Administrative Law - Judicial review - Reviewable decisions and conduct - Review of particular decisions - Anti-discrimination tribunal review of commissioner's rejection of a complaint - Nature of review.

Anti-Discrimination Act 1998 (Tas), s72.

Australian Retail Association & Ors v Reserve Bank of Australia [2005] FCA 1707; (2006) 228 ALR 28; Cleaver v Powell [1979] Tas SR 134; Green v Fletcher [1988] TASSC 4; [1988] Tas R 59; Webster v White A58/1991, referred to.

Human Rights - Discrimination - Grounds of discrimination - Other matters - Victimisation for making a complaint.

Anti-Discrimination Act 1998 (Tas), s18.

First Respondent: Director of Public Prosecutions

Second Respondent: Director of Public Prosecutions

Judgment Number: [2007] TASSC 9

KURT VON STALHEIM v THE ANTI DISCRIMINATION TRIBUNAL AND

1 The applicant applies pursuant to the Judicial Review Act 2000 ("JRA") to set aside a decision of the Tribunal constituted under the Anti-Discrimination Act 1998 ("ADA") as to the rejection of a complaint made by the applicant.

2 By a complaint to the Anti-Discrimination Commissioner dated 1 December 2003, the applicant claimed that Deloitte Touche Tohmatsu ("Deloitte") of 49-51 Elizabeth Street, Launceston had discriminated against him in his employment, education and training on the basis of his age, gender/sex and irrelevant criminal record and that he had been victimised by them because he had lodged a previous complaint of discrimination against Deloitte.

3 Pursuant to the ADA, s8, the Commissioner delegated her power in relation to the complaint to Ms Elizabeth Little who thereupon assumed the Commissioner's responsibility for dealing with the complaint. The effect of the ADA, ss64, 69 and 71, is that Ms Little, in her capacity as the Commissioner's delegate, was entitled to reject or dismiss the complaint, with or without investigating it, if satisfied that any one of a number of matters specified in s64(1) applied. For present purposes, the relevant matters are that:

"(a) in the opinion of the Commissioner, it [the complaint] is trivial, vexatious, misconceived or lacking in substance; or

(b) the complaint does not relate to discrimination or prohibited conduct; ... "

4 Ms Little published reasons for rejecting the complaint. In the course of explaining why she rejected the claim as to discrimination, she said:

"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."

As to Ms Little's rejection of the applicant's claim of victimisation, it is pertinent that the material provided by the applicant to the Commissioner included the following, which is extracted from his complaint:

"During the course of 2003, I made a complaint against Deloitte Touche Tohmatsu alleging discrimination on the basis of several attributes, including irrelevant criminal record. As a direct result of this complaint I received an application for a restraint order. This application was requested on the basis that in my complaint I had stated that (@ 5.1.2);

'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. Thus it would appear that the guilty looks result more from being "court[sic] out" rather than from any remorse.'

And that on page seven I repeated my opinion that the staff of the Launceston office were vicious animals.

6 Deloittes omitted to mention that I had previously ... [described] them as depraved and sadistic animals (Altered to vicious animals out of respect for the commission). ...

7 Deloittes omitted to mentioned that I have described their offices as being more of a brothel than a professional office, on the basis of the clothes (if it could be called that) the staff chose to wear. I have certainly seen prostitutes more decently clothed.

I should add for the sake of completeness that if I consider the conduct of Deloittes to be that of vicious animals, and should chose [sic] to say so then so be it."

5 In addition, Ms Little had before her information that in another complaint made by the applicant to the Commissioner against Deloitte he had said:

"Given that Deloittes have attempted to destroy my life, with the apparent support of the commissioner, it is my intention to either obtain justice via legal method or failing this to hunt down and kill those people who are responsible for the harm committed to my life with out any provocation, in short a life for a life."

6 The applicant's victimisation claim fell to be considered under the ADA, s18, which relevantly provides:

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

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

7 Ms Little rejected the applicant's victimisation claim for the following reasons:

Mr von Stalheim argues that the application for a Restraint Order by Deloitte Touche and Thomatsu [sic] (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 [sic] constitutes a breach of these standards. In issuing such an order, it could be presumed that that [sic] 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."

8 The ADA, ss65(2) and 71(3), entitle a person whose complaint has been rejected or dismissed to apply to the Tribunal to review that decision. The applicant did so. As to that review, the ADA, s72, relevantly provides:

"72 (1) If, on reviewing the rejection or dismissal of a complaint, the Tribunal is satisfied that the Commissioner made a correct decision in rejecting or dismissing the complaint, the complaint lapses.

(2) If, on reviewing the rejection of a complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in rejecting the complaint, the Tribunal is to refer the complaint back to the Commissioner for investigation.

(3) If, on reviewing the dismissal of a complaint, the Tribunal is not satisfied that the Commissioner made a correct decision in dismissing the complaint, the Tribunal is to deal with the complaint as if it were an inquiry under Division 4."

9 Michael Brett constituted the Tribunal for the requested review. On 2 May 2004, Mr Brett heard the applicant in relation to the review. The applicant made submissions to Mr Brett and provided him with documents. Thereafter the Tribunal, as constituted by Mr Brett, published reasons in which he concluded that the Commissioner, by her delegate Ms Little, had made a correct decision in rejecting the complaint. The following is an extract from those reasons.

"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 attribute 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."

10 The applicant has filed an originating application under the JRA seeking an order that the decision of the Tribunal be set aside and a direction that the matter be returned to the Tribunal for reconsideration. The amended grounds of the originating application (omitting authorities cited by the applicant), are as follows:

"1 That the Panel member had received adverse information and made a decision on the basis of that information without providing Mr von Stalheim with the opportunity to comment on the information as required,

2 That the panel member made a finding of fact for which their exists no supporting evidence,

3 That the panel member failed to provide full reasons as to all arguments presented, representing a breach of the rules of natural justice,

4 That the panel member failed to [pay regard to] the submission of Mr John Pedder, to the Chief Magistrate, as to the motivations of Deloittes in seeking a restraint order to prevent me from applying for positions with that firm, as required by law.

5 That the panel member failed to act in a manner expected of an inquisitorial tribunal hearing an unrepresented party. That is to say that the role of an inquisitorial tribunal is to establish the facts of a situation, raised in a complaint, and to then measure it against the statutory provision, in order to establish whether or not that act has been potentially breached.

6 That the panel member failed to apply the correct test of correctness when hearing the review pursuant to S72 of the Anti Discrimination Act. That is to say to determine the issue of whether or not the complaint shows reasons for the underlying complaint to proceed, rather than whether or not the decision is technically correct or not.

7 That the panel member, having stated that Mr von Stalheim had been treated less favourably, should have found that he had suffered detriment by the application for a restraint order.

8 That the panel member erred in law when failing to apply denigration and humiliation to the facts of the situation. Accordingly the tribunal has failed to determine whether the statutory protection afforded by the act has potentially been breached.

9 That the Panel Member failed to consider whether the application for the restraint order formed a part of a trend of systematic less favourable treatment or detriment and hence whether it formed either systematic discrimination or victimisation for the purposes of the Act."

11 As to the grounds for the judicial review of an administrative decision, the JRA, s17(2), provides:

"17 (2) The application may be made on any one or more of the following grounds:

(a) that a breach of the rules of natural justice happened relating to the making of the decision;

(b) that procedures that were required by law to be observed relating to the making of the decision were not observed;

(c) that the person who purported to make the decision did not have jurisdiction to make the decision;

(d) that the decision was not authorised by the enactment under which it was purported to be made;

(e) that the making of the decision was an improper exercise of the power conferred by the enactment under which it was purported to be made;

(f) that the decision involved an error of law (whether or not the error appears on the record of the decision);

(g) that the decision was induced or affected by fraud;

(h) that there was no evidence or other material to justify the making of the decision;

(i) that the decision was otherwise contrary to law."

"1 That the Panel member had received adverse information and made a decision on the basis of that information without providing Mr von Stalheim with the opportunity to comment on the information as required,

2 That the panel member made a finding of fact for which their exists no supporting evidence,"

12 In the course of reviewing the rejection of the victimisation claim, Mr Brett found that a restraining order had been made against the applicant. That finding is the basis on which the applicant advanced these grounds. The parties agree that the finding is erroneous. The material before Mr Brett established that a restraining order had been sought but had not been made because the applicant had given what was described as appropriate assurances to the Chief Magistrate. This error was simply a mistake on the part of Mr Brett and was not, as ground 1 suggests, the result of him receiving adverse information to the effect that a restraint order had actually been made. Ground 1 fails. Ground 2 is, however, substantiated insofar as Mr Brett erred in finding that a restraint order had been made against the applicant when there was no evidence to that effect. That error was an aspect of the factual matrix canvassed by Mr Brett in the course of explaining his crucial conclusion, that is, that he was satisfied that Ms Little had made a correct decision in rejecting the victimisation claim. That error is of no consequence if, in any event, Mr Brett's ultimate conclusion that Ms Little had made a correct decision is sound. The Court's powers to make consequential orders pursuant to the JRA, s27, is discretionary. A departure from the rules of natural justice will not warrant an order that a matter be reheard if the rehearing could not produce a different result, Steed v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141. Similarly, there is no point in ordering the reconsideration of a matter because of an error made in the decision-making process if the reconsideration could only result in the same outcome.

13 Where, as here, the postulated reconsideration involves no more than a review of whether the initial decision-maker made a correct decision, it is not difficult for this Court to determine whether that review could only result in the same outcome. This is because the review involves no more than assessing whether Ms Little made a correct decision based on the material before her. The task to be undertaken by the Tribunal in reviewing Ms Little's decision does not involve investigating the complaint or eliciting further evidence. The review to be undertaken by the Tribunal is loosely analogous to judicial review proceedings or this Court's review of an order of justices under the Justices Act 1959, s107, or its equivalent. In both instances the ordinary rule is that material not before the decision-maker at the time of the making of the decision is not considered in the review of that decision; Australian Retail Association & Ors v Reserve Bank of Australia [2005] FCA 1707; (2006) 228 ALR 28 at par454, Cleaver v Powell [1979] Tas SR 134, Green v Fletcher [1988] TASSC 4; [1988] Tas R 59 and Webster v White A58/1991.

14 The information before Ms Little established that the applicant had previously made at least one complaint to the Commissioner against Deloitte. It also established that Deloitte had applied for a restraining order against the applicant and had included in the material provided to the court in support of that application, extracts from the applicant's complaint to the Tribunal. Pursuant to ADA, s18(1) and (2), the question for Ms Little was whether Deloitte's had victimised the applicant by applying for a restraining order and subjecting the applicant to any detriment or the threat of detriment because the applicant had made a complaint under the ADA. For my part, unlike Ms Little, I have no difficulty in accepting that the institution of proceedings seeking restraint orders would ordinarily involve subjecting the respondent to the proceedings to a detriment or threatened detriment. However, the crucial issue that arises is whether the material before Ms Little was capable of establishing that the restraint proceedings in question were taken to victimise the applicant because he had made a complaint under the ADA. The Macquarie Dictionary Online © 2007 Macquarie University, gives the following meanings for victimise:

3 to discipline or punish selectively, especially as a result of an industrial dispute: four men were victimised by management after the strike.

4 to treat unfairly, especially in the area of employment, usually on the basis of sexism, racism, etc.

5 to dupe, swindle, or cheat: to victimise tourists.

15 The dictionary meaning of victimise strongly suggests that unfairness is an element of victimisation and, if so, the applicant's complaint must fail, as on the information before Ms Little the taking of restraint proceedings by Deloitte could not be unfair and proof in the course of those proceedings that the applicant had made a complaint under the ADA and the content of that complaint could not be unfair. Putting aside the question of fairness, for a complaint of victimisation such as the applicant's to be sustained under the ADA, s18, it must be established that a person has victimised "another person because that other person ... made a complaint under this Act". So for the applicant to succeed, he must establish that Deloitte was motivated to bring the restraint proceedings against him because he had made a complaint against Deloitte. There was no evidence to this effect before Ms Little. The overwhelming, indeed only, inference to be drawn from the material before her was that Deloitte brought the restraint proceedings against the applicant because of the need to protect its personnel from him. It was that manifest need that prompted Deloitte to act, not the making of a complaint by the applicant. The gist of that material is:

* The applicant warned that Deloitte personnel were pushing the limits of his tolerance and said that if they go much further the consequences for them were likely to be less than pleasant.

* The applicant described Deloitte's personnel as depraved and sadistic animals.

* The applicant described the Deloitte offices as being more of a brothel than a professional office and stated that he had seen prostitutes more decently clothed than Deloitte's personnel.

* The applicant stated that Deloitte had attempted to destroy his life and that if he did not obtain justice by legal means he would hunt down and kill those who were responsible for the harm done to him, "in short a life for a life".

16 In the absence of evidence that Deloitte brought the restraint proceedings because the applicant had made a complaint under the ADA balanced against the overwhelming inference that Deloitte instituted the restraint proceedings in order to protect its personnel from the applicant, Ms Little's decision to reject the applicant's victimisation claim was correct. In result, nothing flows from Mr Brett's mistaken understanding that restraint orders had actually been made against the applicant and no consequential orders are warranted arising from that error.

"3 That the panel member failed to provide full reasons as to all arguments presented, representing a breach of the rules of natural justice,"

17 The applicant bases this ground on some matters he raised when he appeared before Mr Brett. In the course of that appearance, the applicant made submissions and provided Mr Brett with documents. The matters raised included:

* An incident when the husband of a Deloitte employee had yelled out that the applicant was a flasher.

* An incident when the husband of a different Deloitte employee had laughed when a girl in his presence yelled at the applicant that he should not try to pick up little girls.

* Information to the effect that when the applicant provided Deloitte with details of his prior convictions, Deloitte already had those details.

* Information to the effect that from 1997 to 2001 inclusive Deloitte only recruited women.

18 The applicant acknowledges that these matters were not referred to in his complaint or the information before Ms Little and that they were first raised by him when he appeared before Mr Brett. However, the applicant contends that these matters are instances of him being directly discriminated against pursuant to the ADA, s14(2), by reason of attributes specified in the ADA, s16, and in consequence Mr Brett should have dealt with each of these matters in the course of the reasons he published on his review of Ms Little's decision.

19 This contention is based on the misconception that Mr Brett was, in effect, conducting a rehearing de novo with reference to the applicant's complaint. As I have explained in par12, this was not Mr Brett's function. Pursuant to the ADA, s72, Mr Brett was required to review Ms Little's rejection of the applicant's complaint and decide whether he, Mr Brett, was satisfied that Ms Little had made a correct decision. It was not appropriate for Mr Brett to have regard to material that was not before Ms Little when reviewing her decision. Ground 3 fails.

"4 That the panel member failed to [pay regard to] the submission of Mr John Pedder, to the Chief Magistrate, as to the motivations of Deloittes in seeking a restraint order to prevent me from applying for positions with that firm, as required by law."

20 This ground is based on the same misconception that is addressed under ground 3. The ground relates to a statement made by the applicant to Mr Brett on 2 May 2005 to the effect that a fortnight previously Deloitte's lawyer, Mr Pedder, had said in court that the restraint order was sought in order to prevent the applicant from communicating with and making job applications to Deloitte. As this information is consistent with Deloitte's endeavours to protect its personnel from the applicant, it does not assist the applicant. In any event, the information was not, and could not, have been before Ms Little, and Mr Brett did not err in failing to pay regard to it. This ground fails.

"5 That the panel member failed to act in a manner expected of an inquisitorial tribunal hearing an unrepresented party. That is to say that the role of an inquisitorial tribunal is to establish the facts of a situation, raised in a complaint, and to then measure it against the statutory provision, in order to establish whether or not that act has been potentially breached."

21 This ground was argued on the basis that Mr Brett should have made inquiries to establish facts in addition to those detailed in the complaint. This contention assumes that Mr Brett was conducting an inquiry. He was not. A complaint that is not rejected or dismissed by the Commissioner or resolved by conciliation is referred to the Tribunal for inquiry; ADA, ss71(1)(c) and 78(1)(b). The sections that deal with the conduct of an inquiry are contained in the ADA, Pt6, Div4. The role of the Tribunal in the conduct of that inquiry can be categorised as inquisitorial as:

* It may start or continue an inquiry in the absence of the complainant or any other relevant person, the ADA, s86(3).

* It may, on its own motion, add a party to the inquiry, the ADA, s81(2).

* It may require any person to appear before it to give evidence, the ADA, s87(2).

However, as I have already explained, the role of the Tribunal is not inquisitorial when conducting a review of a rejection or dismissal of a complaint under the ADA, s72. That provision requires the Tribunal to determine whether it "is satisfied that the Commissioner made a correct decision". In performing that role, the Tribunal is confined to the material before the Commissioner, as ordinarily the Commissioner cannot be said to be incorrect by reason of something that the Commissioner was not aware of. Out of deference to the applicant's reference to I W v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 58, I should say that the distinction drawn between the role of the Tribunal when conducting a review under s72, its reviewing role, and its role when conducting an inquiry under Pt6, Div4, its inquisitorial role, is clear and unambiguous and does not involve construing the legislation narrowly. Ground 5 fails.

"6 That the panel member failed to apply the correct test of correctness when hearing the review pursuant to S72 of the Anti Discrimination Act. That is to say to determine the issue of whether or not the complaint shows reasons for the underlying complaint to proceed, rather than whether or not the decision is technically correct or not.

22 I have some difficulty in understanding this ground and the submissions advanced by the applicant in support of it. From his submissions, I understand the applicant to contend that Mr Brett erroneously addressed the technical correctness of Ms Little's decision, whereas he should have addressed the substantive correctness of her decision. As I do not agree that Mr Brett did so, the ground fails. Even if Mr Brett did err, for the reasons given when dealing with ground 2, this would not warrant the making of any consequential order.

"7 That the panel member, having stated that Mr von Stalheim had been treated less favourably, should have found that he had suffered detriment by the application for a restraint order."

23 When hearing submissions from the applicant, Mr Brett made a comment to the effect that a failure by Deloitte to interview the applicant would amount to less favourable treatment of the applicant. The applicant relies on this comment to contend that Mr Brett should have found that the applicant had suffered detriment by reason of the restraint order. This does not follow, but in any event the ground fails as Mr Brett did, in effect, conclude that the applicant had suffered detriment in consequence of the restraint proceedings.

"8 That the panel member erred in law when failing to apply denigration and humiliation to the facts of the situation. Accordingly the tribunal has failed to determine whether the statutory protection afforded by the act has potentially been breached."

24 The applicant did not assert in his complaint that he had suffered humiliation or denigration. He did, however, assert that he had been victimised because he had lodged a previous complaint against Deloitte. The ADA, s18(2), provides that victimisation takes place if a person subjects or threatens to subject another person to any detriment. The ADA, s3, provides that detriment includes humiliation or denigration. There was, however, no reason for Mr Brett to expressly address humiliation or denigration separately from the issue of detriment as he, in effect, concluded that in consequence of the restraint proceedings the applicant had suffered detriment. The ground fails.

"9 That the Panel Member failed to consider whether the application for the restraint order formed a part of a trend of systematic less favourable treatment or detriment and hence whether it formed either systematic discrimination or victimisation for the purposes of the Act."

25 The applicant's complaint did not assert that Deloitte's application for a restraint order formed a part of a trend of systematic less favourable treatment or detriment and the information before Ms Little did not provide any basis for so concluding. Accordingly there was no basis for Mr Brett to consider this matter and the ground fails.