DIRECTOR GENERAL OF EDUCATION v ATKINS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY (1), CLARKE (2) AND MEAGHER (3) JJA 10 July 1989, 21 July 1989 [1989] NSWCA 241 Equal Opportunity Tribunal — Application for prohibition to restrain proceeding on ground of wrongful admission of evidence — Complaints of sex discrimination and victimisation in public high school — Power of Tribunal in respect of reception of evidence and procedure wide and flexible — Need not decide when the evidence is received, whether evidence is probative and whether it will act on it — Whether need to indicate to parties in due course on what evidence it may act — Tribunal not in this case committed to acting on the evidence received by it — Role of Chairman and Members referred to — What happened before complainants employed at school may be probative of planned discrimination or victimisation — Need to deal with complaints without unnecessary delay and cost. ORDERS Application refused with costs. Mahoney JA Rosaleen Atkins and Jacqueline Navin were science teachers at GymeaHigh School. They made complaints to the Anti-Discrimination Board. The complaints were referred to the Equal Opportunity Tribunal. During the hearing of the complaints by the Tribunal, they tendered as evidence statements by Pamela Anne Wilson, Edith McNally, Helen Margaret Simmelhaig and Diana Jane Griffin. The reception of those statements into evidence was objected to by the defendant before the Tribunal, the Director General of Education ("the Director'). On 21 and 22 February 1989 his Honour Judge Graham, Chairman of the Tribunal, ruled that the statements should be admitted into evidence. The Director has sought prohibition against the Tribunal on the ground that the reception of that evidence indicates that the Tribunal is acting, or proposes to act, beyond its jurisdiction. In order to deal with the issues which have been raised, or such of them as it is necessary to determine, it is necessary to refer to what has taken place before the Tribunal and to the matters which are in issue before it. In doing this, I am assisted by the detailed chronology and the submissions which have been prepared by Mr Gross QC, for the Director, and Ms Simpson, for Ms Atkins and Ms Navin (to whom I shall refer as "the complainants"). Gymea High School was, at the relevant times, a large high school at which there were a considerable number of male and female teachers. Ms Atkins joined the school as a science teacher early in 1983; Ms Navin joined early in 1984. They claimed initially that between those dates and 20 December 1985 they were the subject of treatment by other teachers at the school which contravened the Anti-Discrimination Act 1977. Subsequently their complaints were amended and expanded so that, before the Tribunal, they related both to discrimination on the ground of sex within s25(2)(a) and (c) and victimisation within s50. The proceedings were brought against the Director on the ground that he was the employer of the teachers concerned or otherwise responsible under the Act for what had been done. 2 UNREPORTED JUDGMENTS On 12 September 1986 Ms Atkins ceased to be employed at the school; Ms Navin left early in 1988. The President of the Anti-Discrimination Board dealt with the complainants complaints but, for reasons which are not now relevant, her attempts to resolve them by conciliation were not successful. On or about 30 October 1987 she referred the complaints to the Equal Opportunity Tribunal pursuant to s94(1)(b). The President's report comprised some seventeen pages and Annexures A-M which themselves comprised many pages. On 3 June 1988 the hearing of the complaints commenced before the Tribunal. Points of claim and points of defence were filed and amendments were made to them. The hearing of evidence was undertaken by the Tribunal. This Court has been informed by counsel that the complaints have been the subject of hearing, with examination and cross-examination, for some fifteen days: at least, the complaints have been before the Tribunal on those days. Counsel have informed the court that it is anticipated that some twenty days at least will be required to complete the hearing of them. The issues before this Court arise out of rulings made by the Chairman Graham DCJ on 21 and 22 February 1989. The Tribunal had apparently adopted the procedure of receiving evidence in written form. The court has, in the papers placed before it, a statement by Ms Atkins comprising some ninety-three pages and Annexures A-K inclusive; and a statement of Ms Navin also of some ninety-three pages with Annexures A-K inclusive. During the hearing the complainants tendered statements by the four people to whom I have referred ("the four statements"). These consisted together of some twenty-one pages of facts and allegations. Having heard the objections taken by the Director to the reception of those statements in evidence the Chairman ruled that they should be admitted. As far as is here relevant, objection was taken to the reception of the statements on the ground that they were "outside the complaints referred by the President of the Anti-Discrimination Board to the Equal Opportunity Tribunal" and that the material in them "has no conceivable bearing on the allegations contained in those complaints". In dealing with the objections which are, or are mainly, now relevant, the Chairman said: "... So far as they are concerned, It seems to me that the points of claim do not in any material way depart from or expand the area of complaint originally made to the President of the Anti-Discrimination Board and in general terms investigated by that Board. That of course is not the end of the matter. The question ultimately is whether the material in those four statements is capable of assisting this Tribunal in determining the question as to whether one or other of the complaints made by Mrs Navin and Mrs Atkins is made out. That test was described yesterday as one of relevance or materiality. So far as those four statements are concerned they are in my view relevant or material to this inquiry. The proposed evidence of those witnesses represents a means by which the complainant may seek to establish whether the actions of the principal and the head teacher in relation to the complainants was motivated by discriminatory attitudes so as to constitute discrimination on the ground of sex. Counsel for the complainant submits that the material is even more relevant or more important in relation to the question of victimisation, and with that submission I am in agreement. It is of course not necessary for evidence to be material or relevant that it should be conclusive on any issue. It is notoriously difficult to establish the motivation of those who might have subjected persons to discriminatory or potentially discriminatory treatment. One method or mode of URJ DIRECTOR GENERAL OF EDUCATION v ATKINS (Mahoney JA) 3 proof which might properly be adopted is to rely upon a concatenation of circumstances from which an inference might properly be drawn that the explanation for certain behaviour lies in or is founded upon discriminatory attitudes or outlooks. The fact that the evidence of the four proposed witnesses would not conclusively establish or would not necessarily conclusively establish such a link between conduct and motivation, does not prevent it being received by a tribunal, particularly one not bound by the rules of evidence but one which is required to determine matters upon their merits. The evidence of these four witnesses is in my view capable of shedding substantial light upon prevailing attitudes within the school. In some respects it directly impinges upon the attitudes and conduct of the principal. In other respects it deals with the conduct and attitudes of a member of the school executive. All of this material is capable of explaining behaviour which is alleged by the complainants to have been discriminatory. It is also, in my view, capable of explaining why there was hostility expressed against the complainants and of explaining why other members of staff who might not have expressed any overt sexist attitudes were disposed to join in such hostility or to refrain from coming to the assistance of the complainants...." The Chairman dealt with other submissions that had been made but, in the main, the basis for admission of the evidence, as the Chairman then understood it, is contained substantially in these passages of his ruling. I come now to the relief which has been sought in this Court and the basis on which it has been sought. In the proceeding the Director initially sought relief by way of declaration and leave to appeal against the ruling of the learned Chairman. However, at the commencement of the hearing Mr Gross QC informed the court that the only relief to be sought was relief by way of prohibition. He has, in my opinion correctly, abandoned the other claims for relief. It is, of course, appropriate in some cases that an order in the nature of prohibition go to a tribunal during the course of proceedings before it if the tribunal has, in what it has done to date, gone beyond its jurisdiction. I shall accept without deciding that prohibition may also go if it appears that the tribunal, though it has not yet acted beyond its jurisdiction, has indicated that it is proposing to do so. Mr Gross QC, for the Director, has submitted that the Tribunal has gone or will in the relevant sense go beyond its jurisdiction by accepting the material in the four statements and by acting on it. He has put his submission on a number of different bases. However, in general terms, each basis depends, in whole or in part, upon the view that the material contained in the four statements is not relevant to any matter before the tribunal and is not or cannot be probative of any matter relevant to the issues before it. If this be so, then, it is submitted, prohibition may go. This submission accepts, for the purposes of it, that the orders which the Tribunal may in due course make are orders which, within its jurisdiction, it may make and that the complaints on which they are to be based are properly before the Tribunal. But the submission suggests, in the various ways detailed by Mr Gross QC, that where orders otherwise within jurisdiction are based upon evidence to which the Tribunal could or should not have regard or are so unreasonable in the light of that evidence as to be beyond what should be done, prohibition may go. Mr Gross QC sought assistance in this regard from Re Moore; ex parte Co-operative Bulk Handling Ltd 56 ALJR 697 at 697D. 4 UNREPORTED JUDGMENTS Ihave not detailed all of the various ways in which the argument has been put. As [have said, in the end, it depends, or depends substantially, upon the propriety of the ruling by the Chairman that the four statements should be accepted into evidence at this stage in the proceeding before the Tribunal. I do not think that the Tribunal's ruling is properly a basis for prohibition. At least, I do not think that, at this stage in the proceeding, the court, should in its discretion, issue prohibition against the Tribunal. In my opinion, the Director's submissions do not properly take account of the powers of the Tribunal in relation to the reception of material in the course of its inquiry and the use which may be made of it to base its decision. It is not necessary for the purposes of this application to formulate exhaustively the principles on which, for this purpose, the Tribunal may act. The provisions of s108(1) and s110 grant to the Tribunal wide powers. S108(1) provides: "108. (1) For the purposes of any inquiry, the Tribunal: (a) shall not be bound by the rules of evidence and may inform itself on any matter it thinks fit; (b) shall act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms; and (c) may give directions relating to procedure that, in its opinion, will enable costs or delay to be reduced and will help to achieve a prompt hearing of the matters at issue between the parties." S110 provides: "110. Subject to this Part, the Tribunal shall, for the purposes of an inquiry held by it, have the powers, authorities, protections and immunities conferred by the Royal Commissions Act 1923 on a commissioner and the chairman of a commission respectively, appointed under Division 1 of Part II of that Act, and that Act, Division 2 of Part II excepted, shall apply to any witness summoned by or appearing before the Tribunal in the same way as it applies to any witness summoned by or appearing before a commission." The procedure which the Tribunal is to follow in any inquiry is, within proper limits, for it to determine. Thus, it may determine which form the material to be placed before it is to, or may, take. It may take evidence in written form. Written statements, as experience shows, sometimes contain material which is allegation rather than evidence or evidence which, for reasons of form or otherwise, would not be admissible in a court applying the conventional rules of evidence. But the Tribunal will be required to decide, for example, on what parts of this material it may legitimately act, when it should make that decision, and what is involved in the making of it. There are, as Mr Gross QC submitted, limits to the kind of material on which the Tribunal may act in deciding the issues before it in its inquiry. Mr Gross has referred, in general terms, to this question. For reasons to which I shall refer, I do not think it is necessary in deciding this proceeding to say more than that there are, no doubt, some kinds of material which would not base such decisions and that it may be, in some cases, errors of this kind could lead to jurisdictional error or error otherwise attracting prerogative relief. But it is not necessary for the Tribunal to categorise the material placed before it at the time it is tendered. It is conventional, in the common law tradition, that the material on which the Tribunal will or may act be designated when it is tendered: other material is, in effect, not received. The Tribunal may, but need not, follow that course. Thus, in this case, it was not necessary for the Tribunal, when the four statements were tendered, to go through the detail of them and URJ DIRECTOR GENERAL OF EDUCATION v ATKINS (Mahoney JA) 5 dissect it accordingly. It could do that subsequently, before or in the course of making its decision of the issues before the inquiry. However, in deciding which material to use in making its decision, the Tribunal has obligations, in natural justice and otherwise. What these obligations will require will depend upon the particular case. Special cases apart, it will not be necessary to allow argument upon each or all of its rulings in this regard. But fairness may require that, in relation to a particular matter, the parties have the opportunity to put their views, in some appropriate form. And it is, of course, open to the Tribunal to change a ruling which it has made in this regard. It may put aside material which it has previously decided to take into consideration. And it may decide that material which has been received will or will not affect its ultimate decision. Ihave referred to these matters because they are, in my opinion, of significance in this case. What is here sought is a conclusion that, by deciding to receive the material, the Tribunal has gone, or has indicated that it will go, beyond its jurisdiction. But if it be open to the Tribunal generally - I do not purport to delineate what can be done precisely or definitively - to deal with material tendered to it as I have indicated, then its decision to receive the four statements does not lead to that conclusion. The Tribunal can and no doubt will consider, in due course and in the proper way, whatever it can and should make of it and I do not now conclude that it will, in what it decides, fall into jurisdictional error. It is possible, in a particular case, to see in what is done when material is received, a final decision to use it in a way which will lead to jurisdictional error. In that case, on the assumptions on which I have approached this matter, prohibition might go even at this stage. But, in my opinion, this is not such a case. The Chairman expressed views as to the significance of the material, or some of it, in establishing motivation or the like. But if he be wrong in that - a matter which I do not need to accept - it will be for him and his co-members of the Tribunal to decide, in the end, whether and to what extent it can and should be so used in arriving at their decision on the issues. And those co-members, of course, may not be bound by the Chairman's view on these matters. This, I think, would be a sufficient basis for refusing this application. However, Mr Gross QC has made detailed submissions in relation to the relevance of the material in the four statements and I shall refer to what he put. The submissions of the Director in this regard are, I think, the more difficult to sustain because of the nature of the material in the four statements and the manner in which, no doubt necessarily, it has been approached. The statements contain not merely allegations of primary fact but conclusions and allegations. Mr Gross QC has not submitted that, because they contain, for example, allegations they could not be received by the Tribunal, at least in the preliminary sense to which I have referred. He was correct in so doing. As I have said, the Tribunal need not stand on the form of evidence but may determine in due course which portions of the material which it receives may properly be taken into account by it. But that has meant that the objections to the reception of the material have been directed to, as I shall describe it, the general thrust of it. It has been said, for example, that the material in the four statements goes to actions before the complainants came to Gymea High School and relate, inter alia, to matters not touching the actions of any of the teachers about whom, in the main, complaint is made. It was submitted that in this regard the thrust of the evidence 6 UNREPORTED JUDGMENTS took the Tribunal outside its jurisdiction because, for example, it could not reasonably base its conclusion that the complaints were established upon evidence of that kind. I do not think that, in a case such as this, the court should restrain the proceedings of the Tribunal upon the basis of a general assessment of evidence of this kind. If prohibition is to go for jurisdictional error, that error should be clear. But, in addition, I am not satisfied that, even if the evidence be approached in that general way, it might not have probative value in determining the issues before the Tribunal. It is sufficient to see those issues, as they were described in argument, as directed to discrimination on the ground of sex and victimisation. Complaint was made, inter alia, in relation to particular acts and omissions by particular teachers. To show that there was discrimination or victimisation in this regard, it would be relevant to show the purpose or, as the learned Chairman described it, the motivation of these acts. And it could be of assistance in showing that the acts had a proscribed purpose or motivation to show that there had been in place, continuously from a time prior to the complainants came to the school, a system or plan, or a system of conduct, directed to such discrimination. Considering the thrust of the material in this way, I do not think that a decision to receive it at this stage indicated jurisdictional error. Ms Simpson, for the complainants, put the relevance or acceptability of the material in various ways. I have, in what I have said, confined myself to one way in which, in my opinion, the acceptance of the material at this stage could be justified. It is not necessary to pursue the various alternatives which were put or foreshadowed in her argument. However, it is I think proper to add one further observation. The present application is, I think, based upon the view that the powers of the Tribunal to deal with evidence and procedural matters are more limited and less flexible than they are. The legislature has adopted, to the extent embodied in the Act, the policy that there shall be no discrimination on the grounds of sex or victimisation. No doubt it has done so in the belief that the mischief of discrimination and victimisation is serious. The practices or acts which are proscribed by the Anti-Discrimination Act can have serious effects on the persons concerned. But it may, I believe, be doubted whether the legislature foresaw that the procedure which it set up for dealing with the complaints made against them would involve, as it has in this case, that after three and a half years and much paper, the parties would be still involved in an inquiry of, as this Court has been informed, some thirty-five days or more. Had the legislature thought that the procedures set up by the Act would operate in this way, it would, perhaps, have dealt with the matter in another way. It is not the purpose of this observation to criticise those who have been involved in the operation of these procedures in the present case. I do not know the details of what has occurred. But, in my opinion, what has happened in the present case shows why the powers of the Tribunal, in respect of procedure and evidence, should be seen as broad and flexible and able to be used to ensure that complaints are dealt with without a disproportionate expenditure of time and resources. On this construction of them, what the Tribunal did in the present case may, I think, be seen as within the proper exercise of its powers. For these reasons, I do not think that a ground for prohibition has been made out. If there were a basis for the grant of prohibition, I do not think that, as a matter of discretion, it should go at this stage. The matter is best left to be dealt with, on proper principles, by the Tribunal. URJ DIRECTOR GENERAL OF EDUCATION v ATKINS (Meagher JA) Clarke JA I agree with Mahoney JA. Meagher JA I agree with Mahoney JA. 5 The application should be dismissed with costs. Counsel For Appellant: BJ Gross QC / PA Johnson Solicitor For Appellant: HK Roberts, Crown Solicitor 10 Counsel For Respondent: C Simpson Solicitor For Respondent: Piggott Stinson