De Domenico v Marshall [2001] ACTSC 52

De Domenico v Marshall [2001] ACTSC 52 - ACTSC 2001 case summary — Zoe

[72]

The sufficiency of the findings of administrative (or judicial) tribunals is to be judged by the purposes for which they are made and the circumstances of the case. These criteria include matters common to every case, such as satisfying the parties' interest in understanding what was decided and the basis of the decision and putting them in a position to decide whether to exercise their right of appeal (even if that right is limited to matters of law only): see, generally Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65. The purposes of the findings may also include matters particular to the case at hand. Here, particular factors would include: to enable a rational decision by the AAT as to whether to exercise the discretion to award any compensation to Mrs Marshall and, if so, how much. Although Mrs Marshall did not cross-appeal as to the quantum of the compensation awarded to her, her submissions show that she is very unhappy about it. Her failure to appeal may have been no more than an oversight.

Judged in this way, it is clear that the findings of both the Commissioner and the AAT were not made with a sufficient degree of particularity. This is not a matter of requiring an unrealistic degree of detail. For example, although there was no express rejection of Mrs Marshall's claim that Mr De Domenico taunted her, at times in grossly explicit terms, about her supposed but non-existent affair with another MLA, it may reasonably be inferred from various comments by the AAT that it did reject this claim for want of corroboration of it. If that is not a reasonable inference, the lack of sufficient particularity in the findings is established beyond argument.

Nor could the Tribunal reasonably have been expected to quantify the precise number of times that Mr De Domenico, in the Tribunal's view, made sexually gross remarks to Mrs Marshall and/or accompanied them with obscene gestures. However, although it is clear that the Tribunal considered that he so behaved on considerably fewer occasions than Mrs Marshall asserted but more than once, no reasonable inference can be made as to whether he so behaved, on what might be called (i) very few occasions, (ii) quite frequently or (iii) many occasions. Whether he did this about once or twice each three months, or once or twice a month, fortnight or week, one cannot say from reading the totality of the Tribunal's remarks. One might possibly have drawn an inference that it occurred quite infrequently from the award of a mere $1,500 in compensation, but the Tribunal seems to have thought that there was a de facto upper limit to what might be awarded, in a case where economic loss was not in issue, of about $10,000. Thus, the award may be consistent with a view that the offending conduct occurred often but was, nevertheless, quite minor in its true effects on Mrs Marshall. Hence the matter remains one of mere guesswork. All one knows is that his remarks and gestures were not "unremitting". In the absence of findings of greater particularity and less ambiguity, no rational view could be come to by the parties or anyone else as to whether, for instance, the award of compensation was too high or too low or should not have been made at all. Nor could an interested member of the public discern whether Mr De Domenico was a man who, on a mere handful of occasions had expressed himself to Mrs Marshall in a way that, had he done so to a man, many men might not find seriously objectionable, or a man who on many occasions truly had oppressed a women by forcing her attention to sexual matters of little interest to her, in a very gross way, and in an utterly inappropriate context, notwithstanding that the woman had exaggerated the frequency of those occasions.

[106]

Before dealing with the evidence it is necessary to refer to some matters by way of background. As the Federal Court observed at para 54:

The case was a heady brew. The main ingredients were politics and sexual issues. Indeed an unusual variety of religious experience, the third taboo for what in some circles used to be thought polite conversation, was of possible significance for one of the important witnesses. The mixture was apt to be volatile in terms of reasonable orderliness of and boundaries for the proceedings.

A significant number of persons who gave evidence, both before the Discrimination Commissioner and the Tribunal were, at material times, active members of the ACT Liberal Party. Such persons included the applicant, Mr De Domenico, "B", "C", "I", Malcolm Marshall, and "O".

The relations between Mr De Domenico and "D" were not good, the relationship having soured after Kate Carnell was elected leader of the party in April 1993. See in this regard the evidence of "I" (AAT transcript, 16 December 1995, p 82 and Tpt 1708) and Mr De Domenico's evidence (AAT transcript, 15 December 1997, p 61 and 16 December, p 33). Further, both the applicant and her husband Malcolm Marshall, lost positions in the Liberal Party and she felt ostracised by the Liberal Party as a result (Tpt 1395). The applicant felt animosity and anger towards Mr De Domenico as a result of these events (Tpt 1396-7).

The applicant and "E" were friends. "E" was particularly close to "D". These matters, combined with the summary sacking of the applicant by Mr De Domenico, made the relationship between the applicant and Mr De Domenico very difficult. Indeed one witness claimed that the applicant told him she wanted revenge against Kate Carnell and Mr De Domenico (see "C", AAT transcript, 12 December 1997, p 68). However, I am not prepared to form any conclusion on the revenge issue in the absence of corroborative evidence.

It is hardly surprising, in these circumstances, that a considerable amount of time was devoted at both earlier hearings to attacking the credit of opposing witnesses, particularly those associated with the applicant's case.

[153]

29. In the course of his oral evidence before the Discrimination Commissioner Mr De Domenico (Tpt 1930) agreed that he sometimes used robust, colourful language and swore (when things didn't go his way) but denied speaking in a sexually explicit way; and (Tpt) 1954) he denied he had ever placed his hand on his groin in public saying: "I'm not in the habit of scratching the area of my groin in public, I've got to say, nor in private". Also at Tpt 1957 the following exchange took place between himself and his counsel Mr Refshauge, namely: "You deny any sexually oriented gesture by way of touching in the area of genitalia, your own genitalia?---Yes".

30. In addition there were a number of witnesses who gave evidence in the hearings before the Discrimination Commissioner and the Tribunal on Mr De Domenico's general use of language and his propensity to engaged in conduct of the kind alleged by the applicant and "E".

31. "BB", a member of the Chief Minister's staff at the time, in a statement dated 23 November (T5 33) said:

I knew Mr Tony De Domenico on a casual social basis over the 4 years prior to commencing work with the Opposition Leader and now Chief Minister. During that time I found Mr De Domenico to be charming and pleasant. I do not recall him making any offensive comments to me or within my hearing.

"F" who worked in Mr De Domenico's office at the time, deposed in her affidavit, sworn on 11 September 1995, (T5 14):

9 In relation to the whole of the affidavit (that is Mrs Marshall's affidavit), I have never seen or heard Mr De Domenico make obscene gestures or comments of the kind stated by Mrs Marshall.

10 Although I spent a considerable amount of time in the same office as Mrs Marshall, I never saw her appear uncomfortable, intimidated or frightened by Mr De Domenico. She generally seemed to be relaxed, maybe even bored.

"B", a former Liberal candidate, said in her affidavit sworn 6 October 1995 (T5 15b):

4 Mr De Domenico often spoke in a sexual way about women in his sphere of influence such as journalists, MLA's their staff and others.

5 At the time I did not take much notice of Mr De Domenico's language but on reflection I do recall that it seemed to have a deleterious effect on Mrs Marshall. She would often say "Oh Tony", in a cautionary tone.

32. In her oral evidence before the Discrimination Commissioner "B" stated (Tpt 1573):

. . . Mr De Domenico did make jokes that were sexually explicit but having worked in the Federal Parliament for a year myself, I don't think it was outside the sort of things that the robust sort of comments that male politicians make from time to time.

33. Sandra Littlewood, another member of the Chief Minister's staff, in an affidavit sworn on 12 September 1995 (T5 16) deposed as follows:

6 I recall Mr De Domenico joining in with the banter on some occasions, but I never heard him make explicit statements of the type described in Mrs Marshall's complaint. His banter was more along the lines of double entenderes, not graphic sexual comments. I cannot imagine Mr De Domenico making obscene gestures of the kind described by Mrs Marshall.

Mrs Marshall was present during some of the banter which occurred. I cannot specifically recall any jokes she may have made, but I also do not recall her not participating in the chatter. I also cannot recall her ever commenting or indicating that any thing said by Mr Domenico or any other person had upset or offended her. Mrs Marshall never shrank from banter in my presence, whether we were in female or mixed company.

34. "I", a member of the Attorney-General's staff, said in oral evidence (Tpt 1709/10) that Mr De Domenico used the "F" word in a general sense (such as "the f . . .ing car won't start") but not in a sexual sense around him.

35. In a statement exhibited to her affidavit (T5 18) sworn on 4 September 1995 "AA", a marketing sales consultant, deposed:

Mr De Domenico never made "crude" comments, or statements with explicit sexual comments to me. I found him to be humorous and inoffensive.

36. "O", another member of the Chief Minister's staff, in her affidavit (T5 22) sworn 12 September 1995 deposed as follows:

In my dealings with Mr De Domenico, I found that he was lighthearted, quickwitted and funny . . . Mr De Domenico did not make explicit sexual comments, nor say anything that ever offended me.

37. "H", another member of Mr De Domenico's staff, gave oral evidence before the Tribunal to the effect that Mr De Domenico did not say anything offensive or with sexual overtones while she was working for him. (See Tribunal transcript of 17 December 1997, page 45). It should be noted here that "H" worked in the office on a part-time basis and only for a short time during the material period. This can be contrasted with "F", who worked substantially full-time in Mr De Domenico's office during the material period.

[167]

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. . . .This does not mean that some standard of persuasion is fixed intermediate between the satisfaction beyond reasonable doubt required upon a criminal inquest and the reasonable satisfaction which in a civil issue may, not must, be based on a preponderance of probability. It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues [references omitted]. But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.

[173]

116. The evidence of "E" is more difficult to assess without having had the opportunity of seeing her give evidence. She had given evidence before the Discrimination Commissioner and the first AAT hearing on behalf of the respondent but the respondent declined to call her to give further oral evidence in the second AAT hearing before the Senior Member. The Discrimination Commissioner said that she had considered "E's" evidence carefully and that she considered her to be an honest person who believed what she had said on oath. However, the Commissioner identified a number of reasons for doubting whether the incidents described had actually occurred. She was not satisfied about the accuracy of the recovered "memories" of indecent gestures and observed that though "E" had claimed that other people had sometimes been present she was unable to recall who they were and, apart from the respondent, the evidence of no other witness supported her claim. The Discrimination Commissioner also referred to "E's" evidence that as soon as the appellant began to make an offensive comment she would turn and leave the office. The Commissioner thought that this raised a question as to whether the appellant had made a comment of the type attributed to him or whether he may have said something which the witness misinterpreted because she had denied herself the opportunity to hear it in full. She also noted that the comments which "E" attributed to the appellant did not tally with those alleged by the respondent. The witness had claimed that the appellant had made other statements but that she had chosen not to remember them and could no longer do so. The Discrimination Commissioner said that she had been left with a picture of a person who was "very sensitive to robust language" and believed that certain statements had been made. However, the Commissioner was not satisfied on the balance of probabilities that the incidents alleged had occurred. Whilst the earlier AAT decision had been based in part upon an acceptance of "E's" evidence, as I have ;previously mentioned Miles CJ had found, at [42], this "remarkable". With respect, I agree with that view.

At a glance

Court

Decision date

Source

Judgment (184 paragraphs)

De Domenico v Marshall [2001] ACTSC 52 (24 May 2001)

Parties

Legislation Cited (10)

Cases Cited (13)