Sex Discrimination Act 1984 ss. 3, 5, 22, 55, 59, 65, 79.

Counsel for the Applicant: J Basten QC and Sylvia Winters

Solicitor for the Applicant: Inner City Legal Centre

and M J Leeming

Solicitor for the

1. The appeal be allowed.

2. The orders made on 15 December 1995 in the proceeding in the

Court numbered G444 of 1995 be set aside.

The complaint made to the Human Rights and Equal Opportunity

Commission by the late Alyschia Dibble did not lapse by reason

of her death.

3. The appellant's costs of the said proceeding and of the

appeal be paid by the said Commission.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JENKINSON J I agree in the orders proposed by Wilcox J, for the reasons which he has expressed.

WILCOX J The question at issue in this case is whether a complaint under the Sex Discrimination Act 1984 survives the death of the complainant. When the matter was before him, the President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, said that, despite its apparent simplicity, the question "is not without difficulty". The question arises because the drafter of the Act apparently overlooked the possibility of the death of a party during consideration of a complaint, and so neglected to make an express provision, one way or the other. A similar question arises under other Commonwealth human rights statutes, the Racial Discrimination Act 1975, the Disability Discrimination Act 1992 and the Privacy Act 1988, none of which contain a provision concerning the death of a party. However, if I am correct in thinking that the answer to the present problem depends upon the terms of the Sex Discrimination Act, that answer will not necessarily apply to other Acts.

2. The appellant, Lydia Stephenson, is the executrix of the late Alyschia Dibble. Ms Dibble was born in June 1944. In 1990 she was diagnosed as HIV antibody positive. According to a complaint made by Ms Dibble to the Human Rights and Equal Opportunity Commission ("the Commission"), she experienced a considerable downturn in her condition during 1993 and the early months of 1994. She was referred to Professor David Cooper of St Vincent's Hospital, Sydney. This hospital is conducted by St Vincent's Hospital Limited ("the hospital"), the second respondent to this appeal. According to the complaint, Professor Cooper told Ms Dibble about a clinical trial being undertaken by the hospital on HIV positive patients. It involved the use of a drug called proteas inhibitios. Professor Cooper said that no other treatment was available to Ms Dibble and asked her to attend tests to determine whether she was eligible to participate in the trial. She did so and was approved for participation. However, shortly afterwards, in June 1994, Professor Cooper told her that she was ineligible for the trial. The reason he gave was that she was still menstruating and therefore there was a risk of pregnancy. According to the complaint, Ms Dibble responded by stating that there was no risk of pregnancy as she had not engaged in sexual activity with men for many years. Additionally, she offered to undergo a tubal ligation. However, the hospital remained adamant and Ms Dibble was excluded from the trial.

3. On 23 November 1994, Ms Dibble lodged with the Commission a complaint against the second respondent. This was done pursuant to s.50(1) of the Sex Discrimination Act which reads:

"50(1) A complaint in writing alleging that a person has

done an act that is unlawful by virtue of a provision of Part II

may be lodged with the Commission by:

(a) a person aggrieved by the act, on that person's own behalf

or on behalf of that person and another person or other persons

aggrieved by the act;

(b) 2 or more persons aggrieved by the act, on their own behalf

or on behalf of themselves and another person or other persons

aggrieved by the act;

(c) a person or persons included in a class of persons

aggrieved by the act, on behalf of the persons included in that

class of persons; or

(d) a trade union of which a person or persons, or persons

included in a class of persons, aggrieved by the act is a member

or are members, on behalf of that person, those persons or

persons included in that class of persons, as the case may be."

4. In making the complaint, Ms Dibble apparently relied on s.22(1) of the Act:

"22.(1) It is unlawful for a person who, whether for

payment or not, provides goods or services, or makes facilities

available, to discriminate against another person on the ground

of the other person's sex, marital status or pregnancy or

potential pregnancy:

(a) by refusing to provide the other person with those goods or

services or to make those facilities available to the other

person;

(b) in the terms or conditions on which the first-mentioned

person provides the other person with those goods or services or

makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides

the other person with those goods or services or makes those

facilities available to the other person."

The concept of discrimination is relevantly described in s.5(1) of the Act:

"5(1) For the purposes of this Act, a person (in this

subsection referred to as the 'discriminator') discriminates

against another person (in this subsection referred to as the

'aggrieved person') on the ground of the sex of the aggrieved

persons if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of

the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of

the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably

than, in circumstances that are the same or are not materially

different, the discriminator treats or would treat a person of

the opposite sex."

5. Section 48(1)(a) of the Act confers on the Commission the function "to inquire into alleged infringements of Part II, and endeavour by conciliation to effect a settlement of the matters to which the alleged infringements relate". However, s.49 delegates this function to the Sex Discrimination Commissioner appointed under s.96 of the Act. Accordingly, the Sex Discrimination Commissioner took up Ms Dibble's complaint with the hospital. The hospital provided a detailed response on 20 January 1995 in which it said that Ms Dibble was excluded solely because of her child bearing capacity, that this was in accordance with the manufacturer's protocol relating to the tests and the manufacturer was not willing to allow departure from this protocol despite the hospital's request that it do so.

6. Ms Dibble supplied further information to the Sex Discrimination Commissioner. However, almost immediately thereafter, she became seriously ill. Believing that she had only two to three months to live, Ms Dibble asked that the matter be referred to a hearing. She died, on 5 March 1995, before this could be done. Her executrix, the present appellant, informed the Sex Discrimination Commissioner that she wished to pursue the matter. Accordingly, on 20 March 1995, the Sex Discrimination Commissioner referred the matter to the Commission.

7. At a hearing on 28 April 1995, Sir Ronald Wilson heard submissions, as a preliminary issue, on the question whether Ms Dibble's complaint had survived her death. On 29 May 1995 he determined it had not.

8. Sir Ronald commenced his discussion of the issue by referring to the common law. He said he found it "helpful to regard the institution of a personal civil action by a plaintiff as analogous to the lodgment of a complaint" under the Act. He noted the "basic rule of the common law" that a personal action dies with the person. He said "this rule applies to every personal right of action whether it has its origin in the common law or in statute". He observed that the operation of the rule may be modified or reversed by a relevant statutory provision but there was no provision in the Sex Discrimination Act dealing with survival of complaints.

9. After referring to authorities concerning the common law rule, Sir Ronald dealt with, and rejected, an argument by counsel for the executrix that s.2(1) of the Law Reform (Miscellaneous Provisions) Act 1944 (NSW) applied to the case by virtue of s.79 or s.80 of the Judiciary Act 1903. He then dealt with an argument based on provisions of the Sex Discrimination Act itself:

"Finally, it was argued by counsel for the estate of the

complainant that, on the proper construction of the SDA, the

Commission was obliged to continue with the inquiry. The

argument was based on s.59 of the SDA, which, so far as

material, provides that the Commission shall hold an inquiry

into each complaint referred to it unless the complainant

notifies the Commission that the complainant does not wish the

inquiry to continue. Furthermore, s.79 of the SDA, which

provides for the summary dismissal of a complaint, does not

refer to the death of the complainant as one of the reasons

authorising the Commission to take such a course.

Again, I am unable to accept the submission. Although s.59(1)

is mandatory in its terms, s.59(2) and other sections of the SDA

(ss.64 and 65) clearly contemplate the continued existence of

the complainant. The truth is that the Act is silent as to the

effect on a complaint of the death of the complainant. In my

opinion, the common law applies the principle by which the

lacuna may be filled." (Original emphasis)

10. Ms Stephenson decided to challenge Sir Ronald's view. She also wished to raise a natural justice issue concerning the handling of the preliminary issue. On 13 June 1995 she filed an application in this Court pursuant to the Administrative Decisions (Judicial Review) Act 1977 seeking orders that the Commission's decision on the preliminary issue be set aside and the matter remitted to it for reconsideration according to law. She named the Commission as first respondent to the application and the hospital as second respondent. The matter came before Beazley J, when the Commission appeared by counsel to contest the applicant's case. The hospital did not appear.

11. In a judgment dated 15 December 1995, Beazley J dismissed Ms Stephenson's claims. I need not refer to the natural justice issue; that was not pursued before us. In relation to the question whether a complaint survived the death of a complainant, her Honour delivered reasons that not only summarised the relevant provisions of the Sex Discrimination Act but also analysed the leading common law authorities about survival of personal actions. She referred to the remedies available to complainants under the Sex Discrimination Act but held it was inappropriate to apply "a remedies based test" for determining whether a complaint survives. She said:

"With a remedies based test, the survival of the complaint could

too easily depend upon the drafting of the claim. It would be a

simple task to draft a claim involving a non-personal remedy

regardless of the appropriateness of the remedy. It may not be

a simple task to determine that issue without a full hearing."

12. Having discarded a remedies based test, her Honour looked at the nature of a claim under the Act. She thought it was one of a personal nature and applied the common law principle expressed in the maxim actio personalis moritur cum persona (a personal action dies with the person).

13. In reaching this conclusion, Beazley J discussed a submission by the applicant's counsel that, "subject to any express words to the contrary in a statute, a statute based cause of action survives the death of the party in whom the cause of action was vested". Her Honour analysed the cases referred to by counsel in which the statutory cause of action had been held to survive and concluded that:

"they do not support the applicant's submission that a statutory

cause of action survives unless the statute provides otherwise.

In each case, the statutory right was analysed to determine its

nature. In each case it was characterised as falling into one

of the categories outside the actio personalis principle."

Beazley J also considered whether the Commission had power to terminate a complaint, other than by dismissing it under s.79 or s.81 of the Act. Section 79 authorises the Commission to dismiss a complaint, at any stage of an inquiry, if it is satisfied that it is frivolous, vexatious, misconceived, lacking in substance or that it relates to an act that is not unlawful under Part II of the Act. Section 81 refers to dismissal, on the merits, at the conclusion of an inquiry. She said:

"... I am of the opinion that a complaint is lacking in

substance within the meaning of s.79 if there is a reason of

substance which prevents the continuation of the complaint. At

the time that the matter came before the President for the

directions hearing, there was no complainant to continue the

complaint. I have found that the complaint did not survive the

death of a complainant. In my opinion, the absence of a

complainant, whether by death or any other reason, is a reason

of substance why the complaint cannot be continued and thus may

be terminated under s.79. Thus Sir Ronald was empowered to

dismiss the complaint under s.79."

14. Ms Stephenson appealed against that part of Beazley J's judgment that concerned the question whether Ms Dibble's complaint survived her death. Prior to the hearing of the appeal, the Commission notified the Court that it did not propose to contest the appeal. This attitude may have been the result of financial stringencies. If so, it was well understandable. However, as it appeared that the hospital, also, proposed not to participate in the argument, the Commission's decision offered the unattractive prospect of there being no contradictor of the appellant's arguments. Fortunately, this situation was averted by the Attorney-General deciding to seek leave to intervene in order to present arguments supporting the Commission's decision. The Court granted leave and had the benefit of argument on the point from the Solicitor-General, Dr Gavan Griffith QC, and Mr M J Leeming of counsel. Mr John Basten QC and Ms Sylvia Winters put the appellant's case.

15. Counsel for the appellant attacked the Commission's decision on three fronts. First, they argued that the President had misunderstood or misapplied the common law rule. They said the common law rule had no application to the circumstances of this case. Second, counsel contended that, if the common law rule had an application, it was overridden by s.2(1) of the Law Reform (Miscellaneous Provisions) Act which was made applicable to the case by s.79 or s.80 of the Judiciary Act. In that connection, they raised the question whether a "cause of action" arises under the Act upon the making of a complaint or only after a determination by the Commission that a particular complainant is entitled to compensation. Such a determination is enforceable by action in this Court: see s.83A of the Act as amended in 1995 following the decision of the High Court of Australia in Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 243. Counsel submitted that a cause of action arose when a complaint was lodged and that ss.79 and 80 of the Judiciary Act therefore applied to it even during the period before the Commission's determination. In relation to that last matter they relied, by way of analogy, on two High Court decisions concerning s.64 of the Judiciary Act: Maguire v Simpson [1977] HCA 63; (1977) 139 CLR 362 and Commonwealth of Australia v Evans Deakin Industries Limited [1986] HCA 51; (1986) 161 CLR 254.

16. Finally, counsel put an argument based directly upon the terms of the Sex Discrimination Act. They pointed out that s.52(1) of the Act provides that, where a complaint relating to an alleged unlawful act is made to the Commission under s.50, "the Commission shall notify the Commissioner accordingly and the Commissioner shall ... inquire into the act and endeavour, by conciliation, to effect a settlement of the matter to which the act relates". The "Commissioner", of course, is the Sex Discrimination Commissioner: see s.4. The Commissioner is empowered to require the production of documents (s.54) and to direct the attendance of relevant people (s.55(1)). Section 55(2) specifies who may be directed to attend:

"(2) Directions under subsection (1) to attend a conference

in relation to an act shall be given to:

(a) where a complaint was made to the Commission in relation to

that act - the complainant, or all the complainants, as the case

requires;

(b) the person who is alleged to have done the act; and

(c) any other person who, in the opinion of the Commissioner,

is likely to be able to provide information relevant to the

inquiry or whose presence at the conference is, in the opinion

of the Commissioner, likely to be conducive to the settlement of

the matter to which the act relates."

17. Section 57(1) sets out circumstances under which a matter must be referred to the Commission. They include the circumstance that caused the reference in the present case, "the Commissioner ... is of the opinion that the nature of a matter is such that it should be referred to the Commission": see s.57(1)(c).

18. Section 58 of the Act empowers the Minister to "refer any matter to the Commission for inquiry as a complaint under this Part". Section 59 is a provision upon which counsel for the appellant placed much reliance. It provides:

"59(1) Subject to subsection (2), the Commission shall hold

an inquiry into each complaint or matter referred to it under

subsection 52(5) or 57(1) or section 58.

(2) The Commission shall not hold, or shall discontinue, an

inquiry into a complaint or matter referred to it:

(a) in the case of a complaint or matter referred to it under

subsection 52(5) or 57(1) - if the complainant notifies the

Commission that the complainant does not wish the inquiry to be

held or to continue; or

(b) in the case of a matter referred to it under section 58 -

if the Minister notifies the Commission that the Minister does

not wish the inquiry to be held or to continue."

19. Section 62 permits the joinder of parties. Section 63 relates to notices and the parties' rights at an inquiry. Section 64 specifies the parties to an inquiry:

"64. The parties to an inquiry shall be the complainant, the

respondent, any person joined by the Commission as a party to

the inquiry and any person to whom the Commission grants leave

to appear as a party to the inquiry."

20. Section 65(1) provides that a "party to an inquiry ... shall appear personally", except in the case of a party that is a body of persons, corporate or unincorporate. Such a party must appear by an officer, employee or agent. Any party may, with the leave of the Commission, be represented by a solicitor or counsel or an agent.

21. The argument put by counsel for the appellant is that, in this case, there was a complaint under s.50(1) of the Act, triggering an obligation to inquire under s.52(1). The complaint was investigated by the Commissioner. She referred the matter to the Commission under s.57(1)(c), thus imposing two obligations upon the Commission. The first was a general obligation: to "hold an inquiry" into the complaint (s.59(1)). The second obligation qualified the first: not to hold, or to discontinue, an inquiry into a matter if (relevantly) "the complainant notifies the Commission that the complainant does not wish the inquiry to be held or to continue". Counsel's argument was that subs.(2) represents the only exception to the command of subs.(1); in all other cases, the Commission must hold an inquiry. They said the absence of an exception to the s.59(1) obligation, in the case of a deceased complainant, is an indication of a legislative intention that a complaint shall survive the death of a complainant.

22. Counsel for the Attorney-General submitted that the common law rule is irrelevant to the problem; the question whether a statutory complaint survives the death of the complainant depends upon the legislative intention discernible from the relevant statute. They said that the Sex Discrimination Act contains provisions that evince an intention that a complaint under that statute not survive the complainant's death. They relied, in particular, upon s.55(2) and s.65(1). It will be recalled that s.55(2) requires the Commissioner to direct the complainant, or all the complainants as the case may be, to attend a conciliation conference. How can this power be exercised, counsel asked, if the complainant has died? Section 65(1) makes a similar provision in relation to attendance at an inquiry. Except for a party that is a body of persons, each party to the inquiry must appear personally.

23. I accept the submission of counsel for the Attorney-General that the present issue must be resolved by reference to the terms of the Sex Discrimination Act. With respect to the contrary view of Sir Ronald Wilson and Beazley J, I do not think that common law rules are relevant to this case. Those rules were evolved by judges as necessary ancillaries to substantive common law principles, also evolved by the judges. They are meaningful only in relation to the common law actions to which they relate. Where a right of action is created by statute, guidance must be sought in the statute itself; a Parliament that creates a cause of action may ordain as it pleases in relation to the cause of action's survival on death of a party. And the same principle applies in relation to a statutory entitlement that falls short of constituting a "cause of action", as lawyers use that term, or a statutory proceeding.

24. If the common law rules are irrelevant, it follows that s.2(1) of the Law Reform (Miscellaneous Provisions) Act is also irrelevant. Additionally, I agree with Sir Ronald Wilson and Beazley J that, in any event, neither s.79 nor s.80 of the Judiciary Act would import this provision into this case. Section 79 provides that State and Territory laws "shall, except as otherwise provided by the Constitution or the law of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable". It is unnecessary to say other than that this provision does no more than make relevant State and Territory law binding on courts. The Commission is not a court.

25. Section 80 makes State and Territory laws available to fill gaps in Commonwealth law; but only by providing that such laws "govern all Courts exercising federal jurisdiction".

26. I turn to the critical question in the case: what inference should be drawn as to Parliament's intention in respect of survivorship. Although I put the matter in this way, there is no evidence that Parliament in fact had an intention about it. There is nothing in the Record of Debates about the matter. If those responsible for the form of the Bill had adverted to the subject, it is scarcely conceivable that they would have refrained from inserting an appropriate provision, one way or the other, or, at least, explaining to Parliament why this was not necessary. So the exercise is really one of determining what result best accords with the scope and purpose of the Act, as disclosed by the provisions that were inserted in it.

27. Considering the matter in this way, and although I agree with Sir Ronald Wilson that the question is "not without difficulty", I have formed the opinion that the better view is that a complaint survives the death of a party.

28. In considering the scope and purpose of the legislation, it is necessary to have regard to its objects, as stated in s.3:

"3. The objects of this Act are:

(a) to give effect to certain provisions of the Convention on

the Elimination of All Forms of Discrimination Against Women;

and

(b) to eliminate, so far as is possible, discrimination against

persons on the ground of sex, marital status or pregnancy in the

areas of work, accommodation, education, the provision of goods,

facilities and services, the disposal of land, the activities of

clubs and the administration of Commonwealth laws and programs;

and

(ba) to eliminate, so far as possible, discrimination involving

dismissal of employees on the ground of family responsibilities;

and

(c) to eliminate, so far as is possible, discrimination

involving sexual harassment in the workplace, in educational

institutions and in other areas of public activity; and

(d) to promote recognition and acceptance within the community

of the principle of the equality of men and women."

29. It is noteworthy that the objects are societal objects. Although the Act contains provisions that permit the recovery of compensation under some circumstances, this is not the primary purpose of the Act; it is directed towards the elimination of discrimination. An inquiry into a complaint may assist that purpose, notwithstanding the death of the complainant and whether or not it leads to a determination providing a personal remedy.

30. This case is a good example. As I understand the position, Ms Dibble's proposition was that the exclusion of a woman from the drug testing program on the ground of possible pregnancy was behaviour that was discriminatory and unlawful under the Act, especially when she was prepared to undergo a tubal litigation and thus render pregnancy virtually impossible. I express no opinion about the proposition; the facts have not yet been investigated. But it is obvious that its correctness is independent of the identity of the particular claimant or her continued life at the time of the determination. As Sir Ronald noted in his decision: "Given the objectives of the SDA, a hearing into a complaint like the present could still serve a useful public purpose in advancing those objectives notwithstanding that there could be no personal benefit to the claimant."

31. Secondly, although I appreciate the force of counsel's reliance on the terms of s.55(2) and s.65(1), in a sense the argument proves too much. If the argument is correct, where more than one person joins in making a single complaint, the death of any one of them brings the complaint to an end. It will be remembered that s.55(2) requires that "all the complainants" shall be directed to attend a conciliation conference. This must mean all the people who joined in making the single complaint. Similarly, each complainant is a party to the inquiry and is required by s.65(1) to appear personally.

32. Counsel for the Attorney-General pointed out that a private complaint is not the only way in which an inquiry may be generated. The Commission might instigate action under s.52(1)(b) or the Minister may refer a matter to the Commission under s.58. So the death of the complainant, or one of several complainants, does not necessarily mean that the act will escape investigation. I accept this but it does not eliminate the possibility of frustration of the statutory objects. If a complainant dies and the matter is revived by the Commission under s.52(1)(b), or the Minister under s.58, it is, in law, a new proceeding. The statutory procedure must be commenced afresh. Particularly where the original complaint had reached an advanced stage of investigation before the complainant died, a recommencement would involve wastage of time, effort and cost. It may require recalling witnesses, visiting upon them not only personal inconvenience but also the strain of repeating evidence about sensitive matters. And, there being no provision for the use at the second inquiry of the evidence taken from the complainant at the first, except by consent the second inquiry might be deprived of the evidence of the most important person in the case; and this notwithstanding that she or he was fully cross-examined at the first inquiry.

33. These factors combine to make it likely that second inquiries will be rare and, if instituted, relatively unsatisfactory. A rule that forces a choice between the dropping of a matter or a relatively unsatisfactory consideration of it, is not conducive to the attainment of the objects of the Act.

34. But the problem does not end there. The person who is alleged to have done the discriminatory act is also required by s.55(2) to attend the conciliation conference and is a party to the inquiry, and so bound by s.65(1) to appear personally. On the Attorney-General's argument, the death of that person would bring the complaint to an end. This would be so, even if the inquiry was nearly complete and irrespective of its likely result. The death of the respondent would not only prevent the Commission making a declaration about unlawfulness that may have considerable educative value for others, or making a determination that would provide compensation to the complainant payable out of the respondent's estate; it would also prevent the Commission making a decision that would clear the respondent's name. Some forms of discrimination cognisable under the Act, such as sexual harassment, may involve serious allegations distressing to a respondent's family and damaging to his or her reputation. Even if the respondent has died, it may be important to family members that the allegations be authoritatively rejected. It is no part of the objects of this legislation to allow unjustified allegations to retain credibility.

35. Finally, I am impressed by the appellant's argument concerning s.59. It seems to me that, in this section, Parliament addressed the circumstances under which it was permissible for the Commission not to hold an inquiry. The general rule is that propounded by subs. (1): subject to subs.(2), the Commission must hold an inquiry into a matter referred to it under s.57(1), amongst other provisions. The only exception to this is that provided by subs. (2) - where the complainant notifies the Commission that she or he does not wish the inquiry to be held or to continue. It is true that the inquiry may be summarily terminated under s.79, but only on one of the grounds specified in that section. They do not include the death of a party. They do include that the complaint is "lacking in substance". Beazley J thought this relevant, but only because she had already determined, by reference to common law rules, that a complaint did not survive the death of a complainant; so this provided a "reason of substance why the complaint cannot be continued and thus may be terminated under s.79". If her determination of non-survivorship was wrong, there is no relevant reason of substance. Whilst the death of the complainant may create practical difficulties, especially if she or he has not yet given evidence, these difficulties will be no greater than those which courts routinely face when death removes a party or important witness. The absence of a party or witness does not derogate from the substance of the complaint.

36. The only substantial matters to be put against the considerations I have discussed are the mandatory terms of s.55(2) and s.65(1). I think those subsections indicate that the drafter assumed that the complainant would be alive and well and able to participate in the conciliation conference or inquiry. But it is another matter to say that an assumption of the complainant's availability indicates a legislative intention that, if the complainant dies, the complaint should also die. Imputation of that intention to Parliament would unduly and unnecessarily frustrate the realisation of the objects it set out to achieve.

37. The reasoning set out above is derived from my understanding of the scope and purpose of the Act and the practical consequences of adopting a particular view. It attempts to consider the matter objectively, eschewing speculation as to what (if any) subjective views members of the Parliament might have had when they enacted the legislation. In the nature of things, this is unknowable. However, it is, perhaps, a useful check on the cogency of the objective reasoning to stand back for a moment and ask whether the result is so out of line with general community opinion that it would have been rejected by Parliament, if the issue had arisen in debate. Considering the matter in this way, and only as a check on what has gone before, I do not think it is. Although the common law rule that applied to most actions was that the cause of action died with a party, that position has been statutorily reversed in modern times in most common law jurisdictions, including in Australia. The reasons that have caused so many legislatures to provide an opposite rule, that most actions survive the death of a party, are reasons that apply equally to a complaint under the Sex Discrimination Act. I see no reason to believe that, if the issue of survivorship had been raised when this legislation was under debate, Parliament would have taken a view different to that taken in respect of common law actions.

38. I would allow the appeal and set aside the order of Beazley J. So far as appears, Sir Ronald Wilson did not make a formal order dismissing the complaint; he simply treated it as having lapsed. Accordingly, there is no Commission order to be set aside. The appropriate order, as it seems to me, in lieu of that made by Beazley J is that it be declared that the complaint made to the Commission by Ms Dibble did not lapse by reason of her death. It may be assumed that this declaration will suffice to cause the Commission to conduct an inquiry. It could, if it thought proper, join Ms Stephenson as a party to the inquiry: see s. 62.

39. As the appellant has been successful in the litigation, it is only fair that she have an order for costs, both of the proceeding before Beazley J and of this appeal. It would be unfair to make that order against the hospital, which has taken no part in the litigation and was not responsible for the Commission's error. It is not unfair to make the order against the Commission, although it is unusual to require a first instance decision-maker to bear the costs of litigation challenging the correctness of its decision. And, as mentioned, financial stringencies may have caused the Commission not to contest the appeal. Although I think that, as a matter of fairness, the Court has no option but to make a costs order against the Commission, I express the hope that the Attorney-General will be able to arrange for the Government to take over the financial burden the order will impose.

EINFELD J I agree with the reasons for judgment of Justice Wilcox and the orders he proposes.