Kowalski v Domestic Violence Crisis Service Inc. - [2001] FCA 1082 - FCA 2001 case summary — Zoe

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Kowalski v Domestic Violence Crisis Service Inc.

[2001] FCA 1082

Federal Court of Australia|2001-08-10|Before: Madgwick J

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Source facts

Court

Federal Court of Australia

Decision date

2001-08-10

Before

Madgwick J

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

REASONS FOR JUDGMENT HIS HONOUR: 1 This is an application for judicial review of a decision of the second respondent, the Human Rights and Equal Opportunity Commission ("the Commission"), constituted by Commissioner Innes given on 26 July 2000. The application invokes ss 5(1)(d) to (j), 5(2)(f) and (g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act). The Commission dismissed the applicant's claim that his application to the Commission against the first respondent, the Domestic Violence Crises Service Inc ("the DVCS"), be taken as terminated pursuant to s 12(2) of the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth) ("the HRLA Act"). 2 The applicant seeks orders from this Court setting aside the decision of the Commission and directing the President of the Commission to notify the applicant in writing of the termination of the complaint as provided for by s 14 of the HRLA Act. He also seeks a rehearing of his complaint and claim for compensation in this Court.

[2]

Factual background 3 This matter has an unfortunate and protracted history in the Commission. The applicant's complaint to the Commission had its genesis in events occurring 11 years ago. Following some discord between the applicant and his wife, two offers from the DVCS attended at the applicant's home on 6 February 1990 and spoke to the applicant briefly, but principally to his wife. The applicant then telephoned the DVCS for assistance on 7 February 1990. The applicant alleges that the officers treated him less favourably on both occasions than they would have treated a person of the opposite sex in similar circumstances. On 22 February 1994, the applicant made a complaint to the Commission under the Sex Discrimination Act 1984 (Cth) ("the SD Act"), as then operative, against the DVCS. This complaint was referred by the Sex Discrimination Commissioner to the Commission for inquiry pursuant to s 57(1) of the SD Act. 4 When the matter came before the Commission, constituted by Commissioner Dodson, issue was taken by the DVCS as to the Commission's jurisdiction. Commissioner Dodson determined that the Commission had jurisdiction to hear the complaint, pursuant to s 9(7) of the SD Act prior to its amendment by the Law and Justice Legislation Amendment Act 1990 (Cth). This decision was affirmed by Finn J on 2 May 1997, and his Honour remitted the matter back to the Commission for further hearing: see ACT Domestic Violence Crisis Service Inc v Stan Lech Kowalski & Anor [1997] FCA 337. The matter was further heard by the Commission and on 20 January 1998 the Commission dismissed the complaint made by the applicant under s 81(1)(a) of the SD Act, essentially because the Commissioner took the view that "whilst [the applicant] was treated less favourably by the DVCS, he was not so treated because of his gender or marital status". 5 The applicant sought judicial review of the Commission's decision under the ADJR Act. On 16 June 1999, Finn J held that the Commission had "improperly exercised its power in that it failed to take into account a consideration which in the circumstances, it was obliged to consider". Accordingly his Honour allowed the application, set aside the decision of the Commission and remitted the matter back to the Commission for further consideration: see K v Domestic Violence Crisis Service Inc [1999] FCA 794.

[5]

(i) the President is satisfied that there is no reasonable prospect of the matter being settled by conciliation (2) If the President decided to terminate a complaint, the President must notify the complainants in writing of that decision and of the reasons for that decision. … 46PO(1) If: (a) a complaint has been terminated by the President under s 46PE or 46PH; and (b) the President has given a notice to any person under subsection 46PH(2) in relation to the termination; any person who was an affected person in relation to the complaint may make an application to the Federal Court or the Federal Magistrates Court, alleging unlawful discrimination by one or more of the respondents to the terminated complaint. (2) The application must be made within 28 days after the date of issue of the notice under subsection 46PH(2), or within such further time as the court concerned allows. (3) The unlawful discrimination alleged in the application: (a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or (b) must arise out of the same (or substantially the same) acts, omissions or practice that were the subject of the terminated complaint." 9 The HRLA Act commenced on 13 April 2000. Sections 11-13 provided: "11(1) A complaint is treated in the way set out in subsection (2) if (a) before the starting day, the President made a decision in relation to the complaint under: (i) section 101 of the old DDA; or (ii) section 24AA of the old RDA; or (iii) section 52A of the old SDA; and (b) on or after the starting day, the Court makes an order under the Administrative Decisions (Judicial Review) Act 1977 to refer the matter to which the decision relates to the Commission for further consideration. (2) On the day the order is made, the President is taken to have terminated the complaint under s 46PH of the new HREOCA. Note:The President is required to give a notice of termination of the complaint under section 14 of this Act. 12 (1) A complaint is treated in the way set out in subsection (2) if, before the starting day: (a) the appropriate Commissioner referred the complaint to the Commission; and (b) a holding of an inquiry into the complaint had not started under the old DDA, old RDA or old SDA; and (c) the complaint had not been withdrawn under whichever of the following sections is applicable: (i) section 79 of the old DDA; (ii) section 25A of the old RDA; (iii) section 59 of the old SDA. (2) On the starting day, the President is taken to have terminated the complaint under s 46PH of the new HREOCA. Note: The President is required to give a notice of termination of the complaint under section 14 of this Act. s.13 (1) A complaint is treated in the way set out in subsection (2) if, before the starting day: (a) a holding of an inquiry into the complaint had started under the old DDA, old RDA or old SDA; and (b) the complaint had not been withdrawn under whichever of the following sections is applicable: (i) section 79 of the old DDA; (ii) section 25A of the old RDA; (iii) section 59 of the old SDA. (2) The amendments made by Schedule 1 to this Act do not apply in relation to the complaint." 10 Section 8 of the Acts Interpretation Act 1901 (Cth) ("the AI Act") provides: "Where an Act repeals in the whole or in part a former Act, then unless the contrary intention appears the repeal shall not: … (c) affect any right privilege obligation or liability acquired accrued or incurred under any Act so repealed; or (d) affect any penalty forfeiture or punishment incurred in respect of any offence committed against any Act so repealed; or (e) affect any investigation legal proceeding or remedy in respect of any such right privilege obligation liability penalty forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted continued or enforced, and any such penalty forfeiture or punishment may be imposed, as if the repealing Act had not been passed." 11 The paragraphs of s 5 of the ADJR Act that the applicant relies on in his application are: "(1) A person who is aggrieved by a decision to which this Act applies that is made after the commencement of this Act may apply to the Federal Court or the Federal Magistrates Court for an order of review in respect of the decision on any one or more of the following grounds:

[10]

· Thirdly, the Commissioner's decision involved an error of law because it was based upon an incorrect understanding of the application and effect of the orders made by Finn J remitting the applicant's complaint back to the Commission for rehearing. As to this ground, the application stated that Finn J's orders affected the status of the applicant's complaint to the Commission under ss 12(1) and 13(1) of the HRLA Act in relation to the "holding of an inquiry" and/or Finn J's orders affected the status of the referring body under s 12(1)(a) of the HRLA Act; and · Finally, the Commisson's refusal of the applicant's request for the President of the Commission to issue a terminating certificate under s 46PH of the HREOCA upon the grounds provided for by s 46PH(1) was: - so unreasonable in the circumstances that no reasonable body would have exercised the power in that way; and/or - a decision made without sufficient regard to the merits of the case; and/or - involved an error of law as to the entitlement of the President of the Commission to issue the certificate under that section. 14 The DVCS relied upon the submissions of the Commission filed pursuant to directions made by Finn J on 26 October 2000. The respondents submitted that s 11 of the HRLA Act specifies the procedure to be followed for matters that were the subject of a decision by the President and are remitted to the Commission on or after 13 April 2000. By contrast, the absence of any such transitional provision in relation to the remittal by this Court of matters before or after 13 April 2000 that have been the subject of public inquiry or the remittal by this Court of matters before 13 April 2000 that have been determined by the President indicates that the HRLA Act does not deal with remittal in these situations. The absence of any reference in ss 12 and 13 to circumstances where there is a remittal by this Court pursuant to the provisions of the ADJR Act suggests that it is not possible to read those provisions as addressing the situation of remitter. Accordingly, it was submitted that s 8 of the AI Act needed to be applied and was correctly applied by the Commissioner. 15 This interpretation, it was submitted, is confirmed by the enactment of the Human Rights Legislation (Transitional) Regulations 2000 ("the Regulations"), which commenced on 16 November 2000. The Regulations address the issue of what is to happen where a decision of the Commission is remitted back to the Commission by the Court under the ADJR Act and apply prospectively. Regulation 4 provides that such complaints are taken to be terminated by the President under s 46PH of the HREOCA, allowing an application to be brought to this Court. It was submitted that the Regulations, in providing for the deemed termination of complaints remitted under the ADJR Act, confirm that neither s 12 or any other section in the HRLA Act dealt with that situation. 16 The effect of the application of s 8 of the AI Act, according to the respondents, is that the Commission is obliged to hear the applicant's complaint as remitted to it by Finn J in accordance with the SD Act in it unamended form. The respondent's submissions were based on the fact that a public inquiry had been commenced and the remittal by Finn J did not alter that fact.

[12]

The Complainant is to file with the Commission and serve on the Respondent the Statement of Facts and Contentions on or before Friday, 14 April 2000. 3. The Respondent is to file with the Commission and serve on the Complainant the Statement of Facts and Contentions in reply on or before Friday, 12 May 2000. … 2. The transcript of evidence in respect of that witness [which the parties intend to call] in the earlier proceedings shall constitute the evidence in chief of that witness." (emphasis added) 19 A number of things can be drawn from these directions. Firstly, although Commissioner Innes intended to limit his inquiry to the narrow issue, which Finn J found had not been lawfully dealt with by Commissioner Dodson, this was merely the expression of an intention that did not bind Commissioner Innes in any way and did not foreclose the possibility of his considering the applicant's complaint more broadly. Secondly, the direction that parties file respective Statements of Facts and Contentions, in my opinion, supports the view that the holding of an inquiry had not commenced: there can hardly be an inquiry before the issues to be inquired into are defined. The direction that the transcript of evidence in respect of witnesses that had previously given evidence would be used as their evidence in chief was, with respect, a sensible time and cost-saving procedure but carries no implication that, in giving it, Commissioner Innes had commenced the inquiry itself. It may be tested this way: nothing Commissioner Innes had done would have prevented the re-assignment of the complaint, for administrative reasons, to another Commissioner. However, if a particular Commissioner had commenced an inquiry and was ready and available to continue it, the part heard inquiry could not be assigned to another Commissioner. 20 In my opinion, Commissioner Innes was in the process of preparing for a new inquiry into the applicant's complaint, but he had not commenced that inquiry. Although there already had been an inquiry by Commissioner Dodson, his departure and Finn J's setting aside of the determination meant that that inquiry could never issue in a determination. As of 13 April 2000 the position was, therefore, that an inquiry needed to be commenced, notwithstanding that there had been an earlier inquiry which had come to nothing and that Commissioner Innes had given certain preliminary directions.

[15]

McHugh JA then set out the pre-conditions for a court reading words into a statute: "First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect." 25 The course of later judicial authority does not diminish the force and weight of this approach: see Leah v Secretary, Department of Employment, Education, Training and Youth Affairs (1998) 86 FCR 230 at 234-235, Transport Action Group Against Motorways Inc v Road and Traffic Authority & Anor (1999) 46 NSWLR 598 per Mason P at 627 and Pyramid Building Society (In Liq) v Terry (1997) 189 CLR 176 per McHugh J at 195-196. 26 The HRLA Act and specifically the transitional provisions were introduced as a result of the decision in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, which held that the enforcement provisions of the Racial Discrimination Act 1975 (Cth) were unconstitutional because the Commission, as an administrative body, could not make a final determination of parties rights. The ratio of that decision applied to the SD Act, Disability Discrimination Act 1992 (Cth) and the Privacy Act 1988 (Cth). 27 The first of the conditions set out by McHugh JA, the purpose of the HRLA Act, is ascertainable from the parliamentary second reading speech on the Human Rights Legislation Amendment Bill (No.1) 1999, which took place on 22 March 1999: "The first major reform introduced by this bill is the Government's response to the High Court's decision in Brandy v The Human Rights and Equal Opportunity Commission (1995) 127 ALR 1. … The bill therefore proposes to maintain the Commission's conciliation role, but to provide the parties with direct access to the Federal Court should conciliation prove unsuccessful. This will enable the parties to obtain a timely and enforceable determination of their respective rights." (emphasis added) The general purpose of the legislature included enabling the parties to complaints of discrimination to have their rights enforcably determined, something that the Commission was constitutionally unable to do. The exception to this policy, implicit in s 12 and made express by s 13 was, in my opinion, based on considerations of efficiency: if an inquiry into a complaint had already begun, then it would not be efficient to have wasted the time and resources of the Commission by not concluding it. Even an unenforceable determination may impact on the way in which the parties deal with each other. McHugh JA's second and third conditions are also satisfied. I have little doubt that those who framed the legislation failed to advert to the possibility that the Federal Court would remit a matter for further hearing by a Commissioner who became unavailable to conclude the inquiry. I feel quite certain that, had Parliament considered this prospect, it would have included words that would plainly have put such a case within the purview of s 12. 28 In that circumstance, the justification for keeping that complaint within the Commission's jurisdiction, rather than having it terminated so as to allow the parties to come to this Court, is not present. 29 Accordingly, for these reasons Commissioner Innes erred and an error of law has been established under s 5(1)(d) of the ADJR Act. This finding makes it unnecessary to consider the applicant's alternate grounds for review.

Kowalski v Domestic Violence Crisis Service Inc.

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