Pinecot Pty Ltd v Anti-Discrimination Commissioner [2001] NTSC 107

...failing to put in place proper and reasonable systems and safeguards to ensure that sexual harassment and other objectionable behaviour does not occur in the workplace.

The learned Commissioner held that the Act did not create an active duty on an employer to ensure sexual harassment does not occur in the workplace and that the failure to put any safeguards or systems in place, did not mean that the plaintiff "caused" or "assisted" a contravention of the Act within the meaning of s27(1). The plaintiff does not complain about that part of the defendant's decision and I do not understand that it is contended in these proceedings to the contrary.

[3] However, after considering the purposes and structure of the Act and a number of authorities to which I will come, the Commissioner held that the plaintiff could be held to be vicariously liable for the alleged acts of M. The plaintiff has lodged an appeal against that part of the defendant's decision in the Local Court pursuant to s106 of the Act. The appeal has not yet been heard. In addition, the plaintiff has brought these proceedings which seek remedies in the nature of certiorari and prohibition and declaratory relief. There is authority for the proposition that the existence of an appeal or of a right to appeal may be a relevant consideration as to whether or not to grant discretionary relief at this stage: see The Queen v Galvin; ex parte Bowditch (1979) 39 FLR 231 at 243-244; The Queen v The Judges of the Federal Court of Australia and Another [1979] HCA 6; (1978-79) 143 CLR 190 at 207, 216, 221, 238, 240. However, the facts in this case are not in dispute. The point to be decided is a narrow one turning on a question of construction of the relevant Act. It is also an important question to the defendant. According to the affidavit of Mr Story sworn on 18 October 2001, there are 38 other complaints before the Commission that will be affected by the outcome of this case and the point is likely to emerge in more than half of all complaints lodged in the Commission, which receives approximately 400 complaints a year. Mr Green QC for the plaintiff, has given an undertaking to withdraw the appeal to the Local Court. The defendant also wishes the issue to be resolved in this Court. In those circumstances I do not consider that there is any obstacle to my hearing and determining the question which the parties wish me to resolve in these proceedings.

[4] For the sake of completeness, I should also mention that M is not interested in these proceedings and made no submissions to the defendant. As to SG, she appeared at the commencement of the hearing by her counsel, Ms Little, who indicated that SG did not wish to pursue her application to be made a party to these proceedings and I gave her leave to withdraw her application. This left the proceedings in a state where there might not be a proper contradictor and Mr McDonald QC sought the permission of the Court to put submissions going to the defendant's jurisdiction in accordance with The Queen v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13 at 35-36. This was not opposed by Mr Green QC. As the question is one of statutory interpretation going to the jurisdiction of the Commissioner, I considered it proper to grant Mr McDonald QC's application.

[5] The purposes of the Act are set out in the pre-amble which describes the Act as:

An Act to promote equality of opportunity in the Territory by protecting persons from unfair discrimination in certain areas of activity and from sexual harassment and certain associated objectionable conduct, to provide remedies for persons discriminated against and for related purposes.

[6] The objects of the Act as stated in s3 are as follows:

(a) to promote recognition and acceptance within the community of the principle of the right to equality of opportunity of persons regardless of an attribute;

(b) to eliminate discrimination against persons on the ground of race, sex, sexuality, age, marital status, pregnancy, parenthood, breastfeeding, impairment, trade union or employer association, religious belief or political opinion, affiliation or activity, irrelevant medical record or irrelevant criminal record in the area of work, accommodation or education or in the provision of goods, services and facilities, in the activities of clubs or in insurance and superannuation; and

[7] Section 6 of the Act provides for the appointment of a person to be the Anti-Discrimination Commissioner. The Commissioner's functions as set out in s13 include a number of functions of a purely administrative or consultative kind relating to the promotion of the purposes of the Act by activities such as legal research into areas where Acts or regulations might conflict with the purposes of the Act; promoting the publication of information and data concerning discrimination and the effects thereof and the principles of equal opportunity; improving services and conditions affecting groups subjected to prohibited conduct; preparing and publishing guidelines and codes of practices to assist persons to comply with the Act; to provide persons with advice and assistance relating to the Act; and to advise the Minister.

[8] Additionally, the Commissioner has the power to carry out investigations and hearings into complaints and to endeavour to effect conciliation between parties where a complaint has been lodged: see s13(1)(a). Where a complaint is lodged with the Commissioner concerning conduct prohibited by the Act, the Commissioner may reject the complaint if it is frivolous, vexatious, trivial, misconceived, lacking in substance or fails to disclose any prohibited conduct (s67), or accept the complaint (s66). If the complaint is accepted, the Commissioner is required to investigate it (s74(1)(b)) in such manner as he sees fit (s75(1)), but thoroughly (s75(3)(a)) and with as little formality and technicality and as much expedition as the circumstances permit (s75(2)). If, as a result of the investigation, the Commissioner is satisfied that there is a prima facie case, he is required to proceed to conciliation or, if the complaint cannot be thus resolved, to a hearing (ss76, 78 and 83). The Act gives no coercive powers to the Commissioner at the investigation stage, but he may direct a person to take part in conciliation proceedings and the failure to comply with such a direction is an offence (s79).

[9] At the hearing stage, the Commissioner (or the person appointed by the Minister to hear the complaint under s85) is generally required to conduct the hearing in public (s86). In conducting the hearing, the Commissioner is not bound by the rules of evidence and may obtain information as he considers appropriate (s90(1)(a)). The Commissioner can compel witnesses and documents (s92(1)). The failure to comply with an order under s92(1) is an offence. The complainant bears the onus of proof according to the ordinary civil standard, except where the respondent wishes to rely upon an exemption (s91). The parties are only entitled to be legally represented by leave (s95) and the Commissioner may make arrangements for a legal practitioner to appear as counsel assisting (s94). The Commissioner has powers to make interim orders to preserve the rights of the parties (s101) and if the complaint is proved, he can make orders requiring the respondent not to repeat or continue the prohibited conduct; order the respondent to pay compensation for loss or damage caused by the prohibited conduct, including damages for "offence, embarrassment, humiliation and intimidation"; as well as make orders requiring the respondent to redress the loss or damage, including the re-instatement or re-employment of a person. He can also make other orders designed to provide an effective remedy in the circumstances, including ordering the respondent to apologise (see ss88 and 89). There is a power to award costs, but the general rule is that each party bears their own costs (s96). Failure to comply with an order without reasonable excuse is an offence (s104). Where the order is for the payment of money, the order may be registered in a court and become a judgment debt of that court recoverable accordingly (s104). A right of appeal on a question of fact or law or both lies to the Local Court (s106).

[10] The scope of the conduct which is prohibited by the Act is dealt with in Parts 3 and 4 of the Act. Division 1 of Part 3 deals with the prohibited grounds of discrimination. Section 19 prohibits discrimination against a person on the ground of any of the "attributes" set out in s19(1)(a) to (r) (except where there is an exemption). Section 20 provides that discrimination includes "any distinction, restriction, exclusion or preference made on the basis of an attribute that has the effect of nullifying or impairing equality of opportunity" in an area of activity referred to in Part 4. Section 28, which is the principal provision in Part 4 dealing with areas of activity, provides that the Act applies to prohibited conduct in the areas of education; work; accommodation; goods, services and facilities; clubs (which are licensed to sell liquor for consumption on the premises) and insurance and superannuation. Division 2 of Part 3 deals with Prohibited Conduct. Section 22 provides that a person shall not, in an area of activity referred to in Part 4, sexually harass another person. Section 23 prohibits victimisation inter alia of a person who has made, or intends to make, a complaint under the Act. Section 24 which appears to be of general application, prohibits the failure or refusal to accommodate special needs because of an "attribute", and is most likely to apply to certain particular "attributes" referred to in s19(1) such as pregnancy, parenthood, breastfeeding, impairment and religious needs or activities. Section 25 prohibits discriminatory advertising. Section 26 prohibits the asking of a person to supply information on which unlawful discrimination might be based. Although these sections of the Act make the conduct unlawful, it is not an offence to engage in prohibited conduct per se; nor can anyone seek a remedy by way of an action in a court of law for damages or for a civil penalty, except where the Act creates specific offences. The Act provides for enforcement either by the complaint process or by way of a request to the Minister under s74(1), or where the Commissioner himself carries out an investigation in the circumstances referred to in s74(2).

The Commissioner's reasons for finding that a company may be vicariously liable for the acts of its servants.

[11] The Commissioner noted that the Act did not contain any express provision dealing with vicarious liability and that in this respect the Act was unique amongst the Acts of the several jurisdictions of the Australian States and Territories, all of which have passed similar legislation. He approached the question on the basis of whether, having regard to the purposes of the Act, the intention of the legislature was to impose vicarious liability. He found that the provisions of the Act clearly applied to companies and that as corporate bodies only act through their servants and agents, it would be anomalous that the ordinary principles of vicarious liability would not apply given the extensive range of prohibitions covered by the Act and the areas, including the workplace, where such prohibitions were intended to apply. He considered that the objects of the Act would not be advanced if there were no application of the principles of vicarious liability in the prohibition sections of the Act. He referred to certain provisions of the Act which supported this conclusion; namely the penalty provisions which specifically provide for the imposition of penalties upon corporations (ss79(4), 92(5), 98(2), 99(2), 100(3), 101(3) and 104) and s88 which enables the Commissioner to order a respondent to employ, re-employ, reinstate or promote a person, or move a person to a position within a specified time. He observed that it would be:

...strange and unintended by the legislature to provide for an employer to do any of these actions where a complaint is substantiated, unless the employer, including corporate employers, can be made a respondent to a complaint by reason of the conduct of its employers.

He also concluded that the power to award compensation to a complainant was a "civil right of action" and that this "right of action created under the Act is that of a statutory tort" and no distinction could be drawn between statutory torts and other torts so far as the principles of vicarious liability are concerned. The Commissioner referred to a number of decisions in support of this.

What is vicarious liability and when does it arise?

[12] The term "vicarious liability" was originally coined by Sir Frederick Pollock in 1877. The full expression which Pollock used was "vicarious liability for a servant's act" and he did not equate one man's tort as being equated with another's. He referred to the fiction as being "that act of agent = act of principal...". Kitto J in Darling Island Stevedoring and Lighterage Co Ltd v Long [1957] HCA 26; [1956-1957] 97 CLR 36 at 60 to 61, said (after referring to Holmes' Pollock's letters, where these origins are traced):

It seems to me that "vicarious liability" should be recognised as an example of transferred epithet, as referring to a liability for vicarious acts; see per Denning and Hodson L.JJ in Brown v Morgan. The master's liability, where it exists, is not a liability substituted for that of the servant. It exists, I think, not because the servant is liable, but because of what the servant has done. It is a separate and independent liability, resulting from attributing to the master the conduct of the servant, with all its objective qualities, but not with the quality of wrongfulness which, in an action against the servant, it may be held to have because of considerations personal to the servant.

[13] In Fleming on the Law of Torts (9th Edition) the learned author says at p409:

We speak of vicarious liability where the law holds one person responsible for the misconduct of another, although he is himself free from personal blameworthiness or fault. It is therefore an instance of strict (no fault) liability. (Emphasis mine).

[14] The proposition that vicarious liability arises from the misconduct of another, as opposed to the acts of another, was expressly rejected in Darling Island Stevedoring and Lighterage Co Ltd v Long, supra. As Webb J put it, at p54, "...the law does not attribute to the employer the liability that attaches to the servant". See also Williams J at p52; Taylor J at 67-8. Of course, as Taylor J points out, in most tort cases the distinction is of not importance because the duty is cast on both the principal and the agent (or the employer and the servant).

[15] The concept of vicarious liability has been applied, not only to torts. Professor Fisse, the author of the 5th Edition of Howard's Criminal Law says, at p599:

The attribution of criminal responsibility to corporations at common law has depended on one or other of two approaches. The first has been to borrow from the civil law the concept of vicarious liability; the conduct or mental state of an employee acting within the scope of his employment is attributed to the corporate employer. The second has been to treat the conduct of superior officers of the company as the conduct of the company itself...

[16] There are two decisions of the High Court which the learned author cites for the first proposition and it is instructive to refer to them both. In The King v Australian Films Ltd [1921] HCA 11; [1921] 29 CLR 195, an action was brought against a company to recover civil penalties for offences against certain provisions of the Customs Act (Cth). The question which the Court was asked to resolve was whether a company could be convicted of an offence against the Act with intent to defraud the revenue. The various acts relied upon included acts which were performed by a clerk employed by the company and acts performed by duly authorised customs agents on behalf of the company, including a clerk in the employ of one of the customs agents. The Court followed the following statement by Atkin J in Mousell Brothers Ltd v London and North-Western Railway Co (1917) 2 KB 836 at 845-6:

I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.

The Court, after considering the provisions of the Customs Act in the light of these observations, concluded at 217:

Having regard to all these matters, we think it is clear, from the provisions of the Act, that the intention was to make the principal responsible for an act done by his agent or servant in the course of his employment...

[17] The second decision of the High Court referred to by Professor Fisse is Morgan v Babcock & Wilson Ltd [1929] HCA 25; (1929) 43 CLR 163. In that case, the managing director of a company paid a secret commission to an agent of the Municipal Council of Sydney in order to win a contract for which the company had tendered. The company was charged with a breach of the Secret Commissions Prohibition Act 1919 (NSW). Knox CJ and Dixon J said, at 173-4:

No difficulty arises under the Secret Commissions Prohibition Act 1919 in relation to the criminal responsibility of corporations, because corporations are expressly included. An offence involving corrupt intention can be committed by a corporation only through a servant or agent who, with the necessary mens rea does or causes to be done, the forbidden act for or on behalf of the corporation acting within the course of his employment or authority.

[18] In my opinion that was not properly a case of vicarious liability. The facts show that the acts were done by the managing director who administered the business of the company. His acts were therefore the acts of the company itself: c.f. Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; (1972) AC 153. Nevertheless, the case is some support for the general proposition that a company can be criminally liable for the acts of its employees acting in the course of their employment in circumstances where the offence can only be committed by an individual having the necessary intent and the intention of the Act is to make companies liable for their servants' acts.

[19] There is a third type of case where vicarious liability has been imputed to a principal, which is illustrated by the decision of the Full Federal Court in Hanley v Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another (2000) 100 FCR 531. In that case the plaintiff brought civil proceedings against a union for a penalty in respect of a breach of s170 NC (1) of the Workplace Relations Act 1996 (Cth). The proceedings were dismissed by the magistrate inter alia on the ground that the Union was not vicariously liable for the acts of an organiser employed by the Union. Section 349 of the Act provided that conduct by an employee or agent of a body corporate acting within the scope of his actual or apparent authority shall be taken to be action engaged in by the body corporate. Their Honours concluded that the Union organiser had breached the section, but that the Union was not directly liable for his acts under the principles in Tesco Supermarkets Ltd v Nattrass. The question then arose as to whether the Union was vicariously liable for the organiser's acts, or whether he could only be liable by operation of s349. In the result, their Honours held, following the dissenting opinion of Pincus JA in Evenco Pty Ltd v Australian Building Construction Employees and Builders Labourers Federation (Qld Branch) (2001), 2 Qd R 188, that the Union could be liable vicariously for the acts of the organiser, although in the end result, the Court applied the same test as that laid down by s349, i.e. that the Union was liable only for the acts of the organiser done within the scope of his actual or apparent authority. Their Honours, in reaching the conclusion that there was vicarious liability in the circumstances, relied upon the obiter remark of Lord Diplock (which they wrongly attributed to Lord Reid) in Tesco Supermarkets Ltd v Nattrass, supra, at 199, that

...there are some civil liabilities imposed by statute which, exceptionally, exclude the concept of vicarious liability of a principal for the physical acts and state of mind of his agent.

Their Honours could find nothing to suggest that s170 NC fell into that exceptional category.

[20] I respectfully suggest that this dictum of Lord Diplock needs to be carefully examined as to what his Lordship meant when he referred to "civil liabilities imposed by statute". What is clear, is that where a statute requires an employer to take a specific precaution for the safety of others in circumstances where the person upon whom the duty is laid is, under the general law of negligence, bound to exercise due care, the duty will give rise to a correlative private right unless a contrary intention appears from the statutory provision: see O'Connor v SP Bray Ltd [1937] HCA 18; (1937) 56 CLR 464 at 478 per Dixon J. As Fleming on Torts, supra, at 207 observes:

Much more rarely has tort liability been ascribed to statutes which impose duties in situations where the common law does not require it.

[21] Liability in such cases for breach of statutory duty and its correlation to vicarious liability was considered by the High Court in Darling Island Stevedoring and Lighterage Co Ltd v Long, supra. In that case it was held that as the statute cast the duty only upon the "person in charge", if that person failed to perform the duty the employer was not liable, vicariously or otherwise, for his (the servant's) breach of duty. Thus, even in the law of torts, a civil liability imposed by statute does not give rise to vicarious liability unless, first, the statute imposes an obligation on the employer and second, the employer is under the general law of negligence bound to exercise due care in respect of the person in favour of whom the obligation is cast. Further, there are many instances where a civil liability is imposed by statute where it has never been authoritatively held that an employer or principal is vicariously liable: workmen's compensation (where the liability is direct); motor accident compensation schemes; damages under trade practices and consumer protection legislation and victims' assistance schemes. I therefore respectfully reject the approach adopted by the Federal Court in the Evenco case.

[22] It is necessary to briefly point out that, although vicarious liability is connected with the law of agency historically, the law has not so far unified all agency in contract and in tort into one set of principles, although attempts have been made to do so: see Bowstead on Agency, 15th Edition, at p388.

[23] Nevertheless, there is considerable inter-relationship between agency in contract and vicarious liability in tort; see Bowstead, supra, at 386ff. In some cases it may be a moot point whether liability flows from some principle of the law of agency, or whether the liability is strictly vicarious. By way of illustration in Colonial Mutual Life Assurance Ltd v The Producers and Citizens Cooperative Assurance Company of Australia Ltd [1931] HCA 53; [1931] 46 CLR 41, the appellant insurance company was held liable for defamatory remarks which were made by its agent (who was not a servant) in respect of the respondent insurance company. In that case, Dixon J (with whom Rich J concurred) considered that the "agent's" authority was such that, in performing the services under his contract, the company must be considered as itself conducting the negotiation in his person (p49). Gavan Duffy CJ and Starke J reached the conclusion that the principal was liable because the agent was "authorised to speak, and in fact spoke, with the voice of the defendant" (p47). However, although the law of agency was called into aid, the liability of the principal was direct, not vicarious. As Fleming on Torts, supra, says at p414:

The liability is therefore personal, not vicarious - a true case of "qui facit per alium facit per se".

[24] It is plain that vicarious liability is to be distinguished from direct liability and that in some cases, principles from the law of agency have been used to ascribe direct liability rather than vicarious liability. As to whether or not an employer is vicariously liable for a breach of a statute committed by his servant will depend upon the intention of the legislature, the question being, did the legislature intend to make the principal liable for the acts of his agents or servants. Having regard to the authorities I have mentioned, I consider that relevant to the resolution of this question are the following indicia:

1. Is the prohibited conduct of such a nature that it was intended to apply to corporations, or employers, or principals as well as to individuals?
2. If the prohibited conduct applied to corporations, who was most likely to perform the act which the legislature proscribed?
3. Does the statute or the general law of negligence confer a duty on the employer or principal to take some positive action to prevent the prohibited conduct?
4. Regard must be had to the objects and purposes of the statute and the words used.
5. Will the purposes of the Act be defeated or severely limited if the principal's liability is limited to acts for which he is directly liable?

[25] Before considering the construction question, it is necessary to deal with the argument which persuaded the Commissioner and which was urged in this Court that breaches of certain sections of the Act are a civil wrong best described as tortious. For the purposes of this case, it is necessary to identify which sections we are talking abut. The complaint of SG was for sexual harassment at the plaintiff's workplace. Thus, she alleged a breach of s22(1) of the Act. Section 22 provides:

(1) A person shall not, in an area of activity referred to in Part 4, sexually harass another person.

(a) subjects another person to an unwelcome act of physical intimacy;

(b) makes an unwelcome demand or request (whether directly or by implication) for sexual favours from the other person;

(c) makes an unwelcome remark with sexual connotations; or

(d) engages in any other unwelcome conduct of a sexual nature,

(i) with the intention of offending, humiliating or intimidating the other person; or

(ii) in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct; or

(f) that other person is, or reasonably believes that he or she is likely to be, subjected to some detriment if he or she objects to the act, demand, request, remark or conduct.

(3) For the purposes of subsection (2)(e)(ii), circumstances that are relevant in determining whether a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct include -

(c) the relationship between the other person and the person engaging in the conduct; and

[26] The Act does not confer a cause of action which is cognisable by any court of law for a breach of the section. The remedy can be sought only by way of complaint to the commissioner, who is not a court but a statutory tribunal. Yet, the original jurisdiction of this Court encompasses all causes of action in tort: see Supreme Court Act, s14.

[27] The prohibition contained in s22 is not an offence and does not give rise to an action for a civil penalty. Thus, the remedy is personal to the complainant; it is not sought in the name of the State.

[28] The kind of sexual harassment proscribed by s22 does not give rise to an action in negligence at common law. The common law does not impose a duty of care on employers or the owners of premises to protect those in the workplace from conduct of this kind. Unless the act complained of amounts to an assault or a trespass to the person, there is no remedy in the courts. Even in the case of trespass to the person, the common law does not confer vicarious liability upon employers for the acts of their servants: see the discussion of Kitto J in Darling Island Stevedoring and Lighterage Co Ltd v Long, supra, at 64-65. If an action lay, it could only lie in case. It is difficult to see how an action could succeed either against the servant or the master. Of course, if the servant acted on the master's specific command, or if what he was employed to do necessarily involved the act complained of, the master would be liable, not vicariously, but directly.

[29] Mr McDonald QC for the Commissioner, referred me to a passage in Fleming on Torts, supra, at 3, where the learned author asks the question, "What is a tort?", and says:

Perhaps the most profitable method of delimiting the field of tort liability is to describe it in terms of the policies which have brought it into existence and contrast those with the policies underlying other forms of liability. Broadly speaking, the entire field of liability may be divided according to its purposes into criminal, tortious, contractual and restitutionary. Each of these is distinguishable by the nature of the conduct or its consequences and the purpose for which legal remedies are given.

[30] There are two observations to be made concerning this passage. The first is the context in which it was written. In the preceding passage the learned author refers to a tort as "an injury other than a breach of contract, which the law will redress with damages". The context suggests that the learned author was referring to civil wrongs giving rise to an action for damages in a court of law. Secondly, elsewhere in the work, the learned author refers to a miscellany of statutory schemes such as workmen's compensation, compensation for victims of crime, aircraft accident schemes; trade practices remedies and compensation for motor accident victims (see pps 41-44; 410-411; 371-2; 449-453; 577-579; 784). None of these are described as statutory torts: see also the discussion at pps 137-148 where the learned author refers to "statutory negligence" and the circumstances under which a breach of a statute or regulation is treated as providing a remedy in tort. Indeed, Fleming describes the negligence per se rule being based on the presumed intention of the legislature as a

"...barefaced fiction because, consonant with accepted canons of statutory interpretation, the legislature's silence on the question of civil liability rather points to the conclusion that it either did not have it in mind or deliberately omitted to provide for it.

[31] Nonetheless, there is a slender line of authority in Australia in support of Mr McDonald QC's arguments. The starting point is Australian Postal Commission v Dao and Others (1985) 3 NSWLR 565 where Justice McHugh, when sitting as a Justice of Appeal in the Court of Appeal of the Supreme Court of NSW expressed the opinion that an action under the Anti-Discrimination Act 1977 (NSW) was an action in tort (see p 604). The only authority cited is Halsbury, 4th Ed, Vol 45 par 1201. That passage reads:

Those civil rights of action which are available for the recovery of unliquidated damages by persons who have sustained injury or loss from acts, statements or omissions of others in breach of duty or contravention of right imposed or conferred by law rather than by agreement are rights of action in tort.

[32] That passage refers to "civil rights of action" and clearly refers to rights of action able to be enforced in a court of law. The remedy given in this case confers no civil right of action at all in that sense. Justice McHugh assumed in Australian Postal Commission v Dao, supra, at 604, that the Tribunal in that case was a court and his Honour's conclusion must be read with that in mind. Further, not all statutory rights of action for the recovery of un-liquidated damages which are enforceable in a court of the kind described by Halsbury are actions in tort: eg. an action for damages for false and misleading conduct under the Trade Practices Act; or an application for compensation under the Crimes (Victims Assistance) Act. For example, in Henville v Walter [2001] HCA 52; [2001] 182 ALR 37, the High Court recently had cause to consider the proper method of the assessment of damages for a breach of s52 of the Trade Practices Act (Cth). If the cause of action was in tort, one would have expected the measure of damages to be the same as in tort. The Court rejected that approach. It is sufficient to refer to the judgment of McHugh J at 68 where his Honour said:

This court has addressed the question of assessment of damages under s82 on several occasions. The court has concluded that in most cases the measure of damages in tort is the appropriate guide in determining an award of damages under s82. However, in assessing damages under s82, courts are not bound to choose between the measure of damages in deceit or other torts or contract. In Marks v GIO Australia Holdings Ltd, the court said that the central issue under s82 is to establish a causal connection between the loss claimed and the contravening conduct. Once such a connection is found to exist, nothing in s82 suggests that the recoverable amount should be limited by drawing an analogy with contract, tort or equitable remedies although they will usually be of great assistance. As Gummow J said in Marks, [a]nalogy, like the rules of procedure, is a servant not a master.

[33] Similarly a majority of the Court rejected the suggestion that the damages could be reduced because of contributory negligence by the plaintiff. The approach adopted was to examine the provisions of the Act to see if there was anything in the Act to support the conclusion that the plaintiff's damages should be so reduced and the majority concluded that there was not. Whilst analogy with tort doctrines was an approach which was sometimes helpful in deciding such questions, as Hayne J said, at p75 "...it is enough to say that it seems to me that such questions must find their answers within the Act rather than in analogies with the common law."; and as Gaudron J said:

It was held in Marks v GIO Australia Holdings that the relief available under s82(1) of the Act is not to be confined by analogy either with actions in contract or in tort. Once that is accepted, it follows, in my view, that considerations of foreseeability and contributory negligence are irrelevant to the exercise in s82(1)

[34] However, that is not to say that the concept of vicarious liability cannot be imputed into the Act. I note in passing that the principles of vicarious liability have not been extended to trade practices legislation: see Trade Practices Commission v Tubemakers of Australia Ltd & Ors [1983] FCA 93; (1983) ATPR 40-358, where Toohey J said, at 44,325 that a corporation's liability under the Act depended on liability being established through s84(2) or on the principles stated by the House of Lords in Tesco Supermarkets Ltd v Nattrass, supra:

A corporation must act through living persons but the person who acts is not speaking or acting for the company. He is acting as the company and the mind which directs his acts is the mind of the company. The question is not one of vicarious liability.

[35] The next authority referred to by Mr McDonald QC is Alders International Pty Ltd v Anstee & Others (1986) 5 NSWLR 47, at 65 where Lee J, after referring to Australian Postal Commission v Dao, supra, said

It seems to me that there are sound reasons for treating an action under the [Anti-Discrimination Act, 1977, (NSW)] as an action in tort...

His Honour did not explain the "sound reasons" to which he referred.

[36] In M v R Pty Limited and Anor (1988) EOC 92-229, the Equal Opportunity Tribunal, New South Wales, constituted by Graham J, S Tracey and K Reinhard (Members) said, at 77,172-3:

The legal classification of the civil right vested in victims of unlawful discrimination has been the subject of passing consideration in the authorities. In Australian Postal Commission v. Dao (1985) 3 NSWLR 565 at p604 (1986) 92-148 at p76,489 (Court of Appeal) McHugh JA was of the opinion that an action under the Act is an action in tort. No reference was made (nor would such reference have been necessary) to that opinion when the matter was decided in the High Court: see Dao v Australian Postal Commission (1987) 92-193. Whether or not proceedings under the Act are in the nature of proceedings for a statutory tort was not a matter which needed to be determined in Haines v Leves (1987) EOC 92-192 at p76,835 per Kirby P. However, in Alders International Pty Limited v Anstee (1986) EOC 92-157 Lee J discussed the opinion of McHugh JA and held that the Act creates a tortious liability for relevantly discriminatory conduct and, accordingly, held that the proper measure of damages was tortious rather than based on contract: see at p76,556. In Najdovska v Australian Iron and Steel Pty Ltd (1986) EOC 92-176 Barbour J approached the question of damages on the basis that the Act creates a statutory tort of discrimination and, accordingly, that damages should be awarded in accordance with the law of torts. On appeal, Priestley JA was of the opinion that, "whether or not the principles of assessment of damages in tort should be applied in an assessment under sec. 113(b) it seems to me that the assessment is essentially a matter of fact"; Australian Iron and Steel Pty Ltd v Najdovska (Court of Appeal, 18 May 1988, p42). The trend of the authorities is by no means clear but, on balance, appears to favour the proposition that the Act creates a statutory tort.

[37] Subsequent decisions of single Justices of the Federal Court of Australia have expressed doubts as to the correctness of this line of authority: see Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217, at 239 per Lockhard J; at 281 per French J; Stephenson v Human Rights and Equal Opportunity Commission and Another (1995-96) 134 ALR at 225-226 per Beazley J. On appeal to the Full Court (1996) 139 ALR 678 Wilcox J (with whom the other members of the Court agreed) said at 684:

Where a right of action is created by statute, guidance must be sought from 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 principal 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.

[38] In my opinion, the Act does not create a cause of action in tort, although it may create statutory entitlement to damages that falls short of constituting a cause of action. As I have said, the remedies provided for by the Act are not able to be pursued in a court of law and the Commission is not a court. There is no other indication to be found in the Act that the remedy is tortious in nature. Even the damages which can be awarded go beyond that which are usually recoverable in an action in tort, as the damages can include what are in effect damages for injured feelings. The proscribed conduct has no analogy with any common law remedy except in the limited circumstances I have mentioned. In my opinion, the correct approach to the question of whether or not the appellant is vicariously liable for the acts of its servants depends upon the true construction of the Act, a question to which I will now return.

Does vicarious liability arise as a matter of the construction of the Act?

[39] Turning to the first of the indicia to which I have referred in paragraph [24] above, it is clear that the prohibited conduct is intended to apply to both individuals as well as corporations. There are many indications of this to be found in the Act itself, not the least of which are the penal provisions which specifically provide for penalties for corporations. In any event, s19 of the Interpretation Act provides that "in any Act...person...includes a body politic and a body corporate." There is nothing in the Act to indicate a contrary intention. I conclude therefore that where s22 of the Act refers to "a person" the Act proscribes the relevant conduct whether it was committed by a corporation or an individual, notwithstanding that s22(1)(e)(i) requires proof of a mental element as one of the ways in which proof of a breach of s22(1) may be established. Further, it is to be noted that, because there must be proof of one of the matters referred to in s22(1)(e)(1)(i) or (ii) or (f), the liability is not absolute.

[40] Next, I consider that it is relevant that the prohibited conduct is limited to the areas set out in s28. The areas are education, work, accommodation, goods, services and facilities, clubs and insurance and superannuation. The Act provides no relevant exemptions for sexual harassment. In some of these areas, such as "work" (as to which see the definition in s4(1)) the persons likely to breach the section will be persons who are employees of others but the victim could be the employer or the managing director of an employer company. There is nothing to suggest that protection under the Act is given only to workers rather than to management. On the other hand, in the area of accommodation, the relationship between the victim and the complainant (which under s22(3) is relevant) might be that of landlord and tenant, or of the landlord's agent (such as an employee of a licensed land agent) and the tenant or perhaps even those living in rented accommodation who are not in fact tenants (see the definition of "accommodation"). The victim in either case might be the tenant, the tenant's children or wife, the land agent's employee, or the land lord's employee. Therefore it is not necessarily the case that the person who performed the act complained of was an employee or agent of a company acting in the course of his employment or in the scope of his authority. There is also a difficulty that it is extremely unlikely that, even if the act was performed by an employee, that the act could be said to be one which arose in the course of his employment, the usual test for the vicarious liability of masters for their servants. In general terms, the "course of employment" is said to encompass such unauthorised acts by the servant as can be regarded as an unauthorised mode of performing an authorised task. It is hard to envisage how, in the usual case an act of sexual harassment could be other than a "frolic of his own": see the discussion in Fleming on Torts, supra, at pp421-22.

[41] Next, neither the statute nor the general law of negligence confers a duty on a principal or employer, whether corporate or otherwise, to take any positive steps to prevent the prohibited conduct from happening when the acts are performed by the principal's servants or agents. This may be contrasted with the provisions of similar Acts which contain express provisions which make the principal primarily liable for the acts of servants or agents (notwithstanding section headings such as "vicarious liability"), but at the same time provide that the principal is not liable if he has taken all reasonable steps to prevent the prohibited conduct from occurring: see for example Racial Discrimination Act (Cth) s18A; Sex Discrimination Act 1984 (Cth) s106; Disability Discrimination Act 1992 (Cth) s123(3) and (4); Anti-Discrimination Act 1977 (NSW) s53; Equal Opportunity Act 1995 (Vic) ss102 and 103; Anti-Discrimination Act 1991 (Qld) ss132 and 133; Equal Opportunity Act 1984 (WA) s161; Discrimination Act 1991 (ACT) s108I. The lack of any similar provision, or any other provision of the Act imparting a positive duty on corporations or principals to prevent the conduct complained of by its servants or agents is a telling one. The Act only provides for the liability of others where the person concerned causes, instructs, incites, assists or promotes another to contravene the Act: see s27(1). In such a case, that person becomes jointly and severally liable with the principal contravener (s27(2)). It would have been a simple matter for the legislature to have expressly provided for the liability of principals or corporations for the acts of their servants or agents. They did not do so and I think that in the circumstances it must be inferred that the omission to do so was deliberate.

[42] Next, reliance was placed by Mr McDonald QC on s88 of the Act pursuant to which a respondent in a hearing may be required to, inter alia, employ, re-instate, or re-employ a person, etc. A provision such as this, so it was submitted, clearly contemplates a corporate employer being a respondent and being capable of liability by reason of the conduct of one or more of its employees. Mr Green QC described this as the respondent's best point, but in my opinion there is no substance to it. As has often been said, corporations can only act through their servants and agents. A servant or agent having the power to hire or fire is not a mere employee, but is one to whom authority so to act on behalf of the company has been expressly conferred. Thus, an act of discrimination relating to work under s31 must of necessity be an act performed by the company itself and does not depend upon any notion of vicarious liability. It is feasible that such a person could fire someone because of a complaint of sexual harassment, but that would amount to an act of victimisation under s23 and again would be treated as the act of the company.

[43] I have already referred to the objects and purposes of the Act at para [6 ] above. One of the objects of the Act is stated to be, rather baldly, "to eliminate sexual harassment". Despite this, the Act itself does not seek to eliminate sexual harassment, except in the areas set out in Part 4 of the Act. No doubt an interpretation of the Act which promoted this objective should be preferred to one that does not, but to give effect to such a purpose, there must be some provision of the Act identified capable of being so interpreted. As stated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky Inc and Others v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at para [69]:

The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed.

[44] The difficulty in this case is to identify any specific provision of the Act which is open to the construction contended for by the respondent. None was contended for, but in the circumstance of this case, it could only be s22. The difficulty of reading "a person shall not" as meaning that "a corporation is to be vicariously liable for the acts of its servants or agents acting in the course of their employment or on behalf of the corporation" needs only to be stated. Kay J in State Electricity Commission of Victoria v Equal Opportunity Board [1989] VicRp 46; (1989) VR 480 managed to add words to a provision (s34(i)) of the Equal Opportunity Act 1984) to create vicarious liability, but there, at least, there was a provision which was capable of that construction.

[45] Finally, the question arises as to whether the objects or purposes of the Act would be defeated or severely curtailed if the principal's acts were to be limited to acts for which the principal is directly liable in so far as breaches of s22 are concerned. I have already noted that, even if principals were made vicariously liable for breaches of s22, that it is unlikely that the conduct of a servant involved in sexual harassment in the workplace would fall within the concept of the course of the employment. I note that Kay J reached a similar conclusion in State Electricity Commission of Victoria v Equal Opportunity Board, supra, at 482.

[46] In conclusion, I consider that the weight of the factors which I have mentioned lead to the result that an employer is not vicariously liable for a breach of s22 of the Act committed by his servant in the course of his employment. I am therefore satisfied that the defendant has committed jurisdictional error entitling the plaintiff to an order in the nature of certiorari: see: Craig v The State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177, 179 and 183. I am further satisfied that unless prohibited the defendant intends to hear and determine the complaint on the basis that vicarious liability exists and that therefore the plaintiff is entitled to an order in the nature of prohibition.

[47] I make the following declarations and orders:

1. Declare that on the proper construction of the Anti-Discrimination Act an employer cannot be held vicariously liable for actions of an employee which allegedly contravene the provisions of s22 of the Act.
2. The decision of the defendant made on 15 September 2000 that the plaintiff could be vicariously liable for the actions of its employee, David Mudge, in relation to a complaint brought by Sue Garovic against David Mudge and the plaintiff is quashed.
3. The defendant be prohibited from further hearing the complaint by Sue Garovic against the plaintiff in so far as the complaint relies upon or raises the question of whether the plaintiff is vicariously liable for the acts of David Mudge.
4. The defendant pay the plaintiff's costs of the proceedings including any costs reserved.