of any other suitable alternative employment; 5. The Hospital are attempting to bully our client into accepting the roster (and floating role generally) as outlined in Ms McCarthy's letter to our client dated 16 June 2005; and 6. The Hospital are now victimising our client for making a complaint of the above treatment. 27 While the form of the victimisation is not particularised in legalistic terms, from context it is clear that it relates to the rostering arrangements made for Ms Correy to which she objected and which included the rostering in the Aged Care Psychiatric Unit. 28 At the time that letter was written, the August 2005 roster had not yet been compiled. But the gravamen of the allegation of victimisation must have been very evident to Mr Geoghegan when he read that letter. 29 In a letter dated 4 August 2005 addressed to the Hospital's Executive Director, Jon Anderson, Ms Correy's solicitors wrote: Our client was also astounded to review the rosters as set out in Mr Geoghegan's letters dated 27 and 28 July 2005 which indicate that she was to work in the Aged Care Psychiatry & Neurosciences Unit on all but two of the shifts as per the letter of 27 July 2005 and in all but one of the shift as outlined in the letter of 28 July 2005. Our client has made it abundantly clear to the Hospital that she is unable to work in this Unit on any regular or ongoing manner. Despite this the Hospital have deliberately rostered our client in the Unit, presumably in an attempt to force our client from her employment. 30 It is not entirely clear whether counsel for the Hospital intended to raise a Browne v Dunn issue. On one reading, the suggestion seems to be that so little weight did Ms Correy herself place on the complaint of victimisation that she did not bother to cross-examine on it. On the other hand, it appears to us that the safer course is probably to deal with the Browne v Dunn question, lest it later be raised that it was overlooked. 31 In Allied Pastoral Holdings Pty Ltd v Federal Commissioner Of Taxation (1983) 44 ALR 607, the general principle in the rule in Browne v Dunn (1894) 6 R 67 was summarised by Hunt J (at 634). He said: I remain of the opinion that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. 32 The rule in Browne v Dunn is a rule designed to ensure fairness in the proceedings and to prevent unreliable findings of fact being made. The Hon J.D. Heydon AC, author of Cross on Evidence (Australian Online Edition), comments (at [17445]): The rule does not apply where the witness is on notice that the witness's version is in contest. The notice may come from the pleadings, or a pre-trial document indicating issues, or the other side's evidence, or the other side's opening; it may come from the general manner in which the case is conducted; it may come from the way an earlier trial between the parties on the same issues was conducted. In general, however, this exception to the rule should only operate where the issue is a fairly clear and obvious one. 33 It also enables arguments to be made about the credibility of evidence given by one party when that party does not raise the issue with the other in cross-examination. In short, it may, in some circumstances be used as a foundation for an argument that there has been recent invention of evidence given by a party which was not put to the other party. 34 The Hospital had been given clear notice of Ms Correy's intention to rely on the issue of victimisation and had an ample opportunity to meet that allegation in its own defence. It had been given notice in the written complaint to the Board of the nature of the issues and the fact that rostering was at the heart of Ms Correy's complaints and allegations. 35 The Hospital had every opportunity to meet Ms Correy's case and did not complain later of having been denied the chance to meet it or apply for an opportunity to re-open. They were not ambushed and they were not prejudiced in any way. If, indeed, a Browne v Dunn issue was sought to be taken, it fails. Sufficiency of evidence? 36 As noted the Hospital contends that there is no or insufficient evidence to support a finding of victimisation. It argues that, once the inferences that the Appeal Panel ruled to be impermissible are withdrawn, the finding of victimisation has been 'swept away'. 37 In our original decision we examined among other things the evidence given by Mr Geoghegan. As the Appeal Panel noted, he was cross-examined on the question of Ms Correy's rosters and why, despite her protestations and resistance, the number of shifts she received in the Aged Care Psychiatric Unit jumped from two shifts out of ten in the July roster (issued about two weeks after she had alleged discrimination in a meeting with the Hospital) to nine shifts out of 10 in the August roster, about three weeks after her solicitors had written to the Hospital restating her objection to working in that unit. The Appeal Panel correctly surmised that he had made a poor impression on the Tribunal (at [83]). 38 This was for a number of reasons. In our original decision, we noted (at [142]) that Mr Geoghegan conceded in cross-examination that he had been wrong in his witness statement when he had claimed that Ms Correy had not requested in writing to be exempted from working in the Aged Care Psychiatric Unit. This was an important concession. 39 Second, he claimed in his evidence that he would generally attempt to accommodate requests of the sort made by Ms Correy. He accepted that she had a bona fide objection to working in that unit. Yet, despite having been given written notice of her objections, he signed off on a roster which placed her on nine shifts out of ten in the Unit she claimed she was unable to work. When pressed on the issue, he could provide no explanation for this. 40 Third, his explanation that he understood that her objection was to working in the ward 'regularly' and that for this reason he may have signed off on the roster was a feeble one, especially when he was forced to concede that eight or nine out of ten shifts might be regarded as 'regular'. 41 Fourth, his explanation that he may have signed off on the roster in the expectation that, closer to the date things might change and Ms Correy might be moved to another ward, appeared disingenuous. She was never told this at the time, despite her protests, and, in any event, this does not explain why she was rostered to that particular ward on such an unremitting schedule. 42 The Hospital's evidence on the issue of the August roster came from Mr Geoghegan alone. He denied the allegation but his evidence in our view was unconvincing. 43 That is not of itself sufficient to prove that Ms Correy was victimised by the Hospital but it removes the principal pillar of its defence to the allegation. The absence of other witnesses who might corroborate Mr Geoghegan's claims, leaves the Hospital with little to support it on this point. 44 Nevertheless, the issue remains, is there evidence sufficient to make out Ms Correy's allegation to the Briginshaw standard? 45 The Hospital contends that the causal link required to be proved by Ms Correy has not been established. It submits that 'there is simply no evidence at all sustaining a finding of a causal link between a suspicion on someone's part (whose [suspicion]? It is not said) and the rostering complained of, let alone any evidence at the Briginshaw level'. 46 This submission is bold. It dismisses the circumstantial evidence as though it did not exist but does not address it. 47 And it goes further. The comment '(whose [suspicion]? It is not said)' turns the rule in Jones v Dunkel on its head. The Hospital is the body who is able, if anyone can, to call the witness who drew up the roster which Mr Geoghegan approved. Mr Geoghegan claimed not to know who had done this but he was the Director of Nursing, the person with responsibility for rostering the nursing staff. The Hospital or Mr Geoghegan is the party who might have called the evidence of who drew up the rosters, not Ms Correy, yet this throwaway line suggests that she ought to have identified someone whom the Hospital did not call and did not identify. The Hospital, through one or more of its staff, created the rosters but it has not revealed who they are. 48 The Appeal Panel held that the principle in Weissensteiner ought not be applied in this case and that we had overextended the rule in Jones v Dunkel. It did not say that there was no evidence that the Hospital had victimised Ms Correy or, as the Hospital now contends, that the circumstantial evidence was weak. It merely remitted the question to us to be determined in accordance with its interpretation of the rule in Jones v Dunkel and the decision in Weissensteiner. 49 We accept what the Appeal Panel has said about infelicitous and shorthand reference to the High Court's decision in Weissensteiner. The real question, which we expressed badly in our original decision, is whether Ms Correy has advanced a circumstantial case that places an evidentiary, but not legal, onus of proof upon the Hospital. It was to that question that we were directing our attention in referring to Weissensteiner. That question is not one of criminal evidence or procedure but one which applies in the general law. 50 In Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 (at 219), Dixon J discussed the question of the shifting evidential onus in a negligence case. A worker had been killed by a bag of plaster weighing 120 pounds falling off a crane platform. He said: The substantial question in the case is whether the finding, which the verdict must be taken to imply, that the fall of the bag was not occasioned by negligence on the part of the defendants, is unreasonable. The burden of establishing negligence lies upon the plaintiff. It is a necessary ingredient in her cause of action, and, on the whole evidence, a jury should be reasonably satisfied as to its existence before finding in her favour. But the fall of the bag was an accident of such a nature as to afford in itself sufficient proof of negligence. In the absence of any information explaining how, consistently with the absence of fault in tackle or in manipulation, the accident did happen, or might have happened, not only would it be legitimate to infer that the bag fell through some defect in one or the other which due care would have avoided, but to refuse to do so would be both unsafe and unfair… The question whether the circumstances do establish the issue is quite different from the question whether proof of the circumstances is enough to reverse the legal onus of proving the issue. The former question opens two successive inquiries, first, whether enough appears to entitle a jury to find the issue for the plaintiff, and, second, whether so much appears as to make it unreasonable for it to do otherwise. The latter question involves the reversal of a legal presumption. It means that, in point of law, the plaintiff has become entitled to have the issue found in his favour, unless the defendant adduces sufficient evidence to support a positive finding that negligence was absent. When damage is caused by some unusual event which might reasonably be expected to happen only as the result of an omission to take ordinary precautions, or of a positive act of negligence, and it arises out of operations or the behaviour of inanimate things which are within the exclusive control of a party, no more is required to support an allegation of negligence against him unless and until some further facts appear which supply an explanation of the cause of the accident and displace the ground for inferring negligence. The circumstances may be so strong that a failure to be satisfied of negligence would be unreasonable. But, in my opinion, it is not the law that a legal presumption arises under which the burden of disproving negligence rests upon the party denying it, so that unless evidence is forthcoming reasonably sufficient to support a positive finding that negligence was absent, the party alleging negligence is entitled to a verdict as a matter of law. The distinction is clear between, on the one hand, a rule of law which, as soon as given facts appear, places the legal burden of proof upon the opposite party, and, on the other hand, a presumption of fact arising from circumstances, even if the presumption be so strong that, although the legal burden of proof is unchanged, a finding that the issue was not established would be set aside as unreasonable. In the first case, the Court must direct a verdict if the party upon whom the legal burden of proof is thrown fails to adduce evidence sufficient to discharge it. For the sufficiency or insufficiency of evidence to prove a fact or the absence of a fact is always a question of law for the Court. But, in the latter case, the Court could never direct a verdict and, except under the statutory power given by Order LVIII., rule 4, of the Rules of the Supreme Court, could but set aside the verdict found and submit the case to another jury. (Emphasis added.) 51 Dixon J's comments make it clear that while the legal onus of a plaintiff to adduce sufficient evidence to raise a prima facie does not shift, the evidential onus may shift so that, absent an explanation from the person who might be expected to provide the relevant information, the inference supporting the plaintiff may be so strong that to reject it would be unreasonable. 52 In Katsilis v BHP Pty Co Ltd (1977) 18 ALR 181 (at 197), Barwick CJ made a similar point and expanded it: No doubt in some circumstances, when a claiming party establishes that the defendant party has knowledge and information which would establish the plaintiff's case, failure to give evidence or to produce the information may in some circumstances afford sufficient evidence for the plaintiff to make a prima facie case which the defendant must then displace. It is, in my opinion, inaccurate to speak of this consequence as a shifting of the onus or burden of proof: or as raising a presumption of law or of fact in favour of the claimant party. The onus of establishing his case still rests on the claimant, though silence or non-production of information on the part of or by the defendant party may have furnished sufficient evidence to warrant a conclusion in his favour… Ordinarily, though a case is normally better tried on the evidence which is produced than on that which is not, it can properly be said that the failure of a party to give or produce evidence which, in the circumstances of the case, that party in its own interest would be expected to give or produce, warrants the conclusion that, if given or produced, the evidence would not support that party's case. Indeed, in some circumstances it might be inferred that it would support the opponent's case; but, if so, it must depend very much on the circumstances. But, in any case, the inference would depend upon some element of conscious repression or withholding of the evidence. The warrant for the inference must depend upon the deliberation with which the evidence is withheld and the appreciation or likely appreciation of the party of its significance in the case. In my opinion, these propositions are in accord with the decided cases which I have taken occasion to examine. 53 If the facts appear to point one way, the absence of a reasonable alternative hypothesis or explanation makes the conclusion, if not inevitable, easier to draw with comfortable satisfaction. As Barwick CJ remarked, 'a case is normally better tried on the evidence which is produced than on that which is not'. In this instance, the Hospital has apparently chosen not to produce evidence that would explain the odd rostering of Ms Correy and has thereby left a significant gap in its own case. 54 In our view, the chronology of this saga demonstrates that the Hospital intended to teach Ms Correy some sort of lesson by forcing her to accept rosters it knew she believed she could not work and from which she had begged to be excused. It denies this and denies that anything other than normal rostering was taking place during this period. Those assertions cannot be accepted. 55 Ms Correy, having repeatedly notified the Hospital since March 2005, that she believed that its refusal to return her to the Palliative Care Unit constituted unlawful discrimination, raised the stakes four months later by calling in a solicitor to support her. In her solicitor's letter of 5 July, particulars of her allegations of discrimination were provided. In reply Mr Geoghegan denied those allegations. Shortly after that exchange Mr Geoghegan signed off on letters advising Ms Correy she had been rostered to work in the Aged Care Psychiatric Unit 90 per cent of her August shifts. As noted in our original decision (at [144]) when those rosters were prepared Ms Correy had made it abundantly clear on repeated occasions that she had a strong objection to working in a locked psychiatric unit. Absent some plausible explanation for this sudden increase (which has not been forthcoming from the Hospital), it is difficult to accept that it was merely coincidental. The Hospital has not supplied that explanation or, indeed, any real explanation other than the weak and unsupported claim that it was doing its best and this was the best it could do to accommodate Ms Correy's express wishes. 56 If it was not coincidental, can it be seen as anything other than an attempt to discipline her or, as put by Ms Correy, make her continued employment with the Hospital 'untenable'? This appears in our view to be the most plausible explanation. No plausible alternative explanation has been supplied by the Hospital. The most powerful inference available is that it was because she was being difficult to manage and, in particular, had raised the stakes by making what the Hospital apparently considered to be an unfounded and insulting claim that she was being discriminated against. 57 The ultimate question for determination is whether Ms Correy has established to the Briginshaw standard that the reason she was subjected to the detriment of being rostered to work in the Aged Care Psychiatry Unit was 'on the ground of' having made a complaint of discrimination to the Hospital. The Hospital contends that there is no or insufficient evidence to support that proposition. It contends that the necessary causal link could only be found on inferences which the Appeal Panel found were 'erroneously arrived at'. 58 While the Appeal Panel ruled that we had over-extended the rule in Jones v Dunkel by referring to evidence the Hospital might have been expected to bring, it decided that the rule had been correctly applied when we decided that since the Hospital did not call the people who actually prepared the rosters, an inference could be drawn that their evidence would have been of no assistance. The rule of course does not mandate that that (or any other) inference be drawn but that it may be drawn. 59 In determining whether Ms Correy has discharged the evidentiary onus it is necessary to separately examine each detriment to which she was subjected: the rostering in the Aged Care Psychiatry Unit and the continuing decision not to return her to the PCU. It is evident that they are not one and the same thing. As we noted in our original decision (at [140]) 'The decision to roster Ms Correy in the Aged Care Psychiatry Unit could not be seen as simply the Hospital refusing to budge from an entrenched position. Even if no vacancy existed in the PCU, it did not follow that the only choice available to the Hospital was the Aged Care Psychiatry Unit as there were two other Units where Ms Correy could have been rostered.' 60 In our view, the evidence taken as a whole, namely the circumstantial evidence detailed above about the rostering of Ms Correy in the Aged Care Psychiatric unit, the unsatisfactory explanation provided by Mr Geoghegan for that decision, coupled with the inference that the evidence of the persons who actually prepared the rosters would have not have assisted the Hospital, supports a finding to the Briginshaw standard that Mr Geoghegan signed off on the roster directing Ms Correy to work in that Unit 'on the ground' that she had made and persisted with complaints of discrimination. 61 Ms Correy does not have to prove the identity of a particular person who has victimised her. Nevertheless, the circumstantial evidence suggests that Mr Geoghegan was more involved in the formulation of the rostering than he has admitted. He was the principal recipient of Ms Correy's complaints and correspondence; he was directly responsible for rostering and he has identified no one else who was taking the decisions which Ms Correy understood were his to make. This suggests that it was he, or he in conjunction with others, who decided to take this action against Ms Correy. 62 In contrast we could not be satisfied that the reason Ms Correy was not returned to the PCU was 'on the ground of' having made allegations and complaints of discrimination. While possible that her complaints might have hardened the Hospital's managers resolve not to accede to her request we could not be satisfied that was the case. 63 For these reasons we find that the rostering of Ms Correy in the Aged Care Psychiatry Unit constitutes victimisation under s 50 of the Act. Relief 64 Having found the complaint of victimisation substantiated we must now decide what, if any, relief should be granted. 65 In our original decision we found the complaint of discrimination on the ground of Ms Correy's responsibilities as a carer substantiated (s 49V(2) of the Act) and on that basis ordered the Hospital to pay damages in the sum of $26,121. The Appeal Panel set both orders aside. While we also found the complaint of victimisation substantiated we did not address whether relief should be ordered on that account. Can the Tribunal make orders under s 108? 66 The Hospital contends that because we did 'not think it appropriate to award [Ms Correy] any monies in respect of victimisation, even though [we] found that claim made out at first instance…there could be no possible basis on which [the] Tribunal would now order a money sum in respect of that part of the claim [complaint of victimisation]'. 67 In the original proceedings Ms Correy claimed damages for economic loss in respect of the claims of discrimination on the grounds of carer's responsibilities and sex, and victimisation. The Hospital was ordered to pay Ms Correy damages for lost income that resulted from the Hospital's contravention of s 49V(2) of the Act. Having found that she was entitled to compensation for economic loss as a result of that contravention, we did not proceed to consider whether in addition she should also be awarded damages on account of the contravention of s 50, as the amount awarded was the extent of her loss. (The Hospital did not challenge Ms Correy's estimate of lost income-Exhibit A1.) 68 The Appeal Panel has now decoupled the two issues of unlawful discrimination and victimisation. The Appeal Panel made no finding that Ms Correy did or did not suffer a loss. It remitted to us the issue of whether the Hospital's conduct constituted victimisation and if so, 'on the basis of the existing evidence, whether [Ms Correy] is entitled to a remedy' (Order 4(c)). There is nothing in the Panel's Reasons to suggest that we cannot now consider whether the contravention of s 50 of the Act could now give rise to orders for relief. Indeed Order 4(c) directs us to do just that. 69 It is to be noted that in the original proceedings the Hospital was given the opportunity to make submissions on the issue of relief and argued that compensation ought not be made on any ground. Should the Tribunal make an order under s 108? 70 Section 108(2)(a) of the Act provides that if the Tribunal finds a complaint substantiated in whole or in part, it may order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. 71 Before considering whether any order should be made under s 108 it is necessary to summarise the background to the cessation of Ms Correy's employment much of which has been referred to in these reasons. 72 Ms Correy was due back from maternity leave in early July 2005 but did not return to work at the Hospital. Throughout the period, mid-June to early August 2005, a volley of correspondence and phone calls was exchanged between her and the Hospital; each asserting their respective views about Ms Correy's contract of employment. Ms Correy contended that the Hospital was obliged at law to return her to work in what she insisted was her pre-maternity leave position in the PCU. The Hospital did not share that view and argued that Ms Correy's 'original appointment… was as an enrolled nurse to St Joseph's Hospital and not to any specific unit'. 73 Matters came to a head in late July 2005. On 28 July 2005 Ms Correy's solicitors wrote to Mr Geoghegan that the Hospital's approach of continuing 'to refuse to provide our client with her pre maternity role or provide her an offer of suitable employment …had completely destroyed the relationship of trust and confidence between her and the Hospital…[and] effectively placed our client in a position where she is unable to return to work'. They wrote: Given the Hospital's repudiatory conduct …in conjunction with the breach of trust and confidence…our client has instructed us to accept the Hospital's repudiation of her contract of employment and bring to an end effective immediately. 74 In a softer tone they concluded that Ms Correy 'hoped to be able to resolve these matters through sensible and open discussion'. 75 Apparently that letter crossed with Mr Geoghegan's letter dated 27 July 2005, notifying Ms Correy that eight of the ten shifts she had been rostered to work in August were in the Aged Care Psychiatric Unit. The following day he wrote advising that the roster contained an error and all but one of the ten shifts would be in that unit. 76 By letter to Ms Correy of the same date, Hospital Executive Director, Jon Anderson, noted that she had not reported to work or notified the Hospital of her absence on any of the five (sic) days she had been rostered to work in July. He advised that if she did not return to work on 1 and 2 August she would be 'considered to have abandoned [her] employment and termination action will proceed'. 77 On 2 August, Mr Anderson advised Ms Correy in writing that the Hospital considered that she had terminated her employment because of her failure to report to work. Principles governing compensation under s 108 78 In our original decision we set out the principles governing the award of compensation under s 108: 159 Principles governing award of compensation under s 108 Until recently it had been widely accepted that an action under the Act was akin to an action in tort, and that the common law rules which govern the award of damages in actions in tort were applicable. (See for example the approach taken by Sully J in Commissioner of Police, NSW Police Service v Estate Edward John Russell [2001] NSWSC 745 (at [35]).) On appeal Spigelman CJ in Commissioner of Police v Estate of Russell (2002) 55 NSWLR 232 at pp 245-246, questioned that approach and said in obiter '…I should indicate that I do not share the opinion … that a complaint leading to an order of payment of 'damages…by way of compensation' under s 113(1)(b)(i) constitutes a 'tort' within the meaning of s 8 of the Law Reform (Vicarious Liability) Act .' 160 That approach was cited with approval by the Appeal Panel in Commissioner of Police, NSW Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 (at [33]): [W]e believe that the views of Spigelman CJ … should be followed. The AD Act creates statutory rights and obligations. Section 113(1)(b)(i) [now s 108(2)(a)] of that Act vests the Tribunal with a statutory power to make compensatory orders following a finding that a complaint alleging a contravention of one of those statutory rights has been substantiated. Common law rules concerning the manner in which a court should determine whether damages claimed by a plaintiff in an action in tort are attributable to the conduct of the defendant may guide or assist the Tribunal when determining whether any loss or damage claimed by an applicant in a discrimination case was suffered by reason of the respondent's conduct, but they are not controlling. 79 The Appeal Panel in Mooney cited (at [44]) Henville v Walker (2001) 206 CLR 459 in support of that proposition. The issue raised on appeal in Henville was whether an architect who had relied on a misleading representation made by an agent about the demand for quality units in Albany, that was found to constitute a breach of s 52 of the Trade Practices Act 1974 (TPA), was entitled to recover any part of the loss he sustained notwithstanding that the misrepresentation was not the only cause of his loss. The High Court held that the contravention was one of two concurrent causes and that was enough for damages to be recovered under s 82 of the TPA. (Section 82 provided that a person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV, V (which included s 52) may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.) 80 McHugh J after examining the various approaches taken to the issue of 'causation' concluded that while it was not reducible to a 'test', nevertheless considered that 'the course of judicial reasoning in this area has produced certain principles that assist tribunals of fact in deciding causation issues'. He explained (at 493): If the defendant's breach has "materially contributed" to the loss or damage suffered, it will be regarded as a cause of the loss or damage, despite other factors or conditions having played an even more significant role in producing the loss or damage. As long as the breach materially contributed to the damage, a causal connection will ordinarily exist even though the breach without more would not have brought about the damage. In exceptional cases, where an abnormal event intervenes between the breach and damage, it may be right as a matter of common sense to hold that the breach was not a cause of damage. But such cases are exceptional. Of particular importance to the present case is the long-standing recognition of the possibility that two or more causes may jointly influence a person to undertake a course of conduct. In separate judgments in Gould v Vaggelas Wilson and Brennan JJ emphasised that a representation need not be the sole inducement in sustaining the loss. If "it plays some part even if only a minor part", in contributing to the course of action taken in that case the formation of a contract a causal connection will exist. 81 Findings and conclusions It is uncontroversial that Ms Correy lost income because she did not return to work when her maternity leave concluded. What is disputed is whether the Hospital's conduct in rostering her in the Aged Care Psychiatry Unit materially contributed to that loss. 82 Ms Correy submitted that 'when the Hospital refused to alter the roster arrangements it had imposed on [her] she had no alternative other than to decline to attend work as per that roster'. 83 That submission sidesteps the reason Ms Correy refused to attend work. As made abundantly clear by the exchange of correspondence with the Hospital and her own evidence, a key reason for that decision was her belief that she held an entitlement to a position in the PCU. 84 While the Hospital's refusal to accede to her request to return to the PCU was clearly central to Ms Correy's decision not to return to work, can it also be said that the decision to roster her in the Aged Care Psychiatry Unit materially contributed to her not returning to work? 85 It is difficult to determine with precision when Ms Correy's employment with the Hospital came to an end. This is in part because of the overlap of correspondence between the parties. As noted, her solicitor by letter dated 28 July 2005, claimed that the Hospital by its conduct had repudiated the contract and on that basis they had been instructed to 'bring the contract to an end effective immediately' and in contradiction 'hopes to be able to resolve these matters through sensible and open discussion'. 86 The Hospital on the other hand took the view that the contract was finally bought to an end by Ms Correy's failure to comply with the ultimatum given by Mr Anderson to 'return to work in the period 1 and 2 August and report to work by close of business of that day' (letter to Ms Correy dated 27 July 2005). 87 It is apparent that had Ms Correy been rostered to work in a Unit other than Aged Care Psychiatry or the PCU she would not have returned to work in August 2005. Nonetheless can it be said that the Hospital's action in rostering her to work in Aged Care Psychiatry 'materially contributed' to her loss? 88 Ms Correy was not rostered to work in Aged Care Psychiatry throughout July. However had been on notice since 16 June 2005 that she would be working in that Unit on 1 and 2 August 2005. It follows that it could not be said that the reason Ms Correy declined to attend work throughout July was 'by reason of' being rostered to work in Aged Care Psychiatry. Long before the issue of the August roster Ms Correy had decided she would not be returning to work unless she was returned to the PCU. 89 If, as the Hospital contends, Ms Correy was in breach of her contract of employment, that breach did not lead to the termination of the contract. The Hospital took no action to terminate the contract but elected to continue to roster her. On the other hand, the Hospital, in our view, breached an implied term of the contract by victimising Ms Correy in her employment. Any contract of employment almost certainly contains an implied provision that an employer will comply with the Anti-Discrimination Act insofar as it affects the terms and conditions of employment. We think that the Hospital repudiated the contract, as alleged in the letter of 28 July, by rostering Ms Correy into a Unit which it knew would result in her refusal to work. 90 It is apparent that Mr Geoghegan had signed off on the August roster before receiving Ms Correy's letter of 28 July which contained the notification about the termination of the contract. 91 We think, taking all the circumstances into account, that from a pragmatic and commonsense perspective the date of repudiation was the date the August roster was issued to Ms Correy, 27 July 2008. 92 Damages for loss of income, therefore, would seem to run from that date. On the basis of the figures agreed by the parties we calculate that loss to be $26,121 less the wages claimed for July ($2456) = $23,665. Orders

The complaint of victimisation is substantiated
The Respondent to pay the Applicant the sum of $23,665 within 28 days
If either party elects to apply for costs they must to do so within 28 days of the date of these orders.

Correy v St Jospehs Hospital Ltd

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