Mitchell v Clayton Utz

LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997

Trade Practices Commission v Arnotts Ltd (Not 2) 1989 88 ALR 90 at 103 AF v HealthQuest [2009] NSWADT AP 42 CASES CITED: Moylan v Nutrasweet [2000] NSWCA 337 Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174 Sourlos v Luv A Coffee Lismore Pty Limited [2007] NSWCA 203

APPLICANT In person REPRESENTATION: RESPONDENT M Byrnes, special counsel

ORDERS: 1. Approval is granted for the following summonses to be issued by the Tribunal:a) summons to give evidence to Dr E Dent;b) Summons to produce the following documents to Clayton Utz:(i) e-mails referred to in the respondent's letter to the Anti-Discrimination Board dated 23 December 2008 in which it was claimed that Jamie Taylor remembers possibly sending e-mails to other colleagues about the applicant's practice of changing in his office (ii) e-mail sent by Jamie Taylor and/or Garth Williams to the applicant referring to the applicants over coat or trenchcoat, c) summons to produce the following documents to St Vincent's Hospital:All medical records and file notes relating to the treatment of Michael Mitchell by Dr Clayton Smith, Dr Chester Omana and Dr Elizabeth Dent including a letter written by Dr Chester Omana dated 8/8/7, a note made by Dr Dent on or about 18, 19 or 20 July 2007, any record of the date and time of Mr Mitchell's appointment with Dr Dent on 18, 19 or 20 July 2006.2. Permission is granted for Dr Dent and Dr Reznek (if required) to give evidence by telephone.

1 Mr Mitchell is the applicant in proceedings against Clayton Utz and three of its employees. He alleges various breaches of the Anti-Discrimination Act 1977 (AD Act). Mr Mitchell has applied for several summonses to be issued and for two of his witnesses to give evidence by telephone. Each of the four respondents opposes those applications. The test to be applied for a summons to be issued is a broad one, that is, whether the oral evidence or documents sought are "apparently relevant" to the proceedings: Trade Practices Commission v Arnotts Ltd (Not 2) 1989 88 ALR 90 at 103 discussed in AF v HealthQuest [2009] NSWADT AP 42 at [52].

2 The Tribunal has power to issue a summons pursuant to s 84 of the Administrative Decisions Tribunal Act 1997 (ADT Act). Issue of summons 84 Issue of summons

(1) A summons for the purposes of this Act may be issued by the Registrar: (a) if the Registrar considers it appropriate to do so in the circumstances, on the application of a party to proceedings before the Tribunal, or (b) at the direction of the Tribunal. Note: The Registrar may refuse to issue a summons on the application of a party if the Registrar considers that it is not appropriate for a summons to be issued. (2) Any such summons must be signed by the Registrar or as otherwise provided by the rules of the Tribunal. (3) Any such summons may require a person to do any one or more of the following: (a) attend and give evidence, (b) attend and produce documents or other things. (4) A person who, without reasonable excuse, fails to comply with the requirements of a summons is guilty of an offence. Maximum penalty: 100 penalty units. (5) A summons may be served within or outside the State. (6) The Registrar may give directions with respect to access to documents or other things produced pursuant to a summons if no objection has been made to the summons. 3 The Tribunal has adopted a policy of requiring an applicant for a summons to complete an application for summons form. In accordance with the Tribunal's Summons Guideline, the applicant for summons must: (i) declare that he or she has asked the person to give the evidence or documents voluntarily and set out the person's response to that request or explain why they have not made that request; (ii) provide the name of the recipient of the summons; (iii) in the case of a documents summons, describe the documents sought; (iv) explain how the evidence or documents sought relate to an issue in dispute in the proceedings; and (v) post or deliver the application to the Tribunal

4 Mr Mitchell applied for the following summonses to be issued: a) a summons to give evidence to Mr Grant Fuzi b) a summons to give evidence to Dr Elizabeth Dent c) a summons to produce documents to Clayton Utz d) a summons to produce documents to St Vincent's Hospital; and e) a summons to give evidence to Mr Mitchell.

5 Mr Mitchell also applied to the Tribunal for permission for Dr Dent and Dr Rezek, his treating psychiatrist in Canada, to give evidence by telephone.

6 In mid June 2007, Mr Mitchell began working as a solicitor at Clayton Utz. His employment was terminated six weeks later and he went back to live in Canada where he still resides. Mr Mitchell has been diagnosed with bipolar disorder.

7 Following earlier interlocutory proceedings, the complaints that are currently before the Tribunal are: a) a complaint of disability discrimination against Clayton Utz relating to Ms Rutz' questioning of Mr Mitchell in meetings on 22 June 2007 and 19 July 2007 so far as those questions relate to Mr Mitchell's medical history and medical treatment;

b) a complaint of disability discrimination against Clayton Utz relating to the non-attendance of a third party at a meeting with Ms Rutz on 19 July 2007;

c) complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for: (i) allegations that Mr Williams or Mr Taylor called Mr Mitchell 'trench' or 'trench coat' unless that conduct was accompanied by conduct of a sexual nature; (ii) the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex' d) a complaint of victimisation against Ms Rutz and against Clayton Utz as her employer.

8 Mr Mitchell states in his letter of 15 May 2010 that, "I assume that if I give evidence regarding the issue in my witness statement (and explain the relevance in my points of claim) and the respondents do not call witnesses to contradict it, then the Tribunal will interpret that decision by the respondent firm accordingly." If Mr Mitchell is suggesting that the Tribunal will, as a matter of course, make findings in accordance with uncontradicted evidence, that assumption is incorrect. Findings are made on the basis of all relevant factors including internal consistency of the evidence, credibility of the witness, concessions made in cross examination and the inherent likelihood of the version of events being presented. The lack of contrary evidence is merely one factor that the Tribunal would take into account in deciding whether to make findings consistent with particular evidence.

9 Secondly, Mr Mitchell applied for the Tribunal to issue a summons to himself to give evidence. He said that that request was made so that any current or future employer would appreciate that he has an obligation "under penalty of the law" to attend the hearing in Sydney on particular dates. Mr Mitchell has made this complaint and he is the applicant in the proceedings. The Tribunal does not issue summonses requiring applicants to attend and give evidence in their own case.

10 Mr Mitchell says that Mr Fuzi's evidence is required to establish that the reason for the termination of his employment. The respondents submitted because the termination of employment is not the subject of a complaint, Mr Fuzi's evidence is irrelevant. Mr Mitchell says that the evidence is relevant to three matters: a) damages b) proving sexual harassment c) avoiding hearsay.

11 Section 108 of the AD Act allows the Tribunal to award damages if the complaint is substantiated. Section 108(2)(a) provides that: (2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following: (a) except in respect of a matter referred to the Tribunal under section 95 (2), order the respondent to pay the complainant damages not exceeding $100,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct, 12 In relation to damages, Mr Mitchell says that in assessing damages the question is whether the respondent's breach has "materially contributed" to the loss or damage suffered: Commissioner of Police, NSW Police Service v Mooney (No 3) [2004] NSWADTAP 22 at [31]. Relying on this proposition, Mr Mitchell submitted that even though the act of terminating his employment is not conduct which forms part of his complaint, the reason for that termination is relevant because if the termination flowed from allegations of sexual harassment against him then he engaged in that conduct because he had previously been subjected to sexually harassing behaviour himself.

13 In his statement filed on 27 May 2010, Mr Mitchell says: I am giving this evidence and pursuing this complaint for the purpose of obtaining a finding from the Tribunal that I was sexually harassed and discriminated against . . . on the basis of disability at Clayton Utz, and that these events materially contributed to the loss of my employment at the Respondent firm and irreversible harm to my career as a lawyer, as well as significant mental and emotional harm.

14 Mr Mitchell states in a letter to the Tribunal dated 23 June 2010, that he is no longer seeking financial compensation for his complaints. That statement is reflected in the fact that his Points of Claim do not specify that he is claiming an amount of monetary compensation. He adds in the letter that he still wants the Tribunal to make a finding that there is the necessary connection between the sexual harassment and disability discrimination to which he says he has been subjected and the financial harm he says he has suffered.

15 With respect, Mr Mitchell has misunderstood the powers of the Tribunal. If the Tribunal finds, pursuant to section 108(1)(b) of the AD Act, that the complaints are substantiated in whole or in part, it may make any of the orders listed in section 108(2). Since Mr Mitchell is not seeking an order for compensation for any loss or damage pursuant to s 108(2)(a), the Tribunal will not determine whether any such loss or damage was suffered 'by reason of the respondent's conduct'. The Tribunal does not make hypothetical findings about whether compensation for loss or damage would have been awarded had such compensation had been claimed. That fact makes any evidence about loss or damage entirely irrelevant including evidence that Mr Fuzi may give about the reasons for the termination of Mr Mitchell's employment.

16 The second basis on which Mr Mitchell submitted that Mr Fuzi should be summonsed was that he could give evidence relevant to 'proving the sexual harassment'. Mr Mitchell's reasoning was that because Mr Fuzi did not terminate him for serious misconduct it can be inferred that the respondent accepted his explanation that he was merely behaving in the same way that other employees had behaved towards him. According to Mr Mitchell, such a finding supports the credibility of his allegations and weakens the credibility of the respondent's denials. Contrary to Mr Mitchell's submission, the justification or reason for his behaviour towards other employees is not relevant to the questions of law and fact to be determined namely whether or not he was subjected to sexually harassing conduct.

17 Finally Mr Mitchell submitted that it was necessary for Mr Fuzi to give evidence to avoid the admission of hearsay evidence. He says that Mr Fuzi sent him an e-mail stating that the allegations of sexual harassment against him arose from statements he made in the final three weeks of his employment. According to Mr Mitchell this demonstrates that during the first three weeks of his employment he behaved appropriately. The change in his behaviour is relevant, he says, because the sexual harassment to which he was subject materially contributed to his own behaviour for which he was subsequently terminated. For the reasons already given, Mr Fuzi's evidence about the content of this e-mail is irrelevant to any issue in dispute in his proceedings.

18 Mr Mitchell had an appointment with Dr Dent on or about 20 July 2007 during which he says he told Dr Dent that Ms Rutz had asked him questions about his future medication regime and other questions about his disability. Mr Mitchell says that Dr Dent's evidence is relevant because it establishes that he made the allegations about Ms Rutz' conduct to a third party soon after that conduct had occurred. He says that this goes to his credibility. The respondents submitted that any evidence given by Dr Dent would be hearsay and of no relevance to the proceedings. As the respondents have acknowledged, the Tribunal is not bound by the rules of evidence: ADT Act, s 73(2). It may accept evidence that would otherwise be excluded by evidentiary rules as long as that evidence is relevant and probative. Dr Dent's evidence is apparently relevant to an issue to be determined in the proceedings namely whether or not statements alleged to have been made by Ms Rutz were in fact made. The Tribunal may exercise its discretion to admit evidence of the conversation that Mr Mitchell had with Dr Dent in relation to those statements.

19 Mr Mitchell proposed that Dr Dent be permitted to give evidence by phone if she was not in Sydney during the hearing. According to Mr Mitchell, Dr Dent had been residing in the Northern Territory but he did not know whether she had any intentions of returning to Sydney. As to the question of whether the Tribunal would be disadvantaged in assessing Dr Dent's credibility if she gave evidence by phone, Mr Mitchell said that that consideration should go only to the weight the Tribunal would give to that evidence, not to the question of whether telephone evidence should be allowed at all.

20 If Dr Dent is not planning to be in Sydney during the hearing the Tribunal agrees to take her evidence by phone. It does not appear as if there will be any issue requiring expert evidence apart from the nature of Mr Mitchell's disability. Dr Dent's evidence in relation to the events which Mr Mitchell conveyed to her would not be expert evidence. The demeanour of a witness is not as critical as once thought in determining the credibility of a witness: Moylan v Nutrasweet [2000] NSWCA 337; Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174; Sourlos v Luv A Coffee Lismore Pty Limited [2007] NSWCA 203. Other considerations include the professional standing and qualifications of the doctor, her recollection of events and her response during cross examination. The Tribunal approves the issuing of a summons to attend and give evidence to Dr Dent and to her evidence being given by phone if she is not in Sydney during the hearing.

21 Mr Mitchell applied for the Tribunal to approve the issuing of a summons to produce documents to Clayton Utz. The documents sought were: (a) the sexual harassment complaints made against the applicant together with the written material submitted with those complaints (b) documents generated during the investigation of the complaints (c) e-mails referred to in the respondent's letter to the Anti-Discrimination Board dated 23 December 2008 in which it was claimed that Jamie Taylor remembers possibly sending e-mails to other colleagues about the applicant's practice of changing in his office (d) e-mail sent by Jamie Taylor and/or Garth Williams to the applicant referring to the applicants over coat or trenchcoat, (e) any documents that state the reasons why Clayton Utz terminated the applicant's employment.

22 For the reasons given above, the documents described at (a), (b) and (e) are not 'apparently relevant'. In relation to the e-mails the respondents submitted that they relate to issues that the Tribunal has refused leave for the applicant to pursue. The Tribunal has ordered that Mr Mitchell's complaints do not include allegations that Mr Williams or Mr Taylor called Mr Mitchell "trench" or "trench coat" unless that conduct was accompanied by conduct of a sexual nature. According to Clayton Utz, there is no suggestion that either of the e-mails, if sent, include conduct of a sexual nature and accordingly they will have no bearing on the question of whether Mr Taylor or Mr Williams sexually harassed Mr Mitchell. With respect, whether or not Mr Mitchell has suggested that the emails contain conduct of a sexual nature, they are "apparently relevant" to the question of whether Mr Williams or Mr Taylor sexually harassed Mr Mitchell. If the emails do not advance Mr Mitchell's case he may choose not to tender them in evidence but they are nevertheless "apparently relevant" to his sexual harassment complaint. The Tribunal approves the issuing of a summons to Clayton Utz in the terms expressed at paragraphs (c) and (d) above.

Summons to produce documents to St Vincent's Hospital

23 Mr Mitchell wishes to issue a summons to produce documents to St Vincent's Hospital to produce all medical records and notes relating to his treatment by Dr Clayton Smith, Dr Chester Omana and Dr Elizabeth Dent. In particular Mr Mitchell requests that these documents include a letter written by Dr Omana dated 8/8/7 and notes made by Dr Dent in relation to a meeting between her and Mr Mitchell at or around 18, 19 or 20 July 2007. For reasons we have already given, documents created by Dr Dent are apparently relevant. While the respondents acknowledged that Dr Omana may be summonsed to give evidence that Mr Mitchell suffers from a disability they submitted that there is no utility in seeking the production of documents from St Vincent's Hospital if they would serve no purpose other than to repeat evidence that Dr Omana may give in person.

24 Since one of Mr Mitchell's complaints is a complaint of disability discrimination the evidence of his treating doctors is apparently relevant in the proceedings and I approve the issuing of the summons.

25 Dr Reznek, Mr Mitchell's current treating psychiatrist, resides in Canada. Mr Mitchell has applied to the Tribunal for permission for him to give evidence by phone. According to the respondents since Mr Mitchell did not consult Dr Reznek until January 2010, his evidence can be of little or no assistance in relation to events which occurred in 2007. Mr Mitchell says that the relevance is that Dr Rezek is an expert witness who could assess the medical records at the relevant time and together with his own examination of Mr Mitchell and give evidence about the symptoms he was experiencing at that time. If Dr Reznek's evidence relates to the nature of his disability at the relevant time (based on medical records) then his evidence is relevant. It is obviously impracticable for Dr Reznek to give evidence in person and I approve Mr Mitchell's application for him to give evidence by phone as long as a statement or report of his evidence is provided in advance. I note that if Mr Mitchell tenders the report of Dr Omana dated 8/8/7 to the effect that he suffered from bipolar affective disorder and the respondents do not deny that Mr Mitchell had that disability at the time, then there may be no need for Dr Reznek or Dr Omana to give evidence. The respondents should clarify whether or not that is the situation if they have not already done so.

1. Approval is granted for the following summonses to be issued by the Tribunal:

a) summons to give evidence to Dr E Dent; b) summons to produce the following documents to Clayton Utz:

(i) e-mails referred to in the respondent's letter to the Anti-Discrimination Board dated 23 December 2008 in which it was claimed that Jamie Taylor remembers possibly sending e-mails to other colleagues about the applicant's practice of changing in his office (ii) e-mail sent by Jamie Taylor and/or Garth Williams to the applicant referring to the applicants over coat or trenchcoat,

c) summons to produce the following documents to St Vincent's Hospital: All medical records and file notes relating to the treatment of Michael Mitchell by Dr Clayton Smith, Dr Chester Omana and Dr Elizabeth Dent including a letter written by Dr Chester Omana dated 8/8/7, a note made by Dr Dent on or about 18, 19 or 20 July 2007, any record of the date and time of Mr Mitchell's appointment with Dr Dent on 18, 19 or 20 July 20062. 2. Permission is granted for Dr Dent and Dr Reznek (if required) to give evidence by telephone.

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