French v Sydney Turf Club Ltd

Introduction 1 This is an appeal against a decision of the Tribunal in which Ms French's complaint of disability discrimination was dismissed. The basis for the dismissal was that while certain conduct of the Sydney Turf Club Ltd (STC) discriminated against Ms French on the ground of her disability, the STC had a defence to that discrimination. The defence was that pursuant to s 54(1)(a) of the Anti-Discrimination Act 1977 (AD Act), the STC discriminated against Ms French in order to comply with a requirement of the Occupational Health and Safety Act 1983 (OH&S Act). Section 54(1)(a) states that "Nothing in this Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of any other Act, whether passed before or after this Act." The requirement relied on was the requirement in s 15(1) of the OH & S Act to "ensure the health, safety and welfare at work of all... employees." 2 The hearing before the Tribunal took place over two days on 6 March 2001 and 4 May 2001. At the end of the 4 May hearing, the judicial member told the parties that "We obviously need time to consider this and the registry will notify you when we've reached our decision." Although the Tribunal clearly contemplated that the proceedings had been completed, the Tribunal heard an application by Ms French on 12 February 2002 for leave to re-open her case so that further evidence could be tendered. That application was refused in a separate decision, French -v- Sydney Turf Club Ltd [2002] NSWADT 24. Ms French did not appeal against that decision. Jurisdiction 3 The power of the Appeal Panel to hear this matter is found in s 113 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Section 113 of the ADT Act 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. (3) An appeal must be made: (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow. (4) An appeal is to be made in the manner prescribed by the rules of the Tribunal. 4 Ms French applied for leave to extend the appeal to the merits of the decision. The approach that the Tribunal has consistently adopted in relation to such an application 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. 5 We have adopted this approach in the present case. Tribunal's decision 6 The background to these proceedings was set out in French -v- Sydney Turf Club Ltd [2002] NSWADT 24 and in French v Sydney Turf Club Ltd [2002] NSWADT 98. In summary, Ms French commenced employment with the STC as a casual bar attendant in 1972. On 10 September 1988, she suffered a work related accident resulting in injury to her back and right leg. At the time, she was employed on full shifts of 7 - 8 hours on each day race meetings were held at Rosehill Gardens and Canterbury Park racecourses. 7 She was absent from work from 3 November 1988 to 24 June 1989, during which period she received workers compensation payments from GIO Australia ("GIO"), STC's workers compensation insurer. She returned to work on restricted hours of 4 hours per race meeting. Her requests to the STC Ltd to reinstate her for her pre-injury hours of work were declined. 8 Sometime prior to 16 November 1993, Ms French contracted a skin condition known as paronychia, affecting the long finger of her right hand particularly around the nail. She was off work by reason of the skin condition from 16 November 1993 to 13 June 1994. During this time, GIO made payments to her based on a 4 hour shift. 9 Eventually, Ms French was rostered back at work on 7 September 1994, still on a 4 hour shift. She continued to request that she be returned to full shifts. In September 1995, Ms French was involved in a motor vehicle accident. She broke her sternum and suffered other injuries to the left side of her body. She returned to work on 7 October 1995 on a 4 hour shift without experiencing any problems. However, after attending an insurance company doctor for a physical examination in relation to the motor vehicle accident, she aggravated her back injury and was unable to return to work until sometime early in 1996. 10 The Tribunal found that the STC discriminated against Ms French in contravention of s 49D(2)(a), (b) and (d) of the present Act and s 49B(2)(a)(b) and (c) of the former Act. By limiting Ms French's shift to 4 hours, the Tribunal found that STC had treated her less favourably than, in comparable circumstances, it treated or would treat a person who did not have her disability. 11 However, the Tribunal found that the STC had made out a defence based on s 54(1)(a) of the AD Act. The Tribunal's conclusions in relation to this finding appear at paragraphs 156 to 160 of the decision. Taking all the evidence and submissions into account, we find that, viewed objectively, Ms French could not safely work a full shift, either with or without the Respondent accommodating her physical restrictions. Clearly, by arranging for other employees to assist Ms French with those duties she was physically unable to perform, the risk to Ms French's safety would have been significantly reduced. However, consistent with the medical evidence, we find there would still have been some risk to her safety. We find that in order to rely on the defence provided for in s 54 of the Act, the Respondent was not under a positive duty to alter the required duties of a bar attendant, working a full shift, so as to ensure that Ms French did not engage in any heavy lifting, lifting loads from below thigh height, or frequent bending (as required by duties 1 - 4 in para 145 above). This conclusion is consistent with the views expressed by Abadee J in David Jones (Australia) Pty Ltd and the Court of Appeal in Jamal v Secretary, Department of Health and Anor (1988) 14 NSWLR 252 at 268 - 269. Consistent with McHugh J's observations in Waters , we are mindful of the need to adopt a restricted approach when determining whether the Respondent can successfully rely on the exemption provided for in s 54(1). Nonetheless, weighing up all the competing considerations, we find that the Respondent's conduct falls within the exemption. Accordingly, we propose to dismiss the complaint. Grounds of Appeal 12 Ms French represented herself in this appeal. She was advised by the presiding member during directions hearings that she needed to identify a question of law in accordance with s 113(2)(a) of the ADT Act. We acknowledge that people without legal training are at a disadvantage when attempting to identify a question of law. Ms French focused almost exclusively on the evidence. In addition she criticised the manner in which her solicitor and counsel ran her case and the evidence that was taken into account by the Tribunal. Ms French provided extensive oral and written submissions to the Appeal Panel but did not identify, with any particularity, the grounds of her appeal. Ms French agreed that the following five grounds summed up, in brief, several of the points she was attempting to make: 1. The evidence of Dr Patrick dated 7 July 1998 should not have been admitted into evidence and Ms French should not have been cross-examined in relation to that document. 2. No medical evidence in relation to paronychia of the finger should have been admitted and she should not have been cross-examined on the evidence. Those medical reports were not relevant to damages. 3. The occupational health and safety defence should not have been upheld because the respondent had been in breach of the OH&S Act on other occasions. 4. Ms French does not agree with numerous factual findings made by the Tribunal. In particular the Tribunal should not have accepted the whole of the evidence of Mrs Freebody and it should not have accepted the evidence of Mr Kenny particularly in relation to the job requirements. 5. The Tribunal did not acknowledge the pain and suffering Ms French has endured. 13 This is by no means a comprehensive summary of every point Ms French made in her written submission or orally before the Appeal Panel. We have taken all those submissions into account. Approach to identifying a question of law 14 Before addressing any of the grounds of appeal listed above, several points need to be made. Ms French was successful in satisfying the Tribunal that the STC had discriminated against her on the ground of her disability. The Tribunal's conclusion on this point was in Ms French's favour and there was no cross-appeal by the STC. Consequently any factual findings or legal principle which support the Tribunal's conclusion on the discrimination finding are not properly the subject of this appeal. 15 The Tribunal found that STC had discharged its onus of proving the exception in s 54 of the AD Act. (See s 109 of the AD Act.) The legal principles which the Tribunal relied on in coming to that conclusion and the factual findings if the appeal is extended to the merits, are properly the subject of this appeal. 16 We acknowledge that the distinction between a question of law and a question of fact is difficult to articulate and somewhat artificial. However, there is a considerable body of case law at both the state and federal levels, which has addressed and attempted to clarify this issue. The cases decided by the Supreme Court of New South Wales and the Court of Appeal, address the issue from the point of view of appeals to those courts on a question of law, from decisions of state Tribunals such as the former Equal Opportunity Tribunal (now a division of the ADT) and the former Workers Compensation Commission. The principles articulated in these decisions are directly relevant to and binding on the deliberations of the Appeal Panel because appeals to this Panel are similarly restricted, at least initially, to considering "questions of law." 17 The classic statement of the law on the difference between questions of law and questions of fact was made by the Court of Appeal in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 149. That decision has been applied consistently by the Supreme Court and the Court of Appeal since 1985 and is binding on the Appeal Panel. In the course of his judgment in Azzopardi, Glass JA with whom Samuels JA agreed, said at 155-156 that: To say of a finding that it is perverse, that it is contrary to the overwhelming weight of the evidence, that it is against the evidence and the weight of the evidence, that it ignores the probative force of the evidence which is all one way or that no reasonable person could have made it, is to say the same thing in different ways. Upon proof that the finding of a jury is vitiated in this way, it will be set aside because it is wrong in fact. Since the Act does not allow this Court to correct errors of fact, any argument that the finding of a Workers' Compensation Commission judge is vitiated in the same way discloses no error of law and will not constitute a valid ground of appeal. It is also pointless to submit that the reasoning by which the court arrived at a finding of fact was demonstrably unsound as this would not amount to an error of law: R v District Court of the Metropolitan District Holden at Sydney; Ex parte White (1966) 116 CLR 644 at 654. 18 When referring to the above passage in the case of Haines v Leves & Anor (1987) 8 NSWLR 442 Kirby P, as he then was, said, at 470, that: The findings and interpretation of the facts are matters reserved to the Tribunal below. Only if there is no evidence to support a finding, or if the ultimate finding of fact necessarily demonstrates a misdirection on the applicable statute may this Court offer relief, within its remit on questions of law. In Azzopardi I suggested that perversity and illogical reasoning could attract the jurisdiction of the Court. But this was a minority view. The majority opinion is the binding rule. It must be observed in this case. It provides the basis for the consideration of the appeal by this Court. 19 Ms French did not submit to the Tribunal that there was no evidence on which the Tribunal could base its findings of fact. She submitted that the Tribunal should have preferred the evidence on which she relied because the evidence on which the Tribunal relied was wrong. Appeal Panel's conclusions 20 Grounds 1, 2 and 4 set out at paragraph 12 above, are questions of fact. On that basis, there is no need for us to recite the appellant's submissions in relation to those grounds. Ground 5 is not a question of law. None of the other material submitted either verbally or in writing by Ms French identifies a question of law. 21 Ground 3 relates to the occupational health and safety defence. Whether or not the STC Ltd has been in breach of its occupational health and safety obligations at any time in the past is not relevant to the issue of whether it has made out the defence in this case. Occupational Health and Safety Defence 22 Ms French was unable to articulate a question of law in relation to the occupational health and safety defence. The question the Appeal Panel should ask itself is whether the Tribunal erred in concluding that it was necessary to restrict Ms French to shifts of four hours in order to comply with a requirement under s 15 of the OH&S Act. The question of whether "the facts fully found fall within the provision of a statutory enactment, properly construed, is generally a question of law." (Collector of Customs v Pozzolanic (1993) FCR 280 at 289.) 23 Mr Warren, representing STC took the Appeal Panel through the Tribunal's findings and reasoning in relation to the occupational health and safety defence. The Tribunal made the factual finding at paragraph 156 that "Ms French could not safely work a full shift, either with or without the respondent accommodating her physical restrictions." The Tribunal then applied relevant legal authorities, in particular State Transit Authority v Sloey & Anor [1999] NSWSC 47 (12 March 1999) and David Jones (Australia) Pty Limited v "P" and Anor (Matter No 30062/96 (29 August 1997). 24 We can detect no error of law with the Tribunal's reasoning or conclusion. In those circumstances, the appeal in relation to a question of law is dismissed and leave is not granted, pursuant to s 113(2)(b) of the ADT Act, to extend the appeal to a review of the merits of the decision. 25 Although the Appeal Panel foreshadowed to Ms French that costs may be awarded against her if she failed to identify a question of law, the STC did not apply for costs, and no costs order is made.

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