Dutt v Central Coast Area Health Service

1 These proceedings relate to two appeals, the first by the Central Coast Area Health Service (CCAHS) filed on 30 August 2002, and the second by Dr Dutt filed on 9 September 2002. The appeals are from a decision of the Tribunal made under the Anti-Discrimination Act 1977 (ADA) in which Dr Dutt was the complainant and the CCAHS was the respondent. 2 Of the numerous allegations constituting Dr Dutt's complaints, the Tribunal found only one of those allegations to be substantiated. The allegation was that the medical director, Dr Sparke, said to Dr Dutt, "You bloody Indian, you bloody black. I will sack you and I know how to do it." The Tribunal made the following orders: 1. The complaint of discrimination on the ground of race is substantiated as to one of the allegations made. 2. The complaint of victimisation is dismissed. 3. The respondent shall within 28 days, pay to the applicant the sum of $2,000.00 by way of compensation for loss and damage. 4. The application for costs is dismissed. Grounds for CCAHS's appeal 3 The grounds for the appeal by the CCAHS were as follows: The Tribunal erred at law in that it did not impose the appropriate standard of proof (the Briginshaw standard) in respect of all the complainant's allegations but in particular, the allegation that the Medical Director of the Respondent uttered: "You bloody Indian, you bloody black. I will sack you and I know how to do it." In the alternative, the Tribunal erred at law in that it made a finding of fact with regard to the above allegation, not capable of being supported, on the balance of probabilities, by the evidence before it. 4 The CCAHS did not seek leave to extend the appeal to the merits of the decision. Grounds for Dr Dutt's appeal 5 The grounds for Dr Dutt's appeal were as follows: The order for compensation of $2000 is manifestly unjust and inadequate, having regard to the findings of the Tribunal and the circumstances of the applicant. 6 Dr Dutt requested the Tribunal's leave to extend the appeal to the merits of the decision. CCAHS's appeal 7 This appeal raises a question of considerable importance, that is the applicability of what is known at the "Briginshaw principle" to this case and to anti-discrimination cases in general. The CCAHS submitted both to the Tribunal and the Appeal Panel, that the appropriate standard of proof is set out in Briginshaw v Briginshaw (1938) 60 CLR 336. After summarising the relevant principles, the Tribunal decided, at paragraph 58, that "the issues to be decided in this case are not in our view so important or grave as to require proof on the basis of the evidence of a Briginshaw standard." It is that finding, and the Tribunal's subsequent finding that Dr Sparke had spoken the words attributed to him by Dr Dutt, which the CCAHS submitted constitute errors of law. Burden and standard of proof in anti-discrimination matters 8 Except in relation to proving an exception to otherwise unlawful conduct, an applicant has the burden of proving that the ADA has been breached. (See s 109 of the ADA.) The relevant standard of proof is set out in s 140 of the Evidence Act 1995 (NSW): 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. What is the Briginshaw principle? 9 In Briginshaw v Briginshaw (1938) 60 CLR 336, the High Court discussed the appropriate standard of proof in civil proceedings, and the matters which must be taken into account when determining whether that standard has been met. The classic formulation of the Briginshaw principle appears in the following passage of Dixon J's judgement at p 361: 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. . . . 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 of 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. 10 It is apparent from this passage, and from numerous subsequent cases, that the Briginshaw principle does not introduce a third standard of proof which sits between the civil and criminal standards. Indeed, the High Court (Deane, Dawson and Gaudron JJ) said in G v H (1994) 181 CLR 387 at 399, that: It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved . . . 11 The Briginshaw principle finds statutory expression in s 140 of the Evidence Act 1995 (NSW): (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 proceedings; and (c) the gravity of the matters alleged. Does the Briginshaw principle apply to all allegations in anti-discrimination cases or only to "serious" allegations? 12 Ms Brus, representing the CCAHS, submitted that the Tribunal erred in law in that it did not impose the appropriate standard of proof (the Briginshaw standard) in respect of all the complainant's allegations. With respect, this submission is misconceived. Briginshaw v Briginshaw did not introduce a new standard of proof in relation to serious allegations. Briginshaw, together with subsequent cases and s 140 of the Evidence Act 1995, make it clear that there is only one standard of proof for civil proceedings, that is "on the balance of probabilities." 13 Ms Brus further submitted that the Briginshaw principle only applies when the allegations reach a certain level of seriousness or where the consequences of an adverse finding are sufficiently grave. For convenience, we refer to this approach as the "either/or" approach, that is, the Briginshaw principle only applies to serious allegations, and not to allegations which are not serious. 14 The "either/or" approach was endorsed by the Full Court of the Federal Court in State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287. O'Connor, Sundberg and North JJ were considering whether the publication of a directive by the Premier of Victoria requiring that persons from the Former Yugoslav Republic of Macedonia be referred to as Slav Macedonians and their language be referred to as Macedonian (Slavonic) was discriminatory. The Full Court found that "The Briginshaw test only becomes relevant when, because of the seriousness of the allegations being made in relation to an issue to be determined in a particular case, a decision maker must proceed with caution in arriving at a state of satisfaction." (Emphasis added.) The Full Court did not consider the Briginshaw "test" to be applicable in the circumstances of that case. 15 We consider that this formulation of the Briginshaw principle is misconceived. In our view the Briginshaw principle applies universally to all allegations, in the sense that the seriousness of the allegation and other relevant factors are to be taken into account before determining whether the Tribunal is satisfied "on the balance of probabilities" that an allegation has been proved. Smith J in State of Victoria & Ors v McKenna and McKenna v State of Victoria & Ors (2000) EOC 93-080 articulated this "universal" approach, when he said that ". . . the principles discussed in Briginshaw apply generally in all civil proceedings and to all issues." The view that the Briginshaw principle has universal application to all allegations, regardless of their seriousness, is also supported by s 140 of the Evidence Act 1995. In all civil proceedings, the decision maker "is to take into account" the matters listed in s 140(2). 16 The Tribunal applied the "either/or" approach, not the "universal" approach, in its decision. Paragraph 57 states that: One allegation is of unlawful discrimination when explicit reference is alleged to have been made to Dr Dutt's race by Dr Sparke. A finding that the comment alleged was in fact made does not approach a finding of criminal conduct, and there is no reasonably foreseeable adverse consequence for Dr Sparke's livelihood. Such a finding might cause him embarrassment, and reflect to a degree on his personal reputation, but those are not, in our view, grave consequences which warrant reliance on the Briginshaw standard. 17 It follows from our reasoning that the Tribunal erred in asking itself whether the Briginshaw "standard" applied to the circumstances of this case and concluding that it did not. All that was required of the Tribunal, was to take into account the matters referred to in Briginshaw. Those matters are the nature and consequence of the facts to be proved including the seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, and the gravity of the consequences flowing from a particular finding. 18 Despite the Tribunal's characterisation of the Briginshaw principle, it is clear from its reasoning that it did take into account the matters referred to above. In those circumstances, the Tribunal's error in the manner in which it characterised the Briginshaw principle, did not result in any error of law. Was the Tribunal's finding capable of being supported, on the balance of probabilities, by the evidence before it? 19 The CCAHS's second ground of appeal raises two questions. The first question is whether the Tribunal made an error of law in making a finding of fact which was not capable of being supported on the evidence. The second question is whether the Tribunal made an error of law in making a finding, otherwise than on the balance of probabilities. 20 A submission that a finding is against the evidence or against the weight of evidence does not constitute an error of law. While evidence must be logically probative and relevant to the issues before the Tribunal, the Tribunal can inform itself in whatever manner it sees fit. (See Re Pochi and Minister for Immigration and Ethnic Affairs (1977) 2 ALD 33.) It is only where there is no material before the Tribunal upon which a conclusion can be based that an error of law will have been made out. (See Collins v Minister for Immigration and Ethnic Affairs (1981) 4 ALD 198 and Hafza v Director-General of Social Security (1985) 60 ALR 675 at 685.) As there was material before the Tribunal on which the finding was made, there is no error of law in relation to this question. 21 The final question is whether the Tribunal erred by making a finding, otherwise than on the balance of probabilities. The evidence on which the Tribunal relied in finding that Dr Sparke said to Dr Dutt, "You bloody Indian, you bloody black. I will sack you and I know how to do it" was as follows: - Dr Dutt wrote to Dr de Carvalho on the same day alleging that Dr Sparke had said those words; - While Dr Sparke denied using any threatening words or any racially discriminatory language, he did not explicitly deny, at the time, saying the words attributed to him. He did deny saying those words when giving evidence to the Tribunal; - No witnesses heard the words that passed between Dr Dutt and Dr Sparke; - Both Dr Dutt and Dr Sparke were consistent in their respective accounts of what had been said; - Contrary to Dr Dutt's evidence, the Tribunal found that Dr Dutt did raise his voice during the conversation and that Dr Sparke spoke forcefully, in a stronger voice than his more usually subdued one; - Any inconsistencies between the evidence of the participants as to the level of their voice and the findings of the Tribunal do not adversely reflect on their credit; - Dr Sparke's denial of the comments is the only occasion on which there is evidence at direct odds with an account of an event given by Dr Dutt; - Dr Dutt has not made any allegation that anyone on any other occasion said anything with explicit racial content; and - Dr Sparke's good character was not challenged. 22 The Tribunal's finding was based on direct, definite and consistent testimony from Dr Dutt together with circumstances which tended to support that evidence. The CCAHS submitted that the Tribunal erred by relying on evidence that Dr Dutt had not made any allegation that anyone on any other occasion said anything with explicit racial content. While that evidence has little probative value, we do not agree with the CCAHS's submission that this finding was the basis for the Tribunal's acceptance of Dr Dutt's evidence. The Tribunal listed numerous factors which made it reasonably satisfied that the allegation was proved. This evidence was sufficient for the Tribunal to make a finding "on the balance of probabilities" that Dr Sparke spoke the words set out above. 23 Even if the Tribunal had characterised the allegation in question as "serious" it would still have found the allegation proved. The Tribunal's finding was not based on circumstantial evidence or on "inexact proofs, indefinite testimony, or indirect inferences." (See Dixon J in Briginshaw at 362.) Consistently with the approach of Rich J in Briginshaw at 350, the Tribunal carefully weighed the testimony, closely examined the facts and was comfortably satisfied that it had reached both a correct and just conclusion. In those circumstances, the appeal is dismissed. Dr Dutt's appeal 24 A preliminary question arises in relation to this appeal as to whether the ground of appeal identifies or establishes a question of law. Section 113(2) of the ADT Act allows a party to appeal to an Appeal Panel of the Tribunal "on any question of law." With leave, the appeal may extend to a review of the merits of the appealable decision. The provision states that: (1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. (2) An appeal: (a) may be made on any question of law, and (b) with the leave of the Appeal Panel, may extend to a review of the merits of the appealable decision. 25 As a threshold question, the Appeal Panel must be satisfied that the appeal raises a question of law before giving leave to extend the appeal to a review of the merits (or factual findings) of the decision. The approach that the Tribunal has consistently adopted in relation to this issue was outlined by the Appeal Panel in Brandusoiu -v- Commissioner of Police [1999] NSWADTAP 8. The Appeal Panel said, at [4] that: It is necessary for the appellant, therefore, to identify possible errors in the reasoning of the decision under appeal. It would appear that at least an arguable question of law would need to be identified before any consideration could be given to permitting an extension of the appeal to allow consideration of the merits. It would not be proper to embark on a consideration of the merits where no error of law was established. 26 Adopting this approach in the present case, we must be able to at least identify an error of law, before considering whether leave should be given to extend the appeal to the merits of the decision. 27 Mr Coleman, representing Dr Dutt, submitted that the Tribunal fell into error because the damages were manifestly inadequate to compensate Dr Dutt for his loss. In Martin v Crimes Compensation Tribunal State of Victoria 91 A Crim R 301, the Full Court of the Victorian Court of Appeal considered the issue of whether an appeal against a decision of the Administrative Appeals Tribunal on the ground that the compensation awarded was manifestly inadequate raises a question of law. The Court (Brooking, Tadgell JJA and Hedigan AJA) held that an appeal on grounds of adequacy of compensation does not raise a question of law. 28 Mr Coleman submitted that the decision of the Full Court of the Federal Court in Hall and Ors v Sheiban Pty Ltd and Ors (1989) EOC 92,250, supports his submission that the Tribunal has erred in law. In that case, the Human Rights and Equal Opportunity Commission (HREOC) decided that the applicants had been sexually harassed but refused to award compensation. On appeal to the Federal Court, Lockhart J said, at p 77,397, that the basis for HREOC's refusal to award compensation was that "no reasonable woman could in the light of that conduct assert that she had suffered loss or damage in consequence of it." The Full Court found that this approach demonstrated an error of law. Wilcox J noted, at 77,415 that "The learned President found that each of the three applicants did suffer damage as a result of the conduct of Dr Sheiban. That being so, he erred in law in declining to make a determination that the respondents should pay to the respective applicants damages by way of compensation for that loss." 29 The decision in Hall and Ors v Sheiban Pty Ltd and Ors is distinguishable from the present case because the Tribunal in this case did award compensation after finding that Dr Dutt had suffered damage. The Tribunal found part of Dr Dutt's complaint substantiated and ordered the CCAHS to pay damages of $2000. The Tribunal stated that: The Tribunal has considered the circumstances in which the unlawful discriminatory conduct occurred, the evidence from Dr Dutt as to how the conduct affected him, and awards of damages in comparable cases (see for example Phillips v Aboriginal Legal Service (1996) EOC 92-704 where the conduct was similar but more serious). We have assessed the sum of $2,000 as an appropriate award of damages. 30 As this case is distinguishable from Hall and Ors v Sheiban Pty Ltd and Ors and given the clear authority in Martin v Crimes Compensation Tribunal State of Victoria, we find that a submission that the damages are manifestly inadequate does not raise a question of law. Consequently, we do not intend to grant leave for Dr Dutt's appeal to be extended to the merits of the decision and the appeal is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.