Patrick v The Martinez HWL Practice trust t/as HWL Ebsworth Lawyers

Statutory framework

1. Whether the power to amend the complaints can be exercised in this matter turns on the interrelationship between ss 103 and 89B(4) of the Act.
2. Section 103 of the Act states: 103 TRIBUNAL MAY AMEND COMPLAINT (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit.
3. Section 89B relevantly states: 89B ACCEPTANCE OR DECLINING OF COMPLAINTS BY THE PRESIDENT (1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part. (2) The President may decline a complaint if: … (b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or … (3) The President is to give notice of a decision to accept or decline a complaint to: (a) the person who made the complaint, and (b) if the respondent has been given notice of the complaint, the respondent, so far as is reasonably practicable, within 28 days after the decision is made. (4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal.
4. To put the arguments made by the parties in context, it is first necessary to examine the respective roles of the President and the Tribunal in relation to complaints made under the Act.
5. Contained in Part 9 of the Act which is headed "the Functions of the President, the Tribunal and the Board", s 87A provides that a complaint may be made by a person that another person (or persons) has contravened a provision of the Act. The complaint must be made in writing and lodged with the President but need not demonstrate a prima facie case or take any particular form: ss 89, 89A.
6. The President must determine whether or not a complaint is to be accepted or declined, in whole or in part: s 89B. The President may decline a complaint if the whole or part of the conduct complained of occurred more than 12 months before the making of a complaint: s 89B(2)(b). A decision made by the President to decline a complaint in whole or in part under s 89B(2) is not reviewable by the Tribunal: s 89B(4).
7. Where, as in this case, the President has accepted the whole or part of a complaint, and has endeavoured to resolve it by conciliation without success, he or she must refer the complaint to the Tribunal: s 93C(c) of the Act.
8. In the exercise of its general jurisdiction, the Tribunal must determine complaints referred by the President under the Act: s 29(1) and cl 3(1)(a) of Sch 3 to the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).

Did the President make a decision under s 89B(4) in respect of each complaint?

1. In April 2016, a delegate of the President wrote to each respondent and advised that Ms Patrick had lodged a complaint against them. In a letter dated 8 April 2016 addressed to Mr Martinez, the delegate wrote that on 31 March 2016 the President had decided to accept that part of the complaint (alleging sex discrimination and sex harassment) alleged to have occurred after 12 February 2015. In addition, the delegate wrote that the President had declined to accept those parts of the complaint relating to conduct alleged to have occurred before 12 February 2015.
2. In separate letters addressed to Messrs Matkovich and Bowyer, dated 12 April 2016 and 8 April 2016 respectively, the delegate wrote that on 31 March 2016 the President had decided to accept for investigation a complaint of sex discrimination and, in respect of Mr Bower, a complaint of sexual harassment and that "the Board's investigation is limited to conduct/events alleged to have occurred between 12 February 2015 and 12 February 2016". Under the heading "acceptance of the complaint" in each letter, the delegate set out the terms of s 89B, in particular, the President's power to decline a complaint if the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint.
3. The letter addressed to Mr Martinez dated 8 April 2016 states the President had made a decision under s 89B(2)(b) of the Act to decline that part of the complaint relating to the period before 12 February 2015. While not expressly stated, in my view a fair reading of the letters addressed to Messrs Bowyer and Matkovich indicates that the President had made a decision under s89B(2)(b) to decline to accept that part of the respective complaints made about them relating to the period before 12 February 2015.

Is the Tribunal's power to amend a complaint subject to s 89B(4) of the Act?

1. For the following reasons, I have formed the view that the power to amend a complaint conferred by s 103 is subject to s 89B(4) of the Act.
2. Statutory provisions must be read in context. The process of construction must always begin by examining the context of the provision that is being construed: Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 (Project Blue Sky) at [69]. The primary object of statutory construction is to construe the general provisions in a way which is consistent with the language and purpose of all the provisions in statutes: Project Blue Sky at [69].
3. In relation to conflicting provisions within a statute, the majority in Project Blue Sky wrote at [70]: A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
4. Sections 103 and 89B(4) must be read so that they operate in conformity with each other: Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 440; The Commissioner of Stamps (SA) v Telegraph Investment Co Pty Ltd [1995] HCA 44; (1995) 184 CLR 453 at 479; Lee v Minister for Immigration and Citizenship [2007] FCAFC 62 (2007) 159 FCR 181 at [39]; DC Pearce and RS Geddes "Statutory Interpretation in Australia" (8th ed, 2014) [4.3].
5. Section 103 and s 89B(4) make no reference to each other. One possible construction of s 103 is that, consistent with its broad terms, it gives the Tribunal power to amend a complaint, and is not subject to s 89B(4). Adopting this construction, the power to amend a complaint could be exercised, in effect, to reinstate a complaint, or part of a complaint, that the President had declined to accept under s 89B(2). An alternative construction is that s 89B(4) has a role to play in the operation of s 103, and that s 103 is to be read as being subject to s 89B(4). In that case, the power to amend does not extend to a complaint, or part of a complaint, that the President has declined to accept under s 89B(2) of the Act.
6. The clear purpose of s 89B(4) is to make decisions made by the President under s 89B(2) to decline to accept a complaint, not reviewable by the Tribunal. While not stated as being subject to s 89B(4), in my view s 103 should be construed in that way. To do otherwise would undermine the clear purpose of s 89B(4).
7. This approach is consistent with the approach I took in Thompson v Rail Corporation NSW [2008] NSWADT 329 at [59], which was followed in Mihnyak v Woolworths Limited [2012] NSWADT 219 at [15].

Does the doctrine of estoppel operate to permit the Tribunal to amend the complaints?

1. Ms Patrick submits that the respondents are estopped from opposing her application to amend the complaints. She points out that in their respective submissions to the President in response to the initiating complaint, each respondent addressed in some detail the allegations she made about conduct which occurred before 12 February 2015. Ms Patrick submits that as a consequence each respondent led her to believe that they would not be seeking to "enforce the limitation period", and therefore, they have foregone their right to do so.
2. This argument is misconceived. The Tribunal is a creature of statute. Its jurisdiction is circumscribed by the statute establishing it, the NCAT Act and the relevant enabling legislation, in this case, the Anti-Discrimination Act. The latter sets the parameters of the matters the Tribunal may determine in relation to complaints of alleged contraventions of the Act.
3. Even if the proposition is accepted that by their actions the respondents represented to Ms Patrick that they would not oppose an amendment to the temporal scope of the complaint, this does not overcome the jurisdictional obstacle discussed above. As a consequence of the decision made by the President in respect of each complaint, the Tribunal lacks the power to amend the complaints, by extending their temporal scope to include the period before 12 February 2015.

Case management of the complaints

1. The complaints were referred to NCAT in February 2017. Since that time, they have been the subject of three case conferences and a preliminary hearing to determine the application to amend the scope of the complaints. The issue of the scope of the complaints arose in the context of objections raised by the respondents to Ms Patrick's points of claim and the scope of documents she has foreshadowed she will request under summons, if not provided by the respondents.
2. As raised with the parties at the hearing, in my view this matter has the hallmarks of proceedings in which significant time and costs are likely to be expended before the matter is ready to be listed for hearing.
3. The Tribunal is obliged to give effect to the "guiding principle" for the NCAT Act. That is, the facilitation of the just, quick and cheap resolution of the real issues in the proceedings: s 36(2). All parties and their representatives are under a duty to co-operate with the Tribunal to give effect to that principle: s 36(3) of the NCAT Act.
4. As foreshadowed at the amendment hearing, if further objections are raised by either party in relation to preliminary issues, the case management options available to the Tribunal to give effect to the guiding principle will be considered. This might include the use of alternative dispute resolution to resolve or narrow the issues in dispute between the parties.

Order and Directions

1. I make the following order in relation to the application to extend the scope of the application: 1. Application to amend the complaint, to include the period before 12 February 2015, is refused.
2. To progress the matter, I make the following directions: 1. By 29 September 2017, the applicant must file and serve on each respondent amended Points of Claim. 2. By 13 October 2017, each respondent must file and serve amended Points of Defence. 3. By 20 October 2017, if agreement cannot be reached about a request for documents made by a party to another party, any party seeking to request the Registrar to issue a summons for the production of documents, must give all other parties a copy of the proposed Application(s) for Summons together with a document which contains a description of each disputed document or class of document, and a brief explanation about it/their apparent relevance to the facts in issue. 4. The application(s) for summonses will then be determined by the Tribunal. 5. If no application is made to the Tribunal for summonses to produce documents, then: 1. By 2 November 2017, the applicant must file and serve all material on which she seeks to rely. 2. By 23 November 2017, each respondent must file and serve all material on which they seek to rely. 3. By 28 November 2017, the applicant must file and serve all material in reply. 4. The matter is listed for a directions hearing on 29 November 2017 at 9:30 am to fix hearing dates.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 25 October 2017 - Amended Coversheet 'Decision' and para [30] to read 'February' under UCPR r36.17 ('slip rule'). 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. Decision last updated: 25 October 2017