Stokes v President of the Anti-Discrimination Board of New South Wales [2006] NSWSC 351 | Case summary

JUDGMENT 1 HIS HONOUR: The plaintiff in a summons filed pursuant to leave of the Registrar claims the following relief: "To Review the action and decision of Anti-Discrimination Board Closing my case that out date time limit without investigation the reason why the complaint was late. I request to re-open my case and give a fair go." 2 The plaintiff appears for herself. Following discussion between myself and counsel for the second defendant it became plain that the plaintiff's complaint is that she was denied procedural fairness by the first defendant when it gave consideration to the investigation of her complaints which were otherwise out of time. The relief which could be granted in those circumstances would extend to a declaration and an order that the first defendant reconsider the matter after providing the plaintiff with the appropriate opportunity to place relevant material before the President. 3 The first defendant filed a submitting appearance. There was no appearance for the third and fourth defendants. The circumstances in which the proceedings arise come from the plaintiff's former employment by the second defendant. That company carries on business as a security organisation and at the relevant time supplied security officers to the Navy at its premises at HMAS Waterhen. The plaintiff complains that she was sexually harassed during the course of her employment by two fellow employees. She complains about the conduct of Mr Anthony Van Chad which she alleges occurred on 4 and 5 April 2001. She also complains about the conduct of Mr George Samios on 22 September 2001. The plaintiff also complains she was discriminated against by the second defendant. That complaint, which is separate from the sexual harassment complaint, relates to the manner in which she was treated by the second defendant following a serious car accident on her way to work which left her with some physical problems at that time. 4 There is a fourth complaint, the details of which are not entirely clear but relates to the conduct of the second defendant allegedly at the time at which the plaintiff's employment was terminated, which occurred on 3 February 2003. 5 The plaintiff first lodged a complaint with the Anti-Discrimination Board on 25 June 2002. That complaint related to the discrimination on the grounds of disability and carer's responsibility and the conduct of Mr Samios. 6 Section 88(3) of the Anti-Discrimination Act 1977 provides that a complaint must be lodged within six months after the date on which the contravention of the Act or Regulation is alleged to have been committed. However sub-section 4 provides that the President "on good cause being shown," may accept a complaint which is lodged more than six months after the date referred to in that subsection". Although it does not seem to have been immediately recognised, by reason of the fact that the complaint against Mr Samios involves conduct which allegedly occurred on 22 September 2001, the complaint being lodged on 25 June 2002, was approximately three months out of time in relation to Mr Samios. It was within time in relation to the alleged actions of the second defendant. 7 The material before me discloses that following lodgement of the complaint the Board communicated with the plaintiff. There appear to have been telephone calls and other discussions. At some point the Board recognised the possibility that the complaint may have been lodged out of time and identified the necessity for Ms Stokes to persuade the President that the complaint should nevertheless be investigated. During this period it would seem that the plaintiff had solicitors from Legal Aid acting for her, who made representations to the Board on her behalf. 8 It was not until 3 February 2003 that the plaintiff made the complaint which she now seeks to pursue with respect to the conduct of Mr Anthony Van Chad. By reason of the delay that complaint was in fact sixteen months out of time. It is nevertheless a serious complaint which the evidence discloses was investigated by the second defendant at the time and apparently found to be justified. It appears that Mr Van Chad's employment was terminated shortly after the investigation of Mr Van Chad's conduct. It would appear that there were additional reasons why Mr Van Chad's employment was terminated which are not relevant to the present matter. 9 The fourth complaint by the plaintiff was lodged with the Board on 5 August 2003. The report of the officer of the Board about that matter records the fact that on 7 August the Board received a letter of complaint from Ms Stokes. The allegation was that she had been discriminated against on the ground of disability by her employer "because her employment had been terminated". The allegation was that the disability discrimination occurred on 3 February 2003. The Board appears to have treated this complaint as relating to, inter alia, earlier conduct about which complaint had been made on 25 June 2002. 10 Recognising its obligation to provide procedural fairness to the plaintiff the Board gave her an opportunity to make submissions supporting her claim of "good cause". By letter dated 10 November 2003 a solicitor from the Legal Aid office wrote to the Board and said, inter alia: "In relation to matters which took place more than 6 months prior to the lodgement of the complaint Ms Stokes asks that the Board accept those matters as forming part of the complaint 'out of time' [sic] for the following reasons: 1. Ms Stokes was employed by the entity against which she now complains and as she wanted to continue to work there, she was reluctant to complain about what had occurr and initially tried to deal with it otherwise than by lodging a complaint with the ADB. 2. The respondent company has been aware of Ms Stokes' complaint about alleged sexual harassment by Anthony Chad on the night of 4 April 2001 because she made a complaint of it in an incident report at her workplace the following day, 5 April 2001, providing details of time, date, what happened and the persons involved. 3. The respondent company has been aware of Ms Stokes' complaint of sexual harassment by George Samios on 22 September 2001 because she reported the details to the site manager, was interviewed by Serco representatives about it shortly after the incident occurred. An email from Mr Paul Colley, her immediate supervisor, confirms that the company was aware of the allegations as at 24 December 2001 and suggests that some action had already been taken to investigate the allegation in some way. 4. Sexual harassment, particularly in the course of employment is an inherently serious matter and ought to be properly investigated and dealt with, not only for the "sake" of the existing applicant, but because such conduct, if occurring, has the potential to adversely affect many people in the work place, in the present and in the future. 5. These complaints form part of the matrix of complaints arising from a single situation, namely, employment and should be considered together. This would best allow for the possibility of multiple forms of discrimination (eg sex and disability, sexual harassment and disability) and would most fairly deal with the various forms and aspects of discriminatory treatment experienced by Ms Stokes." 11 The letter provided a summary reference to each of the four complaints. 12 After receiving the letter the Board wrote to the second respondent by letter dated 31 August 2004. Accordingly, that letter was written approximately nine months after the Board received the letter from the solicitors. No explanation for that delay is apparent from the material in evidence. However, when consideration is being given to whether or not the plaintiff has been fairly treated and is entitled to have her complaints considered out of time it is not unimportant to recognise that a significant part of the delay since lodgement of the complaint has occurred without any fault of the plaintiff. If delay in the processing of her complaint has created difficulties for the second defendant it could not be fair to use that delay as a reason for rejecting her complaint out of time. 13 The letter from the Board refers to each of the complaints and provides a reference to the statutory structure for a complaint out of time and invites submissions from the second defendant. An indication is given that the President will consider the length of the delay, reasons for the delay, any disadvantage to the complainant and any disadvantage to the defendant when making the decision. A specific question is asked, "Will your organisation be disadvantaged if the President accepts this complaint?" and an invitation made to identify the disadvantage. In particular, reference is made to the question of whether or not the second defendant may suffer disadvantage in terms of "any disadvantage the complainant's delay may have on your organisation's capacity to reply to their complaint". The letter indicates that the points raised by the Board should be addressed in making reply. It then says "The complainant may then be provided with a copy of your reply and may be given the opportunity to comment upon what you have said before the President makes his decision". As it happens that indication was not carried through and the plaintiff was never provided with a copy of the response from the second defendant nor given an opportunity to comment upon the matters which it raised. 14 The second defendant did not immediately respond to the Board's letter and on 29 September 2004 the Board again wrote saying: "I refer to my letter of 31 August 2004, advising you of the abovementioned [sic] complaints and seeking your submissions of prejudice if the President exercised his discretion to accept the parts of Ms Stokes' complaint which she lodged outside of the statutory time limit prescribed by section 88(3) of the New South Wales Anti-Discrimination Act 1977. We have not received your reply or a request for an extension of time. If we do not receive your written submissions by 15 October 2004, I will proceed to assess Ms Stokes' good cause submissions." 15 The second defendant made its reply by letter dated 14 October 2004. It is not necessary to relate the complete contents of that letter for the submissions by the second defendant are picked up and relevantly brought forward in the report of the officer who reported on the application to the President. There are relevantly three such reports. In the report relating to the complaint with respect to Mr George Samios the reporting officer identifies the fact that the report was three months and three days outside the statutory time limit. The report indicates that on 14 October 2002 the Board received the plaintiff's initial "good cause" submission but it failed to provide reasons for delay in the lodgement of her complaint. The further submission was received on 11 November 2003 being the submission from the solicitor. The report indicates that there were, in essence, four reasons provided for acceptance of the complaint out of time being as follows: s "Ms Stokes was employed by the entity against which she now complaints [sic] and as she wanted to continue to work there, she was reluctant to complaint [sic] about what had occurred and initially tried to deal with it, otherwise than by lodging a, com-plaint [sic] with the ADB s The respondent company has been aware of Ms Stokes' complaint of sexual harassment by George Samios on 21 and 22 September 2001 because she reported the details to the site manager and she was interviewed by Serco representatives about it shortly after the incident occurred. An email from Mr Paul Colley, her immediate supervisor, confirms that the company was aware of the allegation as at 24 December 2001 and suggests that some action had already been taken to investigate the allegation in some way. s Sexual harassment, particularly in the course of employment is an inherent [sic] serious matter and ought to be properly investigate [sic] and dealt with, not only for the sake of the existing applicant, but because such conduct is occurring and has the potential to adversely affect many people in the work place, in the present and in the future. s These complaints form part of the matrix of complaints arising from a single situation, namely employment and should be considered together. This would best allow for the possibility of multiple forms of discrimination (eg sex and disability, sexual harassment and disability) and would most fairly deal with the various forms and aspects of discriminatory treatment experienced by Ms Stokes. 16 The report indicates that Ms Stokes did not specify the nature of potential prejudice to herself but indicates that "If the complaint is not accepted she will be denied an opportunity to pursue her claims under the provisions of the New South Wales Anti-Discrimination Act 1977." 17 The latter proposition seems to me self-evident. 18 The report summarises the response of Mr Samios and the second defendant to the application made by the plaintiff. The response from Mr Samios was apparently not received until 23 December 2004 and is summarised as follows: s "Ms Stokes reported the details to the employer. As a result of the employer conducting a lengthy facts finding function and then made a decision in respect of the allegations made. The respondent submits that there is clear evidence in existence whereby the complainant specified that the only redress she was seeking against the respondent was that he desist from repeating any sexual discrimination or making any further sexual discrimination against her, and she did not seek any further proceedings against him including any official reprimand by his employer, and she did not wish to cause any further trouble for him, and that she was prepared to continue to work with him. s The respondent is aware that the complainant commenced other proceedings. One of unfair dismissal against her employer and a second claim under workers compensation legislation. s The complainant had access to legal advice provided by her union. s The complainant does not provide any personal, physical or emotional considerations of significance precluding her from lodging a complaint in accordance with s 88(3). s The complainant was aware of her right to lodge a complaint. However she elected not to for subjective reasons." 19 With respect to the response of the second defendant the report summarises it as follows: s In late September 2001, Ms Stokes made a complaint against Mr Samios. Both Ms Stokes and Mr Samios were interviewed by Serco Sodexho Defence Services management. s On 24 December 2001, the respondent informed Ms Stokes that following completion of the investigation into her allegations, the respondent wanted to speak with her and Mr Samios, when they both returned to work. The respondent also asked Ms Stokes to attend a meeting on 31 December 2001. Ms Stokes refused to attend the meeting because she was unable to tape the proceedings of the meeting. On the same date, Ms Stokes informed the respondent that she was satisfied with the result and the decision. Ms Stokes advised that she did not want to pursue the matter. s In respect to Ms Stokes' lawyers submission that the complaint is part of a matrix arising from a single situation, namely employment. The respondent notes that the only thing that the alleged complaints of discrimination have in common is they both involve Ms Stokes and the respondent and occurred whilst the respondent employed Ms Stokes. Moreover, the alleged complaints of discrimination involve different grounds of discrimination at different times and at different stages of employment. s Ms Stokes' complaint formed part of the proceedings under the Workplace Relations Act 1996 lodged with the Australian Industrial Relations Commission on 26 February 2003. Ms Stokes' claim was dismissed on 27 August 2003. s Her union has, at all times up until her termination represented Ms Stokes. The union would have been aware of the time limits in the legislation. s Ms Stokes has not explained her delay in lodging the complaint to the necessary standard, and therefore the President should not exercise his discretion." 20 The report then discusses further matters in relation to Mr Samios and the company. In relation to Mr Samios, it is stated that there would be a "real and substantial prejudice" to him because: · "As soon as the employer made him aware of the complainant, he immediately modified his behaviour to ensure there would be no likelihood whatsoever of any discrimination or offence being proceed [sic] or suffered by the complainant; · The respondent married and continues in his place of employment without any notice to him of any further or subsequent complaints of any sexual discrimination whatsoever." 21 As to the second respondent, the report says that it asserts it will be disadvantaged: · "The delay in Ms Stokes commencing proceedings with the Anti-Discrimination Board · The ability of potential witnesses to recollect information and destruction or loss of documentary records; · Potential witnesses may be difficult to locate because the respondent no longer employs them. The respondent makes particular mention of Mr Paul Colley, Ms Stokes' Manager." 22 The report then under the heading "Other Relevant Considerations" says this: "Ms Stokes does not provide any evidence to support her assertions that she was unable to lodge her complaint with the Anti-Discrimination Board. Ms Stokes' assertions that [sic] she was hindered from lodging the complaint because she wanted to continue to work with the employer she was reluctant to complaint [sic] about what had occurred and initially tried to deal with it, otherwise than by lodging a complaint with the ADB, shows that she made a conscious decision not to pursue her complaint outside of the employer's internal grievance process. It is common ground between the parties that the employer did investigate Ms Stokes' complaint. Ms Stokes provides no evidence that rebuts the employer's assertions that she was, at the time, satisfied with the action taken by the employer in addressing her grievance and did not want to pursue the complaint. Indeed, Ms Stokes failed to attend a meeting set down for discussion of her grievance. It can be speculated that this meeting might have provided Miss Stokes with further opportunity to achieve resolution of her grievance." 23 The report does not make entirely clear whether these remarks are intended as a summary of assertions made on behalf of the second defendant, or whether they express a conclusion of the reporting officer. However, having regard to the earlier summary of the submissions made, it would seem likely that they are the conclusions of the reporting officer. In the ultimate consideration of this claim, that may not matter a great deal. As I will indicate below, the reporting officer clearly had regard to those considerations when making the recommendation. 24 In any event, the recommendation to the President has gone forward upon the assumption inter alia that the plaintiff has not responded to the assertions made by the second defendant. This is hardly surprising, given that she was not told of the second defendant's submissions, nor invited in any way to respond to the assertions which were made. The comment that "Miss Stokes provides no evidence that rebuts the employer's assertions" is extraordinary, given that she was never even told of the assertions and thereby never given any opportunity to rebut them with evidence or otherwise. 25 The recommendation in the report is expressed in the following terms: "I have considered all the material on file numbers 2004\0665 and 2004\0666 in relation to whether good cause has been shown for the President to accept the complaint under section 88(4) of the NSW Anti-Discrimination Act 1977. I am of the opinion that: · Good cause has not been shown for acceptance of Ms Stokes' complaint of sexual harassment in relation to incidents alleged to have occurred on 21 and 22 September 2001. I make this recommendation because Ms Stokes does not provide persuasive evidence that she has experience [sic] any actual impediment to lodging complaints with the Anti-Discrimination Board." 26 Although the last paragraph is provided as the identified reason for the recommendation, I am satisfied that the reporting officer had regard to all of the material referred to in the report. Indeed, as the officer makes plain in preparing the report, regard was had not only to the material identified in the report, but also to all of the material on the relevant files. 27 I have no doubt that the assertions made by the second defendant which were not provided to the plaintiff, have formed part of the decision-making process of the reporting officer. Given their prominence in the report it could hardly be otherwise. 28 In relation to the complaint directed against the company, a report is also provided for the President's consideration. The submissions made by the second defendant in relation to that matter are similar to those provided in relation to the complaint against Mr Samios. 29 The second defendant responds directly to the submission made on behalf of the plaintiff. That submission is summarised in the reports. The following is said: · "If leave was granted to extend time in matter 2004\0669 Serco Sodexho Defence Services believes that the Anti-Discrimination Board would be assisting Ms Stokes to overcome both the restrictions and spirit of s 170HC of the Workplace Industrial Relations Act 1996 that is designed to prevent multiple proceedings. · Further, in relation to claim number 2004\0669, Serco Sodexho Defence Services have already been put to considerable expenses in defending the proceedings under the Workplace Relations Act which it subsequently found [sic] to be unnecessary and, if leave was granted to accept the out of time complaint, would now be required to commit further expenses in another tribunal in respect to what is the same claim. · In relation to all matters where an extension of time is required, if the Board were to deal with the complaint(s) Serco Sodexho Defence Services will be potentially disadvantaged since, as a result of the delay in commencing proceedings by Ms Stokes, the memories of a number of the potential witnesses for Serco Sodexho Defence Services could well have dimmed and witnesses may also now be difficult to locate where they are no longer employed by Serco Sodexho Defence Services or by our client, in particular, Mr Paul Colley who resigned from his position with Serco Sodexho Defence Services on 23 March 2003." 30 The report goes on to refer to other relevant considerations, noting that: · "Ms Stokes does not provide any evidence to support her assertions she was unable to lodge her complaint with the Anti-Discrimination Board. · The respondent provides a copy of the decision in the Australian Industrial Relations Commission. This shows that Ms Stokes' complaint was lodged on 23 February 2003 and that proceedings culminated in the matter being heard on 29 July and 27 August 2003, when the matter was dismissed. This clearly indicates that Ms Stokes' [sic] had made a conscious decision to pursue her complaint with the Australian Industrial Relations Commission rather than lodged [sic] a complaint with the Anti-Discrimination Board. · Ms Stokes first lodged complaints with the Anti-Discrimination Board in June 2002. During the course of investigating Ms Stokes' complaints dating from this period, she was made aware of the requirements for the lodgement of complaints, including statutory time limits as prescribed by sections 88(3) and 88(4). I believe that Ms Stokes was well versed in the requirements for the lodgement of complaint under the NSW Anti-Discrimination Act 1977." 31 The report is completed by a recommendation that: "Good cause has not been shown for acceptance of Ms Stokes' complaint of disability discrimination in relation to incidents, alleged to have occurred on 3 February 2003". 32 The stated justification for this conclusion is that: "Ms Stokes does not provide persuasive evidence she experienced any actual impediment to lodging the complaint with the Anti-Discrimination Board." 33 The ultimate conclusion is somewhat difficult to understand, bearing in mind that at most, as the report indicates, the delay in making the complaint is a matter of four days. The difficulties which the second defendant says it faced by reason of the delay would not appear to have a great significance. But in any event, as happened in relation to the complaint with respect to the conduct of Mr Samios, the plaintiff was not provided with an opportunity to consider and respond to the matters raised by the second defendant. 34 Those matters have plainly influenced the recommendation of the reporting officer, and as I have indicated, were detailed in the reporting officer's report to the President. 35 The comment that there was no persuasive evidence that the plaintiff experienced any actual impediment, deals with only one component of matters relevant for the President's consideration, and is nowhere discussed in the body of the report. 36 In relation to the complaint with respect to the conduct of Mr Van Chad, a similar report is prepared by the reporting officer. It is unnecessary to detail contents of that report which follows the form of the other reports. However, a summary is provided of the response of Mr Van Chad to the application together with the response of the second defendant. 37 A summary of the prejudice said to flow to Mr Van Chad and the second defendant, if the complaint is to be investigated out of time, includes a statement by Mr Van Chad that acceptance of the complaint would "have a very bad effect on my health, with the inevitable result." 38 Under the heading "Other Relevant Considerations", the reporting officer says this: "Miss Stokes does not provide any evidence to support her assertions that she was unable to lodge her complaint with the Anti-Discrimination Board." 39 It is common ground between the parties that the employer did investigate Miss Stokes' complaint. The respondent provides a copy of the letter of termination issued to Mr Van Chad. In his letter, the employer refers to the company's investigation of Miss Stokes' grievances, and details two reasons for the termination of Mr Van Chad. The reasons are stated as: "Your conduct towards your fellow officers by constantly using demeaning sexual suggestions and producing of pornographic magazines cannot be tolerated. This not only offended the female officer on duty with you that night, but two other officers witnesses [sic] these incidents. Such behaviour is completely contrary to the company's policy and procedures." "Your behaviour in removing Navy property from within the area in which it was stored, for your own personal gain is both unacceptable as an employee of Serco Sodexho and a clear breach of your duty as a security officer." 40 The report goes on to state that: · "Mr Van Chad's employment was terminated on the 17 April 2001. Approximately two (2) weeks after Ms Stokes made her complaint to the employer. · Ms Stokes' assertions that she was hindered from lodging the complaint because she wanted to continue to work for the employer and she was reluctant to complaint about what had occurred and initially tried to deal with it, otherwise than by lodging a complaint with the ADB, shows that she made a conscious decision not to pursue her complaint outside of the employer's internal grievance process. · In the course of assessing Ms Stokes' complaint, I had reason to speak with her in relation to her indecisiveness about lodgement of the complaint against Mr Van Chad. Ms Stokes' indecisiveness compounded the delay in lodgement of the complaint." 41 The recommendation was again that good cause could not be shown. The officer notes that consideration was given to all of the file material, but says that he/she has: "Reached this conclusion because Ms Stokes does not provide persuasive evidence she experienced any actual impediment to lodging the complaints with the Anti-Discrimination Board." 42 Again, as with the other complaints, the plaintiff was not provided with a copy of the responses made by Mr Van Chad or the second defendant. 43 The Anti-Discrimination Act makes no provision for the procedure to be followed when an application is made that the President exercise his discretion to extend the time for the investigation of a complaint. However, as that decision has the capacity to impact in a significant way on a person making complaint, including but not limited to the possibility of monetary compensation, it must be accepted that the Board is required to give relevant parties procedural fairness: see Haoucher v Minister for Immigration and Ethnic Affairs (1989) 169 CLR 648 at 680. 44 The defendants do not dispute that this duty rested with the President in the present circumstances. The only question is in relation to the content of that duty. 45 There are many cases which consider the content of the duty of procedural fairness in particular circumstances. I considered that question in some detail in Hall v The University of New South Wales [2003] NSWSC 669, where at [299] I said: "Whether any or all material gathered by an Inquiry must be disclosed to fulfil the requirements of procedural fairness will depend upon the circumstances of each case see Ansell v Wells (1982) 43 ALR 41 and the cases referred thereto." 46 The content of the duty will be informed by what Mason J said in Kioa & Ors v West & Anor [1985] 159 CLR 550 at 582-5: "It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it: Twist v Randwick Municipal Council (1976) 136 CLR 106 at 109; Salemi [No 2] (1977) 137 CLR at 419; Ratu (1977) 137 CLR at 476; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at 498-499; FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 360, 376-377; Annamunthodo v Oilfields Workers' Trade Union [1961] AC 945 . The reference to "right or interest" in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests . The reference to "legitimate expectation" makes it clear that the doctrine applies in circumstances where the order will not result in the deprivation of a legal right or interest. Take, for example, an application for a renewal of a licence where the applicant, though he has no legal right or interest, may nevertheless have a legitimate expectation which will attract the rules of natural justice. In Salemi [No 2 ] (1977) 137 CLR at 404 Barwick CJ expressed the view that the expression "legitimate expectation" adds little, if anything, to the concept of a right. However, later decisions demonstrate that the concept of "legitimate expectation" extends to expectations which go beyond enforceable legal rights provided that they are reasonably based: Heatley (1977) 137 CLR at 508-509; FAI (1977) 137 CLR at 348,351-352, 369, 412; Attorney-General (Hong Kong) v Ng Yuen Shiu [1983] 2 AC 629 at 636. The expectation may be based on some statement or undertaking on the part of the authority that makes the relevant decision. In the view of some members of the Court in Salemi [No 2 ] the "amnesty" constituted an example of such an undertaking. Alternatively, the expectation may arise from the very nature of the application, as it did in the case of the application for a renewal of a licence in FAI (1982) 151 CLR 342 or from the existence of a regular practice which the person affected can reasonably expect to continue: Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 at 401. The expectation may be that a right, interest or privilege will be granted or renewed or that it will not be denied without an opportunity being given to the person affected to put his case. It has been said on many occasions that natural justice and fairness are to be equated: see, e.g, Wiseman v Borneman [1971] AC 297, at 308, 309, 320; Bushell v Secretary of State for the Environment [1981] AC 74. And it has been recognized that in the context of administrative decision-making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness. This is because the expression "natural justice" has been associated, perhaps too closely associated, with procedures followed by courts of law. The developing application of the doctrine of natural justice in the field of administrative decision-making has been very largely achieved by reference to the presence of characteristics which have been thought to reflect important characteristics of judicial decision-making. The effect of Atkin LJ's influential observations in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd. [1924] 1 KB 171 at 205, was to focus attention on those elements in the making of administrative decisions which are analogous to judicial determination as a means of determining whether the rules of natural justice apply in a particular case. The emphasis given in subsequent decisions to the presence and absence of these characteristics diverted attention from the need to insist on the adoption in the administrative process of fair and flexible procedures for decision-making, procedures which do not necessarily take curial procedures as their model: see Re Nicholson and Haldimand-Norfolk Regional Board of Commissioners of Police (1978) 88 DLR (3d) 671 at 680-682 . The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention. It seems that as early as 1911 Lord Loreburn LC understood that this was the law when he spoke of the obligation to "fairly listen to both sides" being "a duty lying upon every one who decides anything": Board of Education v Rice [1911] AC 179 at 182. But the duty does not attach to every decision of an administrative character. Many such decisions do not affect the rights, interests and expectations of the individual citizen in a direct and immediate way. Thus a decision to impose a rate or a decision to impose a general charge for services rendered to ratepayers, each of which indirectly affects the rights, interests or expectations of citizens generally does not attract this duty to act fairly. This is because the act or decision which attracts the duty is an act or decision: ' ... which directly affects the person (or corporation) individually and not simply as a member of the public or a class of the public. An executive or administrative decision of the latter kind is truly a policy' or political' decision and is not subject to judicial review.' (Salemi [No 2] (1977) 137 CLR at 452, per Jacobs J) Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty. Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at 503-504, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg. v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; National Companies and Securities Commission v News Corporation Ltd . (1984) 156 CLR 296 at 311, 319-321. In this respect the expression "procedural fairness" more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations: cf. Salemi [No 2] (1977) 137 CLR at 451, per Jacobs J." 47 In the present case, the Board's processes provided an opportunity for the plaintiff to place a submission before the Board as to why her application that her complaint be accepted out of time should be granted. 48 In accordance with the obligations of procedural fairness, the parties against whom complaint had been lodged were also provided with an opportunity of making representations. That opportunity was given to them with knowledge of the plaintiff's submission and opportunity afforded to them to comment directly upon it, and frame their submissions in response to matters which the plaintiff had raised. 49 Although it was suggested to those parties, but never, it must be acknowledged, to the plaintiff, that the response which those parties made may be given to the plaintiff to enable her to make further response, this did not happen. 50 Accordingly, the decision made by the President to accept the recommendation of the reporting officer was made without an opportunity for the plaintiff to understand and respond to the assertions made against her application. 51 The right to complain and have a complaint of sexual or other discrimination investigated and determined by the Board is a significant matter. If lost because of delay in lodging the complaint the consequence for a complainant, both personal and financial, could be significant. 52 In my opinion, in the circumstances of this case, if the plaintiff's application was to be fairly treated, she was entitled to know what the second defendant and those whose conduct was complained about were putting in response to her application. It is plain that the submissions which those parties made were significant and could have had persuasive force in the decision which the Board made. 53 In my opinion, the plaintiff was entitled to have an opportunity to respond to them. 54 It is important not to lose sight of the context of these various complaints. Although they are separate and distinct complaints, they all have to do with the manner in which the plaintiff's employment with the second defendant was carried out and ultimately to the manner of its termination. 55 Although they are separate complaints, they together may possibly inform the outcome of the complaint which the Board accepts it is bound to consider and which I understand is listed for hearing in a few weeks' time. 56 From the material before me, it is not possible to understand what the evidence may be of relevance to consideration of that complaint, and furthermore, if the plaintiff was to succeed, what the outcome might be. 57 Leaving that matter to one side, it is also important to appreciate that the complaints in relation to the conduct of Mr Samios and Mr Chad are self-evidently serious matters and, if proven, would entitle the plaintiff to hold a significant grievance. The Anti-Discrimination Board is the body provided by the legislature to examine, deal with, and ultimately rule upon that grievance. 58 In relation to the complaint with respect to the conduct of Mr Samios, because of the current decision of the Board, she has been denied the opportunity to have that grievance investigated and determined because of her failure to lodge the application within time by a matter of three months. 59 There is, of course, a significantly longer time frame in relation to the complaint with respect to Mr Van Chad. Nevertheless, that complaint was investigated by the company at the time, and it would appear findings adverse to Mr Chad were made by the company, and his employment terminated. 60 However, it is not for this Court to consider the merit of the plaintiff's application. This Court is confined to consideration of whether or not the plaintiff has been afforded procedural fairness. 61 The second defendant further submits that the return of this matter to the Board will be of no utility. I am not persuaded that this is the case. 62 It seems to me that there are matters of substance which the plaintiff could put to the Board in response to the submissions of the respondents in relation to her application. As I have indicated in relation to the matter of Mr Samios, the complaint was three months out of time. In relation to that of Mr Chad, the time which elapsed was in the order of sixteen months. In relation to the other complaint, the complaint was lodged four days out of time. 63 In these circumstances, the weight to be given to any finding that the plaintiff could have, but did not lodge, a complaint within time may be minimal. 64 When a comprehensive submission is made responding to the defendant's submission, a proper perspective on the plaintiff's actions may reveal good reason why the application for extension of time should be granted. 65 Accordingly I make the following orders:

Stokes v President of the Anti-Discrimination Board of New South Wales

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Judgment (16 paragraphs)

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Legislation Cited (1)

Cases Cited (9)