McCoy v Chandler [2008] NSWADT 167

CITATION: McCoy v Chandler [2008] NSWADT 167

DIVISION: Equal Opportunity Division

APPLICANT Donna McCoy PARTIES: RESPONDENT Nigel Chandler

FILE NUMBER: 081016

HEARING DATES: 11 March 2008

SUBMISSIONS CLOSED: 8 April 2008

DATE OF DECISION: 11 June 2008

BEFORE: Needham J SC - Deputy President

CATCHWORDS: Application for leave to proceed

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3

APPLICANT In person REPRESENTATION: RESPONDENT R Ferry, solicitor

ORDERS: Leave to proceed granted pursuant to section 96 of the Anti-Discrimination Act 1977.

REASONS FOR DECISION 1 Mrs Donna McCoy, the applicant, lodged a complaint dated 18 May 2007 with the Anti-Discrimination Board ("ADB") on 29 May 2007, against her then employer, Dairy Farmers (Australian Co-Operative Foods Ltd) ("the Dairy Farmers complaint"). Those proceedings were settled on 7 March 2008 and Mrs McCoy withdrew her complaint. That withdrawal was accepted by the ADB and the Dairy Farmers complaint was terminated pursuant to section 92A of the Anti-Discrimination Act 1977 ("the AD Act") (see letter ADB to parties in the Dairy Farmers Complaint 7 March 2008). 2 The Dairy Farmers complaint incorporated a report of a private investigator, which set out details of Mrs McCoy's allegations of sexual harassment in the workplace. 3 Mrs McCoy later on 19 November 2007 lodged a complaint against Nigel Chandler, one of her co-workers at Dairy Farmers ("the Chandler complaint"). The Chandler complaint was declined as lacking in substance by the ADB on 21 January 2008. On 13 February 2008 Mrs McCoy requested that the Chandler complaint be referred to the Administrative Decisions Tribunal pursuant to section 93A. 4 The Chandler complaint is one victimisation by the writing of an anonymous letter to Mrs McCoy's husband. She also alleges victimisation by Mr Chandler because she made a complaint of sexual harassment to her employer about other employees. The letter commencing the Chandler complaint is dated 19 November 2007 (that is, while the Dairy Farmers complaint was on foot) and refers to the Dairy Farmers complaint as "the initial complaint". The letter of 19 November 2007 commences: "Please find following an amendment to my initial complaint dated 18 May 2007 against Dairy Farmers". The letter then goes on to add the complaints against Mr Chandler of victimisation to the complaints in the Dairy Farmers complaint. 5 For some reason the ADB did not treat the Chandler complaint as an amendment to the Dairy Farmers complaint, but gave it a separate complaint number and treated it for all purposes as a separate complaint. The Chandler complaint was declined as lacking in substance on 21 January 2008. 6 The matter was listed before me on 11 March 2008 for leave to proceed, as a result of the complaint having been declined as "lacking in substance". It became immediately clear that there were difficulties in outlining the parameters of the complaint. 7 Mr Ferry, solicitor for Mr Chandler, had not acted for Dairy Farmers and so had not seen the Dairy Farmers complaint. After some initial discussion with both parties (who each attended by telephone), Mrs McCoy agreed to provide and Mr Ferry agreed to consider the contents of the Dairy Farmers complaint and the matter was adjourned for written submissions to be made on the issue of the constitution of the complaint. Those written submissions were eventually received and the matter now comes for determination of the following questions: (a) Is the Dairy Farmers complaint, as far as it relates to Mr Chandler, part of the matter referred to this Tribunal either by way of incorporation by reference in the Chandler complaint, or by way of an amendment? (b) Does this Tribunal have jurisdiction to consider the Dairy Farmers complaint if it does form part of the Chandler complaint, as it has been terminated by the ADB? (c) Once the parameters of the complaint has been determined, should Mrs McCoy be granted leave to proceed with the Chandler complaint? Legislation 8 The relevant parts of the AD Act are as follows: 89 Form and content of complaints (1) A complaint is to be in writing but does not have to take any particular form. (2) A complaint, as made, need not demonstrate a prima facie case. 91C Amendment of complaint (1) If, at any time after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal: (a) the person making the complaint seeks to amend the complaint, or (b) the President becomes aware of information that could conveniently be dealt with as part of the complaint, … the person making the complaint is to be offered the opportunity to amend the complaint. (2) An amendment may be made in writing but, if further written material is already in the possession of the President or the Board, the President may treat the written material as if it formed part of the complaint. (3) If a complaint is amended at any time, the respondent must be informed in writing by the President of the substance of the amendment and, if the effect of the amendment is to cause the complaint to be made against further or other persons, they must be informed in writing of the complaint as amended. (4) Section 89B applies to the amendment of a complaint in the same way as it applies to the making of a complaint. 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or … the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. 94A Form of complaint to be referred to Tribunal (1) If a complaint is referred to the Tribunal under this Division, the complaint is to comprise: (a) the original complaint lodged with the President, and (b) any amendment made pursuant to section 91C, and (c) any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations. (2) A complaint that is referred to the Tribunal is to be accompanied by a report relating to any investigation by the President of the complaint. 95 Referral of complaints to Tribunal (1) A complaint may be referred to the Tribunal by the President under section 90B, 93A, 93B or 93C. (2) The Minister may refer any matter to the Tribunal as a complaint. (3) For the purposes of the Administrative Decisions Tribunal Act 1997, the referral of a complaint to the Tribunal is taken to be an application for an original decision within the meaning of that Act. 9 The relevant sections of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") are as follows: 37 Conferral of jurisdiction to make original decisions The Tribunal has jurisdiction under an enactment to act as the primary decision-maker if the enactment provides that applications may be made to it for decisions made in the exercise of functions conferred or imposed on the Tribunal by or under that enactment. 45 Tribunal has the functions conferred or imposed by or under enactment In determining an application for an original decision, the Tribunal has such functions as are conferred or imposed on the Tribunal by or under the enactment under which the application is brought. 81 Amendments and irregularities (1) The Tribunal may, in any proceedings before it, make any amendments to the proceedings that the Tribunal considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings (including the commencement or purported commencement of proceedings), and (b) on such terms as the Tribunal thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Tribunal is not complied with in relation to the commencement (or purported commencement) of proceedings or conduct of proceedings before the Tribunal, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings or any decision in the proceedings. (4) For the purposes of sub-section (3), the Tribunal may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. The parties' submissions 10 Pursuant to directions, the applicant provided a copy of the Dairy Farmers complaint to Mr Ferry. I note that only part of the complaint (that is, those parts submitted by Mrs McCoy) were provided; the complaint does not include replies by the various respondents. Mr Ferry does not take issue with that. 11 Mr Ferry replied by way of submission dated 14 March (but received by the Registry on 18 March 2008, four days out of time). The submissions were not supplied to Ms McCoy by Mr Ferry. 12 Mr Ferry submitted that (and I summarise): - the Chandler complaint purported explicitly to be an amendment to the Dairy Farmers complaint; - the Dairy Farmers complaint refers to, but does not make specific allegations against, Mr Chandler; - the anonymous letter is alleged, in the Diary Farmers complaint, to have been sent by a Mr Peters. In the Chandler complaint, Mrs McCoy refers to forensic evidence to establish Mr Chandler as the author of that letter. - The Chandler complaint was an amendment of the Dairy Farmers pursuant to section 91C; - Accordingly, the Chandler complaint is part of the Dairy Farmers complaint, despite the separate file number, and as that complaint has been terminated there is no complaint on foot. - When it became clear that Mrs McCoy had not received a copy of the submissions, the Tribunal forwarded one to her. Amended directions were made. Her submissions were received on 7 April 2008. Those submissions are (and I summarise): - as Mr Chandler was a separate party from Dairy Farmers a separate complaint was required; - Mr Chandler was not a party to the Dairy Farmers proceedings and so cannot be bound by the termination of complaints numbers 2007/0465 and 2007/046. (The Chandler complaint was given number 2007/1030); - The Deed of Release between Mrs McCoy and Dairy Farmers, which is not in evidence before me, was between Mrs McCoy and Dairy Farmers only and excluded liability of employees including Mr Chandler; - (semble) The Chandler complaint incorporates the relevant details of the Dairy Farmers complaint by reference because "liability not only applies to companies, it also applies to individuals". Consideration - what is the complaint? 13 This matter, seemingly a simple one of an administrative allocation of different file numbers, raises some interesting jurisdictional questions. Firstly, what is "a complaint"? The complaint against Mr Chandler was in writing (section 89). While it expressly purported to be an amendment to the Dairy Farmers complaint, it was not so treated by the ADB in its administrative processes. A separate file number was allocated. 14 Section 91C allows the ADB to amend complaints. The amendment also needs to be in writing. Once an amendment is accepted, the President must provide, effectively, an opportunity for the respondent to be heard on the amendment. Sub-section 3 provides: "(3) If a complaint is amended at any time, the respondent must be informed in writing by the President of the substance of the amendment and, if the effect of the amendment is to cause the complaint to be made against further or other persons, they must be informed in writing of the complaint as amended." 15 The "respondent" in this case was Dairy Farmers. It is not clear whether Dairy Farmers was informed of the substance of the proposed amendment that became the Chandler complaint, but it is likely, given that the Chandler complaint was given a separate number, and that Dairy Farmers were not a party, that it was not. It is clear that while Mr Chandler was informed in writing of the proposed amendment, he was not provided with the balance of the complaint. He has now been provided with part of the documents forming the Dairy Farmers complaint. 16 However, it is clear from the legislation setting up the process of the referral of a complaint by the ADB to the Tribunal that the substance of what is referred to the Tribunal is what was before the ADB. The applicant has, in the Chandler complaint material, the Dairy Farmers complaint. In so doing, she has not incorporated the Dairy Farmers material into the Chandler complaint but has raised it as evidentiary material to be taken into account in determining the Chandler complaint. 17 Now that the respondent has been served with the Dairy Farmers complaint, or at least part thereof, no prejudice arises to him in considering the Dairy Farmers material as evidence in the Chandler complaint. However, if that material is to be relied upon at any hearing of this matter, procedural fairness requires that as far as confidentiality strictures allow, the entirety of the complaint should be provided to Mr Chandler. 18 Once analysed in that way, the submissions by Mr Chandler (that, in effect, the Dairy Farmers complaint has been determined and the ADB is therefore functus in relation to that complaint – that is, it has no further jurisdiction over the matter) fall away. In any event, as Mr Chandler was not a party to the Dairy Farmers complaint, he cannot take advantage of any issue estoppel or Anshun estoppel, should such an estoppel arise out of a matter, which is being considered by the President of the Anti-Discrimination Board, which I doubt. 19 The referred complaint, which is before this Tribunal, therefore, is the Chandler complaint, and the Dairy Farmers material is evidence, which the applicant presumably would seek to bring forward if I were to grant, leave for her to proceed with this complaint. 20 The next question, therefore, is whether leave should be granted. Should leave be granted? 21 Leave to proceed is required by reason of sub-section 96(1) of the AD Act, which provides (including heading): Leave of Tribunal required for inquiry into certain matters (1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A(1), but not including a complaint to which section 91(2) applies, may not be the subject of proceedings before the Tribunal without the leave of the Tribunal. 22 In Xu v Sydney West Area Health Service [2006] NSWADT 3, the Tribunal set out its approach to determining applications for leave under section 96. Those principles have been adopted in decisions following it, and I too adopt those principles in relation to this case. In that decision, Deputy President Hennessy LCM said: "17 The legislature has not given the Tribunal the task of conducting a merits review of the President's decision. Consequently, it is not the Tribunal's task to determine whether the President has made the correct and preferable decision in declining the complaint as lacking in substance. Nor has the legislature given applicants a right to appeal to the Tribunal against the legality of the President's decision. It is not up to the Tribunal to determine whether or not the President has made an error of law. Nevertheless, as with appeals to the Court of Appeal and the Federal Court against interlocutory decisions, the legislature has given the Tribunal a gatekeeper role. That role is to ensure that a fair balance is struck between the interests of complainants in having their complaints heard and determined and the interests of respondents in not having to spend money defending unmeritorious claims. There is also a public interest in ensuring that unmeritorious complaints do not proceed to hearing. The legislature has placed the onus on the applicant to satisfy the Tribunal that the complaint should proceed notwithstanding the President's decision that it lacks substance. 18 The discretion to have a complaint heard by the Tribunal when it has been declined as lacking in substance is unfettered and should not be constrained by rigid rules or criteria. Given the drafting history, the nature of the President's decision and the decisions of superior courts in comparable circumstances, leave should be granted when the applicant is able to show a substantial reason for leave being granted. A substantial reason may include the fact that the complaint has reasonable prospects of success. To have reasonable prospects of success a complaint of direct discrimination must include some direct evidence, or evidence from which an inference can be drawn, linking the alleged treatment with the ground of discrimination." 23 In summary, the applicant needs to satisfy the Tribunal that there is a substantial reason for leave to be granted, including that the complaint has reasonable prospects of success. In the current circumstances, the applicant for leave has provided (without, of course, determining the factual correctness of that evidence or its adequacy): (a) in the Chandler complaint, some forensic basis for her assertion that the respondent is the author of the anonymous letter (see page 13 of the ADB documents within the President's Report, which was exhibit A-1 on the application for leave); (b) in the evidence provided by way of the Dairy Farmers complaint material, a factual background to the provision of the anonymous letter which details conduct which could amount to unlawful discrimination by way of sexual harassment within the meaning of section 22A of the AD Act by Mr Chandler, among others. 24 One of the results of the ADB's marking of the Chandler complaint as a separate complaint is that it seems that the complaint was declined as lacking in substance by reason of the isolated nature of the forensic evidence and the lack of background to the anonymous letter. Viewed on its own, the anonymous letter has no link to any conduct, which could be held to be victimisation within the meaning of section 50 of the AD Act. Viewed in conjunction with the material in the Dairy Farmers complaint, there is a factual background against which the letter, if proven to be sent by Mr Chandler, could be construed as victimisation. Conclusions 25 In the light of the above, and given that it does not appear that the President took into account the wider factual background sought to be raised in relation to the anonymous letter, there is a substantial reason for granting leave to proceed in this matter. Orders Accordingly, I grant leave pursuant to section 96(1) of the AD Act for the applicant to proceed with the complaint.