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[2013] NSWCA 389
Court of Appeal (NSW)
2013-12-11
Ms P, Hunt J
Original judgment source is linked above.
Introduction 1The Director-General, Department of Attorney General and Justice (the respondent) has applied to the Tribunal to summarily dismiss Mr Warren's complaint of victimisation under the Anti-Discrimination Act 1977 (AD Act). Mr Warren is employed as a Principal Client Property Officer in the Client Assets Branch of the NSW Trustee and Guardian (NSWT&G). He complains that the Chief Executive Officer, Ms Dodds, suspended him on full pay in May 2012 because he had provided information and a statement in support of a complaint of disability discrimination by Ms Bozinovska, a Senior Legal Officer in the Legal Branch of the NSWT&G. Ms Bozinovska is Mr Warren's partner. Her complaint was against an Assistant Director of the NSWT&G, Mr von Schill. 2Ms Minns, who is Mr Warren's direct supervisor, acted as Mr Warren's support person during these proceedings. 3I have decided not to dismiss the application. The basis for the respondent's application is a challenge to the sufficiency of the evidence available to support Mr Warren's complaint. Such an application would most usually be made only after his case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case. The respondent's application is premature because the complaint is not so obviously untenable that it cannot possibly succeed.
Principles for summary dismissal 4The respondent submitted that the victimisation complaint should be dismissed because it is misconceived and lacking in substance: AD Act, s 102 and s 92(1)(a)(i). The discretion to summarily dismiss a complaint is to be exercised with extreme caution: Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 (29 June 2004) at [41] and [42]. The Tribunal must take the applicant's case at its highest and determine whether, on the basis of that evidence, he or she could possibly substantiate the complaint. 5In Margan v University of Technology, Sydney [2003] NSWADTAP 65, the Appeal Panel set out the scope of the summary dismissal power in relation to s 111 (the former, relevantly identical, provision in the AD Act) at [9], [10] and [15]: [9] The words "frivolous, vexatious, misconceived or lacking in substance" were interpreted, in a slightly different but analogous context, by Hunt J in Langley v Niland [1981] 2 NSWLR 104. At 107 Hunt J held that those words relate to the "insufficiency or to the absence of merit of the factual basis for the allegations made in the complaint rather than to whether the complaint is one within the provisions of the Act at all." [10] . . . The rule gives the Court a discretionary power to dismiss the plaintiff's case when it is so weak that to permit the proceedings to go to trial would be futile: Peter Kent Developments Pty Ltd v Australia & New Zealand Banking Group Ltd (SC (NSW), Hunt J, 6 May 1980, unreported). Ritchie's Supreme Court Procedure NSW (Peter Taylor SC ed, Butterworths 1984) notes at 2325 that "The test to be applied has variously been described as whether the matter is manifestly groundless', the court is satisfied cannot succeed', one where under no possibility can there be a good cause of action'", or one which `would involve useless expense' (General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 129; Pannizutti v Trask (1987) 10 NSWLR 531 at 536; Rajski v Powell (1987) 11 NSWLR 522 at 524; Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937 at 942. . . . [15] The Tribunal has warned that extreme caution must be exercised when determining a s 111(1) application prior to the substantive hearing. In Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 the Tribunal rejected a party's request to deal with the s 111 application prior to the hearing, on the basis that there was no evidence or agreed facts on which the Tribunal could base its decision. Similarly, the Tribunal in Karekar v Tafe Commission of New South Wales [2000] NSWADT 187 expressed the view that particular caution is necessary in cases where a s 111(1) application is made prior to the adducing of the applicant's evidence at the substantive hearing. We agree, but the warning warrants refinement. It is the case that when the s 111 application is, in effect, a challenge to the sufficiency of the evidence available to support the complainant's version of events, the application would most usually be made only after the complainant's case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case, as we discussed above.
so obviously untenable that it cannot possibly succeed', so manifestly faulty that it does not admit of argument', one which Victimisation 6Mr Warren complains of victimisation. Section 50 of the AD Act states that: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. 7In order to substantiate his complaint of victimisation, Mr Warren would have to prove that NSWT&G, as Ms Dodds' employer, subjected him to a 'detriment' 'on the ground' that he had done one of the things listed at s 50(1)(c) and/or (d). The detriment which Mr Warren identifies in his complaint to the Anti-Discrimination Board and in his Points of Claim is Ms Dodds' decision to suspend him on full pay for approximately six months from 15 May 2012. The respondent accepts that Ms Dodds made that decision although it was the then Director General of the Department, Mr Glanfield, who signed off on it. The respondent did not submit that the complaint should be summarily dismissed because Mr Warren had not identified a relevant detriment, that is being suspended even on full pay. 8Mr Warren identified several other detriments in the material he filed with the Tribunal in relation to this application. I have not assessed his complaint on the basis of those further detriments. The Tribunal has jurisdiction to determine the complaint as referred by the President of the Anti-Discrimination Board: AD Act, s 95. Mr Warren has not applied to amend his complaint to allege alternative detriments: AD Act, s 103. 9The respondent's case is that the complaint should be dismissed firstly because, on the evidence as it currently stands, Mr Warren will not be able to establish a connection between his actions in supporting Ms Bozinovska's complaint and being suspended on full pay. Secondly, Mr Warren will not be able to establish that his support of Ms Bozinovska's complaint amounts to: (1)an allegation that any person has committed an act which would amount to a contravention of the AD Act; or (2)doing something under or by reference to the AD Act.
Causal connection? 10As with direct discrimination, the phrase 'on the ground that' in s 50 means that whatever Mr Warren did (in this case provided file notes and statements in support of Ms Bozinovska's complaint) must be at least one of the 'real', 'genuine' or 'true' reasons that he was suspended: Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 approved in Jones v Trad [2013] NSWCA 389 at [98]. 11In the Points of Claim, Mr Warren lists the circumstantial evidence on which he relies in relation to his claim that there is the necessary connection between his support of Ms Bozinovska and the decision to suspend him. 12On the basis of Mr Warren's evidence as currently filed, some of the material facts that he says support a causal connection are: (1)on 29 September 2011, Mr von Schill referred to Ms Bozinovska as "the hard of hearing girl in the city" and Mr Warren reported this to Ms Bozinovska that evening; (2)on 30 September 2011, Ms Minns told Mr Warren that Mr von Schill had mimicked Ms Bozinovska's hearing disability and Mr Warren reported that to Ms Bozinovska; (3)on 14 November 2011, Ms Bozinovska lodged a formal grievance about those matters; (4)on 16 November 2011, Mr Warren prepared a file note about Mr von Schill's conduct and gave it to Ms Bozinovska; (5)on 28 November 2011, Ms Dodds requested the Director of the Office of the Public Guardian, Mr Graeme Smith, to undertake an internal investigation of Ms Bozinovska's complaint; (6)on 5 December 2011, the Director General approved a submission from Human Resources and Ms Dodds to appoint Ms Woodhouse of Woodhouse Consultancy, to review the NSWT&G Assets Branch; (7)on 5 December 2011, Mr Smith interviewed Ms Bozinovska about her grievance; (8)on 12 December 2011, Ms Dodds announced a Workplace Review of the Client Assets Branch; (9)on 19 January 2012, at a meeting with Ms Bozinovska in relation to the complaint against Mr von Schill, Ms Dodds allegedly said, "You acted on hearsay. You were not there." A similar comment was also made in a letter from Ms Dodds to Ms Bozinovska dated 17 January 2012, that is, ". . . you have acted on hearsay in accepting the advice of third parties in relation to Mr von Schill"; (10)on 23 January 2012, Mr Warren provided Ms Bozinovska with a signed statement about Mr von Schill's conduct; (11)on 27 January 2012, Ms Woodhouse interviewed Mr Warren as part of the review; (12)around 1 February 2012, an unnamed member of staff reported to Mr Warren that during her interview with Ms Woodhouse she asked whether or not Mr Warren or Ms Minns had bullied them; (13)on 6 February 2012, Mr Warren wrote to Mr Baldi expressing concerns about the way Ms Woodhouse was conducting the Workplace Review; (14)on 9 April 2012, Ms Woodhouse delivered two reports to Ms Dodds, the main report in response to the terms of reference and a supplementary report containing allegations against Mr Warren and Ms Minns; (15)on 11 May 2012, Mr Warren received a letter from the Director General advising that he has been suspended and that an investigation will commence into his conduct. 13The respondent submits that there can be no causal connection between Mr Warren's support of Ms Bozinovska and the decision to suspend him because, among other things: (1)employees of the respondent did not become aware until 16 November 2012 that Mr Warren had made allegations about Mr von Schill's conduct; (2)the timing of the allegations and the decision to suspend do not suggest a connection; (3)the reason for the suspension was a supplementary report prepared by Ms Woodhouse. (That report detailed allegations made by 7 staff of the Client Assets Branch about three staff members including Mr Warren. Ms Dodds decided to obtain an independent disciplinary investigation into those allegations and to suspend Mr Warren and Ms Minns pending those investigations.); (4)there are several events which intervened between Mr Warren making the statement in relation to Mr von Schill's conduct and the decision to suspend, in particular, the decision to conduct a review and the findings of the review; and (5)there is direct evidence of the reason for suspension in the supplementary report whereas Mr Warren must rely on inferences to support his theory that suspension was because of the statement he made in support of Ms Bozinovska's complaint. 14The respondent does not submit that Mr Warren's complaint fails to disclose a contravention of the AD Act. Rather, the respondent's application for summary dismissal is a challenge to the sufficiency of the evidence available to support Mr Warren's contention that there is a link between two events. That contention must be 'so obviously untenable that it cannot possibly succeed'. While the evidence is circumstantial and the respondent has put forward other reasons for the suspension which it says are more plausible, the complaint cannot be said to be so lacking in substance that it should be summarily dismissed.
Did Mr Warren make an allegation that comes within s 50(1)(c) or (d)? 15The trigger for the detriment to which Mr Warren was subjected is said to be the fact that he alleged that Mr von Schill committed an act which, whether or not the allegation so states, would amount to a contravention of the AD Act, or otherwise did something under or by reference to the AD Act in relation to the discriminator or any other person: s 50(1)(c) and (d). 16This aspect of the respondent's application is that Mr Warren's complaint does not disclose a contravention of the AD Act because the allegations he made about Mr von Schill do not come within s 50(1)(c) or (d). The submission does not relate to the sufficiency of the evidence. 17Mr Warren's allegation under s 50(1)(c) is that "a person" (Mr von Schill) committed two acts: referring to Ms Bozinovska as "the hard of hearing girl in the city" and mimicking Ms Bozinovska's hearing disability. One issue for the Tribunal if this matter goes to hearing would be whether those allegations, if proved, would amount to a contravention of the AD Act. 18According to the respondent, Mr Warren has not alleged that Mr von Schill has committed an act that would amount to a contravention of the AD Act. Rather Mr Warren has provided an account of something said by Mr von Schill in his presence and an account of another incident involving Mr von Schill that Ms Minns witnessed. As Ms Bozinovska was not present on either 29 or 30 September, when Mr von Schill was alleged to have made the comments, she cannot have been discriminated against. 19To contravene the AD Act, Mr von Schill's alleged conduct would have to come within s 49D(2)(a) or (d) of the AD Act: (2) It is unlawful for an employer to discriminate against an employee on the ground of disability: ... (d) by subjecting the employee to any other detriment. 20The definition of direct disability discrimination is in 49B(1)(a) of the AD Act: 49B What constitutes discrimination on the ground of disability (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, 21There is authority for the proposition that the person (in this case Mr von Schill) has to "treat" the aggrieved person (in this case Ms Bozinovska) in some way before the aggrieved person can prove a contravention of the AD Act. If the aggrieved person is not present when the alleged discrimination or harassment occurred, then that person is less likely to be able to prove that he or she has been 'treated' in a particular way: Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 at [21] and Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61 (25 March 2011) at [33]. Mr Warren will have to persuade the Tribunal hearing his case that these authorities are not relevant or should not be followed. But the question of whether the allegations against Mr von Schill, if proved, would amount to a contravention of the AD Act, is not so obviously untenable to warrant summary dismissal. 22Mr Warren did not specify what else he had done by reference to the AD Act which would bring his allegations within s 50(1)(d).
Orders The respondent's application for the applicant's complaint to be summarily dismissed is refused. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 20 December 2013
Warren
Director General, Department of Attorney General and Justice
(1964) 112 CLR 125
(1987) 10 NSWLR 531
(1987) 11 NSWLR 522
[1964] HCA 69