Supreme Court of Tasmania|2009-02-11|Before: Porter J

Von Stalheim v Anti Discrimination Tribunal and KPMG; Von Stalheim v Anti Discrimination Tribunal, H M Wood and Statewide Independent Wholesalers [2009] TASSC 6 (11 February 2009)

CITATION: Von Stalheim v Anti Discrimination Tribunal and KPMG

Von Stalheim v Anti Discrimination Tribunal, H M Wood and Statewide Independent Wholesalers [2009] TASSC 6

Administrative Law - Judicial review - Procedure and evidence - Time for application - Extension of time - Generally - Principles to be applied - Consideration of merits - Whether arguable case as to nature of review by Anti Discrimination Tribunal.

Hunter Valley Developments Pty Ltd v Cowen [1984] FCA 176; (1984) 3 FCR 344; Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153, applied.

First Respondent: Director of Public Prosecutions

Attorney-General: Director of Public Prosecutions

First Respondent: Director of Public Prosecutions

Second Respondent Director of Public Prosecutions

Attorney-General Director of Public Prosecutions

Judgment Number: [2009] TASSC 6

KURT VON STALHEIM v ANTI DISCRIMINATION TRIBUNAL and KPMG

KURT VON STALHEIM v ANTI DISCRIMINATION TRIBUNAL,

H M WOOD CHAIRPERSON ANTI DISCRIMINATION TRIBUNAL

1 Before me are two applications by Mr Von Stalheim ("the applicant") made pursuant to the Judicial Review Act 2000 ("the JRA"), s23(1)(b), to extend the time limited by the JRA, s23(1)(a), in which to apply to the Court for an order of review. The applications for review are filed, but were filed outside the prescribed 28 day period. I also have before me an application by one of the respondents in one of the applications ("KPMG"), for the dismissal under the JRA, s38, of the application for judicial review which concerns it.

2 In 2003, pursuant to the Anti Discrimination Act 1998 ("the ADA"), the applicant made separate complaints of unlawful discrimination on the part of KPMG and Statewide Independent Wholesalers ("Statewide"). The alleged discrimination was in relation to unsuccessful applications for employment and was said to have been on the basis of age, gender and sex, disability and irrelevant criminal record in the case of KPMG, and irrelevant criminal record in the case of Statewide. Both complaints were rejected by the Commissioner pursuant to the ADA, s64. Pursuant to the ADA, s65(2), the applicant successfully sought reviews of the rejections by the Anti Discrimination Tribunal. The complaints were referred back to the Commissioner for investigation, at the conclusion of which the Commissioner dismissed the complaints.

3 In July 2006, pursuant to the ADA, s71(3), the applicant sought a review of the dismissals of the complaints. In each case the Tribunal was constituted by the same single member. On 19 December 2007, the Tribunal determined that in both cases the Commissioner had made a correct decision. Pursuant to the ADA, s72(1), both complaints accordingly lapsed. These determinations were made at successive hearings of the Tribunal on the one day. The applicant was not present at these hearings, having previously left the hearing of another matter before these two matters were called on. He received a transcript of the reasons for the dismissals in mid-January 2008. The application for judicial review in each matter was filed on 13 February 2008 being one day in one instance, and up to two days in the other, beyond the 28 day time limit. On 28 March 2008, KPMG filed its application to dismiss the application for review under the JRA. The applicant filed his application to extend time in the Statewide matter on 14 April 2008, and in the KPMG matter on 13 May 2008.

4 In the KPMG matter, the Tribunal has submitted to the Court's jurisdiction, as it has, together with the named Chairperson, in the Statewide matter. As authorised by the JRA, s39, the Attorney-General intervened in the originating proceedings and then sought to be heard as to the extensions of time, although the Attorney's interests are confined to one ground of review set out in each originating application. Except where necessary to do otherwise, I will call KPMG, Statewide and the Attorney-General collectively, "the respondents".

5 The JRA, s23(1), requires an application to be made within 28 days, (s23(1)(a)), or "such further time as the Court ... allows", (s23(1)(b)). The Administrative Decisions (Judicial Review) Act 1977 (Cth), s11, contains identical wording. The principles that govern applications for extensions of time under that section are well established. In my view those principles should be applied to applications for extensions of time under the JRA, s23(b). The proper approach and the relevant authorities are usefully detailed by Weinberg J in Mees v Kemp [2004] FCA 366, (recited on appeal; (2005) FCR 384 at 395 -396). The starting point is Hunter Valley Developments Pty Ltd v Cowen [1984] FCA 176; (1984) 3 FCR 344 in which Wilcox J at 348 - 349 said (omitting references):

"1 Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed period' of twenty-eight days is not to be ignored. Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained. It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time.

2 Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not 'rested on his rights') and a case where the decision-maker was allowed to believe that the matter was finally concluded. The reasons for this distinction are not only the 'need for finality in disputes'.

3 Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension.

4 However, the mere absence of prejudice is not enough to justify the grant of an extension. In this context, public considerations often intrude. A delay which may result, if the application is successful, in the unsettling of other people or of established practices is likely to prove fatal to the application.

5 The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted.

6 Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion."

6 Subsequently, the Full Court of the Federal Court made it clear that although it might be expected than an explanation for the delay would normally be given as a relevant matter to be considered, there is no rule that such an explanation is an essential precondition; Comcare v A'Hearn [1993] FCA 498; (1993) 45 FCR 441; Westwood v Human Rights and Equal Opportunity Commission [2004] FCA 153 at [29]. In the latter case at [30], Conti J applied in the judicial review context, the principles discussed in Brisbane South Regional Health Society v Taylor [1996] HCA 25; (1996) 186 CLR 541 which concerned a limitation provision in respect of claims for damages for personal injuries. His Honour referred to the judgment of McHugh J at 553 - 554, where it was said that a limitation period represented the legislature's judgment that the welfare of society was best served by causes of action being litigated within the limitation period, and that the discretion to extend should be seen as requiring an applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question.

7 In this case, although the applicant filed in each interlocutory application an affidavit in support, the issue of delay was not addressed. He cannot have been unaware of the applicable time limit (Von Stalheim v Anti Discrimination Tribunal [2006] TASSC 68), and it became apparent in argument that his intention was to leave filing his originating application until as late as possible, but that he miscalculated the number of days. It is not clear, however, why there was such further delay in seeking the extensions of time. The respondents rely on the fact that the prescribed period was exceeded and maintain, correctly of course, that the onus is on the applicant to establish that it is just as between the parties that the extensions be granted. None of the respondents claimed any specific prejudice caused by the delay, although it should be borne in mind that the events which are at the heart of the original complaints made to the Commissioner occurred in 2002 in the case of KPMG (although matters going back to 1999 may have some relevance), and 2001 in the case of Statewide.

8 The principal argument put by the respondents as to the extensions of time was that the applicant could not show that the proposed grounds of review had any merit, in the sense that they had not been shown as anything beyond frivolous or vexatious; or using more familiar terminology in this context, the applicant could not show an arguable case. It was unjust on that basis, it was said, to allow the applications for judicial review to proceed. It is true of course, that the applicant must show some prospects of success, and that an extension should not be granted where the proposed proceedings are hopeless, unarguable or bound to fail; Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516 at 521, 529 and 540. As to KPMG's application, the JRA, s38 empowers the Court to stay or dismiss an application if it considers that no reasonable basis for the application or claim is disclosed, the application is frivolous or vexatious or an abuse of the Court's process.

9 In Ridgeway v R [1995] HCA 66; (1995) 184 CLR 19 at 74 - 75, Gaudron J said that the powers to prevent an abuse of process had traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are "frivolous, vexatious or oppressive". However, her Honour said that ".. there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process ...". (See also Batistatos v Roads & Traffic Authority (NSW) [2006] HCA 27; (2006) 226 CLR 256 at 265 - 266 [9] - [10]). A "frivolous" claim has been said to be one so obviously untenable that it cannot possibly succeed, whilst the term "vexatious" relates to an action or claim which is a sham and which cannot possibly succeed; Pridmore v Magenta [1999] FCA 152; (1999) 161 ALR 458 at 462 - 463.

10 Dismissal of the applicant's claim for judicial review by way of the JRA, s38, amounts to a summary dismissal of the claim. In relation to an action, summary dismissal is a step which should only be taken if the case is "very clear"; Dey v Victorian Railways Commissioners [1949] HCA 1; (1949) 78 CLR 62 per Dixon J at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 per Barwick CJ at 128 - 130; McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409 at 415 - 417 and Cubillo v Commonwealth [1999] FCA 518; (1999) 89 FCR 528 at 549 - 551. In my view that approach is applicable to the JRA, s38.

11 It seems to me that to a large degree, the issue as to merits in the applications to extend time mirrors the issue arising in KPMG's application to dismiss. If I am satisfied that the applicant has an arguable case, then I could not really be satisfied that the claim should be dismissed under s38, unless there were additional factors said to constitute an abuse of process. It is important to bear in mind that it is only to that limited extent that an investigation of the merits can occur. No attempt should be made at a full investigation and determination; Lucic v Nolan (1982) 45 ALR 411 at 417_; Von Stalheim v Anti Discrimination Tribunal_ [2006] TASSC 68 at [12].

12 Having regard to the position taken by the respondents, detailed arguments were put by the applicant as to the merits of the proposed grounds of review, the oral submissions supplementing a lengthy written set of submissions which had been filed before the hearing. The proposed grounds are in many respects argumentative, discursive and repetitive, although in the written submissions the applicant abandoned some grounds and acknowledged the repetitive nature of others by "merging" them. The end result was that of the 16 grounds of review contained in the KPMG application, 10 would be ultimately pursued, as would 9 of the 14 in the Statewide application.

13 Submissions were made as to the course to be adopted in the event that one aspect of an originating application was capable of being understood and was arguable, but the remaining aspects or grounds were not. Counsel for the Attorney-General suggested that the claim for review could be viewed as a whole, and that if a substantial part of it was untenable, but some parts of it "intelligible", it would still be unjust to allow the whole to proceed, it being incumbent on the applicant to take the appropriate steps. The applicant conceded that amendments might need to be made and it might be the case that only "part" of each originating application would be allowed to proceed.

14 In that respect, regard should be had to the JRA, s24, which provides that if an applicant for an order of review wishes to rely on a ground not set out in an application, the Court may direct that the application be amended to specify the ground. In my view the proper approach is that if any one ground is shown to be arguable as it is presently drafted or as it might be amended in accordance with any application made to that effect, the application to extend time should be granted if it is otherwise just as between the parties. That is not to say though, that close attention need not be paid to whether particular grounds should be allowed to stand.

15 In support of each originating application, the applicant filed a bulky affidavit. These affidavits were not formally relied on in this hearing although reference was made in argument to some of that material. First, there was a letter written by the Commissioner to the applicant on 16 May 2006 asking for "any relevant information, documentation or witness statements in support of [the] complaint which may be helpful to [the investigation]". The applicant did not respond. Secondly, there is a 45 page document prepared by the applicant which was submitted by him to the Tribunal in the course of the review process relating to the KPMG matter and which, as will be seen, the Tribunal refused to take into account. I have had regard to this material.

16 Although in the KPMG matter, the applicant raised other alleged grounds of discrimination, it is the issue of irrelevant criminal record which appears predominant. Apparently, the applicant has a conviction for an offence of a sexual nature. This predates his applications for employment with KPMG and Statewide by quite a few years. I have a very incomplete picture of what was put before the Commissioner by the applicant for the purposes of her investigations and what other material was taken into account. (The Tribunal's files forwarded to the Court in both instances only contain documents relevant to the mechanical conduct of the reviews by the Tribunal, and do not contain the material before the Commissioner.)

17 The Tribunal set about its task of review by holding directions "conferences", the ultimate goal being a hearing at which submissions could be made by interested parties. The purpose of the directions conferences was to ensure that the parties had been supplied with the relevant documentation from the Commissioner, to discuss whether the hearing should be in public, to obtain an estimate of the hearing time, and to allocate a date. In both matters the Tribunal expressly restricted itself to that material which the Commissioner had gathered. It seems that it did not actively canvass the issue of whether any further material should be received. In one matter, the Tribunal refused to consider some additional factual material, without any argument as to its receipt. On its face that material seems to be of little weight, but in the absence of that material which the Tribunal had, it is difficult to make any proper assessment.

18 The applications to review the dismissal of the complaints were ultimately allocated the one hearing date before the Tribunal. The Statewide matter was dealt with first. When the hearing was called on the applicant was not present and the matter proceeded in his absence. In the KPMG matter counsel appearing for KPMG was advised by the Tribunal that there had been another matter involving the applicant that morning ".. which was terminated abruptly when Mr Von Stalheim picked up his bag and exited the court making it fairly clear he wasn't going to return and in fact he didn't appear at another matter listed later in the morning". (The first matter was a directions conference; the other matter referred to was the Statewide matter.)

19 The Commissioner's reasons for dismissing the applicant's complaint contained the following passages:

"Having given your complaint and all the information before me careful consideration I have formed the view that while the assertion you are a convicted paedophile may fall within the attribute of (imputed) irrelevant criminal record, applying for a position is an activity in connection with employment, and a failure to gain employment may be unfavourable treatment, it was not on the basis of your (imputed) irrelevant criminal record.

I note you allege you were led to believe you had passed the interview, but were later rejected. I note you alleged you were aware the assertion you have a conviction for paedophilia has been repeated to Blue Ribbon Meats, a client of KPMG and that it has been asserted to the principals of accounting firms. However, you failed to detail the source of your information. This is insufficient to establish KPMG had knowledge of your (imputed) irrelevant criminal record.

I note you allege Mr O'Brien, Partner at Camerons, had already made you aware of the rejection before you received a letter from KPMG. I note this is disputed. Even if accepted, this does not either establish or provide a basis to draw the inference that a reason for the alleged treatment is your (imputed) irrelevant criminal record.

I also note that KPMG have alleged the only knowledge that they have of your (imputed) irrelevant criminal record was disclosed in a letter from you dated 15 July 2003 in relation to another complaint, which occurred after the alleged treatment that is the subject matter of this complaint.

Having considered all the material before me, there is no, or insufficient, evidence of any circumstances from which the inference can be drawn that the reason for the alleged treatment is your (imputed) irrelevant criminal record."

20 At the hearing before the Tribunal, counsel made brief submissions and the Tribunal immediately proceeded to deliver oral reasons for confirming the correctness of the Commissioner's decision. In those reasons the Tribunal said that:

•

there was no power to summarily dismiss the application and a decision had to be made whether the Tribunal was satisfied that the Commissioner made a correct decision.

•

the original complaint asserted conduct which was discriminatory in that it treated the applicant less favourably than other applicants on the basis of alleged attributes, including any relevant criminal record.

•

he had read the Commissioner's file but that the applicant had filed "a bulky document which seems to be a mixture of submissions and evidence".

•

he was "not prepared in the circumstances of this case to take any material into account other than what was on the Commissioner's file".

"It is clear to me that the Commissioner's investigation proceeded on the basis of putting the allegations to the Respondent. The Respondent has denied the allegations, in particular, that it was aware at any material time of the rumour and certainly that it utilised any such information in determining the Complainant's application for employment. This was put back to the Complainant who was basically asked to put his cards on the table and provide some basis in fact and/or evidence with respect to his allegations. It seems to me that he was not able to do so. He has not provided any evidence of any fact from which any sensible reasoning process could allow an interest to be drawn that the respondent either knew of the rumour at any material time or acted on any such information in determining any relevant application for employment. The closest really that I think the Complainant gets is ... an allegation that the assertion he had been convicted of paedophilia being repeated to Blue Ribbon Meats, who was a client of the respondent. And he reasons from that therefore that the respondent must have known about it. There is simply no substance in that type of reasoning. There is no other evidence or fact he can point to to substantiate his claims in any way ... So my conclusion is that the complaint consists of bear [sic] allegation. There is no facts [sic] alleged which ought to enable relevant inferences to be drawn, even if those facts could be proved. There is really nothing for the respondent to answer, and no substance in the complaint."

22 The Commissioner's reasons included a repetition of the first paragraph from the KPMG reasons which I have set out above. The reasons continued:

"I note you allege a representative of Statewide responded, 'you have no proof of that!' to your submission to the Anti Discrimination Tribunal that they had been advised of the rumour. Even if accepted, this statement is open to may interpretations and is not necessarily an admission of liability. I note you alleged you were given different reasons for your failure to gain the interview and that Statewide adopted an excuse previously used by Garrotts [another account firm which had also apparently rejected an application for employment]. Even if accepted, this does not of itself establish a nexus between the alleged treatment and your (imputed) irrelevant criminal record. I note you alleged Ms Gore advised Ms Mills prior to Ms Mills working at Statewide that you had convictions for flashing and paedophilia. This allegation was denied, and you failed to detail what the source of your information was. I also note in your email of 28 April 2006 you made several allegations about the accounting profession's knowledge of your (imputed) irrelevant criminal record. These allegations, even if accepted, are insufficient to establish Statewide had knowledge in December 2001 of your (imputed) irrelevant criminal record.

Having considered all the material before me, I have formed the opinion that there is no, or insufficient evidence of any circumstances from which an inference can be drawn that a reason for the alleged treatment is your (imputed) irrelevant criminal record."

23 The Tribunal had determined the application for review of the dismissal in the same manner in which it disposed of the KPMG matter; that is to say, oral reasons were given following brief submissions from counsel for Statewide. The Tribunal said that:

•

he had regard to all the documents on the Commissioner's file.

•

the Commissioner had written to the applicant and asked "very specifically for him to provide any information or evidence he might have to support his allegations that ... the Respondent and employees had become aware of this alleged rumour that he was a paedophile, that there was a link between the rumour and his failure to obtain an interview for the employment that he had applied for." The applicant had responded to that letter by way of an email with an attachment and that he had "looked at that carefully".

•

he concluded that "there is not one skerrick of evidence or information contained in that email or otherwise on the file that supports any of the inferences that [the applicant] asked the Tribunal to draw, and I should say, form the basis of his complaint. In particular there is no evidence that this rumour existed. There is no evidence that the Respondent at any material time had become aware of any such rumour. There is no evidence that the Respondent acted on that rumour in dealing with the Complainant's application for employment ... but there is simply no evidence at all to even suggest that the matters that form this complaint have any basis and fact" [sic].

24 Grounds 1 and 5 in each matter were abandoned. The applicant said that grounds 9, 11, and 13 would not be proceeded with as being "merged" with or "contained" within the immediately preceding ones. Ground 14 was said to be effectively the same as ground 6 and would not be pursued. What remains of the proposed grounds is as follows:

2 In his communication Mr Paul Adams states that he interviewed me for a position with this firm, in actuality it was another person claiming to be him and bearing a strong resemblance with Mr Colin Cook of Searson Buck, who conducted the interview. I first met Mr Adams, in the Tribunal on 16th January 2007 and was advised as to his identity when I asked if he was a lawyer. The Commissioner and Tribunal formed their conclusions on the basis of this false information. Accordingly The Tribunals decision was affected and/ or induced by Fraud practiced upon the Tribunal and Anti Discrimination Commissioner by Mr Paul Adams acting for KPMG.

3 There exists no legal privilege when appearing before an inquisitorial Tribunal, rather there is a duty to assist the tribunal in establishing the facts of the situation for the purposes of the decision. Accordingly, The Tribunal's decision was affected and/ or induced by Fraud practiced upon the Tribunal, in the form of suppression of evidence practiced upon the Tribunal by Mr Simon Brown, when acting on the instructions of KPMG, he failed to provide evidence and or information as to the knowledge of KPMG as to rumour or other allegations in the knowledge of KPMG and its current and former staff, during the period March 1999 and 19th December 2007. This specifically includes Mrs Shona Ollington, a director of this firm.

4 The Anti Discrimination Tribunal is currently inquiring into a complaint of discrimination to which Camerons are currently the respondents. Camerons and KPMG are alleged to have cooperated for the purposes of S 21 of the Anti Discrimination Act 1998 with the result that KPMG is jointly and severally liable. Given that they have the Right to Natural Justice they are also respondents to that matter. Accordingly Anti Discrimination Tribunal made a Jurisdictional error and legal error when dismissing the complaint, rather than referring the matter for inquiry and joining the two complaints into the one complaint it already is.

6 The Anti Discrimination Tribunal has disregarded the central issues of Less Favourable Treatment and Unreasonable requirements, conditions and Practices, in his conduct of the Review and Decision and by failing to correctly identify the correct questions to be asked has committed a Jurisdictional Error, has revealed a basic misunderstanding of the law.

7 The tribunal denied jurisdiction, in the conduct of the review, by limiting the review to what subject matter of the complaint, or alternatively to the issues raised by the Commissioner's decision per se, rather than reviewing the matter in its entirety, as implicitly required by the Act.

8 The Tribunal erred in law by failing to determine that the Commissioner delegated her statutory function of investigating to KPMG and hence has failed to conduct an investigation as required by Law.

10 The Tribunals [sic] decision implicitly determines that the Commissioner's jurisdiction is to conduct hearings of complaints, the outcome of which the Tribunal reviews, rather than her statutory function of investigating.

12 The Tribunal erred in law by failing to determine that the Commissioner's determination was based on inadequate evidence and hence involved a jurisdictional error. Accordingly the Tribunal ought to have concluded that the decision, being flawed was not correct.

15 On page 33 of 37 of the Transcripts Mr Brett has stated that he was not prepared to take into account any of the material submitted by the complainant and accordingly he has made a decision in breach of the rules of natural justice.

16 Mr Brett has conducted his review in a [sic] adversarial manner, rather than requiring an explanation for the conduct so as to make his decision on the basis of clear assertions as to the facts of the situation."

25 Generally speaking, most of the proposed grounds are in not dissimilar terms and raise the same issues to those proposed in the KPMG matter. There are however, three additional grounds not raised in the KPMG matter. They are:

"12 The Tribunal allowed extensive delays to occur in the conduct of the review, on the basis of an application for dismissal, which did not eventuate.

13 That Tribunal erred in law when ordering costs for Statewide Independent Wholesalers, in the [sic] it;

a has made a decision by taking irrelevant considerations into account,

b failed to take into account the fact that they [sic] review is a statutory function, not some form of adversarial hearing,

c That legal representation was granted in accordance with a self determined rule rather than any merits of the case.

d That extensive delays occurred because of an application for dismissal that did not actually occur.

e The Tribunal failed to take into account the fact that Statewide Independent Wholesalers having a duty to inform the Tribunal, failed to do so.

f That I absented my self from a hearing, when I had permission to do so and did not, in any case have to appear.

g That he has failed to take into account relevant considerations and has taken into account irrelevant considerations, when deciding to order costs.

14 The granting of leave for legal representation constituted an error of law because,

a It was made in accordance with a rule without having regard to any merits inherent in the facts of the case,

b The leave was granted in the face of a breach of the rules of natural justice, by refusing to allow me to contest the granting of leave,

c The Tribunal exercised its discretionary power to allow for legal representation by failing to take any relevant considerations into account whilst also taking into account irrelevant considerations, as therefore it is an abuse of power."

26 It can be fairly said that to one degree or another and by different means of expression, often oblique, several of the grounds in each application raise the issue of the nature of the review process carried out by the Tribunal under the ADA, s72. This was accepted by the respondents. In broad terms, the applicant's position is that the functions of the Tribunal conducting a review are effectively the same as those of the Commissioner in carrying out an investigation under s69. He argues that the Tribunal has an independent inquisitorial role, and is required to ascertain the nature and extent of the relevant material and to obtain and assess that material.

27 The respondents' argument is that the appellant's position as to the role of the Tribunal is untenable, in that it is answered by what Evans J said in Von Stalheim v Anti Discrimination Tribunal [2007] TASSC 9. That case involved an application for judicial review of a decision of the Anti Discrimination Tribunal rejecting a complaint. His Honour said that:

"... the review involves no more than assessing whether [the Commissioner] made a correct decision based on the material before her. The task to be undertaken by the Tribunal in reviewing [the Commissioner'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; ...".

28 His Honour returned to the point at [19] in the following terms:

"This contention [that matters not raised in the complaint but first raised in the review process should be taken into account] is based on the misconception that [the Tribunal] was, in effect, conducting a rehearing de novo with reference to the applicant's complaint. As I have explained ... this was not [the Tribunal's] function."

29 Counsel for the Attorney-General submitted that unless I was convinced that this approach was wrong, the relevant grounds should be seen as having no merit. The true question though, is whether I regard it as arguable that those statements of principle are incorrect, and that a judge on a full hearing of the arguments might come to the view that the decision ought not be followed.

30 What is meant in any given statute by a "review", depends on the context in which it appears. The term "... has no settled pre-determined meaning", it being "... commonly used in the context of judicial control of administrative action and in the context of comprehensive administrative review by an administrative tribunal of administrative decisions"; Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 at 261; see also Colpitts v Australian Telecommunications Commission (1986) 9 FCR 52 at 63 - 64, (on appeal) [1986] FCA 257; (1986) 12 FCR 395 at 403 - 404. A "review" may mean a full merits review involving a hearing de novo, or it may mean a process which is confined in some way; for example, in scope (questions of law or fact), or as to the material to be considered. If it is conducted on the basis of that material which was before the original decision-maker, it may be akin to an appeal by way of re-hearing, in many instances of which there is a power to receive fresh material. (See A v Law Society of Tasmania [2001] TASSC 55; (2000) 10 Tas R 152 at 155 for the meanings of appeals by way of hearings de novo and appeals by way of re-hearing.)

31 In considering the present question, I should note the comments of Evans J in an earlier case of the same name; Von Stalheim v Anti Discrimination Commissioner [2005] TASSC 134. In the 2005 case, an interim order had been sought that the Commissioner be restrained from making any decision on an investigation on the complaint, pending the hearing of an application for judicial review relating to that investigation. Evans J noted the Court's discretion to dismiss or stay a premature application for relief under the JRA, noting the undesirability of applying to review a matter before it had been finally determined, except in exceptional circumstances. At [11], his Honour continued:

"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" [my emphasis].

Ostensibly at least, those comments are at odds with the later comments in the 2007 case, although in referring to the opportunity to persuade the Tribunal as to further investigations, his Honour may well have been referring to the type of discretionary power to receive further material which exists in relation to motions to review under the Justices Act 1959.

32 The ADA, s72(1), requires a determination, on review, of whether the Commissioner made a "correct decision" as to the rejection or dismissal of a complaint. If the Tribunal is not so satisfied, it must take corrective action, depending on whether the review relates to a rejection or a dismissal. In the case of a rejection, the complaint must be referred back to the Commissioner for investigation. If the matter is one of dismissal, the Tribunal must deal with the complaint as if it were an inquiry under Division 4. In the case of a dismissal the review is of the outcome of a formal investigation; ADA s69. Even in the case of a rejection, the Commissioner may have been required to engage in an assessment of the viability of the complaint, depending on the circumstances; ADA s64. Further, as Evans J pointed out in Von Stalheim 2005 (above), s97(1) gives a general power to the Anti-Discrimination Tribunal, relevant to all its functions, to obtain information and documents. Otherwise, the provisions of the ADA are of little direct assistance in determining the nature of the s72 review.

33 The applicant relied on a number of authorities which deal with the role of the Commonwealth Administrative Appeals Tribunal and the Refugee Review Tribunal. Both Tribunals carry out "full merits reviews". The AAT stands in the shoes of the decision-maker and is not limited to a consideration of evidence that was before the original decision-maker; it decides the matter on the basis of material available to it at the time of the review; Shi v Migration Agents Registration Authority [2008] HCA 31; (2008) 82 ALJR 1147; Comptroller-General Customs v Akai Pty Ltd (1994) 50 FCR 511 at 521; Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. (It is doubtful though whether that tribunal has an obligation to seek out evidence; Pham v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 315.) The Refugee Review Tribunal is in a similar position. It is an "inquisitorial" body, and one not in the position of a contradictor to the case advanced, the obligation in relation to which is on the applicant; Abebe v Commonwealth [1999] HCA 14; (1999) 197 CLR 510 at 576 [187]; Re Ruddock, Ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at 450 [57], 455 [81].

34 The statutory provisions which govern the operation of those tribunals are different and more comprehensive than those which govern the operation of the Anti-Discrimination Tribunal when carrying out a review. Each has specific power to seek the production of additional material it sees to be relevant. However, it is established that in carrying out a review and in making a determination of the correctness of the Commissioner's decision, the Tribunal is acting administratively and not judicially; Von Stalheim v Anti Discrimination Tribunal [2003] TASSC 24; (2003) 11 Tas R 309. In this context, the broad application of the ADA, s97(1) is significant. Of course I express no conclusions about any of this, but following on from what I have set out, I take the view, (with respect to what was said by Evans J in Von Stalheim 2007), that it is arguable that the Tribunal carries out a "comprehensive administrative review", by way of a process de novo, and is not limited in any way to the material before the Commissioner. That approach may be more consistent with the "beneficial and remedial" nature of the legislation; Commissioner of Police v Reid [2000] TASSC 181; (2000) 9 Tas R 418 at 425 [7]. In general terms, the proposed grounds which raise the nature of a review and the role of the Tribunal under the ADA, s72(1), and which suggest that the Tribunal misconceived its jurisdiction, are in my view therefore arguable.

35 It remains then to consider whether in the circumstances, the applicant having shown an arguable case to that extent, it is just as between the parties that time be extended. The delay in filing the originating applications beyond the prescribed time was effectively the minimum time which could be involved. I assume that the applicant thought he was securing some sort of forensic advantage by deliberately delaying until the end of the period. Just what that advantage was is difficult to discern, but he should not be penalised simply because of his pursuit of some perceived tactical benefit in delaying the proceedings. As I have noted, none of the respondents raised any issue as to prejudice. In all of the circumstances I conclude that it is just to grant the extensions of time for the filing of the originating applications, in each case to 13 February 2008.

KPMG's application and the proceedings in general

36 It might be thought that what I have said seals the fate of KPMG's application for the dismissal of the application for judicial review. However, what I have said only relates to the viability of the originating applications as such. As earlier foreshadowed, I think that there is a need to exercise control over the proceedings in terms of what grounds should be permitted to stand. That, in my view, can be done in the KPMG matter using the vehicle of the s38 application, but in any event can be done in both matters using the Court's inherent powers. I take this approach because there are grounds in both applications which, to my mind, are plainly untenable and ought not be the subject of full agitation in the judicial review hearing.

37 Grounds 7, 8, 10, 12, 15 and 16 were treated in the course of the argument as raising the issue of the nature of the Tribunal's review. On that basis they should be treated as arguable, although the extent to which grounds 8, 10 and 12 properly raise the issue appears marginal. They would appear to be otherwise untenable. That may be a matter best left to the judge hearing the substantive applications.

38 Ground 2 reflects the JRA, s17(2)(g), and complains that the Tribunal's decision was induced or affected by fraud. The asserted fraud is unusual. The applicant alleges that the person at KPMG who says he interviewed him was not in fact the person who did so but someone claiming to be him. The applicant brought this assertion to the attention of the Tribunal. It is established that fraud practised on the decision-maker falls within this type of ground; Wati v Minister for Immigration and Ethnic Affairs (1996) 71 FCR 103. Nonetheless it is a most uncommon ground of review. Mere suspicion or even an established real possibility of fraud is insufficient; there must be proof of actual fraud bearing in the mind the seriousness of the allegations; Wati v Minister at 113 -114. Additionally, there needs to be proof of a causative connection between the fraud and the decision. Try as I might, having regard to the nature of the applicant's original complaint and the terms of the Tribunal's reasons, I cannot see any merit in this ground. I am conscious that I do not have all of the material and it is conceivable I suppose, that the fact that one person masqueraded as another, if accepted, might impact on the weight to be attributed to some material, but I do not think this ground can be allowed to stand.

39 Although it might be thought ground 3 relates to the proper functions of the Tribunal when conducting a review, it is more directly concerned with the production of material in the possession of KPMG's legal advisors and the fraud which is said to follow as a consequence of a failure to volunteer that information to the Tribunal. Whilst it might be correct that in relation to certain tribunals, lawyers should assist clients in identifying and providing relevant material, this ground completely misconceives the nature of legal professional privilege and the appropriate role of the lawyer. It should not be allowed to stand.

40 The essence of ground 4 is difficult to distil. Apparently the Anti Discrimination Tribunal is seized of a complaint relating to Camerons which is another firm of accountants. The applicant alleges collusion between KPMG and Camerons as to his failure to obtain employment. The ADA, s21, prohibits persons from knowingly causing, inducing or aiding another person to contravene the Act, and by s21(2), all such persons are jointly and severally liable for the contravention. Doing the best I can with what has been put, the applicant seems to suggest that Camerons ought to have been heard in the Tribunal's review of the KPMG matter, and as a result of that failure there was jurisdictional error. The simple recitation of the proposition demonstrates its untenability. The ground should be struck out.

41 Ground 6 was one in respect of which the applicant spent some considerable time. He developed theories of "primary" and "secondary" considerations under the Act. It was suggested that the Tribunal failed to consider the primary issues of less favourable treatment, and whether or not there had been unreasonable requirements, conditions and practices within the meaning of the ADA, s15. The fundamental reason for the Tribunal being satisfied that the Commissioner made a correct decision was that there was simply no evidence establishing a connection between the irrelevant criminal record or any attribute and any discrimination as alleged. There is nothing at all to suggest that the Tribunal misunderstood the essential issue or issues which had to be determined, or otherwise misdirected himself. This ground should also be struck out.

42 Ground 8 is similar to ground 7 in the other matter and is arguable; ground 10 is similar to ground 12 and is possibly so. Grounds 2, 3, 4, 6, 7 and 9, which I have not set out, are similar in their import to what is raised in grounds 2, 3, 4 and 6 of the KPMG matter and should suffer the same fate. (The fraud alleged in this ground 2 is that a person from Statewide wrote to the Commissioner saying that at no time did any person from the company involved in the making of the decision, have any knowledge of the allegation. The fraud is said to be the failure to provide information as to all persons previously, but no longer, with the company.)

43 Ground 12 complains that the Tribunal allowed extensive delays to occur in the conduct of the review. The delay was indeed extensive. The review was sought in July 2006, ultimately being disposed of in December 2007. It seems that there were a number of directions hearings along the way, some of which had to be abandoned and rescheduled, a factor in some of this was the applicant's failure to appear on one occasion. The applicant also appears to have made, but later abandoned, an application to stay the review, for reasons which are presently unexplained.

44 In NAIS v Minister for Immigration [2005] HCA 77; (2005) 228 CLR 470, the High Court considered pre- and post-hearing delays on the part of the Refugee Review Tribunal. Gleeson CJ said at 475 - 476 that a procedure that depended significantly upon a tribunal's assessment of individuals may become an unfair procedure if, by reason of some default on the part of the tribunal, there was a real and substantial risk that the tribunal's capacity to make such an assessment was impaired. At 476 [10], his Honour said:

"... the Tribunal, by its unreasonable delay, created a real and substantial risk that its own capacity for competent evaluation was diminished, it is not fair that the appellants should bear that risk. The delay on the part of the Tribunal ... was so extreme that, in the absence of any countervailing considerations advanced in the reasons of the Tribunal, it should be inferred that there was a real and substantial risk that the Tribunal's capacity to assess the appellants was impaired. That being so, the appellants did not have a fair hearing of their claims...".

Kirby J was of the same view, saying that a pre-hearing delay may amount to abuse of process and that where the matter for decision involves an assessment of the truthfulness of the party or important witnesses, the resolution of competing versions of the facts and the differentiation of truth and falsehood, delay in the provision of a reasoned decision may cast doubt on the validity of that decision; (495 - 496) [84] - [85].

45 At 476 [11] Gleeson CJ made it clear that the fact that an impairment resulted from the default of the tribunal itself was important. His Honour said, "Many events, outside the control and influence of the Tribunal, might occur to make it more difficult to evaluate the claims of an applicant. That does not make the procedure unfair." On the other hand, if the tribunal "draws out those procedures to such an extent that its capacity to discharge its statutory obligations is likely to be materially diminished, and there is nothing in the Tribunal's reasons to displace that likelihood, then a case of procedural unfairness arises".

46 In this case it does not seem to be reasonably arguable that the whole of the delay between the application for review and its determination, or at least a materially relevant part of that delay, was the fault of the Tribunal. In any event, the applicant claims that it "... tends to reduce the validity of the decision and it ought to be referred back to the Tribunal for reconsideration ...". Nothing was submitted as to why that would be so in this case. The Commissioner was required to decide on the material that there was sufficient evidence of possible discrimination to warrant the matter being referred for inquiry under the ADA, Div4. The Tribunal was embarked on reviews of that process and was not involved in a process requiring assessments of the type referred to by Gleeson CJ in the NAIS case. In short, the applicant must show an arguable case that the delay has caused procedural unfairness. In my view, for the reasons which I have given, the applicant has failed in this respect and the ground should be struck out.

47 In ground 13 the applicant alleges an error in law in the order for costs made by the Tribunal consequent upon the finding of a correct decision on the part of the Commissioner. As can be seen, there are quite a number of matters advanced in the ground itself as to why it is said the Tribunal erred in law in ordering costs. The originating application seeks the quashing of both the actual decision of the Tribunal, and the order for costs. Some of the matters relate to the nature of the review process under s72, and for that reason alone, I think that the ground should stand.

48 Ground 14 complains that the grant of leave for legal representation on the part of Statewide constituted an error of law. Similarly, as with the previous ground, although the circumstances are the same as with the KPMG matter, this ground of review is only raised in this matter. The material which I have plainly shows that Statewide had legal representation and was represented by counsel at the hearing on 19 December 2007. However, I do not have any material at all which shows what occurred in relation to any so-called "grant of leave for legal representation". I assume this was done at a directions conference soon after the application for review. The ADA, s85(2), provides that a person may be represented or accompanied by another person at an inquiry only with the permission of the Tribunal. The applicant has asserted that legal representation was permitted because the Tribunal took the view that s85(2) did not apply to the review process, and so permission was not required; in other words, the party had a right to representation.

49 The applicant's position seems to be that leave was in fact required and impliedly granted in this case. Further, that the leave was granted in breach of the rules of natural justice in that he was not allowed to contest the grant of leave. Additionally he says that the Tribunal, in allowing legal representation, failed to take into account relevant considerations and took into account irrelevant considerations.

50 An acceptance of a right of representation or a grant of leave cannot be an error of law relating to the decision itself within the meaning of the JRA, s17(2)(f). At face value, the applicant's complaints might fall within the grounds of review relating to a breach of the rules of natural justice relating to the making of the decision, or the failure to observe required procedures relating to the making of the decision, as provided for in the JRA, s17(2)(a) and (b). On that basis, assuming that these issues can be said to relate to the making of the decision, the applicant has to show an arguable case that permitting representation was a breach of the rules of natural justice impacting on him, or that the procedures required by law were that representation was not to be permitted.

51 In the absence of any provisions governing the question of representation in a review under s72, it would be difficult to argue that in the procedures which the Tribunal adopted, a party ought not be permitted representation. Regard should be had to the nature of the process which I think, on any view, cannot be truly adversarial, although it may have an adversarial aspect to it in the sense of partisan submissions being made by interested persons. The applicant has not made any explicit complaint that no legal representation is permitted in the review process and has not articulated why generally, or in this case, the grant of legal representation to Statewide constituted a breach of natural justice. In those circumstances and in the absence of any material as to what occurred before the Tribunal at the relevant time, this ground has not been shown as arguable, and should be struck out.

52 It follows that the applications to extend time will be granted but that orders ought be made in each originating proceeding striking out of a number of grounds. Of course those grounds are made up of grounds expressly abandoned by the applicant, those which are not to be pursued as duplications of other grounds, and those which are the subject of my ruling. In the KPMG matter, the grounds which in my view should be struck out are 1, 2, 3, 4, 5, 6, 9, 11, 13, and 14. In the Statewide matter, the grounds are 1, 2, 3, 4, 5, 6, 7, 9, 11, 12, and 14. However, before making any formal orders of striking out, I will give the applicant an opportunity to be heard further.

Discrimination Act 1998

Von Stalheim v Anti Discrimination Tribunal and KPMG; Von Stalheim v Anti Discrimination Tribunal, H M Wood and Statewide Independent Wholesalers [2009] TASSC 6

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (103 paragraphs)

Von Stalheim v Anti Discrimination Tribunal and KPMG; Von Stalheim v Anti Discrimination Tribunal, H M Wood and Statewide Independent Wholesalers [2009] TASSC 6 (11 February 2009)

Legislation Cited (2)

Cases Cited (25)