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[2015] ACTSC 378
Supreme Court of the ACT
2015-08-28
Refshauge J
Original judgment source is linked above.
1. The application for an extension of time in which to appeal is dismissed.
APPEAL - Jurisdiction, practice and procedure - Appeal from the ACAT - Leave to appeal out of time - Discrimination on the grounds of race - Unrepresented litigant - Litigation guardian - Subpoeanaing of further witnesses - Fresh evidence - Workers compensation and damages for discrimination - Delay in delivering decision - Causation
ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT); s 86
ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1) (ACT); clause 20
Discrimination Act 1991 (ACT); ss 11, 121A, 18C, 18D
Workers Compensation Act 1951 (ACT); Parts 4.3, 4.4, 4.5
Alexander v Home Office [1988] 2 All ER 118
Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28
Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 2 ALD 561
Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1
Ex parte Currie: Re Dempsey (1968) 70 SR (NSW) 1
Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217
Harrison v Schipp [2002] NSWCA 78; (2002) 54 NSWLR 612
Henville v Walker [2001] HCA 52; (2001) 206 CLR 459
Jeffers v The Queen [1993] HCA 11; (1993) 67 ALJR 288
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Klobucar v The Queen [2014] ACTCA 6
Minister for Immigration and Ethnic Affairs v Gungon [1982] FCA 99; (1982) 63 FLR 441
Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWR 27
Perry v Smith [1902] VicLawRp 13; (1901) 27 VLR 66
Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 R v Meyboom [2012] ACTCA 2; (2012) 256 FLR 450
Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267
Servos v Repatriation Commission [1995] FCA 1137; (1995) 56 FCR 377
Sharman v Legal Aid Queensland [2002] FCAFC 196
Wsol v John James Memorial Hospital (Unreported, Discrimination Tribunal of the Australian Capital Territory, Magistrate Stefaniak, DT No 3 of 2008, 17 December 2008
Wsol v John James Memorial Hospital (Unreported, Supreme Court of the Australian Capital Territory, Master Harper, SCA No 1 of 2009, 22 May 2009)
Wsol v John James Memorial Hospital [2011] ACAT 81
Court/Tribunal: ACT Civil and Administrative Tribunal
Citation: [2011] ACAT 81
1. The applicant, Lolita Wsol, was employed by the respondent, John James Memorial Hospital (the Hospital), in various capacities, apparently in the kitchen of the Hospital, from 1 December 2004 until 4 May 2006 when she was made redundant.
2. On 2 October 2007, she made a complaint to the Human Rights Commission that the Hospital had discriminated against her on the grounds of her race. Ms Wsol is of Filipino extraction.
3. When that complaint was initially made, it was within the jurisdiction of the Discrimination Tribunal, established under part 11 of the Discrimination Act 1991 (ACT). When the ACT Civil and Administrative Tribunal (the ACAT) was established, the Discrimination Tribunal was abolished by the repeal of part 11 by the ACT Civil and Administrative Tribunal Legislation Amendment Act 2008 (ACT). As a consequence, Ms Wsol's complaint was ultimately referred to the ACAT.
4. The ACAT conducted a hearing and, on 15 September 2011, dismissed Ms Wsol's complaint. See Wsol v John James Memorial Hospital [2011] ACAT 81.
5. Ms Wsol now wishes to appeal against the decision and, on 14 August 2014, filed an application for an extension of time within which to seek leave to appeal.
6. The system of appeals from the ACAT to this Court is not as straight forward as may be desirable. In this case, however, the problems that have been encountered in other cases may not arise.
7. Under s 86 of the ACT Civil and Administrative Tribunal Act 2008, a party to an application may appeal to this Court against a decision of the ACAT on a question of fact or law, save in certain cases set out in s 86(2), none of which are presently relevant.
8. The appeal, however, may only be brought with the leave of the Court. Further, under r 5072 of the Court Procedure Rules 2006 (ACT), an application for leave must be made no later than 28 days from the date on which the order appealed from is made, or such further time as this Court may allow.
9. In Pires v DibbsBarker Canberra Pty Ltd [2014] ACTSC 283 at [48], I set out the principles that I considered should be applied when considering whether leave to appeal should be granted. They were:
10. Ms Wsol also needs leave to appeal out of time, since the decision that she wishes to challenge was made nearly three years before this application was lodged.
11. I addressed the principles on which such applications should be considered in R v Meyboom [2012] ACTCA 2; (2012) 256 FLR 450. The principles may be summarised as follows:
12. Ms Wsol did not have legal representation. That places an obligation on the court to ensure that she is not disadvantaged to an unacceptable level, but without creating a prejudice or even reasonable appearance of prejudice against the other party who is represented.
13. I have set out in Maher v Carpenter (2012) 7 ACTLR 216 at 224-5; [40] - [41] the relevant considerations that I must take into account when hearing Ms Wsol's application. I will do so.
14. Perhaps unsurprisingly, the material Ms Wsol filed in support of the application was confusing. The application for leave to appeal out of time was dated 12 January 2012 but was not filed in the court until 14 August 2014.
15. It referred to an affidavit dated 12 January 2012 filed in support of the application but no such affidavit was filed. An affidavit of Ms Lily Superal sworn on 1 August 2014 was, however, filed.
16. Ms Wsol also filed, as is required (see r 5071 (2) (b) of the Court Procedures Rules), a draft Notice of Appeal that she had clearly drafted herself.
17. After the application had been heard, Ms Superal filed an affidavit which appeared to be contrary to her earlier affidavit. I do not have regard to it.
18. Before I could decide the application, Ms Wsol contacted the Supreme Court registry and attempted to file additional documents. She wanted me to delay judgment until I had read the extra material. She was advised that she could not just lodge the documents but had to make an application to re-open the case. I waited a reasonable time before completing these reasons but no application has been made.
19. At the hearing of the appeal, there was no appearance by or on behalf of the Hospital and the ACAT. Ms Superal gave evidence of service of documents on the Hospital and the ACAT. A document was tendered through Ms Superal showing that the Application in Proceedings for leave to Appeal out of time, the Draft Notice of Appeal and the Affidavit of Ms Superal had been delivered to the Hospital. The document was the original by Mr Stirling Finley, apparently of the hospital. A similar document showed the receipt stamp of the ACAT.
20. After I heard the application, I was contacted by the lawyers for the Hospital who stated that the document had, in fact, been left with someone at what is now called Calvary John James Hospital. The hospital operation, which continues in the same premises where Ms Wsol was employed, is now, however, conducted by Calvary Health Care ACT Pty Ltd, a different body to Ms Wsol's employer at the time of the alleged events. It was asserted that Ms Wsol's delay in making her application created serious prejudice for her former employer.
21. I would ordinarily have re-convened the hearing in order to address these questions. In the circumstances, however, because of the decision I will make on the application, I do need to do so.
22. Ms Wsol provided no explanation for the delay of nearly three years in making her application. The highest that the material before me comes is that she had an operation on 13 August 2012 and, also, Ms Superal said that Ms Wsol had become withdrawn, "avoiding everyone" as she "doesn't trust the people after what happened in her workplace". She also said she had difficulty in seeking legal advice.
23. It does not seem to me that this is an adequate explanation for the delay.
24. In a unanimous decision, the High Court in Jeffers v The Queen [1993] HCA 11; (1993) 67 ALJR 288 at 289 held that extended delay requires an applicant to show "exceptional" circumstances before an extension of time would be granted.
25. In this case, unless it is shown that it is very likely that an appeal would be successful, leave should not be granted. As the New South Wales Court of Appeal pointed out in Outboard Marine Australia Pty Ltd v Byrnes [1974] 1 NSWR 27 at 30, a litigant, such as the respondent, is entitled to "know where they stand and to regulate their affairs accordingly".
26. Having been prepared by Ms Wsol, without any apparent legal assistance, the draft Notice of Appeal was discursive, argumentative and lacking in clear legal grounds.
27. Noting the obligation on the court to try to ensure that any rights that Ms Wsol may have are properly identified, I have tried to glean legal claims from the draft Notice of Appeal.
28. What was clear from the Notice of Appeal was that Ms Wsol was unhappy with the decision of the ACAT and was convinced that her evidence should have been accepted and that that of the Hospital should have been rejected. She considered that as the witness for the Hospital were employed by it, their evidence should be dismissed and that would only leave her evidence, which the ACAT would then have to accept.
29. Before considering the grounds of appeal, it is appropriate to summarise the decision made by the ACAT.
30. The ACAT described Ms Wsol's employment with the Hospital, her redundancy, which was accompanied by a Deed of Release signed by her, a payment to her of a worker's compensation claim and subsequent redemption and her complaint to the Human Rights Commission.
31. The Commission closed its file and Ms Wsol's complaint was then referred to the Discrimination Tribunal. The Tribunal dismissed it, but she successfully appealed that dismissal and it was remitted to the ACAT, as I have mentioned above (at [3]).
32. The ACAT first considered the orders it could make under its Act and the Discrimination Act. Ms Wsol clearly sought orders of a kind that the ACAT could not make in the proceedings before it: orders for compensation for breach of trust by the Hospital, damages for failing to provide a safe system of work and publicly shaming the Hospital, penalties for criminal negligence, damages for breach of contract and for negligence. In those proceedings, the rejection of these orders by the ACAT was correct; it did not have the legal power to make such orders in these proceedings.
33. The only powers that the ACAT had in response to a complaint of unlawful discrimination are set out in s 53E of the Human Rights Commission Act 2005 (ACT) and, as far as damages are concerned, is limited by s 53E(2)(c) as follows:
(2) The ACAT must make 1 or more of the following orders:
(c) unless the complaint has been dealt with as a representative complaint - that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.
34. The amount of compensation in damages for unlawful discrimination and the basis for it is limited by the statute (see Hall v A & A Sheiban Pty Ltd [1989] FCA 72; (1989) 20 FCR 217 at 264) and must be caused by the discriminatory act and not by some other cause. See also Henville v Walker [2001] HCA 52; (2001) 206 CLR 459 at 470; [18].
35. Ms Wsol's complaint was considered by the ACAT as a complaint of unlawful discrimination against Ms Wsol on account of her race. To be made out this required Ms Wsol to show that she was treated unfavourably because of her race.
36. Ms Wsol was assisted by lawyers in lodging her original complaint but was not represented at the hearing before the ACAT. The complaints she made included complaints of unfavourable treatment because of race, unlawful vilification, vicarious liability of the Hospital for such acts by its employees within the scope of their actual or apparent authority and also under s 121A of the Discrimination Act, allowing a culture of discrimination and vilification at its workplace and victimisation because of her complaint.
37. The Hospital defended the complaint on the grounds that the alleged acts and statements did not happen and that the Hospital took reasonable steps to prevent its employees from engaging in discriminatory conduct. It also claimed that there was no discrimination against Ms Wsol on account of her race and no victimisation. It further claimed that Ms Wsol had been compensated for any injury or damage by virtue of the successful Worker's Compensation claim she had made.
38. The ACAT set out a summary of Ms Wsol's evidence, namely that she had been the subject of actions and statements which seemed to her to have been based on her race. She made complaints to her supervisors but no action was taken on them and she continued to be abused. When she was promoted she said she continued to be subject to abuse and assaults. Where evidence contrary to her evidence was given by witnesses, she said the evidence was untruthful. As to the Deed of the Release following her Worker's Compensation case, she acknowledged receiving advice from a lawyer but said that she had not had the Deed explained to her and her lawyer had pressured her into signing it.
39. The only other witness Ms Wsol called to give evidence was a woman who, although described by the ACAT as being "genuinely interested in assisting Ms Wsol", had no direct evidence or knowledge of the alleged incidents.
40. Three witnesses were called for the Hospital. All denied that Ms Wsol had been subject to unlawful discrimination incidents. One, a union representative and, also as it happened, of Filipino descent, denied that Ms Wsol had made any complaint to her of discrimination or that she had heard of acts of violence or assault towards her.
41. Another witness gave evidence that Ms Wsol herself was difficult and had been abusive and had often sworn at people in the workplace. This witness, however, was regarded as less than frank in his evidence, which was regarded by the ACAT as not helpful or persuasive.
42. The third witness, who was said to have assaulted Ms Wsol, also gave evidence and denied the allegation made against her.
43. Medical reports that had been used in Ms Wsol's Worker's Compensation proceedings were also put before the ACAT and the ACAT held that they showed that the compensation paid by the worker's compensation insurer were for the same injuries as were the subject of Ms Wsol's discrimination claim.
44. The ACAT then made a number of findings. It found that it could not find that Ms Wsol fabricated her evidence, but it did find that her evidence did not satisfy it to the necessary standard of proof, namely the balance of probabilities, that the things that she complained of occurred. The ACAT was not satisfied that any of the tension, unhappiness or disagreement that it found in the workplace was related to Ms Wsol's race nor that she was treated unfavourably or vilified by her work colleagues because of her race. Her evidence was not sufficient to sustain a finding that there was a casual connection between any treatment of which she complained and her race.
Grounds of appeal - identification of grounds
45. Against this background, I turn to consider what can be identified as grounds of appeal.
pursuant to s 18C, s 18D, s 104 and s 121A of the Discrimination Act 1991? Competition and Consumer Act 2010 (Cth), under undue influence and pursuant to s 51AA and s 51AB under unconscionable conduct of the Trade Practices Act 2001? And breach of Duty of Care of Employee Protection at Common Law (as it was prior to 15 September 2011).
47. This cannot be accepted, for the ACAT has no relevant jurisdiction in respect of any of the mentioned legislation other than the Discrimination Act. As a result, I will completely ignore the reference to the other legislation.
48. The Notice of Appeal was divided into three questions. The formulation of each of the three questions, however, was identical. There were then set out after the questions a number of "sub-questions" which appeared to state the real issues.
49. Doing the best I can, I indentify the following issues:
50. In addition, Ms Wsol sought that seventeen further witnesses be subpoenaed to give evidence.
51. Ms Wsol also raised other issues. The only relevant one was her claim that she should have had a litigation guardian appointed for her.
52. It is helpful to dispose of the last two matters first. I shall then deal with the other issues I have identified, though some can be dealt with together as the considerations overlap.
53. There was no occasion for the ACAT to appoint a litigation guardian for Ms Wsol. I suspect that she really wanted the ACAT to appoint a lawyer for her, though she did not say so. The ACAT has no power to appoint a lawyer for a party. It is not an error of law for the ACAT to proceed with a hearing where a party is unrepresented.
54. ACAT has power to appoint a litigation guardian to conduct proceedings for a party under the ACT Civil and Administrative Tribunal Procedural Directions 2010 (No 1) (ACT).
55. The provisions, however, require the person to agree to the appointment and the party to whom the litigation guardian is to be appointed has to be shown to have a legal disability, that is be a minor (under the age of 18) or be mentally incompetent.
56. There was no evidence before the ACAT or before me of any of these matters. Indeed, Ms Wsol conducted her own case before the ACAT and me and showed no signs of mental incompetence. Further, no affidavit as required was filed showing the necessary material on which an appointment could be made.
58. I am not clear how this matter was put, as Ms Wsol did not address it in her oral submissions. She set out in her draft Notice of Appeal the names of seventeen persons under the heading of "To be subpoena [sic]: c/o John James Memorial Hospital", presumably meaning that they were staff of the Hospital. That is odd given her suggested issue at (8) above (at [49]) that evidence of employees of the Hospital should not be given any weight as their evidence would be affected by their employment.
59. If Ms Wsol was submitting that these witnesses should have been called before the ACAT, then she has not shown why that should be. Each party has the right to have subpoenas issued under clause 20 of the ACT Civil and Administrative Tribunal Procedural Directions (No 1). That means Ms Wsol could have done that. She apparently did not do so.
60. There was no requirement for the Hospital to have called any of the named witnesses. That failure to do so may have allowed the ACAT to draw inferences as explained in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. The ACAT was not required to draw such inferences in this case.
61. An appeal to this Court from the ACAT is an exercise of the original jurisdiction of the Court, even though it is described as an appeal. Certainly that has been held of the appeal from the Administrative Appeals Tribunal to the Federal Court which is relevantly similar. See Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 2 ALD 561 at 569; Minister for Immigration and Ethnic Affairs v Gungon [1982] FCA 99; (1982) 63 FLR 441 at 452; Clements v Independent Indigenous Advisory Committee [2003] FCAFC 143; (2003) 131 FCR 28 at 33; [11]- [12]. See also Re Coldham; Ex parte Brideson (No 2) [1990] HCA 36; (1990) 170 CLR 267 at 273-4.
62. The question of whether this Court has power to receive further evidence on such a hearing is not entirely clear. Ordinarily, such a power must be expressed in statute, as observed by McHugh J in Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 at 33; [105]. There is no such express provision here. It has been suggested, however, that such a power may be implied: Ex parte Currie: Re Dempsey (1968) 70 SR (NSW) 1 at 11. It may be, however that, as Giles JA pointed out in Harrison v Schipp [2002] NSWCA 78; (2002) 54 NSWLR 612 at 638; [172], an "express statement that an appeal is by way of a rehearing may make it possible to imply a power to receive further evidence".
63. It is not appropriate to decide in this case the nature of the "appeal" to this Court. I note, however, that it has been held in relation to the Commonwealth Administrative Appeals Tribunal that, on an appeal from it to the Federal Court, fresh evidence can possibly be adduced but only in exceptional circumstances: Committee of Direction of Fruit Marketing v Australian Postal Commission at 563. Nevertheless, because an appeal to the Federal Court is only available on a question of law, some authorities suggest that it is not permissible to adduce fresh evidence at all: Servos v Repatriation Commission [1995] FCA 1137; (1995) 56 FCR 377 at 382, 385.
64. Whatever the precise position, it does not seem to me that it would be appropriate to permit the evidence of seventeen witnesses whom the parties could have called at the hearing in the ACAT, even if it were necessary to serve a subpoena to each one, to be permitted to be called in this appeal.
65. In any event, I was not told what evidence these witnesses would give and, until that was made very clear, no such evidence would be permitted to be heard on an appeal.
(c) Worker's Compensation Settlement (Items (1) and (11) above)
66. When considering this ground, I was hampered by not having the relevant material on which to consider it.
67. The ACAT had before it, but I did not, the medical reports which it held supported the view that the injuries of which Ms Wsol complains were identical to those relied on in her worker's compensation claim.
68. I had no material that contradicted that finding. If that finding was correct, then Ms Wsol had no loss or injury for which she had not been compensated. Given that Ms Wsol is unrepresented, however, I need to go a little further.
69. Under the Workers Compensation Act 1951 (ACT), a worker entitled to compensation is eligible to receive three types of payment:
• Weekly or periodic payments under Part 4.3 of the Workers Compensation Act; these represent an amount payed on pre-incapacity weekly earnings, that is they represent economic loss.
• Special payments under Part 4.5 of the Worker's Compensation Act; these are the costs of medical treatment, certain alterations to the workers residence, transport costs and certain costs of accommodation and meals .
• Lump sum payments under Part 4.4 of the Worker's Compensation Act, these are payments for specific injuries such as loss of certain body parts, certain bodily functions and for specific diseases.
70. Contrasting with this is that compensatory damages for unlawful discrimination may include heads of damages that would not fall within any of the three heads of damages payable under the Workers Compensation Act.
71. As pointed out in Alexander v Home Office [1988] 2 All ER 118 at 122, damages for such discrimination (in this case unlawful racial discrimination) would include injury to feelings for humiliation and for the insult that the discrimination caused or constituted. These are not compensated under the Workers Compensation Act.
72. Thus, there may be an issue as to whether the compensation received by Ms Wsol under the Workers Compensation Act included all the compensation that Ms Wsol would be entitled to receive for any unlawful discrimination.
73. Of course, this is only relevant if there is a finding that Ms Wsol suffered unlawful discrimination. That would require the finding of the ACAT, that Ms Wsol had not suffered unlawful discrimination, to be set aside. If that were the case, then it may be appropriate to explore this ground further.
74. As shall be seen below, however, there is no basis for that challenge and so this ground does not arise.
75. The chronology of the progress of Ms Wsol's complaint was not entirely clear, for the decision of the ACAT did not make it clear when the hearing was held. I assume that it was conducted on 11 November 2009. The reasons were delivered on 15 September 2011. That is a not inconsiderable passage of time between hearing and judgment.
76. In Klobucar v The Queen [2014] ACTCA 6 at [25], the Court of Appeal set out the principles to be applied in these circumstances as follow:
(a) The trial judge's advantage of having seen and heard the witnesses give their evidence weakens with time and, where there is a significant delay between seeing and hearing witnesses and the delivery of judgement, "the trial judge is obliged to give specific reasons for accepting or rejecting the evidence of those witnesses whose evidence plays an important part in the factual findings made", for example by reference to contemporaneous notes that record the judge's impression of witnesses.
(b) If a judge fails to give specific and satisfactory reasons for accepting or rejecting important evidence and the transcript does not clearly explain the judge's findings, the appellate court should give careful scrutiny to the findings.
(c) The consequences of a delay in giving judgement extend beyond the diminution of the judge's capacity to properly assess witnesses. The stress that a judge feels when he or she has a long-delayed judgement may cause the judge to deliver a rushed decision that does not thoroughly deal with significant issues. Further, a long delay may cause the losing party to form a belief that the judge has been unable to grapple with the issues and, in the end, has resorted to the easiest decision.
77. I have carefully read the reasons for decision of the ACAT. The evidence is carefully recounted.
78. The reasoning of the ACAT in concluding that it should dismiss Ms Wsol's claim was not dependant on the demeanour of the witnesses. The ACAT, in fact, rejected the evidence of one of the Hospital's witnesses. Further, the ACAT did not reject Ms Wsol's evidence, but found that the incidents of which Ms Wsol complained were, so far as concerned fellow workers, not connected to her race but to her work style and personality; and as far as it concerned the Hospital, the redundancy was effected for legitimate reasons.
79. Thus, even on her evidence, the ACAT found that Ms Wsol had not made out her case on the balance of probabilities.
80. The reasons of the ACAT gave a specific basis for its findings so far as the evidence was concerned. The reasons were appropriately detailed, with no indication that they were rushed and they were consistent with the weight of the described evidence.
81. The Hospital's witnesses had also all made statements closer to the time of the incidents about which they were giving evidence. They confirmed their statements when they gave their oral evidence and there did not seem to be any inconsistencies between the statements and the oral evidence they gave.
82. On the other hand, there were omissions from Ms Wsol's evidence which had the capacity to undermine her credibility, including evidence of medical certificates which gave different causes for some of her medical problems.
83. The ACAT, in its reasons, gave a clear indication of the issues and addressed them cogently and fully.
84. There is no doubt that the delay is to be regretted. That is becoming a more common feature of courts and tribunals as the workload increases in volume and complexity without a corresponding increase in resources.
85. In my view, there is no basis for a grant of leave in respect of the consequences on the decision of the ACAT from the delay in delivering its reasons.
(e) The factual dispute (Items (3), (4), (8) and (19) above)
86. So far as these grounds are concerned, Ms Wsol challenges the factual findings of the ACAT. She claims, in effect, that she was telling the truth and the witnesses for the Hospital were lying.
87. I have no doubt that Ms Wsol fervently believe this. The ACAT, however, did not make a finding that her evidence was fabricated.
88. A witness may be unreliable or mistaken without being dishonest or untruthful. Perfectly honest witnesses can give very different versions of the same incident.
89. In this case, the ACAT was critical of one of the Hospital witnesses. Ms Wsol said that he was lying, but she had no evidence, other than her own evidence, to support that. That is not necessarily insufficient except that, as here, a tribunal of fact may reject her evidence which then is not sufficient, without more, to show that the other witness or witnesses is or are lying.
90. Critically, Ms Wsol did not call witnesses who she said could have supported her evidence. These were eye witnesses who were not then employed by the Hospital. The employment of such witnesses, she said, would make it likely that they would tailor their evidence (if not outright lie) because of their employment.
91. Ms Wsol said that she has not arranged for any of these people to give evidence as she said that she had not been able to locate them. That is not an unreasonable explanation, which would negate much of the force of a Jones v Dunkel inference against her from their absence. Nevertheless it does mean that her case was reliant on her evidence alone, where witnesses whom she said had been unlawfully discriminatory to her specifically denied being so.
92. Apart from maintaining her claim that the Hospital's witnesses were lying, Ms Wsol could not point to any likely errors in the fact finding process of the ACAT.
93. There was no suggestion that the ACAT had mistaken the evidence given by any witness or given such evidence more weight than it deserved.
94. In any event, the critical evidence that Ms Wsol was required to give to make out her case was of a connection between the Hospital and the treatment she had received from its employees on the one hand and her race on the other. The ACAT found no such connection.
95. There is no doubt that some of the statements that Ms Wsol recounted in her evidence that other staff members had said to her, had racial overtones and slurs. The making of these statements, however, was denied by the witnesses, one of whom was also of Filipino descent. That does not necessarily mean it did not happen, but it is a matter legitimately to be taken into account in deciding whether Ms Wsol, who bears the onus of satisfying the ACAT that she was the subject of unlawful discrimination, has proved the case on the balance of probabilities. See Sharman v Legal Aid Queensland [2002] FCAFC 196 at [40].
96. In my view, Ms Wsol has not demonstrated that there is an arguable case that there was an error in the fact finding process of the ACAT or in its finding of any of the facts, such as to justify a grant of leave to appeal.
97. Since the ACAT found no unlawful discrimination against Ms Wsol, the issue of causation did not rise.
98. In fact, the ACAT found that the medical matters for which Ms Wsol received workers compensation were the same matters as those she claimed she had suffered as a consequence of the unlawful discrimination.
99. In my view, Ms Wsol's criticisms of the ACAT are therefore not well founded.
100. Ms Wsol claimed that the medical conditions that were caused by the unlawful discrimination were different from those for which she received workers compensation but she provided no material to show that or to show how the ACAT had erred.
101. I have referred above to the difference in damages between unlawful discrimination claims and workers compensation claims (at [69]-[71]). Insofar as these grounds overlap with grounds identified as items (1) above (at [49]), I accept that, were there to be leave to appeal, these grounds could be included.
102. That would only apply if Ms Wsol were to satisfy me that the finding of the ACAT, that there has been no unlawful discrimination, is made out. As Ms Wsol has not so satisfied me, these matters do not, by themselves, justify a grant of leave.
103. Ms Wsol submitted that an earlier decision of this Court had made a finding that was inconsistent with the findings of the ACAT.
104. That came about in this way. Ms Wsol's initial complaint came before the Discrimination Tribunal on 17 December 2008. The Tribunal dismissed it: Wsol v John James Memorial Hospital (Unreported, Discrimination Tribunal of the Australian Capital Territory, Magistrate Stefaniak, DT No 3 of 2008, 17 December 2008).
105. Ms Wsol appealed the dismissal of her complaint. That appeal was heard by the Master.
106. During the hearing of the appeal, it was submitted by counsel for the Hospital that, even though there were acknowledged errors in the decision of the Tribunal, leave should not be granted to appeal nor the appeal upheld because the Deed Ms Wsol had signed when she was made redundant released the Hospital from the claims Ms Wsol had against it and so barred her discrimination claim.
107. The Master did not accept that. In his decision, Wsol v John James Memorial Hospital (Unreported, Supreme Court of the Australian Capital Territory, Master Harper, SCA No 1 of 2009, 22 May 2009), at pp 16-17 of the transcript, his Honour held:
Counsel for the respondent submits that the outcome of a leave hearing would inevitably be a finding in favour of the respondent by reason of the execution by the applicant of a deed on 5 May 2006 the last day of her employment...
That was a deed recording the payment to the applicant of an amount representing five weeks pay, plus a pre-annual leave entitlement, a total a little over $3000. The deed included paragraphs stating that the employee released and discharged the employer from all claims she had then or might have in the future against the employer arising from her employment of the circumstances recited in the deed. And the deed further contained an acknowledgment by the employee that the deed could be pleaded as a bar to any action, suit or proceeding against the employer arising out of the employment or the recited circumstances.
It's sufficient for me to say that I'm not satisfied that it is inevitable that the deed must be heard on a hearing of the complaint to be a complete answer to the claim. In those circumstances it seems to me that the appropriate order is that the complaint be remitted for hearing. Since the hearing in the Discrimination Tribunal that Tribunal has ceased to function, other than in relation to part-heard matters and it's common ground that the remitter should be to the ACT Civil and Administrative Tribunal, which has succeeded to the jurisdiction and functions of the Discrimination Tribunal.
108. That remitter was the occasion for the rehearing to which I have referred above (at [4]).
109. It can be seen that the Supreme Court found that the Deed did not have the inevitable consequence that the hearing before the ACAT would ineluctably result in a dismissal of Ms Wsol's complaint.
110. On the other hand, the Count made no positive finding in the Hospital's favour that the Deed was a bar to her complaint.
111. In any event, the ACAT expressly set aside any reliance on the Deed or, indeed, the other Deed signed on the occasion of the redemption of Ms Wsol's workers compensation entitlement, holding at [95] - [96]:
95. I do not need to decide whether the deeds of release bar Ms Wsol from brining this complaint before the tribunal. I am of the view however that public policy
96. I do not base my decision on the deed of release but rather, on the sufficiency of the evidence brought to support the claims made by Ms Wsol.
112. Thus, there was no finding of the Supreme Court which bound the ACAT and the ACAT did not place any reliance on either of the Deeds. This ground does not justify a grant of leave to appeal.
(h) Reference to statute and common law (Item (7) above)
113. This ground was merely a catch-all. So far as references to sections of the Discrimination Act is concerned, that is dealt with in my considerations of the matters to which I have already referred.
114. As I noted above (at [47]), the references to the Trade Practices Act and the common law of employment are entirely misconceived as the ACAT has no jurisdiction to deal with these in the consideration of Ms Wsol's complaint.
115. It may be that, had Ms Wsol brought an action separately for breach of contract or for negligence, then the ACAT would have had jurisdiction. See Part 4 of the ACT Civil and Administrative Tribunal Act. No such applications were made and that is not how the proceedings were commenced or conducted.
116. Thus, there is no error in the ACAT not dealing with these matters.
117. Ms Wsol has given no satisfactory explanation for the delay in seeking leave to appeal the decision of the ACAT. Given the very lengthy delay, that would be sufficient to dismiss her application for leave to appeal out of time.
118. In any event, while there may have been some error in the decision of the ACAT as to the damages to which Ms Wsol would have been entitled had she been able to satisfy the ACAT that she had suffered unlawful discrimination, this does not justify a grant of leave since the liability of the Hospital to her has not been made out and it is only in that event that error in respect of damages would be relevant to the decision I must make.
119. Accordingly, there is no basis on which leave should be granted for an extension of time in which to seek leave to appeal nor for a grant of leave to appeal, since there have been no relevant errors identified in the decision of the ACAT.
120. Ordinarily, the dismissal of such an application would be accompanied by an order that Ms Wsol pay the costs of the Hospital. Since, however, the Hospital did not appear, that is not appropriate and there should be no order as to costs.
I certify that the preceding one-hundred and twenty-one [121] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge
Wsol
John James Memorial Hospital [2015] ACTSC 378
(2003) 131 FCR 28
(2000) 203 CLR 1
(1989) 20 FCR 217
(2002) 54 NSWLR 612
(2001) 206 CLR 459
(1993) 67 ALJR 288
(1959) 101 CLR 298
(2012) 7 ACTLR 216
(1982) 63 FLR 441
(2012) 256 FLR 450
(1990) 170 CLR 267
(1995) 56 FCR 377