Administrative Law - Judicial review - Reviewable decisions and conduct - Premature application to restrain decision-maker from proceeding.

Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, applied.

Haywood & Anor v Forest Practices Tribunal & Anor (No 2) [2003] TASSC 102, referred to.

Judicial Review Act 2000 (Tas).

Judgment Number: [2005] TASSC 134

KURT VON STALHEIM v ANTI-DISCRIMINATION COMMISSIONER

1 The applicant seeks interim orders that include an order to the effect that the Anti-Discrimination Commissioner be restrained from making any decision on her investigation of his complaint pending the hearing of an originating application he has filed with this Court seeking orders referable to that investigation.

2 The applicant lodged a complaint dated 4 October 2004 against Deloitte Touche Tohmatsu ("Deliottes") under the Anti-Discrimination Act 1998 ("ADA"). A copy of the complaint is not in evidence. It appears from a decision of the Anti-Discrimination Tribunal dated 10 August 2005, that the complaint includes claims of unlawful discrimination on the grounds of age and gender in the areas of employment, education and training in relation to positions filled in the Launceston office of Deliottes between 19 September 2003 and 10 September 2004. Pursuant to ADA, s8, the Commissioner delegated the consideration of the complaint to Dale Webster. Amongst other things, this involved determining whether to accept or reject the complaint, ADA, s64. The delegate rejected the complaint on 17 February 2004. The applicant sought a review of that rejection pursuant to ADA, s65, and on 10 August 2005, in the decision to which I have referred, the Tribunal upheld that review and as required by ADA, s72(2), referred the complaint back to the Commissioner for investigation. As to such an investigation, the following provisions of the ADA relevantly provide:

"69 (1) The Commissioner or an authorised person may investigate a complaint in a manner that is appropriate to the circumstances.

71 (1) The Commissioner or an authorised person, on the completion of an investigation of a complaint, is to determine that the complaint -

(a) is dismissed, on any ground referred to in section 64(1)(a), (b), (c), (d) or (f); or

(2) The Commissioner or authorised person, as soon as practicable -

(b) provide a written statement of the reasons for the dismissal of a complaint.

(3) A complainant whose complaint is dismissed may apply to the Tribunal for the dismissal to be reviewed.

97 (1) The Tribunal, Commissioner or an authorised person may require any person to provide specified information or produce specified documents that the Tribunal, Commissioner or authorised person believes may be relevant to the complaint."

3 On 28 November 2005, the applicant received a letter from the office of the Anti-Discrimination Commissioner which he wrongly construed as notice that the investigation of his complaint was to end on 13 December 2005. Following his receipt of this letter, the applicant filed an originating application on 8 December 2005 which details numerous grounds for seeking a number of orders. The grounds are:

"1 That the commissioner erred in law in determining her role in relation to the Anti Discrimination Tribunal, as required by the Anti Discrimination Act.

2 That the commissioner erred in law in determining relevance for the purposes of investigations conducted pursuant to the Anti Discrimination Act, so as to establish whether a contravention of that act has occurred.

3 That the commissioner erred in law in the application of the Privacy Act, when deciding not to obtain evidence necessary to perform comparisons for the purposes of S14 of the Anti Discrimination Act 1998.

4 That the commissioner has erred in law in determining the inherent requirements of all 'Irrelevant' attributes, in terms of the altered burden of proof placed upon both parties as well as the evidence required from both parties necessary to investigate of attribute Irrelevant Criminal Record.

5 That the commissioner has erred in law in determining the effect of an imputed irrelevant criminal record.

6 That the commissioner has erred by ignoring the decision of the Anti Discrimination Tribunal, when the panel member stated that the commissioner could approach a witness, indicating part of the responsibilities of the Anti Discrimination Commissioner.

7 That the commissioner erred in law in determining the relevance of the transcripts of proceedings conducted on the 13th April 2005, before the Launceston Magistrates Court, in which admissions were made by the legal representatives of Deloitte Touche Tohmatsu, on that occasion.

8 That there is no material, within the meaning of S17 (2) (h) and S21 of the Judicial Review Act 2001, to justify the commissioner decision not to obtain the transcripts of the proceedings conducted before the Launceston Magistrates court on the 13th April 2005 because the matter had previously been investigated and that the subsequent decision was subject to a review by the Anti Discrimination Tribunal.

9 That the commissioner erred in law in failing to apply S21 of the Anti Discrimination Act, when determining the requirements necessary to determine the extent of the investigation, plan the investigation, proceed with the investigation, including the joining of other parties to a complaint.

10 That the commissioner erred in law in determining the effect of S104 of the Anti Discrimination Act 1998 on an investigation, the planning of an investigation and the effect of this provision on the extent of the investigation conducted pursuant to that Act.

11 That the commissioner erred in law in failing to apply S104 of the Anti Discrimination Act 1998 when failing to identify the relevant professional bodies to be respondents to the complaint.

12 That the commissioner has erred in law by conducting the functions of her office in breach of the rules of natural justice when making decisions and planning and conducting her investigations as well as acting in a manner that will lead to a deprivation of natural justice in the future.

13 That the commissioner erred in law when determining the requirements for allowing legal representation, as required by S61 of the Anti Discrimination Act 1998 and also in failing to advise both parties of the factual implications arising from such an application.

14 That the commissioner failed to take relevant considerations into account when deciding to allow legal representation for Deloittes, as required by S17 (2) (e) & S20 (b) of the judicial review Act, resulting in failing to require Deloittes to supply reason explaining why legal representation was required, as inherently required by S61 of the Anti Discrimination Act 1998.

15 That the commissioner erred in law in relation to when and how to apply S97 of the Anti Discrimination Act, when deciding not to obtain evidence, from the Launceston Magistrates Court, of admissions made by the legal representative of Deloitte Touche Tohmatsu on that occasion.

16 That the commissioner erred in law in the joint application of S73 and S64 of the Anti Discrimination Act deciding not to obtain evidence from the Launceston Magistrates Court.

17 That the commissioner has erred in law by failing to consider the effect that a breach of S105 of the Anti Discrimination Act 1998 has on the joint application of SS64 & 73 of that Act.

18 That the commissioner refused to obtain witness statements from Miss Julie Ann Sherriff (Barrister and Solicitor) of Archer Bushby or any subsequent firm, Mr Colin Cook of Searson Buck & the current and former staff of Deloittes, as required to determine whether or not contraventions of the acts may have occurred as required by the and the Tribunal.

19 That the commissioner is likely to commit an error of law when making her determination when applying the criteria specified in S64 to a decision to dismiss a complaint."

"1 That the commissioner be ordered to obtain a list of all staff employed by Deloittes between the period January 1997 to the present and that this information be taken from the payroll records held by Deloittes.

2 That the commissioner be ordered to obtain a copy of the resumes and any other application material used by the successful applicants for positions with this firm.

3 That the commissioner be ordered to obtain the identification necessary to separate those appointed to the Launceston office of Deloittes and those employed by other offices of Deloittes and seconded to the Launceston office for a period of time.

4 That the commissioner obtain the current contact details of the current and former staff members of this firm.

5 That the commissioner be ordered to approach and interview the current and former staff with a view to establishing whether or not a breach of the act has occurred.

6 That the commissioner be ordered to approach and obtain statements from Miss Julie Ann Sherriff, Mr Colin Cook of Searson Buck, relating to the assertions made by the complainant, as well as Mrs Joanne Devine, formerly of Deloitte Touche Tohmatsu.

7 That the commissioner be ordered to establish all the respondents to the complaint within the meaning of S104 and S21 of the Anti Discrimination Act 1998, including individual employees where appropriate.

8 That the commissioner be ordered to advise Deloittes that it is not open to her to accept that the complainant is lacking in the ability to interpret and apply the law, or in communication skills."

5 As can be seen, orders 1 to 6 seek to direct the Commissioner on the manner in which she is to conduct her investigation, order 7 seeks to place an obligation on the Commissioner to establish potential respondents to the complaint, and order 8 seeks to impose an obligation on the Commissioner to give specified advice to Deloittes.

6 As presently advanced, the originating application must fail. No evidence has been placed before the Court that provides a factual basis for any of the grounds, or for concluding that the Commissioner has not done each and every one of the things that the applicant seeks to have her do. If it could be inferred that the Commissioner had not done any of those things, there is no evidence to provide a basis for concluding that she should have done them and more particularly that she should be ordered to do them.

7 Again, even if there was sufficient evidence before the Court about the conduct of the investigation, the Commissioner's action or inaction in that regard is not subject to appeal to this Court under the ADA. The right of appeal conferred by ADA, s100, is confined to particular decisions of the Tribunal, as distinct from decisions of the Commissioner. If the Commissioner dismisses the complaint, the applicant may apply to the Tribunal for a review of that dismissal pursuant to ADA, s71(3). There is no similar right under the ADA to appeal such a dismissal direct to this Court.

8 The title to the applicant's originating application states that it is "In the matter of the Anti Discrimination Act 1998". The applicant, however, says that his originating application is made under the Judicial Review Act 2000 ("JRA"). Accepting this, the applicant still faces major problems. Even if there was evidence before this Court to provide a factual basis for the grounds detailed in the originating application, it could not establish that the Commissioner has made a decision that is reviewable under the JRA. No final decision has been made on the investigation of the applicant's complaint. If evidence established that the determinations about which the applicant complains have been made, those determinations would be no more than conclusions reached in the process of conducting an investigation that leads to a final decision. Whilst it is arguable that the final decision would be a reviewable decision under the JRA, that is not the case in relation to conclusions reached as a step along the way in the process of reaching that decision. This does not necessarily mean that the originating application must fail as additional evidence may establish that the conduct of the investigation or the proposed conduct of the investigation is reviewable conduct under the JRA, s18(1). As to the distinction to be drawn between a reviewable decision and reviewable conduct, see Port of Devonport Corporation Pty Ltd v Abey [2005] TASSC 97, pars24 - 32 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321.

9 However, should additional evidence provide a basis for the applicant to invoke the Court's jurisdiction under the JRA, it is highly unlikely that the applicant would be allowed to avail himself of that jurisdiction as his originating application is premature insofar as it will interrupt a pending investigation. As to such an application, I repeat what I said in Port of Devonport Corporation Pty Ltd v Abey (supra) at pars48 and 49:

"... It is only in exceptional circumstances that it is appropriate to grant relief under the Judicial Review Act 2000 in respect of a decision given in the course of ongoing proceedings. The delays consequent upon the fragmentation of proceedings are so disadvantageous that they should be avoided unless the grant of relief by way of judicial review can clearly be seen to produce a discernable benefit. Observations to this effect have been made in relation to committal proceedings in Lamb v Moss [1983] FCA 254; (1983) 49 ALR 533 at 564, Yates v Wilson [1989] HCA 68; (1989) 168 CLR 338 at 339 and Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 at 338 - 339. In my view these observations are generally applicable in relation to ongoing proceedings that are open to judicial review.

This Court has a discretion to dismiss or stay a premature application for relief under the Judicial Review Act ... (which) expressly:

* empowers this Court to stay or dismiss an application for review which it would be inappropriate to allow to continue, s38(1)(a)(i); and

* obliges this Court to dismiss an application for review if in the interests of justice it is desirable to do so in order to avoid interference with the due and orderly conduct of the ongoing proceedings, provided that adequate means of review are available at the conclusion of those proceedings, s13."

10 In the same case, par36, Crawford J expressed general agreement with what I said concerning the undesirability of applying to review a matter before it has been finally determined, except in exceptional circumstances.

11 The applicant submits that an exceptional circumstance that arises in his case is that if his complaint is dismissed without the further investigations he seeks, he will be denied the benefit of the results of those investigations should he find it necessary to seek a review of the dismissal of his complaint by the Tribunal. This submission ignores ADA, s97(1), which gives the Tribunal precisely the same power as the Commissioner has to obtain information and documents. Accordingly, in the event that the complaint is dismissed and the applicant seeks a review of that dismissal, it will be open to the applicant to persuade the Tribunal to pursue any further investigations that he contends are justified.

12 The interlocutory application before me in substance seeks an order staying the Commissioner from making a decision on the applicant's complaint until his originating application has been heard, and other related orders.

13 The applicant submits that an order staying the making of a decision is necessary as if a decision is made before the hearing of his originating application, it will be rendered nugatory. Whilst this would be so, if the decision was favourable to the applicant, he would not thereby suffer prejudice. If the decision was adverse to the applicant and his complaint dismissed, I am not satisfied that his originating application would thereby be rendered nugatory. It could be supplemented by a challenge to that decision and subject to the provision of evidence to found a basis for interference pursuant to the JRA, appropriate remedial orders could be made. See, for example, the orders made in Haywood & Anor v Forest Practices Tribunal & Anor (No 2) [2003] TASSC 102. Whilst much that I have postulated would be subject to the discretion of the Court, this will also be so if no decision has been made on the investigation before the originating application is heard.

14 In summary, the inadequacy of the evidence that has been provided thus far in support of the applicant's originating application leaves me in the position that I am not satisfied that it raises a serious question for determination by the Court and, further, even if it is supported by adequate evidence, I consider it to be highly likely that the Court would refuse to allow the originating application to proceed as it is only in exceptional circumstances that it would be appropriate to interrupt a pending investigation. I refuse to make an order staying the investigation. The interlocutory application is dismissed.

15 I have not found it necessary to address arguments advanced by counsel for the Attorney-General to the effect that by reason of the construction of certain provisions of the JRA the Court does not have power to make orders of the nature of those sought by the applicant in his originating application and his interlocutory application. I should say, however, that I am dubious about arguments calculated to confine the Court's powers by reason of the provisions of the JRA. As can be gleaned from Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550, the JRA is not a code. See also Building Professions Accreditation Corporation Tasmania Ltd v Minister for Infrastructure, Energy and Resources [2005] TASSC 73, par37. Whilst the JRA prohibits the Court from issuing prerogative writs, its inherent powers remain, Tasman Quest Pty Ltd v Evans; Tasman Quest Pty Ltd v Nolan [2003] TASSC 110. It may well be that orders of the nature of those sought can be made pursuant to the Court's inherent powers.