Tully v McIntyre [2000] QCA 115

Tunns Lawyers as town agents for Donald W Dickie (Broadbeach) for the appellants

[1] THE COURT: The appellant Mr McIntyre was found by the Anti-Discrimination Tribunal to have discriminated contrary to the requirements of s 14(1)(b) and s 7(1)(f) of the Anti-Discrimination Act 1991. The finding was that he had discriminated on the basis of age in deciding who should be offered work. He and his company (Manmac Holdings Pty Ltd trading as Nashuatec Gold Coast ("Nashuatec")) were ordered to pay compensation to the complainant Mr Tully, assessed at $11,000. Mr McIntyre and Nashuatec appealed unsuccessfully to a judge of the Supreme Court under s 217 of the Anti-Discrimination Act 1991. They now appeal to this court against the rejection of that appeal.

[2] The unlawful discrimination is alleged to have occurred during a telephone conversation on 10 April 1997. It was a telephone call initiated by Mr Tully ("the respondent") who wished to discuss the prospect of his obtaining employment with Nashuatec. On the evidence the respondent was not applying for any position which was then on offer by Mr McIntyre or his company; the respondent wanted an interview so that he could persuade Mr McIntyre to find a position within the company in which his extensive sales experience could be utilised.

[3] Differing versions were given of what was said during the telephone conversation. However the Anti-Discrimination Tribunal accepted the version given by the respondent. It was to this effect. The respondent, having faxed a copy of his resume to Mr McIntyre on the previous day, made contact with Mr McIntyre's secretary by telephone seeking an appointment. After preliminary conversation with the secretary, Mr McIntyre came to the phone. Thereafter the following conversation ensued:

"McIntyre: What's this, Tully, can't you get a fucking job anywhere? I must admire your persistence though. How old are you?

Tully: As old as my tongue and a little older than my teeth. Why?

McIntyre: Nah, we've only got a bunch of young blokes here, so how old are you?

McIntyre: I'm 58 and I even ask my customers how old they are.

McIntyre: Nah, if you won't tell me how old you are we'll call it quits right now.

[4] The appeal to the single justice of the Supreme Court, and in turn to this court, is based upon two principal grounds. Firstly it is submitted that the evidence fails to disclose and is incapable of disclosing a contravention of s 14(1)(b) of the Act. Secondly it is submitted that the assessment of damages was other than compensatory and was based upon errors of law.

[5] It is desirable that some of the surrounding facts be mentioned. In February 1997 an advertisement was inserted in the Gold Coast Bulletin by a Mr Campbell on behalf of his firm GTA Human Resources. The initials stand for Group Training Australia, and the firm will be referred to as GTA. It appears to have been an agency involved in training and employment with the benefit of Commonwealth Government subsidies. The advertisement in question sought a person for photocopier and technology sales. It stated inter alia "on job training provided" and "no prior sales experience is okay. We will train you in real sales, teach you the skills you need to succeed". The position would pay only $269 per week, although the possibility of bonus payments was mentioned. It was accepted in evidence that young trainees were paid a wage which was partly subsidised by the government, but more specific details were not provided. Mr McIntyre had indicated to GTA a willingness to consider employing a trainee if they could find one "with the potential to survive". The advertisement was apparently devised, placed and paid for by GTA. Mr McIntyre did not know it was in the newspaper.

[6] The respondent decided to apply for that position. His decision to do so is perhaps a little curious in that he was a highly skilled, highly experienced person in the sales industry to the point of having been a trainer of salespersons. His impressive curriculum vitae included his previous experience as the owner/director of a large business in North America, top salesman for Canon in Canada, and many other achievements over a considerable period. He also stated that it was impossible for him as an experienced salesman to work for less than $50,000 per annum. He stated however that he was willing to undertake training in order to prove himself. In due course he attended a group interview arranged by Mr Campbell at which a dozen persons attended. All other persons were aged between 18 and 26. Mr Campbell spoke with the respondent and suggested that the position was for younger people that would qualify for the government's assistance program, and that the respondent was "too experienced for the job".

[7] The respondent seems at some point to have accepted that the advertised position was not a suitable one for him. He did not further pursue it and no allegation is made that Mr Campbell was guilty of unlawful discrimination against him. In fact Mr Campbell was so impressed with the respondent's achievements that he suggested he might prefer to apply directly to the company for a position more suited to his capacities. The respondent obviously decided to do so. Upon being informed by Mr Campbell that the manager of Nashuatec was a Mr McIntyre, the respondent erroneously believed that he had previously had dealings with him. He decided to make a personal approach to Nashuatec, obtain an interview and persuade Mr McIntyre to find or create a position for him which he could fill with mutual benefit.

[8] Against that background the approach was made to Mr McIntyre which resulted in the telephone conversation which has been earlier set out.

[9] It should be remembered that the conversation with Mr McIntyre was not about his obtaining the trainee position. It was a conversation in which the respondent voluntarily approached a putative employer with the intention of persuading him to offer a job that was not then on offer. This fact is of importance in considering whether prohibited discrimination occurred at all, and also on the question of damages, a component of which was based upon "loss of a chance".

[10] Section 14(1) of the Anti-Discrimination Act provides:

(a) in the arrangements made for deciding who should be offered work; or

(c) in the terms of work that is offered, including, for example, a term about when the work will end because of a person's age; or

(e) by denying a person seeking work access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or

(f) in developing the scope or range of such a program.".

[11] The tribunal rightly refused to find that any discrimination had occurred under s 14(1)(d), commenting "at the time of the conversation there was not any offer of work but an inquiry about a position at a place of work". The finding of liability was based on s 14(1)(b).

[12] Mr Curran for the appellants submits that s 14, and in particular s 14(1)(b) does not cover a situation where there is no job to be offered. Quite simply there was no "deciding" of who should be offered work under s 14(1)(b), and the situation described in evidence did not come close to Mr McIntyre or anyone else deciding to offer work at all, let alone to deciding who should be offered it. The respondent was at that point seeking an interview. The situation whereby a decision would be made about a position that was not then on offer had not been reached and might never be reached. Of course the mere fact that something further might need to occur in the future before a decision was made would not necessarily rule out a breach of the section. If the definition of direct discrimination in s 10(1)[1] is brought into account a "proposal" to treat the respondent unfavourably on the basis of age might suffice if s 14 were otherwise satisfied.

[13] Section 6 of the Act neatly foreshadows the structure of the Act. It recognises that prohibited discrimination requires the existence of a specified ground, of a specified type, and in a specified area of activity. All three components are necessary. In the present case the prohibited ground of discrimination was age[2]; the type of discrimination was "direct discrimination"[3]; and the area of discrimination was the pre-work area[4], and in particular discrimination "in deciding who should be offered work" under s 14(1)(b). The cumulative nature of these requirements[5] was conceded in argument by counsel for the respondent, Ms Armitage. The concession, in our view correctly made, was that acts prior to the situations described in s 14(1) are not per se unlawful, or more accurately, are not contraventions. Ms Armitage, submitted however that the evidence satisfied the requirements of either s 14(1)(a) or s 14(1)(b), pointing out that the points of claim relied generally upon section 14, and submitting, again correctly in our view, that she was entitled to endeavour to uphold the decision on either of these sub-paragraphs.

[14] It is clear enough that the offering of an insult or the making of inappropriate statements is not per se prohibited by the Act, except in specific instances such as incitement to racial hatred[6], discriminatory advertising[7], and other particular forms of objectionable conduct set out in parts 4 and 5 of the Act. So far as Chapter 2 (prohibited discrimination) is concerned the Act does not penalise freedom of expression unless all the requirements of prohibited discrimination are present. The Act does not per se render a person liable to pay damages for making politically incorrect statements. It is not the use of hurtful words that is proscribed, but rather the act of discrimination. In this case the alleged act of discrimination is the deciding of who should be offered work.

[15] Counsel for the respondent submitted that in the circumstances it was shown that there was a possibility of the respondent obtaining employment as there was a possibility of a position being made available. It is of course true that any commercial organisation or even small business could always reorganise its business so as to make additional positions available. In that sense there is always a possibility of a position or of an offer of work. However such a theoretical possibility is not in our view one that activates any part of s 14(1). Actual rather than theoretical situations are contemplated by s 14 to s 23 which deal with various areas of discrimination. These sections are followed by subdivision 2 (s 24 to s 36) which provide exemptions or defences against discrimination in work and work related areas. It seems clear that s 25 to s 29, which deal with work situations, all contemplate the existence of an actual position or the stage having been reached where arrangements are in train with a view to something being done in relation to a particular position. It would be curious if the legislature created defences in those situations but not in more peripheral situations where no job was imminent or where there was no mutuality in a negotiation.

[16] Ms Armitage submitted that work was in fact available at Nashuatec, but we do not consider that the evidence supports this. She sought to rely upon an answer at the end of cross-examination where Mr McIntyre made the following response to questioning by the tribunal member:

"Well, just answering my question, do you say that there wasn't any particular position vacant that Mr Tully could have filled other than a traineeship? - No".

In its context the "No" answer was plainly the witness's agreement with the negative proposition put by the member. If the answer had been taken otherwise by either the member or by the solicitor who appeared as agent for the respondent, further details concerning any vacant position would no doubt have been sought. Reading the evidence of both Mr Tully and Mr McIntyre, the only reasonable conclusion is that there was no position at that time on offer. The possibility of employment of additional salespersons was no higher than that in any business which might be persuaded to employ additional staff but which did not have any immediate plans to do so. Such a situation does not in our view satisfy the requirements of s 14 in the event that an ignorant or discriminatory comment is made in the course of a solicitation by an interested person for a position to be created.

[17] Reference was made by Mr Curran to University of Ballarat v Bridges[8]. That decision, based upon the Equal Opportunity Act 1984 (Vic) noted that s 17 of that Act did not establish a category of "discrimination per se" which contravened the Act. A contravention of a later specific provision such as s 21 of that Act was also necessary. It was also considered necessary that a causal relationship be found between the alleged discriminatory act and the ultimate act or decision which was claimed to constitute the unlawful discrimination. However we do not think it necessary to pursue the question of causation any further in the present case. The situation that existed was one where no actual job was in the view of the parties. There was no job in relation to which a decision was to be made or in relation to which any proposal was made by Mr McIntyre. Insofar as any case under s 14(1)(a) is concerned, it would still be necessary that an offer of work be in the view of the parties. Section 14(1)(a) seems primarily designed to catch the situation where any employer has a position to offer and sets about arranging the criteria for appointment. The present is not a situation of that kind.

[18] This point was clearly raised by Mr Curran before the learned judge in the initial appeal. Her Honour did not deal with it other than in the following passage:

"There is no merit in the argument that there was no unlawful discrimination in the process of deciding who should be offered work (Cf subs 14(1)(d) of the Act: University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418). It was clearly open to the Tribunal to find that by his own words and actions, Mr McIntyre decided to exclude Mr Tully from any offer of work because of Mr Tully's age."

[19] The University of Ballarat case does not support that conclusion. Neither does s 14(1)(d) ("failing to offer work"). No reliance was placed by Ms Armitage in the present appeal upon s 14(1)(d) which along with all the other subparagraphs of s 14(1) necessarily envisages the existence of a situation where work is to be offered. Section 14(1)(d) does not cast a duty on employers to create positions and offer them. If the reference in the above passage to "any offer of work" is intended to include hypothetical offers it is erroneous.

[20] The discrimination relied on in the present case was with respect to a hypothetical situation. In the absence of an actual situation pertaining to an offer of work, the making of an unfortunate or hurtful statement does not create an entitlement to compensation in the person to whom it is made. A statement such as "we have a policy of affirmative action in favour of youth" would not create a right to compensation. Neither would "we do not have a position in the area in which you are interested, but if we did we would not employ you because you are too old". As mentioned earlier[9] an act of discrimination must be shown, and the speaking of inappropriate words does not necessarily establish such an act.

[21] A question was raised whether an alternative case might now be considered based on s 124 of the Act[10]. It was conceded that that would be a different case which was not litigated below. A different matrix of provisions would apply. Indeed the points of claim specified the relevant attribute as age under s 7(1)(f) and the relevant area as pre-work under s 14. Having regard to time limitations and the history of the litigation it would be unfair to remit the matter so that the complainant could now re-litigate the matter on a different ground. We would in any event leave open the question whether s 124(1) is wide enough to cover a situation like the present.

[22] For the above reasons the learned judge erred in failing to uphold the appeal on the fundamental ground raised by Mr Curran.

[23] In the absence of a contravention it is not strictly necessary to deal with further grounds relating to the assessment of compensation[11] for loss or damage caused by the contravention. However it is desirable to mention our view that errors of law are shown in the assessment. There are several unsatisfactory features that should be noticed.

[24] Considerable difficulty is occasioned by the fact that the tribunal member mentioned three separate sources on which the award was based, but failed to indicate the amount attributed under each heading. This makes the award anything but transparent. The duty to give reasons[12] calls for some reasonable indication from the tribunal at least of the approximate level of separate components upon which an overall award is based. In the present case the three components were:

(a) "Damages" under s 209(1)(b) and s 209(6) of the Act for "the offence, embarrassment and humiliation" suffered by the respondent.

(b) Distress suffered by the respondent whilst he gave his evidence and whilst he was cross-examined (described by the member as aggravated compensatory damages).

(c) Loss of the chance of employment with Nashuatec.

The member proceeded to make a global award of $11,000. The only indication of the relativity of the components was that the respondent was entitled to a "small award" for the lost chance of opportunity to work.

[25] We were informed that the practice of mentioning components and then making a "global" award is common in the tribunal. We were further informed that on occasion indications have been given in the Supreme Court on appeal that it is desirable that the particular heads of damage and their amounts be identified, but that the failure to do so has not to this stage been identified as a legal error requiring allowance of the appeal. In our view the failure of a tribunal to indicate the basis of what is after all the ultimate penalty imposed upon the infringer as well as the compensatory benefit to the complainant is capable of amounting to an error of law. For reasons mentioned hereunder the failure to give reasons in the present case masks the true basis of the award and deprives both the appellant and this court of necessary information that would enable a proper review of its propriety. We would identify the failure to give reasons in the present case as an error. It should be noted that any future instance in which the true structure of the assessment is kept invisible is likely to result in the identification of legal error.

[26] The primary damages were for distress caused by the statements made in the interview. Damages were also awarded for distress occasioned to the respondent while he was in the witness box. Considerable care and perhaps restraint is required in adding on such damages against a respondent, particularly a respondent in person, for conduct which may be seen by that person as no more than vigorous defence. In the present case, in the course of cross-examination Mr McIntyre suggested to the respondent that he was looking for some money because he was out of work. The suggestion was made in the course of a long and somewhat confused question immediately following rejection by the member of the respondent's application for an adjournment to enable him to obtain legal counsel. Earlier cross-examination had produced little positive return for Mr McIntyre. The respondent had participated in the cut and thrust, with spirited answers including "that's rubbish". To another question "Is it normal do you think that the first thing someone says to you is how old are you?" he had answered "For you, yes".

[27] In the circumstances, whilst the question was undoubtedly offensive and could have the capacity to increase the damages, it is a matter that needed to be seen in perspective and treated with restraint. The need for restraint arises from the fact that respondents may honestly believe that they have not contravened the Act. Sometimes they may be right. In most, if not all of such cases, there is a direct conflict on credit, in which case some degree of attack on the other party may be necessary to demonstrate a bad motive or other basis for disbelief, whether it be of a complainant or respondent. It is not in the interest of the Anti-Discrimination Tribunal to give the impression to respondents that they will be penalised if they vigorously defend themselves.

[28] In the present case this single unfortunate question could not by any means have justified aggravated damages forming a significant portion of an $11,000 award, but it seems likely that it did. Of course, by failing to indicate how much was allowed for this item, the member has made further consideration of it impossible.

[29] We pass on to the third component of compensation. There was in the present case no proper basis for compensatory damages over and above damages for his hurt and humiliation, described as loss of the chance of employment with Nashuatec. To found a loss of a chance of obtaining employment from the respondent there would need to be some duty shown on the part of the employer to create a position or at least to enter into serious negotiations for a position with anyone who chooses to ask for a position to be created. We do not consider that such a duty exists under the general law or under the Anti-Discrimination Act. Even if contrary to this view some such duty existed, what the respondent was deprived of was the opportunity of a personal interview at which, by using his powers of persuasion he hoped to talk himself into a position which the employer was not then offering. In such circumstances it could not be said that this lost chance was other than extremely remote or that it could conceivably justify an award of other than nominal or perhaps "small damages" as they are described in McGregor on Damages[13]. In Sellars v Adelaide Petroleum NL[14] the following observation was made:

"The general standard of proof in civil actions will ordinarily govern the issue of causation and the issue whether the applicant has sustained loss or damage. Hence the applicant must prove on the balance of probabilities that he or she has sustained some loss or damage. However, in a case such as the present, the applicant shows some loss or damage was sustained by demonstrating that the contravening conduct caused the loss of a commercial opportunity which had some value (not being a negligible value), the value being ascertained by reference to the degree of probabilities or possibilities".

[30] We do not propose to deal further with the question of legal error in the assessment of damages on the hypothetical footing that the respondent contravened the Act. It is enough to indicate that the assessment process appears to have miscarried particularly in respect of the absence of assessment under particular heads, the approach to awarding aggravated damages, and error in approach to assessment for loss of a chance to obtain a non-existent position. Were it necessary to do so we would have set aside the amount of compensation and have reassessed it at a considerably lower sum having regard to the above observations.

[31] The appeal should be allowed with costs. The order of the Supreme Court of 7 June 1999 should be set aside and in lieu thereof it should be ordered that the appeal be allowed and the orders made by the Anti-Discrimination Tribunal on 25 September 1998 be set aside. It should also be ordered that the respondent pay the appellants' costs of the proceedings in the Supreme Court including reserved costs to be assessed.

[1] 10(1) Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

[2] Section 7(1)(f).

[3] Section 10.

[4] Section 14(1).

[5] Cf University of Ballarat v Bridges [1995] VICSC 90; [1995] 2 VR 418.

[7] Section 127 and s 128.

[8] [1995] VICSC 90; [1995] 2 VR 418.

[10] (1) A person must not ask another person, either orally or in writing, to supply information on which unlawful discrimination might be based.

[11] Section 209(1)(b).

[12] Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65, 88; Adamson v Queensland Law Society Incorporated [1990] 1 Qd R 498, 508; Pettit v Dunkley (1971) 1 NSWLR 376, 382-284; King Ranch Australia v Cardwell Shire Council [1985] 2 Qd R 182, 190. The authorities are usefully collected in Cypressvale Pty Ltd v Retail Shop Lease Tribunal [1995] QCA 187; [1996] 2 Qd R 462, 476-477, 482-484; cf Baytieh v State of Queensland [1999] QCA 466, Appeal No 7672 of 1999, 9 November 1999, par [18].

[14] (1993-1994) 179 CLR 332, 355-356.