Victorian Civil and Administrative Tribunal|1999-05-18

Rabling Jayne v Supreme Court of Vic & Ors [1999] VCAT 647 (18 May 1999)

MR R. BARDSLEY appeared on behalf of the Respondents.

MR BARDSLEY: Good morning, Ma'am, my name is Bardsley, I appear on behalf of the applicant in this application.

DEPUTY PRESIDENT: Let me indicate first what my decision is and it is that the complaint in so far as it relates to the Supreme Court should be dismissed under s.75 of the VCAT Act and I now give my reasons.

Under s.75 of the VCAT Act the Tribunal is permitted to dismiss or strike out a complaint which, among other things, is misconceived. I note the respondent, in its submissions, has mentioned s.77 of the Act but it seems to me that the thrust of the submissions is that the complaint is misconceived and that it is more appropriate, and the Tribunal of course has the power to do this on application or its own initiative, that the complaint be dismissed under s.75.

I now explain in more detail why it is that I dismiss the complaint as misconceived in so far as it relates to the Supreme Court. On 12 August 1998, Ms Rabling lodged with the Equal Opportunity Commission under the Equal Opportunity Act 1995, which I call "the Act", a complaint against Fadil Osmar, the Department of Justice and the Supreme Court of Victoria.

The complaint alleges various contraventions of the Act which it is not necessary for me to deal with in detail here. The Commission declined to entertain the complaint against the Supreme Court of Victoria, which I will call "the Court", as misconceived under s.108 of the Act. It considered that the complaints against the other respondents were non-concilable.

The complainant, as she was entitled to do, required that the complaint be referred to this Tribunal and that requirement was made both under s.108 and s.113 of the Act. The complaint was referred to this Tribunal by referral received 31 December 1998, dated 29 December 1998. A compulsory conference was listed for 11 February 1999 but that, in effect, didn't take place because the respondents applied to have the complaint dismissed or struck out in so far as it related to the Court.

The parties indicated that they were agreeable to the matter proceeding by written submission only and in fact, written submissions have been filed and served by the parties.

From the material before me, it appears that certain monies to which the complainant is entitled by way, it would appear, of compensation, are administered and held on her behalf by the Court. In the course of various applications which she has made to the Court in relation to these funds, she has dealt with Fadil Osmar, one of the respondents, an officer who works in the Senior Master's office of the Court.

Ms Rabling's claims relate to various allegations concerning what she says Fadil Osmar said in the course of his dealings with her concerning her applications relating to these funds. From her complaint and her submissions, it appears that this complainant is alleging that the Court is Fadil Osmar's employer. It also appears that she is alleging that the Court itself discriminates against her by administering funds on her behalf when she should be administering these funds herself. For the purpose of this proceeding, I treat both these claims as falling within the scope of her complaint.

The respondents submit, in effect, that the complaint in so far as it relates to the Court, is misconceived. I agree with this submission. I first deal with the claim that the Court is liable under the Equal Opportunity Act for Fadil Osmar's conduct since it was his employer.

The respondents have included in their submissions an affidavit from the Court's chief executive officer, Mr McLean. It is clear from that affidavit that in 1986, Fadil Osmar was employed in the Public Service of Victoria which was then governed by the Public Service Act 1974. From 10 August 1992, he took up duties as an administrative officer in what was then called the Master Clerk's office and is now called the Senior Master's office.

He became an employee of the Attorney General's Department at that time, now called the Department of Justice. On 1 March 1996, with other officers in the Senior Master's office, he signed a collective employment agreement under the Employee Relations Act 1992, as then in force. Section 106 of the Supreme Court Act 1986 provides that a number of specified officers are to be employed subject to - originally it was the Public Service Act 1974, then the reference became the Public Sector Management Act 1992 and, from 1 July 1998, the reference is now the Public Sector Management and Employment Act 1998.

Those officers are to be employed for the purposes of the Supreme Court Act. They included, and I quote, "Such other employees as are necessary". When the bulk of the Public Sector Management Act 1992 provisions came into operation, which was on 24 November 1992, Fadil Osmar was already employed in the Public Service in the Attorney General's Department, now the Department of Justice.

The provisions of the Public Sector Management Act govern officers and employees in the Public Service and from the transitional provisions in that Act, it is clear that previous Departments' positions and employees who were in the Public Service and were governed by the Public Service Act 1974, became subject to the Public Sector Management Act upon its commencement, with certain modifications which were not relevant here. See for example clauses 8 and 9 of Schedule 6 of the Public Sector Management Act.

From 24 November 1992 then, and when he signed the collective employment agreement, Fadil Osmar was subject to the Public Sector Management Act 1992. Section 7 of that Act permits a Department head to create, abolish or otherwise deal with a position in his or her Department. Section 16 permits a Department head to delegate his or her powers under the Act. Those powers include the power that I just mentioned under s.7. They also include the power under s.23 of the Act which provides that an appointment to a position in the Public Service must be made by the appropriate Department head.

It is clear from Mr McLean's affidavit that the appropriate Department head, in this case the head of the Department of Justice, the Secretary of the Department, has delegated to Mr McLean the power to sign employment agreements and that under that delegated power, he signed this collective employment agreement which took effect from March 1996.

The effect of signing that employment agreement as the delegate of the Secretary to the Department of Justice is that he signed the agreement as delegate and that his action in signing that agreement is deemed to be the action of the delegator. That is, the action of the Secretary of that Department. See ss.42 and 42A of the Interpretation of Legislation Act 1984, Victoria.

The same position applies and is continued by the Public Sector Management and Employment Act 1998 which is the relevant Act which now governs those who are officers or employees in the Public Service of Victoria, and in particular, Fadil Osmar. Under Part 3 of that Act, and particularly under s.20, an Agency head which includes the Department head, is, on behalf of the Crown, the employer of the officers and employees in the relevant Department. Under that Part, it is clear that this power may be delegated. But nevertheless, ss.42 and 42A of the Interpretation of Legislation Act 1984 apply to make any action by the delegate an action by the delegator.

Having regard to this legislation and to the affidavit before me, I am satisfied that at all relevant times, the employer of Fadil Osmar was the Crown through the power exercised by the relevant Department head, in this case the Secretary of the Department of Justice. Any power exercised by Mr McLean in relation to that employment was exercised as a delegate of the Secretary of the Department of Justice. The Court has no place as the employer of Fadil Osmar. It follows that this claim is misconceived.

Ms Rabling's next claim is, as I read it, that because she is disabled, the Court administered certain funds on her behalf, rather than herself in person. Her claim is that this is discriminatory. The respondents submit that this claim, too, is misconceived. I agree with this submission. My reasons for agreeing with this submission are these.

In the first place, it is not clear against whom this claim is made, whether it is against a particular Judge or Master of the Court, or against the Court collectively. If it is made against the Court collectively, it is misconceived because the Court does not have a corporate personality separate and distinct from the Judges and Masters who constitute it.

If a particular order or decision is in question as must be the case here, a Judge or Master other than the Judge or Master who made the order or decision, cannot in some way be held responsible for the making of the order or decision as a corporation might be responsible for the actions of its agents or officers.

The Supreme Court is not a corporate entity of this kind. The existence of the Supreme Court is recognised by s.75 of the Constitution Act 1975. By that section, the Court is said to consist of the Judges and Masters of the Court but that Act does not constitute the Court as a body corporate. The second reason why I agree with the respondent's submission is that I conclude that for a number of reasons, Parliament did not intend the Equal Opportunity Act to apply to permit a person to complain to the Equal Opportunity Commission and ultimately to VCAT, that an order or decision of the Supreme Court discriminates against that person in a way prohibited by the Equal Opportunity Act.

My reasons for this conclusion are these. At common law where a court has general authority to hear and determine a matter, the judge who constitutes that court and who has a bona fide belief that he or she has the requisite jurisdiction, is immune from civil proceedings in respect of the hearing and determination of that matter. See Halsbury's Laws of Australia, paragraphs 125 and 350, Gallo v. Dawson (1988) Volume 82, A.L.R. 401 at p.402. Sirros v. Moore (1975) Volume 1, Q.B. 118 at p.132 per Lord Denning. Raine v. Nurses Board of Victoria, a decision of the Equal Opportunity Board dated 30 March 1995. Etheridge v. Alamanas, a decision of VCAT in the Anti-Discrimination List, dated 21 January 1999.

The reasons given by Lord Denning for this doctrine in the Sirros Case are that a judge must be able to hear and determine a case with complete independence and free from fear. I am satisfied that this doctrine also applies to confer on judges a similar immunity from proceedings under the Equal Opportunity Act and for the same rationale.

The proceedings under the Equal Opportunity Act, although in some respects they differ from civil claims of common law, are in my view akin to those claims. The proceedings under the Equal Opportunity Act are like an action in tort for breach of statutory duty in that the claim arises where there has been a breach of the statutory prohibitions of the Act and the remedies are similar. The remedy of compensation is akin to the remedy of damages.

The remedy which permits the making of an order restraining or compelling action to be taken is similar to the remedy of injunctive relief. And the standard of proof is the same as the standard for civil claims; it is the balance of probabilities. The differences are that the Act has a broader objective than simply the provision of redress. Its prohibitions are intended to eliminate, as far as possible, discrimination and sexual harassment.

A contravention of the Act does not create civil or criminal liabilities; see s.209. The available remedies are somewhat wider and in some cases considerably wider than those available at common law for breach of statutory duties. Nevertheless, I am satisfied that these differences do not make these proceedings somehow not civil proceedings to which doctrines of judicial immunity would therefore not apply.

For a case where proceedings in this Tribunal were generally equated to civil proceedings, see Clayton v. Ombudsman, a decision of VCAT in this List dated 17 July 1998. If Parliament had intended that the Equal Opportunity Act would apply to Orders of the Court, it would plainly have said so, in my view. See also in Re East, 1998, Volume 150, A.L.R. p.102 at p.115 where considerable doubt was expressed as to whether what a judge does in hearing and deciding a case could become the subject of a claim under Commonwealth Anti-Discrimination legislation.

The second basis for my conclusion is that the determination by VCAT of a claim that a Court Order has discriminated against a person in a way prohibited by the Equal Opportunity Act would involve a review of that Order. If VCAT were to determine that the Order did in fact discriminate in a way prohibited by the Equal Opportunity Act, it would also involve the making of Orders setting aside the Court's Order and perhaps even remitting the matter.

This power is not expressly given to VCAT by the Equal Opportunity Act and again, if Parliament had intended that VCAT should have that power, it would clearly have said so.

The third basis for my conclusion is that it is clear from the combined operation of ss.12 and 70 of the Equal Opportunity Act that discrimination is not prohibited if it is necessary to comply with an order of a Court or a Tribunal. It would make nonsense of this exception of the prohibitions in the Act if the Act would permit a complaint to be made in respect of the Court's Order itself but not a complaint against action taken to comply with that Order.

For these reasons I conclude that this claim, too, in so far as it relates to the Court, is misconceived. These claims cannot, in my view, be cured by amendment. Accordingly, the proper course in my view is to dismiss them as misconceived under s.75 of the Act. It is therefore unnecessary for me to determine whether there would be a more appropriate forum or in fact to determine any other matter under s.77 of the Act.

Finally, I would add that Ms Rabling has, I think, misunderstood the responses to her letters by Chief Justice Phillips and Senior Master Mahony as confirmation that the Supreme Court is an employer of Fadil Osmar. She includes these letters of response in her written submissions. It is clear from them that they contain no confirmation of the kind she appears to think has been given, but are instead a courteous attempt to assist her.

Having dismissed this part of the complaint, I intend to list the surviving claims for a further compulsory conference in accordance with the Tribunal's usual practice. Mr Bardsley, I should ask, are you intending to apply for costs, bearing in mind this is a very early stage?

DEPUTY PRESIDENT: Very well. This complainant, of course, is not present for this decision. I would assume that she may like a transcript of it. Would you?

MR BARDSLEY: Most certainly, I think it would be very important.

DEPUTY PRESIDENT: We will provide a transcript of the decision.

Opportunity Act 1995

Sector Management Act 1992

Public Sector Management and Employment Act 1998

Legislation Act 1984

Rabling Jayne v Supreme Court of Vic & Ors [1999] VCAT 647

At a glance

Court

Decision date

Source

Judgment (41 paragraphs)

Rabling Jayne v Supreme Court of Vic & Ors [1999] VCAT 647 (18 May 1999)

Parties

Legislation Cited (7)