Sharma v Legal Aid

LAQ Recruitment and Selection Policy 6 According to the LAQ Recruitment and Selection Policy ("the Policy"), "shortlisting" is the process of determining which applicants have the strongest claim to a vacancy. "Shortlisting" measures applicants against the selection criteria. The Policy provides that the overall aim of the selection process, that is to select the most meritorious person for the vacancy, should be the primary consideration through the shortlisting process. The Policy also provides: "If an applicant does not meet a selection criterion essential to satisfy a legal, registration and/or accreditation purpose or a requirement of a professional body, the applicant becomes ineligible and is excluded from further consideration. No applicant may be eliminated from consideration on any basis not directly related to the requirements of the position." 7 The Policy also provides that: "Unless no applicant is considered capable of meeting the requirements of the job, the selection committee shall recommend the applicant considered most meritorious overall, based on a comparative assessment of the applicant's abilities, skills, knowledge, qualifications and potential against the selection criteria."

Solicitor-in-charge - Mackay 8 This position was advertised in August 1998. The selection panel consisted of a Mr David Holliday (Chair), Mr Dermot Kehoe and Ms Karen Chapman ("the panel members"). 9 Shortlisting and selection for this position were based upon a number of selection criteria, including Selection Criteria 4 ("SC4"): "SC4 Substantial capacity to provide quality legal advice and representation." 10 The appellant and four other candidates were interviewed. No recommendation was made for the appointment of a person to the Mackay position. In a statement of reasons provided to the applicant at his request, he was advised: "1 The selection panel determined that no applicant sufficiently met the selection criteria to warrant appointment to the position. 2 The selection panel determined that you had insufficient breadth of experience as a practising lawyer and that you did not show the capacity to lead and manage a remote regional office." 11 Certain notes of the interview taken by the panel members were produced in evidence. Those that were produced were not unfavourable to the appellant. Ms Chapman's notes marked the criteria SC4: "9 years experience as a solicitor. Good." The notes kept by Mr Holliday with respect to SC4 were not produced, nor was the selection report itself. The respondent said that these documents could not be found, whereas the appellant contended that their absence was "suspicious". Ms Moss gave evidence as to her searches for the missing documents, on which she was not cross-examined. The primary judge found that there was no reason for refusing to accept that the documents had been accidentally lost, most likely because they were misfiled and that the file had been destroyed. 12 The position was re-advertised on 24 October 1998. Four people were shortlisted for interview. The appellant was one of those persons. He had been encouraged to re-apply. The appellant said that he withdrew his application when he became aware that the person who was acting temporarily as Solicitor-in-Charge in Mackay had applied for the position. The appellant later added that he had also been concerned because Mr Holliday was again on the panel. 13 The successful applicant was Christine Linklater. She had one area in which her experience was assessed as deficient, namely family law. She was, however, assessed as being "capable of performing the position" and it was said by the selection panel: "While she will have a steep learning curve in relation to family law she is certainly capable of acquiring the necessary skills and knowledge. The panel recommends her appointment." 14 All of the panel members gave evidence before the primary judge and were cross-examined. Mr Holliday's evidence was that whilst the appellant showed an ability to provide quality legal advice, his application was weak in regard to his ability to undertake criminal or family law casework. Mr Holliday said that he was not satisfied that Mr Sharma met SC4 in regard to his ability to provide legal representation. Mr Holliday said Mr Sharma was assessed as weak in relation to SC4, specifically in regard to his ability to provide representation. Ms Chapman's evidence was that she did not consider that the appellant was capable of meeting the requirements of the job in regard to undertaking casework for legally aided persons and ensuring the provision of duty lawyer services in the Magistrates and Children's Courts. Ms Chapman said that whilst the appellant showed an ability to provide quality legal advice, he did not demonstrate an ability to undertake casework, particularly criminal casework. Mr Kehoe's evidence was that he did not consider that the appellant was capable of meeting the requirements of the job in regard to undertaking casework for legally aided persons and ensuring the provision of duty lawyer services in the Magistrates and Children's Courts. He said that whilst the appellant showed an ability to provide quality legal advice, his application was weak in respect of recent casework experience in substantive criminal or family law practice. 15 The appellant was the highest scoring applicant in the original selection process. One of his referees was contacted by a member of the panel. Mr Holliday said he would not waste his time contacting a referee if the applicant "is not in the hunt". But Mr Holliday said that, in his opinion, the recruitment process consists of three parts which come together; the written application, the interview and the referee's report. 16 The panel members were cross-examined so as to suggest that SC4 was used by them to created an emphasis on criminal and family law to justify not giving the position to the appellant. The panel members rejected this suggestion. According to Ms Chapman's evidence, the panel focused on criminal law because "we felt that was what the job was primarily about". 17 The primary judge accepted that the panel members, particularly Mr Holliday, who had experience in criminal casework, considered that representation in court formed an important part of the function of a solicitor employed by LAQ in a regional office. The requirements of SC4, that the successful applicant have the capacity to provide representation as well as advice, would be understood by the panel members to refer to the areas of family law and criminal law, as it was in those areas that LAQ services were offered to the public. If the panel held the view that the applicant did not have that capacity, an essential criterion for selection would not be met. The primary judge said that in those circumstances, it would not be to the point that the appellant had scored higher than the other applicants. 18 Her Honour found, having regard to the appellant's history, and more particularly his own experience listed in connection with SC4, that a view by the panel as to his lack of criminal case experience was not unusual. In her Honour's view, there was nothing to suggest that the panel members did not honestly hold the view which they did concerning the appellant's experience. Her Honour said that Ms Chapman had previously spoken to the appellant about addressing his lack of experience in this area. 19 The panel considered that the selection criteria were not met with respect to the appellant, but that they were met in the case of Ms Linklater. Her Honour saw no reason to doubt the panel's assessment of Ms Linklater. In short, her Honour accepted that the appellant was not selected for the Mackay position because he did not meet an essential criteria for selection.

The public face of LAQ in Mackay 20 During the course of Mr Holliday's cross-examination the following appears: "The justification then is SC4, the documents which once may have existed, and we don't have the benefit of. That's justification? --- For me it is too. It was SC4 was one of them, not as regards the advice, but as regards to the casework, but the other one was the overall capacity of any of the applicants to be the regional - the public face of the CEO and the organisation in that town, - Mackay. Did you have a problem with Mr Sharma being the public face in Mackay? --- Personally, no. Professionally? --- Sorry, I presume you're talking about race and no. Anything? --- By public face, I'm talking about a person who understands the Legal Aid policies and procedures, the operational and strategic plan, and is out there delivering that both to the public, to stake holders, to preferred suppliers of Legal Aid services, to the staff of Legal Aid ---" 21 The use of the words "the public face [of LAQ]" to describe the aspect of the role in question was a matter which caused the primary judge concern. It is a matter to which her Honour gave careful consideration. Ultimately, her Honour concluded that at the evidentiary level her concerns could not be elevated beyond possibilities. Her Honour said that the evidence did not cast doubt upon Mr Holliday's explanation as to what he intended; and that whilst there was a possibility that the "public face" issue contained an underlying reference to someone of the appellant's race as not fulfilling that image, no more definite conclusion could be drawn.

Indian - permanent resident of Australia 22 During the interview of the appellant for the Mackay position, Ms Chapman noted the words: "Indian - permanent resident of Australia" in her general notes. Ms Chapman said that she made this reference in case there was a requirement for Australian residency/citizenship for positions at LAQ. 23 The primary judge found that this note does indicate that Ms Chapman was conscious of the appellant's background. However, her Honour said that it does not suggest that any differences perceived to arise from it operated as a factor in Ms Chapman's considerations in connection with the appointment. In her Honour's view, nothing in Ms Chapman's evidence suggested that she had something like that in mind.

Senior Solicitor - Mt Isa 24 Ms Chapman suggested the Mt Isa appointment to the appellant as a means of addressing the deficiencies in the appellant's criminal law and court experience. In June 1999 the appellant was offered a contract in that position, but one for no more than two years. The appellant advised Ms Chapman that he desired a permanent career with LAQ, and said he was not concerned about the need for advertising as part of a formal selection process which would be required in connection with appointment to a permanent position. 25 The appellant travelled to Mt Isa and took up the position in an acting capacity whilst the position was advertised. The position was advertised on 3 July 1999. There were two applicants for the position, namely the appellant and Ms Bourke. The selection panel consisted of Ms Karen Chapman (Chair), Ms Cathy Taylor and Mr Kenneth Raymer. Both the appellant and Ms Bourke were interviewed by the selection committee. 26 The selection criteria were in the same terms as those for the position in Mackay. 27 The appellant was interviewed for the Mt Isa position on 26 July 1999. The selection panel was located in Brisbane and the applicants were located in other parts of Queensland. The applicants were to be interviewed by telephone and the interview questions and test were provided to the applicants by fax before their scheduled interview times. 28 The questions to be asked at the interview were faxed to the appellant some 20 to 30 minutes prior to the time at which the interview was scheduled to commence. The appellant's interview proceeded as organised. 29 The questions were also sent by fax to Ms Bourke approximately 30 minutes prior to her scheduled interview time. Ms Bourke's interview did not proceed as organised. She was unavailable for her interview because she had locked herself out of her house. A second interview time was scheduled for Ms Bourke. It took place on 29 July 1999. In response to a request from Ms Chapman, Ms Bourke gave an undertaking that she would not look at the interview questions which had been faxed to her in association with her first scheduled interview, until 30 minutes prior to the time of the second interview. 30 The fact which counted most heavily against the appellant in relation to the Mt Isa position was again SC4, and this was mostly because of an answer he had given to a test question which was set in a courtroom environment and involved difficulties with a client. Ms Bourke's response was said by the appellant to be substantially the same as his, but it received twice the score. The panel had concerns about the appellant's answer and sought assistance from Mr Holliday, as a senior criminal lawyer. The appellant was not identified in this process. The panel was concerned about the correctness of the appellant's answer and whether the actions suggested by the appellant were appropriate. Mr Holliday did not think that they were. The panel apparently agreed, or acted upon this advice. The primary judge found that there did not appear to be anything untoward in the opinion expressed by Mr Holliday or the panel in this respect. 31 In the result, the scores obtained by Ms Bourke, the successful applicant, were 57.33 per cent and the appellant, 53.16 per cent. The selection report recorded the following: "Although the scores might appear to be relatively close the panel decided that the scores accurately reflected the merits of the candidates and that the apparently close scores were a result of averaging a different pattern of scores." In the additional comments made by the panel with respect to the appellant, the report concluded: "If it was considered necessary to appoint another solicitor to Mt Isa, then the panel considers that [the appellant] would be an appropriate appointment to a second solicitor position in the Mt Isa office. The essential issues identified during this process for [the appellant] appeared to be a lack of experience and training in the representation aspects, and possibly also a tendency towards operating better in a more structured environment with clear-cut rules and operating procedures. His level of ability would suit an appointment focused on advice or operating to a structured program, and the panel considers [the appellant] would then be in a position to perform competently at this level, and have the opportunity to develop skills to perform competently in other roles." 32 The recommendation of the panel, to appoint the other candidate, was adopted by the Chief Executive Officer. The reasons given by him for the decision, dated 14 April 2000, were as follows: "1 The selection panel rated another candidate at a higher score and concluded that the other candidate was more meritorious for the position. 2 The other candidate was assessed at demonstrating a better all-round grasp of the requirements of the position and in particular, the ability to provide quality legal advice and representation as required by selection criteria 4. 3 The selection panel determined your ability to provide representation as required by selection criteria 4 was particularly low due to lack of experience and training and that this meant you were not of a sufficient level of competency to run the Mt Isa office as a sole operator. 4 The referee checks confirmed the selection panel's findings at interview." 33 On 6 August 1999 the appellant had a meeting with Ms Chapman when he was advised that the other candidate had been recommended for the position. He says that when he enquired as to the reason, Ms Chapman said words to the effect that it was "the way he answered the questions". The appellant then says that he asked whether it had to do with his "accent or what" and that Ms Chapman replied "yes, but I suppose English is your second language". Ms Chapman denied this aspect of the conversation. She said that it was the appellant who raised the prospect that his cultural and language differences had counted against him, amongst other things, and that she told him that this was not the case. 34 The primary judge found that there was nothing to suggest that any panel member had a concern with the appellant's English. Her Honour said that "there is no apparent reason why Ms Chapman would then make such a gratuitous remark. To the possibility that she did is the equal possibility that the [appellant's] recollection of the incident is now influenced by the conclusion he has come to about the motivations of people within the respondent's organisation". The primary judge was not satisfied that the conversation to which the appellant deposed had in fact occurred.

Inability to recognise the Criminal Code 35 The appellant complained of a reference made by Ms Chapman "to my English language skills even to the extent that I am 'unable to identify … the criminal code'". Ms Chapman's evidence was that this comment was part of an oral report which she received about the appellant after the selection process for Mt Isa was finalised. She understood the comment was referring to the appellant's familiarity with the Criminal Code and criminal practice, and not his language skills, and it was a comment relayed to her after the selection process had finished. 36 During argument her Honour raised as a possibility that if one accepted this comment at face value, it might suggest that Ms Chapman was motivated by racial considerations, if she readily accepted an unfavourable observation in relation to the appellant which was inherently unlikely. However, the matter is not referred to in her Honour's reasons for judgment. Our attention has not been drawn to any cross-examination of Ms Chapman on the matter. The comments were made by persons other than officers of LAQ after the completion of the selection process, and which had no impact on that process. 37 Having reviewed all of the facts her Honour concluded that there was nothing to indicate that the appellant's race was a factor which operated in the decision-making process in relation to the Mackay or Mt Isa appointments.

The legislation 38 Section 9(1) of the RDA provides as follows: "9. (1) It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life." 39 Section 15(1) and (2) of the RDA provides as follows: "15. (1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer: (a) to refuse or fail to employ a second person on work of any description which is available and for which that second person is qualified; (b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description; or (c) to dismiss a second person from his employment; by reason of the race, colour or national or ethnic origin of that second person or of any relative or associate of that second person. (2) It is unlawful for a person concerned with procuring employment for other persons or procuring employees for any employer to treat any person seeking employment less favourably than other persons in the same circumstances by reason of the race, colour or national or ethnic origin of the person so seeking employment or of any relative or associate of that person." No reliance was placed on s 9 of the RDA by counsel for the appellant in her final submissions to the primary judge. Section 9 was invoked by counsel for the appellant on the hearing of the appeal, but it was not explained how s 9 would be enlivened in the circumstances of the present case if those facts did not enliven the operation of s 15. 40 It is for the applicant who complains of racial discrimination to make out his or her case on the balance of probabilities. It may be accepted that it is unusual to find direct evidence of racial discrimination, and the outcome of a case will usually depend on what inferences it is proper to draw from the primary facts found: Glasgow City Council v Zafar [1998] 2 All ER 953, 958. There may be cases in which the motivation may be subconscious. There may be cases in which the proper inference to be drawn from the evidence is that, whether or not the employer realised it at the time or not, race was the reason it acted as it did: Nagarajan v London Regional Transport [1999] 3 WLR 425, 433. It was common ground at first instance that the standard of proof for breaches of the RDA is the higher standard referred to in Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362. Racial discrimination is a serious matter, which is not lightly to be inferred: Department of Health v Arumugam [1988] VR 319, 331. No contrary argument was put on the hearing of the appeal, apart from the comment that there is no binding authority on this Court that Briginshaw should be applied in cases of this nature. 41 In a case depending on circumstantial evidence, it is well established that the trier of fact must consider "the weight which is to be given to the united force of all the circumstances put together". One should not put a piece of circumstantial evidence out of consideration merely because an inference does not arise from it alone: Chamberlain v The Queen [No 2] (1983-1984) 153 CLR 521 at 535. It is the cumulative effect of the circumstances which is important provided, of course, that the circumstances relied upon are established as facts.

The arguments on appeal 42 The appellant challenged the primary judge's finding that the applicant was not selected for Mackay because he did not meet an essential criterion for selection. It was submitted that the explanations given by the members of the selection panel were not the true explanations of why the appellant was not selected for the position in the first place. The appellant contends that purported reliance by the panel members on SC4, and the appellant's lack of practical experience in the conduct of criminal cases, was a "false explanation" for the non-appointment of the appellant. Various external circumstances were relied upon in support of the appellant's contention that the primary judge ought not to have accepted the explanations given by the panel members of their reasons for not appointing the appellant to the position. 43 The primary judge had evidence from the panel members that in their assessment, the appellant did not meet the selection criteria for the position. The appellant pointed to matters which, in his contention, suggested otherwise. Those matters included the fact that he was shortlisted for the position; Ms Chapman's recorded comments on SC4; and the fact that a member of the panel contacted a referee of the appellant to secure information. It was a matter for the primary judge to weigh up the evidence given by the panel members against the matters on which the appellant relied as pointing in a different direction. This is essentially a credit based determination with which an appellate Court cannot interfere, unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable": Devries v Australian National Railways Commission (1992-1993) 177 CLR 472 at 479; State Rail Authority of NSW v Earthline Constructions Pty Ltd (in liq) (1998-1999) 160 ALR 588. This is not a case of that character. 44 The appellant relies upon a number of other matters which, collectively, are said to lead to an irresistible inference of racial discrimination. Those matters include differently phrased explanations given by different members of the panel at different times as to the reason for the appellant's non-appointment; the subsequent appointment of Ms Linklater notwithstanding that she would have a "steep learning curve" in relation to family law; the failure to seek information from the appellant's second referee; and the missing documents from the appellant's file. 45 Again, the thrust of the appellant's complaint is that these matters ought to have induced the primary judge to reject the evidence of the panel members as to the reason for the appellant's non-appointment. The matters relied upon do not individually or collectively dictate a conclusion to that effect, and the assessment of their significance in determining where the truth lies was a matter for the primary judge. No reason for interfering with her Honour's conclusion in that respect has been demonstrated. 46 Other matters are relied upon as furnishing direct evidence of racial discrimination. Those matters include the matters we have referred to above under the heading "Public face of LAQ in Mackay", "Indian - permanent resident of Australia" and "Inability to recognise the Criminal Code". The appellant failed to persuade the primary judge that any or all of these matters ought to lead to a finding of racial discrimination, and no basis for interfering with her Honour's conclusion in this regard has been shown. 47 The appellant submitted, in relation to Mt Isa, that he satisfied the selection criteria for the Mt Isa position. He said that he was shortlisted and had it not been for the marking of one answer in relation to SC4, he would have been given the job. Whilst it was not a matter of "mammoth proportions", the appellant pointed to the longer period in which the successful candidate had to consider the answers to the questions which had been faxed to her. Whether the successful candidate had a longer period in that respect, depends upon whether she was prepared to break the undertaking which she had given. There is no evidence to that effect. 48 The primary judge found that the evidence of the three panel members for the Mt Isa selection did not bear out allegations of discrimination on the part of any panel member. As we have explained above, the primary judge found that there was nothing untoward about Mr Holliday's involvement in the marking process, and the fact, assuming it to be a fact, that had it not been for the marking of one answer in relation to SC4, the appellant would have been given the job, does not provide any foundation for a conclusion that the failure to give it to him was based upon racial considerations.

Errors in approach to evidence by trial judge 49 The appellant complains that the primary judge "failed to consider the overwhelming nature of the evidence" that shows that explanations advanced by LAQ for failing to appoint the appellant to the Mackay position were false. The appellant also complains that the primary judge failed to consider the cumulative effect of that evidence. The "evidence" in question is said to be: · the missing documents; · the "public face" reference; · the reference to English being the appellant's second language; · Ms Chapman's acceptance of a suggestion that the appellant was unable to recognise the Criminal Code; · the frequent references by Ms Chapman to the appellant's language misunderstanding; · the unfavourable treatment of the appellant in relation to the hypothetical question posed in relation to SC4 in the Mt Isa interview; · the unfavourable treatment of the appellant with regard to preparation for the Mt Isa interview compared to the treatment afforded to Ms Bourke; · the failure to consider the appellant's ability to learn and acquire skills and/or experience if the respondent genuinely believed that he was lacking in that area, as the respondent did with regard to Ms Linklater; and · the inequality in the marking in respect to the question referred to in par [44] of her Honour's judgment. 50 It is simply not correct to say that the primary judge failed to consider these matters, or failed to consider whether the matters individually or collectively showed that the explanations given for the appellant's non-appointment were false. Consideration was given to these matters by the primary judge and an assessment made by her Honour as to whether the evidence of the panel members as to the reasons for their actions should be accepted or not. It is clear from her Honour's reasons that she was aware of the need to consider whether "practices of an organisation and conduct in the workplace might confirm other evidence tending to suggest an approach based in race". But her Honour found that in this case the numerous complaints in this regard have not been shown to be of substance. Whilst the cumulative effect of facts must be considered, the matters relied upon must first be established as facts. Thus, for example, once the primary judge was satisfied that the "missing" documents had been satisfactorily explained, that was not a matter of continuing significance. 51 There are two further matters to which we should refer briefly. First, the appellant's submissions asserted that prior to the applications in question in these proceedings, the appellant applied for a position in the Domestic Violence Unit. An articled clerk was appointed to the position. According to the policy, an articled clerk should not even have been shortlisted for interview. Her Honour does not refer to this incident in her reasons for decision. That is hardly surprising, as the appellant's evidence at first instance was that the domestic violence application and the processes associated with it, did not form any part of the application which was then before the Court. There is no error in the primary judge failing to refer to a matter not relied upon. 52 Second, it was submitted that the panel assembled for the Mt Isa selection did not have the necessary expertise, and that an inference to that effect should be drawn from the fact that Mr Holliday was consulted about the adequacy of the appellant's response to the SC4 question. That fact does not support the inference sought to be drawn from it. Panel members may have formed a view on the matter which they wanted to check. In any event, that fact is incapable of sustaining a conclusion that the panel's actions were racially motivated. 53 It should be remembered that the case which the appellant sought to make at both first instance and on appeal was one of conspiracies by members of two selection panels not to appoint the appellant to a position for which he was well qualified for reason of his race, and to give false explanations as to the reasons for his non-appointment. These are extremely serious charges to make. The case sought to be made was not one of a subconscious motivation, but of consciously improper conduct. No error has been shown in the conclusion of the primary judge that the appellant failed to make out that case. 54 It is unnecessary to go into the question as to whether racial bias on the part of one member of a three person panel can infect actions taken by the panel, nor is it necessary to give any close attention to the interrelationship between s 9 and s 15 of the RDA. 55 The appeal should be dismissed with costs. I certify that the preceding fifty-five (55) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Court.

Counsel for the Applicant: Mr A Vasta QC, Mr D Eliades

Solicitor for the Respondent: Legal Aid Queensland