Sebastian v Rail Infrastructure Corporation; Sebastian v State Rail Authority of NSW; Sebastian v Rail Infrastructure Corporation

REASONS FOR DECISION Introduction 1 In this case the respondents, Rail Infrastructure Corporation and State Rail Authority, have sought orders that three separate complaints of discrimination on the ground of disability, made against them by the applicant, Mr Joseph Sebastian, be dismissed because the respondents claim that the applicant entered into a binding agreement to settle those complaints after participating in a mediation session at the Tribunal on 14 December 2004. Two of the three complaints of discrimination on the ground of disability also include claims of victimisation. 2 Mr Sebastian has opposed the orders sought by the respondents. Whilst Mr Sebastian acknowledged that he signed a document headed 'Principles of Agreement' at the conclusion of the mediation session conducted on 14 December 2004, he argued that the document has no legal force and effect because of the manner in which the mediation was conducted and because of action taken by representatives or agents of the respondents since 14 December 2004. The applicant has submitted that he has three 'live' complaints of unlawful discrimination (and victimisation) which he wishes to pursue before the Tribunal. 3 Six issues arise for consideration in this case. They are: (1) the jurisdiction of the Tribunal to determine whether a complaint should not be permitted to proceed to hearing because it has been compromised or settled, (2) the breadth of s 102 of the Anti-Discrimination Act 1977 (the Act) which permits the Tribunal to dismiss a complaint without proceeding to a hearing, (3) the admissibility into evidence of the document headed 'Principles of Agreement' signed at the conclusion of the mediation session conducted on 14 December 2004, (4) the meaning and effect of that document if it is admissible in evidence, (5) the merits of the respondents' applications that the complaints be dismissed, and (6) the orders which should be made if those applications are determined in favour of the respondents. 4 The respondents' applications that the three separate complaints be dismissed were heard by the Tribunal sitting in Sydney on 8 July 2005. Both respondents were represented by Ms Ronalds SC. The applicant was not legally represented. Mr Sebastian was represented by a friend and agent, Ms Marianne Beck, who had lodged all three complaints with the President of the Anti-Discrimination Board (ADB) on Mr Sebastian's behalf. Background 5 The events which have given rise to this litigation commenced in September 2002 when Mr Sebastian submitted a written application to the State Rail Authority of NSW for employment with CityRail as a Customer Service Attendant. Mr Sebastian recorded on his application form for the position that he was "dyslexic" and that he had a disability in relation to "learning/reading". At the time the application for the CityRail job was submitted Mr Sebastian was 49 years of age. He indicated on the form that he had been working for Skilled Engineering since 2000 as a lookout/flagman. Mr Sebastian also recorded his previous employment which included a job as a Craftsman Moulder with BHP for 18 years. 6 The State Rail Authority required Mr Sebastian to submit to psychometric testing as part of the selection process for the position of Customer Service Attendant. This testing, which was conducted on 28 January 2003, was not completed because Ms Beck, who had accompanied Mr Sebastian to the test, asked that he be supplied with a reader to explain the questions to him. The people who conducted the psychometric testing were not prepared to allow Mr Sebastian to have a reader for the entire test in the absence of medical documentation which indicated his need for a reader. On the following day Ms Beck wrote to the Director of the Australian Rail Training Centre and complained about the treatment which Mr Sebastian had received at the psychometric testing. 7 On 17 February 2003 Mr Sebastian had a medical examination in support of his job application. The report from that examination reveals that Mr Sebastian did "not meet current State Rail standards for colour vision" and recommended further colour vision testing. Mr Sebastian was advised by letter from StateRail dated 4 March 2003 that he was "a borderline failure on the colour and vision test" and that he would be required to undertake further colour and vision testing at the Optometry Clinic at the University of NSW. The report from that Clinic, which was prepared following testing which took place on 20 March 2003, reveals that Mr Sebastian was found to have the colour vision deficiency known as deuteranopia and that he was given the grading of 'Poor' for his performance on a colour recognition test. 8 By letter dated 3 April 2003 Mr Sebastian was informed by StateRail that his application for the position of Customer Service Attendant was unsuccessful. In a subsequent letter from StateRail, dated 8 April 2003, Mr Sebastian was informed that his application for employment was rejected because he did not meet the colour vision requirements for the position. 9 On 18 June 2003 Mr Sebastian lodged a complaint with the ADB in which he claimed that the State Rail Authority had discriminated against him on the ground of disability when it rejected his job application. Following discussions between the parties StateRail agreed to make arrangements for Dr Casolin from HealthQuest to conduct workplace testing of Mr Sebastian in order to assess his capacity to distinguish between colours under job conditions. This testing took place at Central Station on 31 July 2003. Dr Casolin submitted a report to StateRail on 6 August 2003 in which he described the tests which had been conducted and the results of those tests. Dr Casolin concluded that "Mr Sebastian's colour vision deficiency does not place him or others at increased risk when performing safe working duties". 10 On 28 August 2003 StateRail wrote to Mr Sebastian and informed him of the results of the tests conducted by Dr Casolin. Mr Sebastian was advised that StateRail proposed to give further consideration to his job application but requested more information about his "dyslexia" in order to complete the psychometric testing. StateRail asked Mr Sebastian to withdraw the complaint of disability discrimination which had been lodged with the ADB. On 22 September 2003 Mr Sebastian wrote to the ADB and withdrew that complaint. 11 Mr Sebastian subsequently provided StateRail with a report from a medical practitioner, Dr RK Verma, dated 17 October 2003, in which the doctor recorded: "Joseph Sebastian who has been suffering from reading and learning problems since childhood along with colorblindness, so he should have special consideration for his departmental exams". It appears that there were telephone conversations between Ms Beck and Ms Mary O'Sullivan from StateRail about the adequacy of this report. On 18 November 2003 Ms O'Sullivan wrote to Mr Sebastian and commented that "Dr Verma's letter does not provide any information about the nature and extent of your disability". Ms O'Sullivan suggested that a report from "a Registered Psychologist" would provide StateRail with the information it required. 12 On 25 November 2003 Ms Beck lodged a complaint with the ADB on Mr Sebastian's behalf in which she claimed that StateRail had victimised Mr Sebastian by requiring him to repeat the psychometric test. It appears that this complaint was lodged pursuant to s 88(2)(a) of the Act (since repealed) which permitted a person to lodge a complaint on behalf of a person with a disability if the President of the ADB was satisfied that the person on whose behalf the complaint was lodged consented to it being made. This complaint was characterised by the ADB as one involving claims of both victimisation (in response to the complaint lodged on 18 June 2003 and subsequently withdrawn) and discrimination on the ground of disability by an employer in relation to the arrangements made for offering employment. It is convenient to refer to this complaint as 'the State Rail Authority complaint'. This complaint was not resolved by the ADB and it was subsequently referred to the Tribunal by the President of the ADB in May 2004. 13 According to Ms Beck and Mr Sebastian, the events which lead to the first complaint of unlawful discrimination being lodged against the Rail Infrastructure Corporation are aligned to the circumstances surrounding the State Rail Authority complaint. 14 As we noted in paragraph [5], Mr Sebastian was working for Skilled Engineering Ltd as a flagman/lookout at the time he applied for a position with the State Rail Authority. It appears that Mr Sebastian was a casual employee of Skilled Engineering Ltd. Through a labour hire arrangement Skilled Engineering Ltd provided workers for the Rail Infrastructure Corporation, which is an accredited operator of a railway under s 8 of the Rail Safety Act 2002. Various provisions in the Rail Safety Act 2002 require an accredited operator of a railway to ensure that "railway employees" undertaking "rail safety work" hold a certificate of competency and that they "are of sufficient good health and fitness to perform the functions for which they are certified". Under s 36 of the Rail Safety Act 2002 the Rail Infrastructure Corporation is authorised to issue the required certificates of competency for its workers. 15 It appears that Mr Sebastian was issued with a certificate of competency as a Handsignaller Level 2 in 2001. This certificate was valid until 6 November 2003. Mr Sebastian presented for re-certification on 4 November 2003. The process involved assessment of his competency to perform the work and a medical fitness requirement. Whilst Mr Sebastian satisfied the competency component of the re-certification process his employer, Skilled Engineering Ltd, was requested by letter dated 18 November 2003 from the Rail Infrastructure Corporation to arrange for Mr Sebastian to undertake colour vision testing at the Optometry Clinic at the University of NSW. 16 Mr Sebastian responded to this request by pointing out that he had already had a test, which he regarded as unsatisfactory, at the Optometry Clinic at the University of NSW at the request of StateRail and that he had subsequently "passed" an "on the job assessment" conducted by Dr Casolin of HealthQuest. Rail Infrastructure Corporation sought a copy of the University of NSW test results from StateRail who declined to provide those results because of their personal and private nature. StateRail also advised the Rail Infrastructure Corporation that Dr Casolin's assessment "was designed specifically to assess Mr Sebastian's abilities in relation to the duties of a Customer Service Attendant". 17 The Rail Infrastructure Corporation then made a second request to Mr Sebastian for the results of the University of NSW test. As no response had been received by 10 December 2003 the Rail Infrastructure Corporation issued Mr Sebastian with a restricted Certificate of Competency for Handsignalling Level 2. The Certificate stipulated that Mr Sebastian was "not to give or take coloured signals" and "must be accompanied at all times". The practical effect of these restrictions was that there was no work for him as a handsignaller. Mr Sebastian received this advice from Skilled Engineering Ltd on 11 December 2003. 18 On 17 December 2003 Ms Beck, acting on Mr Sebastian's behalf, lodged a complaint of discrimination on the ground of disability against the Rail Infrastructure Corporation with the ADB. Ms Beck asserted that the Rail Infrastructure Corporation should have accepted Dr Casolin's report as evidence of Mr Sebastian's eligibility for an unrestricted Certificate of Competency, or they should have carried out a practical test before deciding to place restrictions upon his Certificate of Competency. 19 It is convenient to refer to this complaint as 'the first Rail Infrastructure Corporation complaint'. It appears that this complaint, like the State Rail Authority complaint, was lodged pursuant to s 88(2)(a) of the Act (since repealed) which permitted a person to lodge a complaint on behalf of a person with a disability if the President of the ADB was satisfied that the person on whose behalf the complaint was lodged consented to it being made. This complaint was characterised by the ADB as one involving claims of discrimination on the ground of disability by a qualifying body and by a provider of services. This complaint was not resolved by the ADB and it was subsequently referred to the Tribunal by the President of the ADB in April 2004. 20 On 14 September 2004 Ms Beck lodged a further complaint of discrimination against the Rail Infrastructure Corporation with the ADB. It appears that this complaint, like the State Rail Authority complaint and the first Rail Infrastructure Corporation complaint, was lodged pursuant to s 88(2)(a) of the Act (since repealed) which permitted a person to lodge a complaint on behalf of a person with a disability if the President of the ADB was satisfied that the person on whose behalf the complaint was lodged consented to it being made. Even though this complaint was signed by Mr Sebastian, it was expressed as being lodged by Ms Beck on behalf of Mr Sebastian. 21 The substance of this complaint was that the Rail Infrastructure Corporation discriminated against Mr Sebastian on the ground of his disability, and victimised him, by failing to accede to requests by Mr Sebastian's union (the Rail, Tram and Bus Union) that he be provided with a practical or functional assessment in order to satisfy the Rail Infrastructure Corporation that he was entitled to an unrestricted Certificate of Competency as a Handsignaller Level 2. It is convenient to refer to this complaint as 'the second Rail Infrastructure Corporation complaint'. 22 The ADB referred this complaint to the Rail Infrastructure Corporation for its response on 26 November 2004. On 13 January 2005 the solicitors for the Rail Infrastructure Corporation responded to the ADB by indicating that in their opinion the matter had been resolved and that Mr Sebastian would withdraw the complaint shortly. Ms Beck was invited by the ADB to respond to these statements from the Rail Infrastructure Corporation's solicitors. In a letter to the ADB, dated 4 February 2005, Ms Beck stated: In reply to your letter dated 31.1.05 a conciliation conference took place on 14.12.04 and a principles of agreement was signed. When the deed of release was delivered it contained clauses not discussed and variations to the original agreement that are not acceptable… The Tribunal has been informed in writing that all matters have not been resolved. The deed of release is not going to be signed and requesting a case conference take place as soon as it can be arranged. 23 As this complaint was not resolved by the ADB it was referred to the Tribunal by the President of the ADB in May 2005. The events of 14 December 2004 24 The complaints which have been referred to as the State Rail Authority complaint and the first Rail Infrastructure Corporation complaint were set down for hearing by the Tribunal on 14, 15 and 16 December 2004. It was intended that the first Rail Infrastructure Corporation complaint would be heard on 14 and 15 December 2004 and that the State Rail Authority complaint would be heard on 16 December 2004. 25 Prior to 14 December 2004 case conferences had been held at which the parties were directed to file various documents. Both respondents were legally represented at these case conferences. The applicant was represented at all times by Ms Beck. On a number of occasions Mr Sebastian and Ms Beck were encouraged to seek legal representation and they were referred to a member of the Tribunal's staff who had contact details for the Legal Aid Commission, community legal centres, and law firms which provide pro bono legal services in anti-discrimination matters. 26 At the commencement of the hearing on 14 December 2004, Mr Siva, a barrister, announced his appearance for Mr Sebastian in relation to the first Rail Infrastructure Corporation complaint. Mr Siva informed the Tribunal that he was appearing under the Bar's pro bono scheme. He sought an adjournment of the first Rail Infrastructure Corporation complaint because he had received instructions only the day beforehand. Mr Siva also informed the Tribunal that he had no instructions in relation to the State Rail Authority complaint. 27 Ms Ronalds SC appeared for both respondents. She neither supported nor opposed Mr Siva's application for an adjournment of the first Rail Infrastructure Corporation complaint. Ms Ronalds SC gave notice of her intention to apply to have certain aspects of the State Rail Authority complaint summarily dismissed because of lack of evidence and because the Points of Claim which had been filed in support of that complaint included a claim of discrimination on the ground of race even though no such claim had been included within the initial complaint to the ADB. 28 The parties agreed with the suggestion by the Tribunal that as the applicant was now legally represented the matter should proceed to mediation before the Tribunal would give a ruling in relation to Mr Siva's application for an adjournment and hear Ms Ronalds' foreshadowed application to summarily dismiss parts of the State Rail Authority complaint. The parties also accepted the suggestion that the mediation be conducted by a member of the Tribunal, Ms Antonios, who is an experienced mediator, and that Ms Antonios be replaced as a member of the Tribunal in the event that the matter was not settled at mediation. 29 At 4pm on 14 December 2004 Mr Siva and Ms Ronalds SC informed the judicial member of the Tribunal at a case conference that the complaints had been settled and that the parties had signed an agreement. The complaints were adjourned to a date to be fixed by the Registrar in order to enable the parties to finalise the settlement arrangements. The events following 14 December 2004 30 It is not in dispute that shortly after the mediation Ms Sharp, the solicitor for the respondents, prepared a draft Deed of Release and forwarded it to Mr Siva. Thereafter, there was considerable email and telephone contact between Ms Sharp and Mr Siva concerning Ms Sharp's request that the draft deed be executed by Mr Sebastian. On 11 February 2004 Mr Siva informed Ms Sharp by email that "I am no longer retained by Mr Sebastian in this matter" and that "I am no longer able to obtain instructions regarding the deed of release". The Deed of Release has not been executed. 31 Ms Beck subsequently contacted the Tribunal with the request that the State Rail Authority complaint and the first Rail Infrastructure Corporation complaint be re-listed because she no longer regarded them as having been settled. The solicitors for the respondents filed applications that both of these complaints be dismissed. The second Rail Infrastructure Corporation complaint was subsequently referred to the Tribunal by the President of the ADB. The solicitors for the respondents filed an application that this complaint be dismissed. The respondents' applications to dismiss all three complaints were then set down for hearing on 8 July 2005. Ms Gill joined this division of the Tribunal in place of Ms Antonios who could not sit because of her role in the mediation session conducted on 14 December 2004. The current proceedings 32 The respondents sought orders that all three complaints be dismissed because they had been settled on 14 December 2004. In the alternative, the respondents sought orders pursuant to s 105 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) to give effect to the settlement reached on 14 December 2004. 33 The respondents relied upon two affidavits sworn by a solicitor, Ms Amber Sharp, in support of their applications. A document headed 'Principles of Agreement', dated 14 December 2004, was tendered by Ms Ronalds SC and admitted into evidence. This was the document signed during, or after, the mediation session on 14 December 2004. The reasons for admitting this document into evidence are explained at paragraphs [56] to [69]. The contents of the document are described at paragraphs [70] to [74]. 34 Ms Beck, who appeared as Mr Sebastian's agent, opposed the respondents' applications. She submitted that all three complaints should be permitted to proceed to hearing. In opposing the orders sought by the respondents Ms Beck raised a number of arguments which appear to have been made in the alternative. First, Ms Beck argued that the process which took place on 14 December 2004 was not "mediation" and that any agreement produced as a result of that process was not enforceable. Secondly, Ms Beck argued that no binding agreement was reached on 14 December 2004 because the document headed 'Principles of Agreement' was only an agreement in principle rather than a binding agreement. Thirdly, Ms Beck argued that if any agreement was reached it should be set aside because she was placed under duress when she executed the agreement. Fourthly, Ms Beck argued that the agreement should be set aside because the respondents breached provisions in the agreement concerning confidentiality and non-disparagement. Fifthly, Ms Beck argued that the agreement should be set aside because the respondents failed to perform one of their obligations under the agreement. 35 Ms Beck filed two documents, dated 25 June 2005 and 30 June 2005, which contained a mixture of submissions and evidence. The contents of both documents were treated as submissions. Following various rulings about the admissibility of evidence, Ms Beck chose not to give any evidence herself. 36 Ms Beck sought to tender statements by Mr Sebastian and Mr Aaron Beck concerning the events which took place during the mediation session on 14 December 2004. These statements were ruled to be inadmissible because of the prohibition in s 107(4) of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) against evidence about the events which took place at mediation. A statement by Mr DW Barrington was ruled inadmissible for the reasons set out in paragraphs [87] to [88]. The jurisdiction of the Tribunal 37 As we noted in paragraph [3], six issues arise for consideration in this case. The first of those issues is the jurisdiction of the Tribunal to determine whether a complaint should not be permitted to proceed to hearing because it has been compromised or settled. 38 The Tribunal has not been granted any express power to decline to hear a complaint, or to dismiss a complaint, because it has been settled. On the basis of authority, however, it seems clear that the Tribunal does have the power to do these things. 39 In Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 the NSW Court of Appeal was required to determine whether the predecessor to the Equal Opportunity Division of this Tribunal, the Equal Opportunity Tribunal, possessed powers of this nature. In that case the Equal Opportunity Tribunal had rejected a claim by Qantas that complaints of sex discrimination by Ms Gubbins and others should not be permitted to proceed because the matters in question had been settled and the claims of sex discrimination released by deed. Whilst the Equal Opportunity Tribunal determined that it had the jurisdiction to decide whether the complaints in question had been settled, it concluded, on the facts of the case, that the complaints of sex discrimination fell outside the terms of the deed of release. The jurisdiction of the Equal Opportunity Tribunal to determine whether a complaint had been settled and to decline to permit it to proceed was a key issue in the appeal to the Court of Appeal. 40 All three members of the Court of Appeal held that the Equal Opportunity Tribunal had the jurisdiction to adjudicate on the defences of release by deed and estoppel raised by Qantas. Two members of the Court, Gleeson CJ and Handley JA, concluded that the Tribunal's jurisdiction to determine whether the deed of release acted as a bar to the complaints of unlawful discrimination arose, by implication, as a matter of statutory construction flowing from the grants of power to the Tribunal to conduct inquiries into complaints of unlawful discrimination and to order various remedies if the Tribunal found a complaint substantiated. Gleeson CJ and Handley JA observed that the AD Act encouraged settlement and that it granted the Equal Opportunity Tribunal exclusive jurisdiction to hear and determine complaints of unlawful jurisdiction which were not resolved by the President of the ADB. They concluded that "if the respondent relies on defences such as release or accord and satisfaction the tribunal must have jurisdiction to adjudicate on those defences". 41 Kirby P (as he then was) reached a similar conclusion concerning the jurisdiction of the Equal Opportunity Tribunal to adjudicate upon the claim that the complaints had been settled by following a different route. According to Kirby P, the Equal Opportunity Tribunal did not have the same jurisdiction as that possessed by the Supreme Court to determine a claim based upon a deed of release by strict application of the rules of law and equity. The Tribunal did have the power, however, to determine the effect of the deed of release when exercising the power granted to it by s 108(1)(b) of the AD Act to decide what "equity, good conscience and the substantial merits of the case" required. Kirby P held that s 108(1)(b) granted the Tribunal a broad jurisdiction to be fair and just when conducting an inquiry into a complaint. Whilst s 108(1)(b) of the AD Act has been repealed, similar wording is now found in s 73(3) of the Tribunal Act. 42 In view of recent statements by members of the High Court concerning the meaning of 'equity and good conscience' clauses it appears that the reasoning of Gleeson CJ and Handley JA should be preferred to that of Kirby P. Following comments made in both Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 628 (per Gleeson CJ and McHugh J) and Sue v Hill (1999) 199 CLR 462 at 485 (per Gleeson CJ, Gummow and Hayne JJ) and 521 (Gaudron J), it seems clear that 'equity and good conscience' clauses are not grants of jurisdiction, unless the statutory context indicates otherwise. They are grants of procedural power only. As a general rule 'equity and good conscience' clauses do not permit courts and tribunals to depart from the rules of law, they are not grants of jurisdiction to apply principles of equity, and they are not grants of jurisdiction to determine cases on the basis of that which the tribunal considers to be fair and just in the circumstances. 43 Whilst the Equal Opportunity Tribunal has been abolished, and the AD Act has been substantially amended since Qantas Airways Ltd v Gubbins was decided, a similar analysis of the current statutory regime concerning complaints of unlawful jurisdiction to that undertaken by Gleeson CJ and Handley JA in Qantas Airways Ltd v Gubbins leads to the conclusion that the Tribunal must possess the jurisdiction to determine whether it should decline to hear a complaint, or to dismiss it, because it has been settled. That analysis follows. 44 The Tribunal was established by s 11 of the Tribunal Act. Section 36 of the Tribunal Act stipulates that the Tribunal may make "original decisions" and "reviewable decisions". Those terms are defined in ss 7 and 8 respectively. It is clear that the decisions sought by the respondents in this case are "original decisions". 45 Section 37 of the Tribunal Act provides, in effect, that another Act may give the Tribunal jurisdiction to make an original decision. Section 45 provides that when making an original decision the Tribunal has the functions which are conferred upon it by the Act which grants the Tribunal jurisdiction to make an original decision. Section 19 of the Tribunal Act declares that the Tribunal must exercise its functions in the Divisions specified in Schedule 1. One of the Divisions referred to in Schedule 1 is the Equal Opportunity Division. Section 20(2) of the Tribunal Act stipulates that a Division of the Tribunal is to exercise the functions of the Tribunal allocated to that Division by Schedule 2. Clause 2 of Part 2 of Schedule 2 stipulates that the Equal Opportunity Division is to exercise the functions allocated to the Tribunal under the Anti-Discrimination Act 1977. 46 Various functions are allocated to the Tribunal under the Anti-Discrimination Act 1977 (the AD Act). The principal functions are those referred to in s 95 of the Act. The Tribunal is required to determine complaints of unlawful discrimination referred to it by the President of the ADB or the Minister. Section 95(3) provides that the referral of a complaint to the Tribunal is taken to be an application for an original decision under the Tribunal Act. 47 When determining complaints of unlawful discrimination the Equal Opportunity Division of the Tribunal may exercise the procedural powers set out in Chapter 6 of the Tribunal Act and the powers set out in Division 3 of Part 9 of the AD Act. Section 116 of the AD Act provides, in effect, that the Tribunal may exercise the powers granted under both Acts but, in the event that there is conflict, the terms of the AD Act must prevail. Section 108 of the AD Act gives the Tribunal the power to dismiss a complaint or to find it substantiated. If a complaint is substantiated the Tribunal may order one or more of the remedies set out in s 108(2). Those remedies include ordering the respondent to pay damages not exceeding $40,000 (s 108(2)(a)) and making injunctive-style orders (s 108(2)(b) and (c)). 48 There is no capacity to directly institute proceedings in any court or tribunal in order to enforce the legal rights and obligations created by the AD Act. The only mechanism which is provided to enforce those legal rights and obligations is a complaint to the President of the ADB and, ultimately, a hearing before this Tribunal. Except for the powers vested in the Minister by s 95(2) of the AD Act, only the President of the ADB can invoke the jurisdiction of the Tribunal by referring a complaint to it for determination. 49 Both the Tribunal Act and the AD Act encourage the settlement of complaints. Section 3(c) of the Tribunal Act provides that one of the objects of that Act is "to enable proceedings before the Tribunal to be determined in an informal and expeditious manner". Section 102 of the Tribunal permits the Tribunal to refer a matter to mediation or neutral evaluation whilst s 105 permits the Tribunal to make orders to give effect to any agreement reached at mediation. Section 91A of the AD Act permits the President of the ADB to attempt to resolve a complaint by conciliation. This statutory regime clearly permits a person who has lodged a complaint of unlawful discrimination to enter into an agreement to settle that complaint on terms agreed upon by the relevant parties. 50 When all of these statutory provisions are viewed together they lead to the same conclusion as that reached by Gleeson CJ and Handley JA in Qantas Airways v Gubbins when they considered the issue before us at a time when the Administrative Decisions Tribunal did not exist. This Tribunal, like the former Equal Opportunity Tribunal, has the jurisdiction to determine whether it should decline to hear a complaint, or dismiss it, because it has been settled. When exercising this jurisdiction the Tribunal has the power to determine the effect of any deed, or other document in which the terms of any settlement have been recorded, and it has the power to determine whether any deed or agreement should be set aside, or rendered unenforceable, as a result of matters such as duress or fraud. It is unnecessary to determine the precise limits of the Tribunal's jurisdiction to deal with challenges to the enforceability of any agreement in order to deal with the matters which have been raised in this case. The breadth of s 102 of the Anti-Discrimination Act 1977 51 The second issue which arises for consideration is related to the question of the Tribunal's jurisdiction to give effect to an agreement to settle a complaint. The respondents have sought orders that the Tribunal exercise it's powers under s 102 of the AD Act to dismiss the three complaints. The respondents have sought orders that the three complaints be dismissed summarily without any investigation of the merits of those complaints because the complaints were settled on 14 December 2004. This issue is not the same as the question of jurisdiction because that issue involved consideration of the Tribunal's powers to consider the meaning of a settlement agreement and to consider arguments that full force and effect should not be given to the terms of that agreement because of matters such as fraud or duress. The current issue simply concerns the power given to the Tribunal in s 102 of the AD act to dismiss a complaint in certain circumstances. 52 Section 102 was inserted into the Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004. It replaced the former s 111 which permitted the Tribunal to summarily dismiss a complaint on various grounds. Section 102 reads as follows: The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i) or (ii) or (b). 53 The relevant powers of the President of the ADB in s 92(1)(a)(i) or (ii) or (b) are as follows: (a)(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance (a)(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint. 54 Section 102 of the AD Act is at least as broad as, and probably broader than, the former s 111. Like the former s 111, s 102 permits the Tribunal to dismiss a complaint "at any stage in proceedings". The grounds upon which this power may be exercised are broad. The operative provision in this case is the cross-reference to s 92(1)(b) which has the effect of permitting the Tribunal to dismiss all or part of a complaint if "satisfied that for any other reason no further action should be taken in respect of the complaint". This ground is clearly broad enough to permit the Tribunal to dismiss a complaint because the parties have entered into an agreement to settle that complaint if, as we have already determined, the Tribunal has the jurisdiction to decline to hear a complaint because the paries have entered an agreement to settle that complaint. 55 The power to dismiss a complaint "for any other reason" was also included in the former s 111 of the AD Act. In United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13 an Appeal Panel of the Tribunal proceeded on the basis that the former s 111 permitted the Tribunal to dismiss a complaint because it had been released by deed. The admissibility of the document headed 'Principles of Agreement' 56 Ms Ronalds SC sought to tender a document in which the terms of the settlement reached on 14 December 2004 were recorded. It was not in dispute that this handwritten document, headed 'Principles of Agreement' and dated 14 December 2004, was prepared at the Tribunal on 14 December 2004 during or after the mediation session. The document was signed by Mr Sebastian, Ms Beck and Ms Belinda Henry, a representative of the respondents. 57 One section in the Tribunal Act (s 105) makes it clear that this document is admissible as evidence in these proceedings, whilst another provision (s 107(5)) appears to prevent it being admitted into evidence. Before quoting and contrasting these apparently inconsistent provisions it is useful to place them in context. Section 102 of the Tribunal Act permits the Tribunal to refer a matter to mediation if (1) the Tribunal considers the circumstances appropriate for mediation, and (2) the parties to the proceedings consent to the referral to mediation, and (3) the parties agree about the identity of the mediator. Section 103 of the Tribunal Act stipulates that attendance at, and participation in, mediation is voluntary and that a party may withdraw from a mediation session at any time. "Mediation" is defined in s 101(1) of the Tribunal Act to mean "a structured negotiation process in which the mediator, as a neutral and independent party, assists the parties to a dispute to achieve their own resolution of the dispute". 58 On 14 December 2004 the Tribunal exercised the power in s 102 to refer two of the three complaints in this matter to mediation. The parties agreed that Ms Antonios would be the mediator. At the conclusion of that mediation session the barristers representing the parties informed the judicial member of the Tribunal that the complaints had been settled and that a document which recorded the agreement reached by the parties had been signed. That document is the 'Principles of Agreement'. 59 Section 105 of the Tribunal Act is obviously intended to facilitate the enforcement of agreements reached at mediation, either by way of an order of the Tribunal, or an order of a court. Section 105 reads as follows: 1) The Tribunal may make orders to give effect to any agreement or arrangement arising out of a mediation session. 2) However, the Tribunal cannot make an order under subsection (1) unless it is satisfied that the agreement or arrangement is in the best interests of the person whose interests are considered by the Tribunal to be paramount. 3) This Part does not affect the enforceability of any agreement or arrangement that may be made, whether or not arising out of a mediation session, in relation to the matters the subject of a mediation session. 60 Section 107 of the Tribunal Act is obviously intended to encourage the parties to engage in a full and frank consideration of settlement options at mediation by prohibiting the disclosure of that which took place at mediation in any subsequent legal proceedings. The section is headed 'Privilege'. In broad terms, s 107 renders that which took place at mediation privileged communication. Section 107(2) and (3) provide for protection against defamation actions. Section 107(4), (5) and (6) are relevant in this case. Those sub-sections provide as follows: (4) Evidence of any thing said or of any admission made in a mediation session or neutral evaluation session is not admissible in any proceedings before any court, tribunal or body. (5) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session or neutral evaluation session, or any copy of such a document is not admissible in evidence. (6) Subsections (4) and (5) do not apply with respect to any evidence or document: (a) if the persons in attendance at, or identified during, the mediation session or neutral evaluation session and, in the case of a document, all persons identified in the document, consent to the admission of the evidence or document, or (b) in proceedings instituted with respect to any act or omission in connection with which a disclosure has been made under section 108(c). 61 There is a direct conflict between the terms of s 105(1) and (3) and those of s 107(5) of the Tribunal Act. Section 105(1) and (3) clearly contemplate that a document prepared in the course of, or as a result of, a mediation session will be produced in evidence in proceedings before this Tribunal, or a court, to give effect to an agreement reached at mediation. The usual course of events in mediation conducted in this and other jurisdictions is that if agreement is reached the parties sign an agreement at the conclusion of the mediation session. Often, but not always, that written agreement will be replaced, at some later stage, by a more formal and detailed agreement which usually takes the form of a deed. Both the initial agreement and any later deed may be described as documents prepared in the course of, or as a result of, a mediation session. 62 Section 107(5) of the Tribunal Act stipulates that a document which is prepared in the course of, or as a result of, a mediation session is not admissible in any proceedings in any court or tribunal. If read and applied literally that provision would render those parts of the Tribunal Act which deal with mediation useless for an agreement reached in the course of, or as a result of, mediation could not be enforced in any court or tribunal unless both parties and all persons present during the mediation agreed to support that action. Further, if read and applied literally, s 107(5) would render s 105 of the Tribunal Act meaningless because a party could not ask the Tribunal to make orders to give effect to any agreement reached during or after mediation unless both parties and all persons present during the mediation agreed to the tender of the document. If these literal interpretations prevailed the parties would be better advised to engage in private mediation rather than mediation under the auspices of the Tribunal because an agreement reached at private mediation could be enforced without the consent of all of the parties. 63 This cannot have been the intention of a statutory scheme which is designed to promote informal dispute resolution. Section 107(5) must be read in such a way that it fits within the overall scheme of the AD Act. As Ms Ronalds SC pointed out in her written submissions, s 33 of the Interpretation Act 1987 provides that the preferred approach to the construction of legislation is one which promotes the purposes of the legislation. 64 Sections 105 and 107 of the Tribunal Act fall within Part 4 of Chapter 6 of that Act. The primary purpose of that Part of the Tribunal Act, which is headed 'Alternative Dispute Resolution', is to encourage and facilitate mediation as a form of dispute resolution and to enable the parties to enforce agreements reached at mediation. The secondary purpose of rendering the events which occurred at mediation privileged in order to encourage the use of alternative dispute resolution cannot be permitted to prevail. To allow this secondary purpose to prevail would be to permit form to prevail over substance. As Kirby P pointed out in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 42, "it is not unjust or offensive to the community's conscience or its sense of equity that an adult person who accepts a compromise and takes money pursuant to it should ordinarily be kept to that bargain". There is an important difference between preventing evidence from being given about what took place during the mediation process and permitting an agreement which was the product of that process to be used in evidence in subsequent court or tribunal proceedings concerned with enforcement of that agreement. 65 The fact that s 107(6)(a) of the Tribunal Act permits all persons who were present at a mediation session to waive the inadmissibility stipulation contained in s 107(5) does not cause us to believe that s 107(5) should be given a literal interpretation. Section 107(6)(a) is cumbersome and difficult to engage. In order to invoke the s 107(6)(a) waiver requirement it would be necessary to obtain the consent of the mediator, the parties, the lawyers and support persons who were at the mediation, and any students who may have been given permission by the parties and the mediator to attend the mediation session. Sometimes it will not be possible to obtain the consent of all of these people because one of the parties may no longer wish to comply with the agreement (as in this case), or one of the persons present may be difficult to locate, or one of them may be dead. 66 The prohibition contained in s 107(5) against the admissibility into evidence of a document prepared in the course of, or as a result of, a mediation session does not extend to a document which is an agreement reached at, or after, mediation. The document headed 'Principles of Agreement' and dated 14 December 2004 is admissible in evidence in these proceedings. 67 Similar language to that used in sections 105 and 107 of the Tribunal Act is found in the former sections 110N and 110P of the Supreme Court Act 1970 which were recently repealed. Whilst those sections of the Supreme Court Act 1970 do not appear to have been subjected to detailed analysis in any published decisions, they were briefly considered by Hodgson JA in Wentworth v Rogers [2004] NSWCA 109 when making a ruling on an interlocutory application. In that case Hodgson JA held that the act of signing an agreement at, or after, a mediation session may be evidence of an implied consent that the agreement may be admitted into evidence in any later proceedings concerning the enforcement of that agreement. This is another route which supports the conclusion we have reached about the admissibility of the 'Principles of Agreement'. 68 The provisions in the Tribunal Act, and those formerly included in the Supreme Court Act 1970 which deal with mediation and the enforcement of agreements reached during, or after, mediation should be contrasted with the equivalent provisions in the Civil Procedure Act 2005. The relevant provisions in the Civil Procedure Act 2005 strike a clear balance between the need to protect the discussions at mediation from disclosure in subsequent legal proceedings and the obvious interest in being able to enforce an agreement reached during, or after, mediation. 69 The language used in sections 29 and 30 of the Civil Procedure Act 2005 is similar to that used in sections 105 and 107 of the Tribunal Act. There are, however, two important differences between these two statutory schemes. Section 29(2) of the Civil Procedure Act 2005 permits a party who seeks court orders to give effect to an agreement reached at mediation to call evidence "as to the fact that an agreement or arrangement has been reached and as to the substance of the agreement or arrangement". Section 30(4) of the Civil Procedure Act 2005, which renders inadmissible evidence of anything said or done at mediation and which also renders inadmissible any document prepared in the course of, or as a result of mediation, operates subject to s 29(2). The drafter of these provisions clearly anticipated the issue that has arisen in this case where one party seeks to enforce an agreement reached at mediation against a party who no longer wishes to be bound by that agreement. Section 30(4) of the Civil Procedure Act 2005 unequivocally causes the bar to disclosing, in subsequent legal proceedings, what took place at mediation to be lifted in aid of promoting the greater public interest in requiring parties to comply with their bargains whenever steps are taken to enforce an agreement reached at mediation. It is suggested that the relevant authorities give serious thought to amending sections 105 and 107 of the Tribunal Act to bring them in line with the equivalent provisions in the Civil Procedure Act 2005. The meaning and effect of the 'Principles of Agreement' 70 The document headed 'Principles of Agreement' is a typical record of an agreement to settle litigation. The key terms of the agreement are those in which the respondents promise to pay Mr Sebastian a sum of money in exchange for his promise not to proceed with his complaints against them under the AD Act. After careful consideration we have decided to accept the submission by Ms Ronalds SC that we should not disclose the settlement sum in these reasons for decision. The agreement contains a standard confidentiality clause. As we explain in more detail below at [84] to [88], we have not been presented with any evidence which leads us to conclude that the respondents have breached the agreement. Consequently, the respondents should be entitled to the benefit of the confidentiality clause. It is unnecessary to identify the actual sum of money which remains due to be paid to Mr Sebastian (the 'settlement sum') in order to give effect to the settlement agreement in the orders which we propose to make. 71 In paragraph 6 of the 'Principles of Agreement' the applicant agreed that he "releases and forever discharges" the respondents from various numbered proceedings. Those numbers indicate that proceedings are the State Rail Authority complaint, the first Rail Infrastructure Corporation complaint and the second Rail Infrastructure Corporation complaint which at that stage was still with the President of the ADB. The applicant also agreed "to release and discharge" the respondents from "any claims, demands, or proceedings in relation to any matter relating directly or indirectly in relation to all matters facts and circumstances described in" the three complaints. 72 The 'Principles of Agreement' also contains clauses dealing with what is described as a "functional assessment". In paragraph 3 of the agreement the respondents agreed to "notify the applicant in writing as soon as the functional assessment is available". The reference to the "functional assessment" appears to be a reference to a practical test, or "on the job' assessment, to determine whether a person with some degree of colour blindness can work as a handsignaller. It will be recalled that the Rail Infrastructure Corporation sought to test Mr Sebastian's colour vision in late 2003 only by way of testing at the Optometry Clinic at the University of NSW. In paragraph 7 the parties agreed that "the terms of agreement are confidential" and in paragraph 8 the parties agreed "not to disparage one another". 73 The 'Principles of Agreement' also contained a provision which stipulated that the solicitor for the respondents would prepare a deed of release and forward it to the applicant's barrister. Following an agreement between Ms Sharp, the respondents' solicitor, and Mr Siva, the draft deed was delivered to Mr Siva on 17 December 2004 which was a day later than the delivery date referred to in paragraph 9 of the 'Principles of Agreement'. Nothing turns on this point because the delivery date of the deed was a non-essential term of the agreement which Ms Sharp and Mr Siva clearly had the capacity to vary as they did. The deed has not been executed by the parties. 74 The effect of the document titled 'Principles of Agreement' was that Mr Sebastian agreed not to proceed with the three complaints of unlawful discrimination which are currently before the Tribunal in exchange for a sum of money. The other parts of that document are ancillary provisions which support or complement the key promise by the respondents to pay money to the applicant in exchange for his promise not to continue with his two complaints before the tribunal and a third complaint (the second Rail Infrastructure Corporation complaint) which had been lodged with the President of the ADB and was subsequently referred to the Tribunal. The merits of the respondents' applications 75 In the absence of any arguments that the 'Principles of Agreement' should not be enforced, the respondents are clearly entitled to orders that the complaints be dismissed upon proof that they have paid the settlement sum to Mr Sebastian and have otherwise complied with their obligations under the agreement. Ms Beck has advanced five reasons why the 'Principles of Agreement' should not be enforced. 76 The first of those reasons was that the process which took place on 14 December 2004 was not "mediation" and that any agreement produced as a result of that process was not enforceable. There is no merit to this argument. Whether the process which took place on 14 December 2004 is characterised as a "mediation session" within the meaning of Part 4 of Chapter 6 of the Tribunal Act or a private meeting between the parties and their lawyers has no effect upon the enforceability of any agreement reached on that day. If it was a "mediation session", s 107(4) of the Tribunal Act prevents the Tribunal from hearing evidence about what took place on 14 December 2004. The substance of Ms Beck's submission, however, was that the process which took place was not "mediation" because the parties and their representatives did not sit and talk together in the same room. Even if this was what happened on 14 December 2004 it does not prevent the process from falling within the broad definition of "mediation" in s 101(1) of the Tribunal Act. It is not necessary for all of the parties to sit in the same room at the same time for a process to be characterised as "mediation". 77 The second argument advanced by Ms Beck was that no binding agreement was reached on 14 December 2004 because the document headed 'Principles of Agreement' was an agreement in principle rather than a binding agreement. There is no merit to this argument. We accept the submission by Ms Ronalds SC that the settlement agreement in this case was an agreement within the second class of agreements described by the High Court in Masters v Cameron (1954) 91 CLR 353 at 360. This was "a case in which the parties have completely agreed upon all the terms of their bargain and intend no departure from or addition to that which their agreed terms express or imply, but nevertheless have made performance of one or more of the terms conditional upon the execution of a formal contract". In these circumstances "there is a binding contract" ((1954) 91 CLR 353 at 360). 78 There is no suggestion that Mr Sebastian did not have the capacity to enter into an agreement to discontinue his litigation in exchange for the payment of a sum of money. There is no suggestion that Mr Sebastian entered into that agreement as a result of mistake, misrepresentation, duress, unconscionable dealing or other factor which would vitiate the contract. Mr Sebastian was legally represented at the time he signed this agreement on 14 December 2004. The email communication between Ms Sharp and Mr Siva indicates that Mr Siva considered himself to be representing Mr Sebastian until 11 February 2005 when he informed Ms Sharp that he was no longer retained. Mr Sebastian entered into a binding agreement to settle these complaints on 14 December 2004. 79 Ms Beck's third argument was that if any agreement was reached it should be set aside because she was placed under duress when she signed the 'Principles of Agreement'. If it were necessary to consider the substance of this argument we would be required to deal with the problem that s 107(4) of the Tribunal Act prevents the Tribunal from receiving evidence concerning the events which took place at a mediation session. That need, however, does not arise in this case. Whether Ms Beck was placed under duress or not has no bearing upon the enforceability of any agreement reached on 14 December 2004 because she had no capacity to settle two of those complaints and her capacity to settle the third complaint was shared jointly and severally with Mr Sebastian. No suggestion has been made that Mr Sebastian was subjected to duress on 14 December 2004. He settled that complaint when he signed the 'Principles of Agreement'. It is worth repeating that Mr Sebastian was legally represented at the time he signed this agreement. 80 All three complaints were lodged with the President of the ADB by Ms Beck on Mr Sebastian's behalf. Section 88(2A)(a) of the AD Act, which was in force at the time the complaints were lodged and when the complaints were settled on 14 December 2004, gave people such as Ms Beck, who lodged a complaint on behalf of a person with a disability, some legal rights whilst the complaint remained within the jurisdiction of the President of the ADB. Those rights ceased once a complaint was referred to the Tribunal by the President of the ADB. It is, of course, open to the Tribunal to create a similar bundle of legal rights once a complaint is referred to the Tribunal by exercising its powers under s 71(4) of the Tribunal Act to appoint a person to a role which is similar to that of litigation guardian. No such application or appointment was made in this case. 81 Section 88(2A) of the AD Act provided: When a complaint is lodged on behalf of another person ( the complainant ) pursuant to subsection (2): (a) the person who lodges the complaint is, for the purposes of this Division, taken to have the same rights, obligations and interests with respect to the investigation or referral of the complaint as the complainant, and (b) the complaint is, for the purposes of this Part, taken to have been lodged by the complainant on his or her own behalf (except to the extent necessary to give effect to subsection (2)). Whilst this provision was repealed on 2 May 2005 by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 , it has been replaced by s 87B(1) which contains similar language. 82 Section 88(2A)(a) of the AD Act gave Ms Beck the same status as the person on whose behalf the complaint was lodged - Mr Sebastian - "for this purposes of this Division". The reference to "this Division" meant Division 2 of Part 9 of the AD Act which was headed 'The functions of the President'. Thus, Ms Beck had the same rights as Mr Sebastian to deal with the complaints whilst they remained with the President of the ADB. Once the complaints were referred to the Tribunal the rights granted to Ms Beck by s 88(2A)(a) ceased. Thus, Ms Beck had no status or rights in relation to the State Rail Authority complaint and the first Rail Infrastructure Corporation complaint. 83 The 'Principles of Agreement' also refers to the second Rail Infrastructure Corporation complaint which was still before the President of the ADB when the agreement was signed. By virtue of s 88(2A)(a) of the AD Act, Ms Beck had some rights in relation to that complaint. Those rights, however, were shared with Mr Sebastian. Mr Sebastian agreed to discontinue the second Rail Infrastructure Corporation complaint in exchange for the payment of a sum of money at a time when he was legally represented. There is nothing in the AD Act which suggests that Mr Sebastian needed Ms Beck's approval or concurrence in order to settle this complaint. Further, it is arguable that the rights granted to Ms Beck by s 88(2A)(a) of the AD Act are rights as against the President of the ADB and that those rights do not extend as against the rest of the world. Consequently, Ms Beck had no rights to assert against the respondents. Her approval was not required in order to settle the second Rail Infrastructure Corporation complaint. 84 Fourthly, Ms Beck argued that the 'Principles of Agreement' should be set aside because the respondents breached provisions in the agreement concerning confidentiality and non-disparagement. We are not satisfied that the argument has any merit, either factually or legally. 85 This argument, which we have not found easy to follow, is related to Mr Sebastian's employment with Skilled Engineering Ltd. As we noted earlier, Mr Sebastian worked for Skilled Engineering Ltd on a casual basis as a handsignaller between 2000 and 2003. On 3 December 2003 Rail Infrastructure Corporation placed restrictions upon Mr Sebastian's Certificate of Competency for this position because of concerns about his colour vision. It is an offence under s 37 of the Rail Safety Act 2002 for a person to carry out rail safety work without an appropriate Certificate of Competency. 86 Ms Beck alleges that someone associated with the respondents telephoned Mr Nigel Haar from Skilled Engineering Ltd on the evening of 14 December 2004 to pass on the claim that Mr Sebastian had been permitted to work outside of his Certificate of Competency on some occasions. Ms Beck did not identify the person who is alleged to have telephoned Mr Haar. Ms Beck did not propose to call Mr Haar to give evidence about this conversation. She did propose to call another employee, Mr David Barrington, who claims to have spoken to Mr Haar about the conversation. Mr Barrington was unable to identify the person who allegedly spoke to Mr Haar. The source of the information which led to the claim that Mr Sebastian had been permitted to work outside of his Certificate of Competency was said to be material which Ms Beck had filed with the Tribunal and served upon the respondents. Ms Beck claimed that this material was discussed at the mediation session on 14 December 2004. 87 The Tribunal declined to accept Mr Barrington's evidence. Whilst the Tribunal is not bound by the rules of evidence, its proceedings would become the subject of valid criticism if it permitted a person to give hearsay evidence about a third person's alleged conversation with an unidentified person who is claimed to be associated with the respondents. Mr Haar, the person who is alleged to have received a call from a representative of the respondents, could have been called to give evidence about any conversations to which he was a party. In the absence of that evidence the respondents would have been denied procedural fairness for they would have been unable to question the actual person who allegedly spoke to an unidentified person about Mr Sebastian's work with Skilled Engineering Ltd. 88 The information allegedly conveyed to Mr Haar by someone associated with the respondents was said to be drawn from material filed with the Tribunal and served upon the respondents by Ms Beck. The 'Principles of Agreement' say nothing about the use which may be made of any material prepared for the proceedings which were the subject of that agreement. Paragraph 7 of the 'Principles of Agreement' merely stipulates that "the terms of agreement are confidential". Ms Beck was unable to point to any evidence which could have persuaded the Tribunal that the respondents had in fact breached the confidentiality clause in the agreement. 89 Further, even if the respondents had breached the confidentiality clause in the agreement, Mr Sebastian was not entitled to unilaterally declare that the agreement was at an end. A party to a contract is able to terminate that contract when the other party has breached one of the terms of the contract which is classified as a condition. A condition is an essential term which is said to go to the root of the contract. Thus, in order to be classified as a condition, a term must be one which the parties regarded as essential at the time they entered into the contract. When there has been a breach of a condition, or when there has been a breach of the contract which deprives the innocent party of the substantial benefit of the contract, the innocent party may elect to terminate the contract (see N Seddon and M Ellinghaus, Cheshire and Fifoot's Law of Contract (8th Australian ed), Sydney: LexisNexis Butterworths, 2002 at pp 932-940). 90 Even if we had found, as a question of fact, that the respondents had breached the confidentiality clause in the 'Principles of Agreement', that term is not a condition of the contract breach of which justified termination of the contract. Further, even if the confidentiality clause had been breached it would not have constituted a breach which deprived Mr Sebastian of the substantial benefit of the contract. Still further, when there is a breach of a condition of a contract, or a breach which deprives the innocent party of the substantial benefit of the contract, that person must clearly communicate to the other party his or her election to terminate the contract (see Seddon and Ellinghaus at pp 941-942). There is no evidence of any communication of an election to terminate in this case. 91 Fifthly, Ms Beck argued that the agreement should be set aside because the respondents failed to perform one of their obligations under the agreement. The obligation was said to be that set out in paragraph 3 of the 'Principles of Agreement' in which the respondents promised to "notify the applicant in writing as soon as the functional assessment is available". As we have previously pointed out, we have taken this paragraph to mean a reference to a practical test to determine whether people who experience some difficulties with colour vision may be able to perform the job of a handsignaller. 92 This argument merits a similar response to the argument concerning the alleged breach of the confidentiality clause. There is no evidence that the respondents have breached this clause. Even if such evidence existed, paragraph 3 of the 'Principles of Agreement' is not a condition of the contract. Failure to comply with paragraph 3 does not constitute a breach which deprives Mr Sebastian of the substantial benefit of the contract. Consequently, any breach of paragraph 3 does not justify termination of the contract. 93 There is no merit to any of the challenges to the enforceability of the agreement reached on 14 December 2004. The respondents are entitled to orders which give effect to that agreement. It is not possible for Mr Sebastian to claim lawfully that he no longer wishes to be bound by that agreement. Form of orders 94 The respondents are entitled to orders that the three complaints be dismissed because Mr Sebastian entered into a binding agreement on 14 December 2004 to discontinue his legal proceedings in return for the payment of a sum of money. According to Ms Ronalds SC the respondents are ready and willing to pay the settlement sum and they accept that any orders of the Tribunal dismissing the complaints must be contingent upon proof that the monies have been paid. 95 Section 85 of the Tribunal Act permits the Tribunal to make an order "subject to such conditions (including exemptions) as the Tribunal specifies when making the order". We propose to exercise that power in this case. Before the complaints are actually dismissed the respondents must satisfy the Tribunal that they have paid the settlement sum to Mr Sebastian. The method by which payment is made and the evidence of payment which is placed before the Tribunal is a matter for the respondents. An affidavit sworn by a solicitor or an employee of the respondents indicating that payment was made by bank cheque personally delivered to Mr Sebastian is likely to constitute sufficient proof of payment. 96 Because Mr Sebastian had conditions placed upon his Certificate of Competency as a handsignaller by the Rail Infrastructure Corporation, because the respondents promised in paragraph 3 of the 'Principles of Agreement' to notify Mr Sebastian as soon as a "functional assessment" was available, and because Dr Casolin's "functional assessment" caused the State Rail Authority to change its response to Mr Sebastian's application for a position as a Customer Service Attendant, the respondents should be held to their promise about a "functional assessment" before the complaints are dismissed. Accordingly, the orders dismissing the complaints will also be made subject to the condition that the respondents satisfy the Tribunal that they have taken steps to comply with paragraph 3 of the 'Principles of Agreement'. 97 Because difficulties sometimes arise in relation to the implementation and operation of orders of this nature, a further order will be made which gives the respondents the right to apply to the Tribunal for further orders, if needed, in relation to the orders that the complaints be dismissed subject to compliance with the conditions which have been specified. Costs 98 The respondents have sought orders for costs. Section 110(1) of the AD Act directs that each party is to pay his or her own costs except as provided by s 110(2). Section 110(2) stipulates that the Tribunal may make an order for costs if "the Tribunal is of the opinion in a particular case that there are circumstances that justify it doing so". The legislation does not describe those "circumstances", or otherwise assist the Tribunal in determining when this discretionary power to make a costs order should be exercised. Section 110 of the AD Act contains the same form of words as that found in s 114 of the AD Act which was repealed by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004. 99 There are numerous first instance and Appeal Panel decisions in which the Tribunal's costs power under the former s 114 was considered. Most of the relevant cases were helpfully drawn together in 2003 by the Tribunal in Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35, and more recently in Battenberg v The Union Club (No 3) [2005] NSWADT 126. What those cases demonstrate is that "in order to justify awarding costs 'there must be something over and beyond a normal course of circumstances'" (Battenberg v The Union Club (No 3) [2005] NSWADT 126 at [8] and that "as a general proposition a combination of circumstances is required in order to justify an award of costs" (Borg v Commissioner, Department of Corrective Services [2003] NSWADT 35 at [21]). 100 In this case Mr Sebastian has been hampered by the fact that he was represented by an agent, Ms Beck, who is not legally qualified. Mr Sebastian was legally represented at the time he agreed to settle his complaints. It is apparent from the emails attached to Ms Sharp's first affidavit that Mr Siva ceased to act for Mr Sebastian because his instructions were withdrawn. It is also apparent that Ms Beck clearly advised Mr Sebastian about the course of action which he should follow after the 'Principles of Agreement' had been signed. That advice was not sound. In responding to the applications by the respondents that the complaints be dismissed Ms Beck sought to present arguments which were legally complex and misconceived. 101 Ms Beck sought to amend the complaints before the Tribunal following the hearing of the respondents' applications on 8 July 2005. Section 103(1) of the AD Act, which was included in that Act by the Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004, permits the Tribunal to amend a complaint at any stage of the proceedings. Section 103(2) stipulates that an amended complaint may "include additional complaints and anything else that was not included in the complaint as investigated by the President". On 8 August 2005 Ms Beck forwarded a lengthy document to the Registrar which was characterised by her as an application pursuant to s 103(2) of the AD Act to lodge a further complaint on behalf of Mr Sebastian against the Rail Infrastructure Corporation in relation to his Certificate of Competency. It is alleged that Mr Sebastian was discriminated against on the ground of disability and victimised. Ms Beck has also sought to lodge the complaint against unnamed lawyers for the respondents. 102 Ms Beck was not granted leave by the Tribunal to re-open her case and to apply to amend the complaints once the hearing had been conducted. There is no evidence that her application was drawn to the attention of the respondents. The material which comprises the substance of the application to amend the complaints falls within the second Rail Infrastructure Corporation complaint. Thus, there are numerous reasons why Ms Beck's application cannot succeed. There must be an end to litigation of this nature. The complaints were settled on 14 December 2004. The application to amend the complaints is refused. 103 Whilst Ms Beck has vigorously pursued what she considered to be Mr Sebastian's best interests, she has strayed well beyond her field of competence in her role as his agent. She has caused a matter which was settled at a time when Mr Sebastian was legally represented to be litigated at substantial expense to the respondents and to the public purse. Had Ms Ronalds SC made an application that a costs order be made against Ms Beck personally, such an application would have received serious consideration. Section 110(2) is of sufficient breadth to support a costs order against an agent or legal representative of a party so long as that person is given notice of the fact that a costs order has been sought against them and an opportunity to respond. 104 In this case, however, a costs order has been sought against Mr Sebastian. Whilst it is highly unusual for costs to be awarded against an applicant in this jurisdiction, we believe there are special circumstances that justify an order for costs. As we have already noted, one of the objectives of the Tribunal Act is "to enable proceedings to be determined in an informal and expeditious manner" (s 3(c)). On 14 December 2004 the Tribunal moved swiftly to provide a mediator when the parties expressed an interest in mediation. The Bar, through its pro bono scheme, provided Mr Sebastian with a barrister who represented him at the mediation. The agreement reached at the conclusion of that process must be enforced, unless there are good reasons not to do so, if informal dispute resolution is to maintain credibility and receive support from the parties in later cases. 105 In this case there were no good reasons to set aside the agreement reached on 14 December 2004. The parties must be bound by their agreement. Whilst the Tribunal is not aware of all the considerations which the parties may have taken into account when agreeing upon the settlement sum, that sum is a very reasonable settlement figure in a case of this nature. 106 Mr Sebastian must make a reasonable contribution to the legal costs which were incurred by the respondents in taking action to enforce the agreement reached on 14 December 2004. It would not promote the finality of this litigation were we to make the 'usual' order that these costs be determined by a costs assessor. In the circumstances we believe it appropriate that Mr Sebastian be ordered to pay costs of $1000 in relation to each of the three complaints. 107 The respondents' primary applications are successful. They are entitled to orders that the complaints be dismissed subject to the conditions which have been mentioned. In the circumstances it is unnecessary for us to formally determine the applications, made in the alternative, that the Tribunal make orders pursuant to s 105 of the Tribunal Act to give effect to the settlement reached on 14 December 2004. For the sake of completion we should record that we cannot identify any reason why orders under s 105 should not have been made had the respondents' primary applications not been successful. In cases of this nature, however, when the Tribunal is required to be an impartial decision-maker and when it is highly unlikely that the Tribunal can be adequately informed of all the matters which the parties may take account when agreeing to a settlement, it is difficult to see how the Tribunal can comply with s 105(2) which stipulates that the Tribunal cannot make an order unless satisfied that it is "in the best interests of the person whose interests are considered by the Tribunal to be paramount". 108 We propose to make the same orders in each of the three complaints. The Tribunal makes the following orders: Sebastian v Rail Infrastructure Corporation (file no: 041071) 1. Complaint dismissed upon the respondent satisfying the Tribunal that: (a) the settlement sum has been paid to the applicant, and (b) the respondent has complied with Paragraph 3 of the 'Principles of Agreement'. 2. The applicant to pay the respondent the sum of $1000 by way of costs. 3. The respondent is granted leave to apply to the Tribunal for further orders pertaining to the implementation and operation of orders numbered 1 and 2. Sebastian v State Rail Authority of NSW (file no: 041080) 1. Complaint dismissed upon the respondent satisfying the Tribunal that: (a) the settlement sum has been paid to the applicant, and (b) the respondent has complied with Paragraph 3 of the 'Principles of Agreement'. 2. The applicant to pay the respondent the sum of $1000 by way of costs. 3. The respondent is granted leave to apply to the Tribunal for further orders pertaining to the implementation and operation of orders numbered 1 and 2. Sebastian v Rail Infrastructure Corporation (file no: 051070) 1. Complaint dismissed upon the respondent satisfying the Tribunal that: (a) the settlement sum has been paid to the applicant, and (b) the respondent has complied with Paragraph 3 of the 'Principles of Agreement'. 2. The applicant to pay the respondent the sum of $1000 by way of costs. 3. The respondent is granted leave to apply to the Tribunal for further orders pertaining to the implementation and operation of orders numbered 1 and 2.

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