CITATION: Nesci v TAFE Commission of NSW [2004] NSWADT 126 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Salvatore Nesci RESPONDENT TAFE Commission of NSW FILE NUMBER: 031105 HEARING DATES: On the papers SUBMISSIONS CLOSED: 04/24/2004 DATE OF DECISION: 06/28/2004 BEFORE: Britton A - Judicial Member; Weule B - Non Judicial Member; Lowe A - Non Judicial Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Preliminary point LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16 Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 [at 35] APPLICANT REPRESENTATION: B Nesci, solicitor RESPONDENT C Ronalds, barrister ORDERS: The application made under s 111(1) of the Anti-Discrimination Act is dismissed. REASONS FOR DECISION 1 This decision concerns an application made by the TAFE Commission of NSW ("TAFE") under s 111(1) of the Anti-Discrimination Act 1977 ("A-D Act"). TAFE seeks to have paragraph 5 deleted from the Applicant's points of claim, which states: The offer [of voluntary redundancy made by the TAFE to Mr Nesci by letter dated 10 January 2001] was predicated on the fiction that the continued employment of the Applicant in the Southern Sydney Institute of the Respondent was affected by surplus capacity." 2 Section 111(1) provides that at any stage of an inquiry the Tribunal may dismiss the complaint if it is satisfied that it is frivolous, vexatious, misconceived, lacking in substance or that for any other reason the complaint should not be entertained. 3 TAFE is, strictly speaking the applicant in these proceedings. However for convenience, we refer to it as the Respondent, and Salvatore Nesci as the Applicant. Background 4 Before turning to the merits of this application, we set out a brief history. 5 Mr Nesci, was employed as a language teacher at the St George College of TAFE from 1995 until January 2001, when he took an offer of redundancy. On 4 February 2001 and 20 March 2001 he lodged complaints alleging unlawful discrimination on the grounds of disability (liver disease and severe arthritis) in the area of employment with the President of the Anti-Discrimination Board ("the President"). The first of those complaints has been settled and is not the subject of these proceedings. On 20 August 2003, the President referred the complaint lodged on 20 March 2001 to the Administrative Decisions Tribunal ("the Tribunal"). 6 That complaint was set down for hearing on 23, 24 and 25 February 2004. On the first day of hearing the Respondent applied under s 111(1) of the A-D Act to have paragraph 5 of the Points of Claim struck out on the ground that that claim was outside the jurisdiction of the Tribunal. That application was not granted. The Respondent then announced its intention to make a further application under s 111(1) on the grounds that it was misconceived and lacked substance. 7 By way of directions made on 23 February 2004, the Applicant was given the opportunity to put on further evidence in support of paragraph 5. On 3 March 2004, the Applicant filed an affidavit made by John Bailey dated 2 March 2004. The Applicant also indicated that he sought to rely on the statement of Mr Stoddart, dated 7 January 2004, particularly paragraph 19. Evidence 8 We understand paragraph 5 to assert that the Respondent's claim that it had staff surplus to its needs was merely an invention or fiction used to trigger Mr Nesci's redundancy. 9 As noted, it is contended for Mr Nesci that the evidence proposed to be given by Messrs Bailey and Stoddart supports this assertion. Mr Bailey was a teacher of English as a second language (ESOL) and a work colleague of Mr Nesci. Two affidavits deposed by him have been filed in these proceedings, dated 27 January 2004 and 2 March 2004 (respectively, the first and second affidavit). In his first affidavit he states at paragraph 18: "…I was most surprised that redundancy was ever offered to Mr Nesci. As far as I knew, redundancies were only ever offered to excess staff in areas of teaching which experienced low demand. ESOL has always been in high demand and management including Mr Kouros were always complaining that languages had constant staff shortage. I can only conclude that the offer of redundancy made to Mr Nesci was specially created to avoid the Institute's responsibility to assist him." 10 In his second affidavit, Mr Bailey explains how he came to know about the redundancy round involving Mr Nesci. He gives the following account of a conversation he had with Graham Kretchmer, Assistant Director, Strategic Operations: Me [Bailey]: "Graham does the fact that I have received a letter offering me redundancy [dated 12 January 2001] mean that my job at St George is under threat?" Kretchmer: "Don't worry John, there is no need for concern, this offer of redundancy is not aimed at you. Your position is quite safe there is plenty of demand for ESOL teachers." 11 The Applicant also relies on the evidence proposed to be given by the Respondent, namely the statement of Mr Stoddart, dated 7 January 2004: At the time I thought the offer of Voluntary Redundancy to Mr Nesci was a very generous offer, especially for a language teacher as it is generally is a high demand area. Submissions 12 As noted, the Respondent submits that paragraph 5 ought be struck out on the grounds that it is misconceived and lacking in substance. Further it is contended that the claim is so serious that to permit it to proceed would amount to an abuse of process and the public airing of such an unsubstantiated claim would undermine the reputation of the Tribunal itself. 13 Counsel for the Respondent contends that the Applicant's proposed evidence does not support the claim made in paragraph 5. Specifically, it does not establish the essential factual matrix needed to sustain it. Nor, it is argued, do the primary facts as asserted by Mr Bailey, provide any basis for the inferences drawn. In short, it is argued, that the Tribunal would need to draw a very long bow on the basis of that evidence. Such an approach, it is contended, is simply not permissible under the A-D Act. 14 In addition, it is argued that the statement of Mr Stoddart is not available to the Applicant to bolster his case. The Respondent argues that it may or may not call this evidence in the substantive proceedings. Accordingly the evidence must be ignored for the purpose of this application. In any event, it is argued that Mr Stoddart's evidence does not support the claim made in paragraph 5. Findings and Conclusions 15 This application raises a preliminary point which has not been addressed in any detail by either party in submissions, namely whether s 111(1) can be used to strike out paragraph 5. At best, paragraph 5 constitutes a factual assertion which may or may not be relevant to the determination of the Applicant's complaint of disability discrimination in the area of employment. 16 The term "complaint" is not defined in the Act. Section 88(1) gives some guidance and refers to "a complaint in writing in respect of any contravention of this Act …"[emphasis added]. Once a complaint made under s 88 is received, the President is obliged to investigate that complaint (s 89(1)). The President, in turn, is required to refer the complaint to the Tribunal together with a report relating to any inquiries made by the President into the complaint. Section 111(1) provides that where the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason, the complaint should not be entertained, it may dismiss the complaint [emphasis added]. 17 Counsel for the Respondent correctly points out that the Appeal Panel in the Commissioner of Police, New South Wales Police Service -v- Orr (EOD) [2001] NSWADTAP 16 expressed the view at [18] that s 111(1) could be used to dismiss part of a complaint: The Tribunal has previously utilised s 111 in order to dismiss part only of a complaint, although the point was not argued in the proceedings: Wensley v Director General, Dept of Education and Training [2000] NSWADT 142. For our part, we see nothing objectionable in utilising s 111 to dismiss part of a complaint in respect of which the Tribunal does not have jurisdiction, but on one view, there need be no resort to s 111 because what is sought to be dismissed was never properly before the Tribunal in the first place (see Phillpot v The Spastic Centre of NSW, unreported, 2 May 2001). 18 In Orr, the initiating complaint lodged with the President detailed 12 specific incidents or "acts of discrimination". After referral to the Tribunal, an Amended Points of Claim was filed which particularised 14 "complaints" or "acts of discrimination". The first two "complaints" pre-dated the period covered in the initiating complaint, the remainder corresponded with those detailed in that complaint. 19 The Appeal Panel held that the Tribunal below had erred by not granting the Appellant's Commissioner application, made under s 111(1), to strike out the first two of those "complaints". The Appeal Panel at [17] explained: "They were never part of the complaint as referred to the Tribunal and cannot now be deemed to be within its jurisdiction." 20 The two "complaints" struck out by the Appeal Panel referred to separate incidents which, if proven, were capable of disclosing a contravention of the A-D Act. In contrast, paragraph 5, if proven, would not disclose a contravention of the A-D Act. At best, it might go to establishing one of the elements necessary to establish a complaint of so-called "direct" discrimination. It is nothing more that a factual assertion. The analogy to be drawn is a material fact alleged in a pleading in civil proceedings before courts. 21 We are not persuaded that the reference by the Appeal Panel to "part of a complaint" embraces mere factual assertions of the kind set out in paragraph 5. Rather, in our view, it would seem that the Panel was referring to part or parts of a complaint (or contravention of the A-D Act) capable of being defined and dissected from the complaint. In this case it is simply not possible to define and consequently strike out that part of the Applicant's complaint of disability discrimination that rests on paragraph 5. If the Respondent's strike out application did succeed, no part of the complaint would be set aside, rather one of the factual assertions set on which the complaint rests would be deleted from the Points of Claim. 22 For these reasons we are of the view that it is not open to the Applicant to make the application now before us under s 111(1). 23 In case this analysis proves ultimately to be incorrect, we proceed to determine whether paragraph 5 should be deleted on the grounds advanced by the Respondent. 24 The Respondent bears the onus of proving that paragraph 5 ought be struck out on the grounds as asserted. The Respondent's primary submission is that it lacks substance, as there is no proper evidence to sustain it. It is common ground that the proper approach to be taken by the Tribunal is to take the Applicant's evidence at its highest point or to assume that everything which the applicant has put in evidence is true and then determine whether the claim could possibly succeed, (see Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 [at 35]). 25 Before proceeding to consider the evidence, the alleged fiction referred to in paragraph 5 must be placed in context. In its letter to Mr Nesci dated 10 January 2001, the Respondent stated, "Your continued employment in the Institute is affected by surplus capacity". 26 That part of Mr Bailey's first affidavit which is relied on by the Applicant to support his claim is somewhat unsatisfactory. At paragraph 18 he states: · Redundancies were only ever offered to excess staff in areas of low demand; · ESOL had always been in high demand; · Management were always complaining that languages had a constant staff shortage. 27 Mr Bailey does not tell us how he came to know of these matters. Nor does he tell us on what basis he reached the conclusion that Mr Nesci was offered a redundancy "to avoid its [TAFE'S] responsibilities to assist him". Mr Bailey's opinion is of no probative value without some indication of the basis for his conclusion. 28 Mr Bailey's subsequent affidavit goes some way to addressing these shortcomings. There, he reports a conversation with Mr Kretchener who, on his account, told him that the redundancy was not aimed at him and that there was continuing demand for ESOL teachers. 29 Taken at its highest, Mr Bailey's account of that conversation could support the assertion that the claim of surplus capacity was not true. However, that evidence does not establish the second assertion implicit in paragraph 5, that the offer of redundancy was predicated on, or somehow connected to, that alleged fiction. There is no direct evidence of any causal connection between the two. The question that must then be asked is whether such an inference can be drawn from these facts. The Tribunal must be satisfied that there is a probable connection between the two, not a mere possibility of a connection. 30 In the final analysis, it may be, as the Respondent asserts, that there is insufficient evidence to support the assertions made in paragraph 5. Our task, however, is not to weigh up the evidence and determine whether the Applicant has discharged the onus of proof. Rather we must decide whether there is some evidence from which we could conclude that the assertion could be sustained. 31 We are satisfied that there is such evidence. Accordingly, it is not necessary to consider the submissions made in respect of Mr Stoddart's evidence. Orders 32 The application made under s 111(1) of the A-D Act is dismissed. 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.