Appeal Panel CITATION: Woolstar Pty Ltd -v- Dumbrell (EOD) [2001] NSWADTAP 5 APPELLANT PARTIES: Woolstar Pty Limited RESPONDENT Sidney John Dumbrell FILE NUMBER: 999010 HEARING DATES: 30/06/2000 SUBMISSIONS CLOSED: 06/20/2000 DATE OF DECISION: 03/08/2001 Refusal of application pursuant to s 111 DECISION UNDER APPEAL: BEFORE: Latham M - DCJ (Deputy President); Goode P - Judicial Member; McDonald O - Member CATCHWORDS: adequacy of reasons - Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance - leave to extend to the merits - opportunity to be heard MATTER FOR DECISION: Principal matter FILE NUMBER UNDER APPEAL: 981020 DATE OF DECISION UNDER APPEAL: 06/16/1999 LEGISLATION CITED : Anti-Discrimination Act 1977 United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13 Absolon v NSW TAFE Commission (1997) 75 IR 47 CASES CITED: Absolon v NSW TAFE [1999] NSWCA 311 Reyes-Gonzalez v Sydney University of Technology [1998] NSWEOT Figueira v St Vincent's Hospital Ltd EOT 7 April 1997 Grant v John Grant & Sons Pty Ltd [1954] 91 CLR 112 APPELLANT REPRESENTATION: I Neil, barrister RESPONDENT P Vartuli, solicitor ORDERS: (1) The appeal is upheld.; (2) The orders of the Tribunal are set aside.; (3) The complaint is dismissed on the application of the appellant under s.111(1) of the Anti Discrimination Act 1977. 1 The appellant, Woolstar Pty. Ltd., appeals against a decision of the Tribunal of 16 June 1999 dismissing the appellant's application under s111(1) of the Anti-Discrimination Act 1977. The respondent, Sidney Dumbrell, appeared unrepresented before the Tribunal on 16 June, being both the day of hearing and the date of the decision which was delivered extempore. 2 The history and nature of the complaint lodged with the Anti-Discrimination Board by Mr Dumbrell was explored before the Tribunal. The evidence on the hearing of the application consisted of two affidavits by Brett Andrew Boon, the appellant's solicitor, dated 29 January 1999 and 16 June 1999, plus annexures, and a letter dated 29 January 1999 from the appellant's solicitors to the respondent, which was by way of service of the affidavit of 29 January on the respondent. 3 There was no material difference between the contents of Mr Boon's affidavits, other than that the later of the two annexed a complete copy of the President's report referring the complaint to the Tribunal. The evidence established that the respondent had written to the Board on 9 March 1998 complaining that the appellant company had refused him employment because of the respondent's disclosure of a previous workers compensation injury. The Board wrote to the appellant on 1 April 1998, attaching a copy of the respondent's letter of complaint and advising the appellant that the Board was treating the complaint as one of discrimination on the grounds of a disability. The Board received a letter on 16 April from the appellant's solicitors indicating they were preparing a response on behalf of their client. On 24 April, Mr Boon telephoned the Board and spoke to a Ms Levitan, who was at that time assigned to the respondent's complaint. Paragraphs two and three of Mr Boon's affidavit of 29 January 1999 set out the terms of that conversation, which was in two parts, namely, an offer of settlement from the appellant in the form of a casual position with the company, and a report from Ms Levitan that she had spoken to the respondent and that he had accepted the offer of employment. The Board wrote to the appellant's solicitors on 24 April, confirming that the respondent had accepted the offer of employment. On 14 May the appellant's solicitors wrote to the Board, confirming that the respondent had been notified by letter (a copy of which was annexed to the President's report) that he was to start work on 20 May. The respondent duly took up the position on that day. However, on 9 July 1998 the respondent wrote to the Board in the following terms :- "Legal advice has been sought and from information received I wish to formally inform of my decision to continue with my complaint of discrimination …. as outlined in my original letter to your Board dated 9 March 1998. At no time have I stated that employment would be a suitable settlement." 4 On 14 August 1998 the appellant's solicitor advised the Board in writing that they had always understood that the offer of employment was in consideration of the respondent not proceeding with the original complaint and that they did not propose to conciliate further. Subsequently, the Board was requested by the respondent to refer his complaint to the Tribunal. 5 All of this evidence was put on by the appellant. There was no evidence from the respondent. That is not to say that the respondent said nothing in response to the appellant's case. There was as exchange over some two pages of transcript between the presiding member of the Tribunal and the respondent, which is examined in some further detail below. However, for the purposes of determining whether the Tribunal erred in law, it is pertinent to note that, not only did the respondent not place any evidence before the Tribunal on the hearing of the application, but he had not put on any evidence in reply to Mr Boon's affidavit of 29 January 1999. Denial of Procedural Fairness 6 The appellant contends that the Tribunal erred in law in that there was a denial of procedural fairness constituted by the Tribunal's reliance upon unsworn statements by the respondent, of which the appellant had no notice and which the appellant was not given an opportunity to test. If this aspect of the appellant's case is made out, the error warrants the setting aside of the Tribunal's orders below and a re-hearing of the appellant's s.111 application. In addition however, the appellant contends that the reasons underlying the Tribunal's decision are entirely lacking, such that there has been a failure to exercise jurisdiction. This too, if established, constitutes an error of law which leads to the same result. In the event that the appellant succeeds on either ground, the appellant seeks a hearing on the merits so that the Panel might dispose of the appellant's application under s.111. On the hearing of the appeal, the Panel heard evidence from both parties on the basis that, if error was established, the Panel would deal with the merits of the matter. 7 The law in relation to denial of procedural fairness was reviewed in United Bonded Fabrics Pty Ltd v Roseman [2000] NSWADTAP 13 at paras 22 to 31 and is not repeated here. Suffice to say that s.73(2) of the Administrative Decisions Tribunal Act 1997 does not relieve the Tribunal of the obligation to provide a party with the opportunity of testing prejudicial evidentiary material, which may include giving the party an opportunity to call contradicting evidence. 8 The proceedings before the Tribunal commenced with the reading of both of Mr Boon's affidavits. The respondent was not in a position to dispute paras. two and three of the affidavit of 29 January 1999, which recounted the conversations between Mr Boon and Ms. Levitan, on 24 April 1998. The only paragraph to which the respondent objected was paragraph four of the affidavit of 29 January, which read :- "On or about 14 May 1998, Woolstar gave effect to the foregoing resolution of the complaint by accepting the Complainant's Application." 9 Paragraph four was explained to the Tribunal by reference to tab six of the President's report, which was the copy of the letter dated 14 May 1998 sent by the appellant to the Anti Discrimination Board, enclosing a copy of a letter of the same date, from the appellant to the respondent, notifying him of his appointment. The clear effect of paras two, three and four, together with the supporting correspondence, was that the appellant had acted in conformity with an understanding, conveyed to it by an officer of the Board, that the respondent was prepared to settle the complaint if he was given what he had been initially denied, that is, a position with the appellant company. The extent of the respondent's objection to para four was that it did not explain that the respondent had not accepted the offer of employment in full and final settlement of the complaint, contrary to the appellant's view of the negotiations (see T/S pp 4.45 and 8.30). In truth, the respondent's "objections" were a contradiction of the appellant's construction of the negotiations. Apart from the respondent's assertions to the Tribunal that it was never in his contemplation to settle the complaint by accepting the offer of employment, and that "at no stage did I say it over the phone, put it in writing or sign any document to say that I'd dismiss the whole matter and accept the employment and drop all grounds" (T/S p 8.30), there was no evidence before the Tribunal to that effect. 10 Faced with what the Tribunal itself referred to as an unsatisfactory situation, the appellant made a not unsurprising submission, immediately following a discussion between the judicial member and the appellant's legal representative on the subject of actual, as opposed to implied, authority. That submission was :- "If there is a prospect that the present application will be determined on the footing that there is an issue about whether Ms Levitan correctly conveyed Woolstar's offer to Mr Dumbrell, then the only proper course here is to adjourn the application for hearing at a later date, because we have had no notice that there would be an issue, no notice of any version of a conversation between Mr Dumbrell and Ms Levitan and thus of course we've had not the slightest opportunity to test that version by for example speaking to Ms Levitan about it, so that it would be quite wrong to determine the application on any such footing now.." (T/S p 13.15) 11 Immediately after this submission, the Tribunal retired briefly. On resumption, the Tribunal delivered its reasons for dismissing the application. The Tribunal reviewed the history of the complaint as revealed by the evidence. It acknowledged that it had to deal with the application on the material before it. It concluded that "a settlement was not arrived at such that a term of that settlement was for the dismissal of the complaint that Mr Dumbrell made to the … Board." It went on to say that "it is unsatisfactory both from the point of view of the conduct of the matter by the Board and from the point of view of the failure of Mr Dumbrell to file any evidence contesting the question of actual authority to settle the matter and that those questions should be raised on this application for dismissal." 12 In short, the Tribunal did the very thing that the appellant had urged it not to do, namely, determine the application without providing the appellant with an opportunity to test the respondent's version of the negotiations, either by cross-examination of the respondent, and/or by calling additional evidence to contradict it. The Tribunal fell into error in this respect and the appellant's argument succeeds. Failure to Exercise Jurisdiction 13 Whilst it is not necessary to deal at any length with the second limb of the appeal, some observations are appropriate in order to demonstrate the importance of laying bare the reasoning processes of this Tribunal. The authorities which discuss failure to exercise jurisdiction are summarised in Absolon v NSW TAFE Commission (1997) 75 IR 47, a decision of Simpson J which was upheld by a majority of the Court of Appeal in Absolon v NSW TAFE [1999] NSWCA 311. Assuming that the Tribunal's reasons were inadequate, an error of law is made out if there is a real basis for thinking that a more comprehensive statement of reasons might lead the Tribunal to a different conclusion. Were it necessary to decide the appeal on this ground, we are of the view that the Tribunal's reasons were inadequate and that a more careful and detailed analysis by the Tribunal might have achieved a different result. Leaving to one side the bald statement of the Tribunal's conclusion cited above, the only factors in the Tribunal's rationale appeared to be, firstly, the public interest in clearly settling a matter to finality ; secondly, a reference to the decisions of Reyes-Gonzalez v Sydney University of Technology [1998] NSWEOT and Figueira v St Vincent's Hospital Ltd EOT 7 April 1997, which were said to stand for the proposition that s 111 applications against unrepresented complainants prior to a hearing on the merits will be examined with great care ; and thirdly, a reference to Grant v John Grant & Sons Pty Ltd [1954] 91 CLR 112 which was thought to have some relevance to the question whether the complaint was in fact settled. The first and second factors are unobjectionable in themselves, but do little if anything by way of relating the evidence before the Tribunal to the issues in dispute on the application. The third factor is of doubtful application to the facts of the matter. The High Court was there concerned with what could be said to fall outside the general terms of a deed of release, executed between a plaintiff and a defendant. In the instant matter, the problem was determining what was in the contemplation of the respondent when he accepted the offer of employment, absent any evidence which was capable of establishing that understanding. The Merits of the Application 14 The Panel heard evidence from Ms Levitan and the respondent. In addition, both Ms Levitan and the respondent had filed affidavits which were read. Ms Levitan's affidavit of 15 February 2000, including annexures A to J, set out her account of her conversations with the respondent and with Mr Boon, which had been refreshed by her access to her file notes. The respondent's two affidavits, dated 20 March 2000, including annexures A to E, and 5 April 2000, contained evidence of his state of mind from the lodgment of the complaint with the Board, up until and including the hearing of the application before the Tribunal. 15 Ms Levitan agreed with Mr Boon's account of the conversations he had with her on the appellant's behalf, which was before the Tribunal. It was not disputed that the respondent never mentioned the prospect of compensation in his communications with the Board or with the appellant company. It was the respondent's evidence that he had assumed the question of compensation would be dealt with in the normal course of events. He maintained that he had never agreed to any settlement of the complaint in return for an offer of employment and that he was never advised that the offer of employment would put an end to his complaint entirely. Had such a proposition been put to him, he claimed, he would have immediately said that he wanted compensation. 16 More particularly, this aspect of the respondent's evidence became the focus of a factual dispute before the Panel. The respondent's legal representative put to Ms Levitan in cross-examination that a crucial part of her conversation with the respondent on 24 April 1998, wherein the offer of employment was conveyed to him, did not take place. Ms. Levitan deposed to a conversation in these terms :- "Would you be willing to accept Woolstar's offer and the Board will then close your file?" 17 The italicised words were disputed, although by the time the respondent came to be cross-examined, he admitted that he did not remember those words, not that they were not spoken. More importantly, at para 12 of the respondent's first affidavit, he maintained that had he heard these words, "I would have put her right on the matter." 18 The Panel accepts Ms Levitan's evidence of the terms of this conversation as the more reliable, although that does not of itself determine whether the respondent heard it in its entirety. However, there was a piece of correspondence before the Panel which was not before the Tribunal, namely, Annexure J to Ms Levitan's affidavit and Annexure C to the respondent's first affidavit. It was a copy of a letter dated 15 May 1998 from the Board to the respondent, in response to a request from the respondent for a written report. It advised the respondent that he would be receiving correspondence from the appellant company, inviting him to start work on 20 May 1998. The letter closed with these words :- "Please write to or telephone the Board once Woolstar have contacted you, to confirm these details and then we will close your file." 19 The copy of this letter which is annexed to the respondent's affidavit bears a notation by the respondent that he received the letter on 19 May and rang the Board that day asking to speak to Ms Levitan. He did not speak to her that day. According to Ms Levitan's affidavit, the respondent next spoke to her on 27 May, that is, one week after taking up the offer of employment. He then indicated for the first time that he was not happy with the remedy of employment. 20 In the face of this uncontradicted evidence, it is not credible for the respondent to maintain that he did not understand the basis upon which the offer of employment was made by the appellant. The weight of the evidence is against the respondent on this issue. The appellant has established that the offer of employment was in full satisfaction of the complaint and that the respondent accepted it on those terms, whatever he may have come to believe at a later time. The orders of the Panel are :- (1) The appeal is upheld. (2) The orders of the Tribunal are set aside. (3) The complaint is dismissed on the application of the appellant under s.111(1) of the Anti Discrimination Act 1977. 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.