Procedure - Supreme Court procedure - Tasmania - Time for application - Application for extension of time.

Intervenor**:** Director of Public Prosecutions

Judgment Number: [2006] TASSC 68

KURT von STALHEIM v ANTI DISCRIMINATION TRIBUNAL

1 The applicant has sought an extension of time for the filing of an application made under the Judicial Review Act 2000. The applicant has a long-standing grievance against a firm of accountants, Deloitte Touche Tohmatsu ("Deloittes"). In March 2000 he was an unsuccessful applicant for two positions with Deloittes in their Tasmanian office. In November 2000 he made a complaint to the Anti Discrimination Commissioner, alleging that his failure to obtain either of the appointments was a result of age and gender discrimination by Deloittes. It is not necessary for the purpose of this determination to recount the various steps taken by the applicant and Deloittes in their respective causes, except to observe that they are many and complex. The applicant has chosen as his primary vehicle for redress the Anti Discrimination Act 1998 ("the Act"), whilst for their part, relevant to this application, Deloittes had made application for a restraint order to be granted by the magistrates court. It is that application and its basis which is central to these proceedings.

2 Some time before 18 November 2003, "the Partners and Staff of Deloitte Touche Tohmatsu", presumably through a representative, were "applicants" for a restraint order against Kurt von Stalheim, the present applicant. The application was made pursuant to the Justices Act 1959, s106B. The details provided in the "restraint application" included:

"Mr Van [sic] Stalheim has applied for various position with Deloittes the first of which wa [sic] dated 9th March 2000. In all seven (7) applications have been received to date. In November of 2000 Mr von Stalheim lodged a claim with the Anti Discrimination Commission commercially which was settled. A further application has been lodged with the Commission by Mr Von Stalheim which is currently being investigated.

5.1.2 Circumstances and approximate dates of incidents leading to this application (including details of any injuries, damage to property, threats or any witnesses):

During the investigation of Mr von Stalheim's most recent claim against Deloittes the Applicant was provided with a copy of a letter prepared by Mr von Stalheim which accompanied his application to the Commission.

In this letter Mr von Stalheim states, on page 4, 'Although it is clear from subsequent staff behaviour that they have been warned that they are pushing the limits of my tolerance and if they go much further the consequences to their staff and themselves is likely to be less than pleasant.'

The staff of Deloittes were also referred to as 'a collection of vicious animals' at page 7."

3 The future conduct was said to "likely be on the basis of the threat contained in Mr von Stalheim's letter." Attached to the application were two pages of a letter earlier provided by the applicant to the Commission. The reference to the members of the staff of Deloittes generally which was used as a basis for the restraint application is contained in the following extract from the applicant's document:

Since June 2001, this firm has advised their audit/ business advisory clients not to consider employing. They have done this for various reasons:

1 because I have made a complaint of age and gender discrimination.

2 because I have suffered from a disability in the past.

3 Because they have been incorrectly informed that I am a paedophile &

4 Because they have shown themselves to be a collection of vicious animals.

I not [sic] that the act [sic] also prohibits people from assisting other to discriminate against a person S21. The act [sic] also prohibits people from assisting other [sic] to discriminate, Deloittes have assisted their staff to discriminate against me. Deloittes have knowingly promoted discrimination by advising their clients to not consider me for employment. Deloittes have incited serious contempt and severe ridicule against, and for, me on the basis of a disability."

4 On 4 December 2003, the applicant made a fresh complaint to the Commission, claiming that the commencement of the restraint proceedings was in response to his complaint of discrimination and as such contravened the Act, s18, which relevantly provides:

"(1) A person must not victimise another person because that other person -

(a) made, or intends to make, a complaint under this Act; or

(b) gave, or intends to give, evidence or information in connection with any proceedings under this Act; or

(c) alleged, or intends to allege, that any person has committed an act which would amount to a contravention of this Act; or

(e) has done anything in relation to any person under or by reference to this Act.

(2) Victimisation takes place if a person subjects, or threatens to subject, another person or an associate of that other person to any detriment."

5 It may be that the Act, s102, is relevant to the applicant's case. It states:

"A person is not liable to any action, claim or demand in respect of any loss, damage or injury suffered by another person by reason only that the person -

(a) lodged a complaint with the Commissioner; or

(b) provided information or evidence to the Commissioner or Tribunal."

(1) the restraint application was an act of victimisation in that it subjected him to a detriment, namely exposure to legal proceedings otherwise protected by law;

(2) the restraint application was not made in good faith and was a consequence of, or retribution for, his making of a complaint to the Commission;

(3) the contents of his complaint were used as an evidentiary basis for the "restraint application".

7 The matter generally was made more complex by the conduct or delay on the part of the applicant, Deloittes and the Commission. An example will suffice. Deloittes had commenced the "restraint proceedings" in the course of which von Stalheim had sought the issue of a summons directed to the Anti Discrimination Commissioner requiring her to produce certain documents said to be relevant to those restraint proceedings. That Commissioner opposed the issue of the summons. On 24 September 2004, a court of petty sessions dismissed the application for the summons on the grounds of relevance and because the purpose was regarded as a "fishing expedition". Following that ruling Deloittes, assuming such to be a valid party for the purposes, sought an order from the magistrates court for the production of the applicant's original claim form submitted to the Anti Discrimination Commission. The claim form and attachment were produced to the court by solicitors for the Commissioner (in the words of the learned magistrate) "with the intent that he should examine them and that their admissibility should be ruled upon". The court of petty sessions ruled that the complaint and the attachment were admissible. The court gave reasons on 16 February 2005, determining:

"... that a document that initiates the processes before the Commissioner is not itself 'written or done in relation to proceedings' in that at the time that such a document is written there is not then in existence any proceeding to which it could relate. The same view extends to the doing of an act by lodging the document with the Commissioner. The writing of the document and the subsequent act of lodging it may well be collective acts that initiate proceedings, but at the time of the doing of such act proceedings do not exist. Hence such acts cannot occur 'in relation to' them."

8 Thus from the applicant's point of view, his request for documentation relevant to his claim had been rejected, whilst that of Deloittes accepted and its complaint deemed relevant to, and admissible on, the proceedings against him. The reasons for that determination were delivered on 16 February 2005. This, in part, explains the delay in the determination of the applicant's original claim.

9 That claim had previously been delegated to an officer of the Commission, Ms Elizabeth Little, on 19 December 2003. His complaint had been reviewed by another officer who, on 11 December 2003, recommended that "the claim alleging discrimination on the ground of age discrimination and gender discrimination be rejected for investigation on the ground that it was lacking in substance as required by the Act, s64(1)(a)." The recommendation further stated, "that the claim alleging irrelevant criminal record be rejected on the basis that no new grounds are indicated on the claim form and hence this aspect is lacking in substance ...".

10 The problem was that the recommendations got mixed up with the Deloittes application for a restraint order. The same officer, in her recommendation, spent a great deal of time in her report on the question of victimisation and made findings in relation to that claim of victimisation. The recommendations were then considered by Ms Little and on 13 January 2004, she rejected the claim. The decision of that officer included:

Mr von Stalheim has not presented any material in his claim to show that he was treated less favourably than any other person on the basis of his gender, age or previous criminal record in employment or education and training or that an unreasonable condition was applied to him. He has simply identified that he did not get a job that he has applied for with Deloitte Touche and Thomatsu.

While the Anti-Discrimination Act 1998 prohibits the less favourable treatment of individuals on the basis of a number of attributes, it dos not prohibit an employer from discriminating between potential employees on any other basis nor does it waive an employer's duty of care in relation to their other employees.

On the basis of the information provided by Mr von Stalheim, and given that he did not provide any information to substantiate a claim of direct or indirect discrimination, it would seem entirely reasonable to assume that the company chose not to employ him because he had threatened their employees or on some other such grounds, regardless of his capacity or otherwise to undertake the tasks associated with the advertised position.

Mr von Stalheim argues that the application for a Restraint Order by Deloitte Touche and Thomatsu (the company) is a consequence of him lodging a claim with the Commission and that it constitutes victimisation, that is, it subjects him to a detriment.

The Orders sought by the company seek to prohibit him from approaching, threatening, harassing or assaulting their staff, and entering or damaging their work premises. However they also seek to provide him with a means of communicating with the company through their legal representatives.

While it is entirely reasonable for the company to seek to protect their employees from harassment and threat, the question remains as to whether a constraint on Mr von Stalheim's freedom of action and access to the company constitutes a detriment to him.

In my view Mr von Stalheim's actions and behaviour are already constrained by civil and criminal laws that reflect statutory and community standards of acceptable behaviour. Restraint Orders are merely mechanisms to enforce these standards.

It is a matter for the Magistrate's Court, not the Anti-Discrimination Commission, to determine whether Mr von Stalheim's behaviour in making threats against the employees of Deloitte Touche and Thomatsu constitutes a breach of these standards. In issuing such an order, it could be presumed that the Court would not be unreasonably constraining Mr von Stalheim's rights, but using a mechanism to enforce compliance with existing, reasonable community standards. However, at this point, no such order has been issued, therefore no specific constraint of action has yet been applied to Mr von Stalheim by the Court. Consequently I am of the view that no detriment has accrued to Mr von Stalheim."

"1 Pursuant to Ss 64(1)(a) I hereby reject as lacking in substance the claim of discrimination on the basis of attributes as per Ss 16(b) - age; 16(e) - gender; and, 16(q) - irrelevant criminal record in areas of activity Ss 22(1)(a) - employment and 22 (1)(b) - education and training.

2 Pursuant to Ss 64(1)(b) I hereby reject the claim of victimisation on the grounds that it does constitute a detriment under the provisions of S 18(2)."

12 The applicant sought review of that decision and the matter was brought before the Anti Discrimination Tribunal ("the Tribunal") and it is the decision of the Tribunal which is the subject of these proceedings.

13 The hearing of the referral occurred on 2 May 2005. The decision was reserved and a determination made by the Tribunal on 11 January 2006. There is no stated reason for the delay between the hearing and the making of the determination. Although the reasons are dated 11 January 2006, they were not supplied to the applicant until 18 January 2006. That delay was simply a product of the procedures which required the Tribunal to forward its reasons and determination to the office of the Commissioner, which then forwarded them to the parties.

14 The Tribunal rejected the referral and determined, in accordance with the Act, s72(1), that the complaint lapsed. In its reasons the Tribunal stated:

"6 The question for me pursuant to section 72 of the Act is whether or not I am satisfied that the Commissioner (delegate) made a correct decision in rejecting the complaint. I am satisfied that the delegate did make a correct decision in doing so. My reasons for this conclusion are as follows:

(a) In my view the complaint does not make any claim of discrimination which has substance. The complaint concentrates on the question of victimisation. There is no allegation that any treatment of the respondent has occurred on the ground of any relevant attributes set out in section 16, apart from the boxes which are ticked. However no particulars have been provided of those allegations.

(b) In relation to the question of victimisation, section 18 of the Act requires that the complainant must have been subjected to a detriment because of one of the factors set out in section 18(1). I agree with the complainant that the fact that a restraint order is made against him does constitute a detriment. However he has not been subjected to this detriment by the respondent nor has the detriment occurred because of one of the factors set out in section 18(1). The detriment ie the restraint order and its consequences, flow from the lawful decision of the Magistrates Court. It is the Magistrates Court that has imposed this detriment, and it has done so, I must assume, because of the proper application of the law.

The complainant would argue that the restraint order was only made because the respondent provided the Magistrates Court with inaccurate facts. However it is not for the Tribunal nor the Commissioner to second guess the factual conclusions of the Magistrates Court. It was that Court that was charged with the jurisdiction of determining whether or not to grant the restraint order, and there is a presumption that the Court has acted lawfully in doing so.

Accordingly I do not believe that the allegations contained in the complaint amount to allegations of victimisation pursuant to the Act and accordingly the Commissioner's delegate was correct to determine that the complaint ought be rejected pursuant to section 64(1)(b) on the basis that the complaint does not relate to prohibited conduct."

15 On 20 February 2006 the applicant sought to lodge with the court an originating application seeking review of the decision of the Tribunal in accordance with the Judicial Review Act. That originating application claimed relief on the following bases:

"1 That the panel member erred in law in failing to consider denigration, a component of victimisation.

2 That the panel member failed to establish that a restraint order had been made, when if [sic] fact no restraint order was made.

3 That a breach of the rules of natural justice occurred in failing to hear about the admission of a counsel for Deloitte Touche Tohmatsu.

4 That the panel member erred when finding that an argument was presented to the effect that I suffered discrimination because of the making of restraint order.

5 That the panel member erred in determining that no detriment had flowed from the making of a discrimination complaint by the applicant."

16 Concurrently the applicant sought the waiver of filing fees and the matter was referred to the Registrar for consideration. On 9 March 2006, the Registrar approved the waiving of fees and on that day the documents were accepted by the Registrar for filing. Whilst on the face of the record the application is dated 7 March, the date of approval, the Attorney-General concedes that the applicant attempted to file his originating application on 20 February 2006 and that no account should be taken of the intervening period. The Attorney-General takes no point as to delay as and from 20 February. Instead, the Attorney-General contends that the outcome of the review must be inevitable and that there is no basis which would warrant the continuation of these proceedings.

17 The problem with the position adopted by the Attorney-General is that it is advanced on a hearing for leave for extension of time application and there has been no determination of the merit of the applicant's argument. It may well be that the cause lacks any merit. But the determination has been made on the basis that the bringing of a restraint application cannot constitute a detriment. On the hearing of this review, counsel for the Attorney properly conceded that, for the purpose of the hearing of this application, a prosecution or application such as that commenced by Deloittes brought in bad faith could constitute a detriment. It may be that the use of the complaint itself, as a vehicle for the commencement of a restraint application might constitute "victimisation", but I am not required to consider the merits or possible defences to the grounds of, and remedies sought by, these proceedings.

18 A decision was taken by the delegate of the Commissioner, which is a reviewable matter within the meaning of the Act, s3. The decision was reviewed and confirmed by the Tribunal constituted under the Act. The application to this Court has been made in accordance with the Judicial Review Act, s17. A contested application for an extension of time is not the appropriate vehicle for the determination of the merits of the matter.

19 The application is granted and the time extended to 7 March 2006.