OE v Hunter Area Health Service and OF [2005] NSWADT 2

CITATION: OE v Hunter Area Health Service and OF [2005] NSWADT 2 DIVISION: Equal Opportunity Division APPLICANT PARTIES: OE RESPONDENTS Hunter Area Health Service and OF FILE NUMBER: 041035 HEARING DATES: 20/10/2004 SUBMISSIONS CLOSED: 10/20/2004 DATE OF DECISION: 01/10/2005

BEFORE: Needham J - Judicial Member; Toltz D - Non Judicial Member; Weule B - Non Judicial Member APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance MATTER FOR DECISION: Principal matter LEGISLATION CITED : Anti-Discrimination Act 1977 Hill v. University of New England (1990) EOC 92-291 Langley v. Niland & Anor [1981] 2 NSWLR 104 CASES CITED: Margan v. University of Technology, Sydney [2003] NSWADTAP 65 Reyes-Gonzales v. Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Salama v Qantas Airways Limited (2002) NSW ADT 119 APPLICANT REPRESENTATION: In person RESPONDENTS P Reay, solicitor ORDERS: The complaint is dismissed with no order as to costs.

REASONS FOR DECISION The Application 1 OE ("the Complainant") made a complaint to the Anti-Discrimination Board ("ADB") on 12 December 2000 in relation to conduct by the Hunter Area Health Service ("HAHS") and one of its employees, OF, which she alleges amounted to sexual harassment in the area of employment, and victimisation. The Complainant supplied further information to the ADB on 10 September 2002 and 7 February 2003. On 24 July 2003 the President of the ADB sought information from the Hunter Area Health Service, which was supplied on 10 February 2004. 2 The President of the ADB formed the view that the complaint was not suitable for conciliation and referred it to this Tribunal for hearing, that Report being received by the Registry on 19 February 2004. 3 The complaint covered a range of behaviour from February 2000 until September 2000. Section 88(3) of the Anti-Discrimination Act 1977 ("the Act") provides:- "A complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed." The President has a discretion to receive a complaint out of time "on good cause being shown". 4 The President's Report says:- "As some of the Complaintant's allegations were out of time, submissions from the parties were obtained in relation to good cause and prejudice. The President exercised his discretion in relation to the out of time allegations and decided not to accept the allegations of sexual harassment in employment and victimisation said to have commenced in February 2000 up to 20 June 2000. These allegations which relate to the period after 20 June 2000 include further instances of OF flirting with and touching the Complainant. It appears that the Complainant alleges that the victimisation continued until her contract with the Health Service ended on 29 September 2000". 5 The Respondent has sought to have that portion of the complaint which was accepted by the President and referred to the Tribunal for hearing dismissed pursuant to s 111 of the Act. That section is headed "Tribunal may dismiss frivolous etc complaints" and provides, relevantly:- "(1) Where, at any stage of an inquiry, 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." The Complaint 6 The Complainant complains that in August 1999 she commenced working in Risk Management for HAHS under OF. She had been working for HAHS in various roles and on various kinds of contract since 1993. She alleges that in February 2000 she worked back with OF, and he began to ask her personal questions and to touch her neck. She alleges that he said he would like to make her a permanent employee. Later that month, she alleges that he kissed her, undressed her and himself, and made her give him oral sex. She alleges that in the ensuing days, he then continued to flirt with her, including playing with her hair. She began to suffer health problems, including thoracic pain and a psychotic episode, and her contract with HAHS ended on 29 September 2000. 7 The Complainant was questioned by the Tribunal about the parts of her complaint which occurred after 20 June 2000. She pointed to the following parts of her original complaint to the President of the ADB: - (a) "It was said that I was agitated, Ms A (the Complainant's direct boss) and OF said that this wasn't true. OF said it should not have been said but he said I said something he can't tell me what, but it didn't make sense" (President's Report page 9) (b) "He started to cause shit for me, because I wasn't working fucking him". (President's Report page 9) (c) Despite the President's report, she could point to no incidents of "flirting" which took place after June 2000. The two areas of complaint identified by the Complainant appear to be the totality of the complaint which falls within the timeframe of 20 June 2000 to 29 September 2000, and will be referred to as "the accepted complaints". 8 It is not clear to the Tribunal what the first accepted complaint consists of, in the sense of being able to assign to it a breach of a particular section of the Act. As to the second complaint, it was characterised in the respondent's submissions as "victimisation" (see s 50 of the Act) or "harassment" (see s 22A). It does not appear to be properly within either category. The Tribunal takes the view that the second accepted complaint is most likely a complaint of unlawful sexual discrimination under s 24(1)(a). Section 24 is entitled "What constitutes discrimination on the ground of sex" and provides, relevantly:- (1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex." 9 The later addenda to the complaint by the Complainant (received by the ADB on 10 September 2002 and 27 February 2003) deal with incidents which are either out of time (such as an allegation of unfair dismissal in 1998), or irrelevant to the matters raised in the original complaint and/or outside the jurisdiction of the ADB and the Tribunal. Those matters include allegations that she was drugged and raped, was subjected to "defamation of character" by HAHS, was intentionally made physically ill by persons at HAHS, and that her records on file at the Patient Information Management System have been altered and "shit about her" included in her files. She also complains that HAHS doctors were complicit in subjecting her to an operation in which her uterus was cut open, a microchip inserted, and she became pregnant by reason of sexual activity by her ex-boyfriend with the doctor during the operation. All of those matters are alleged to have taken place prior to 2000, some in the early 90s. She wants compensation of $8,000,000. 10 The matters which are included in the President's Report but are not part of the accepted complaint are listed in very short compass, since they are relevant to the application for dismissal by the respondent. Respondent's case for dismissal 11 The representative for HAHS (which will be referred to as "the Respondent", not withstanding that it is the applicant for orders in this case) submits that the complaint by the Complainant is "misconceived and lacking in substance". Mr Reay submits that there is nothing vexatious about the complaint given the Complainant's history of mental illness. 12 Mr Reay, for HAHS, drew the Tribunal's attention to the process by which the Complainant sought to establish her case - bearing in mind the limited scope of the accepted complaints. He noted that the Complainant was directed at a case conference to file and serve witness statements by 30 April 2004. She did not serve any documents, but she filed documents on 22 April 2004 and 28 April 2004. The letter of 18 March 2004 (filed on 22 April 2004) dealt with:- (a) the alleged sexual assault by OF; (b) OF's involvement in her employment status; (c) "the drugging and raping"; (d) being made physically ill; (e) unfair dismissal. All of these matters are matters which do not fall within the accepted complaints. 13 The Complainant included a list of witnesses she would intend to call. A number of them were not specifically identified, but were identified as Nurses from a health facility within HAHS and were given only first names or, in one instance, "a nurse with red hair". 14 The documents filed 23 April 2004 attached a doctor's certificate and some other allegations not relevant to the accepted complaints. 15 Another case conference was convened on 9 July 2004 and the Complainant directed to file all witness statements and other documents to be relied upon by 6 August 2004. The Complainant was directed, in cases of an inability to obtain a statement from witnesses employed by the respondent, to file an indication of the evidence to be given by specifically named witnesses. 16 On 30 June 2004 the Complainant filed a further document (received by the respondent on 10 August 2004). That document gave a list of HAHS employees she wished to call, only one of whom was involved with the accepted complaints, as well as a person named only by his first name, but identified as Ms A's former boyfriend. The document also gave a detailed account of the "drugging and raping" and various incidents with the Complainant's former boyfriend, all of which took place in the late 1990s. 17 During the hearing, the Judicial Member of the Tribunal questioned the Complainant about the questions which she intended to ask each of the proposed witnesses. Each question related to matters which did not relate to the accepted complaints. 18 The Respondent submitted that the Complainant had a history of unsubstantiated complaints, and tendered, without objection from the Complainant, details of some of those complaints. The complaints were in the Industrial Relations Commissions and either lapsed or were discontinued by the applicant. The respondent also points to the fact that the particular complaints made to the ADB (including, peripherally, the accepted complaints) had been investigated by the Respondent and no grounds for disciplinary action was found (see p 82, President's report). 19 The application for dismissal is made upon the following bases:- (a) the Complainant has not given any details of the accepted complaints beyond the matters quoted in paragraph 7 above (b) she has not provided any evidence in support of the accepted complaints, and the evidence which has been provided is inconsistent with the allegation of victimisation; and (c) OF would not be able to answer the accepted complaints against him, given their very broad nature and lack of particularity as to actions, times or dates. To allow the accepted complaints to proceed would be a breach of the rules of procedural fairness. 20 The Respondent submits that the accepted complaints are misconceived, lacking in substance, and have no substantive evidence in support of them. The Complainant's Response 21 The Complainant replied to the Respondent's submissions in a letter to the Judicial Member which was marked Exhibit A2. She listed a doctor whom she would wish to call as a witness, to "confirm the drugging and raping", and another list of witnesses she wished to be called, including her ex-boyfriend's mother. These witnesses, too, do not relate to the accepted complaints. In Exhibit A2, the witness says that she did not agree with the President's decision only to refer certain parts of the complaint, but does not take that matter further. 22 Annexed to Exhibit A2 is another copy of the detailed account of the history of the "drugging and raping", a transcript of a "report back" to the Industrial Relations Commission dated 22 April 1999 before Harrison DP, and an account by the Complainant of events in 1997 and 1998, as well as a reference to the alleged sexual assault in 2000, headed "Evidence for Legal Aid Application". Consideration of the Application 23 In determining a matter where the Complainant is not represented by a lawyer, it is important to have a generous approach to the manner in which an approach is formulated. Where a lawyer may plead the elements of a complaint, a lay person may "tell the story" in a lengthier but less particularised manner. It is incumbent on the Tribunal to analyse the complaint to ascertain its elements. 24 The Tribunal is, however, bound by the matters which are referred by the President of the ADB. The referral of the complaint by the President is the source of the Tribunal's power to hold an inquiry. The scope of the inquiry is determined by the complaint referred to the Tribunal by the President. The Tribunal has no jurisdiction to investigate any contravention of the Act which falls outside the ambit of the complaint referred by the President - see Salama v Qantas Airways Limited (2002) NSW ADT 119 at [16]. 25 In this matter, the only part of the complaint which was accepted by the President and referred to this Tribunal are the accepted complaints set out in paragraph 7 above. 26 The words "misconceived" or "lacking in substance" apply where there exists no factual basis for the allegations, or that the allegations lack merit - see Langley v. Niland & Anor [1981] 2 NSWLR 104 at 107D-G; Reyes-Gonzales v. Sydney Institute of Technology (1998) NSWEOT (6 March 1998) at 6. The words "frivolous" and "vexatious" reflect the summary dismissal provisions of Part 13 r 5 of the Supreme Court Rules. In effect, the respondent needs to show that the case is hopeless; a submission that the applicant's complaint is lacking in substance is analogous with a "no case to answer" submission in civil proceedings. See Hill v. University of New England (1990) EOC ¶92-291 at 77,940. The applicant's case must, in effect, be taken at its highest and the question asked - if the facts alleged by the applicant are proved at a hearing, will the applicant still fail? Of course, some applicants require proof of issues through cross-examination of the respondent's witnesses, and that factor should be taken into account when assessing likelihood of success or failure on a s 111 application. 27 In Margan v. University of Technology, Sydney [2003] NSWADTAP 65, the Appeal Panel said:- "The Tribunal has warned that extreme caution must be exercised when determining a s 111(1) application prior to the substantive hearing. In Orr v Commissioner of Police, New South Wales Police Service [2000] NSWADT 150 the Tribunal rejected a party's request to deal with the s 111 application prior to the hearing, on the basis that there was no evidence or agreed facts on which the Tribunal could base its decision. Similarly, the Tribunal in Karekar v Tafe Commission of New South Wales [2000] NSWADT 187 expressed the view that particular caution is necessary in cases where the s 111(1) application is made prior to the adducing of the applicant's evidence at the substantive hearing. We agree, but the warning warrants refinement. It is the case that when the s 111 application is, in effect, a challenge to the sufficiency of the evidence available to support the Complainant's version of events, the application would most usually be made only after the Complainant's case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case, as we discussed above. But when the s 111 application is, instead, one that goes to the Tribunal's jurisdiction – one that claims, for example, that the allegations even if proved do not identify conduct proscribed by the Act, or that the respondent is exempt from the provisions of the Act – then it will often be appropriate for that application to be made at the earliest opportunity so as to save time and cost." 28 As for the first accepted complaint, it is not the case that there is simply no evidence to support the complaint. The complaint itself is too vague to be justiciable. On its broadest reading, OF said that the Complainant was "agitated", and then something else was said by someone. The Complainant was not able to expand on the substance of this complaint. Given the unsatisfactory terms of the complaint, and in addition to that, the lack of evidence and particularity, the first accepted complaint must be seen as "lacking in substance" or "frivolous", in that it does not disclose a cause of action. The first accepted complaint should be dismissed. 29 As to the second accepted complaint, "he started to cause shit for me, because I wasn't working fucking him", the question is a little more complex. It is true that, taken alone and out of context of the rest of the complaint, such an allegation could form the basis of unlawful discrimination on the grounds of sex. Normally, that finding would be enough to allow the matter to go forward, if the Complainant could show that there was the likelihood of some evidence to substantiate the claim. 30 The situation is that, after two directions for evidence to be filed and served, and a further list of witnesses in the submissions made in defence of the application for dismissal, there is simply no evidence to support the allegation made in the second accepted complaint. The Appeal Panel in Margan warns of the importance of bearing in mind the evidence which might be adduced by cross-examination or by documents in the hands of the respondent, to which the applicant, at the time of providing her statements of evidence, may not have access. In order to deal with this factor and to establish what that evidence might be, the Complainant was, as we have said above, questioned closely and repeatedly on the kind of questions she intended to ask witnesses to establish her case. In relation to each witness, she indicated that she intended to ask questions which related only to the matters which were declined by the President as being out of time, or the matters which took place in the late 1990s which were not part of the original complaint in any event. 31 Mr Reay based his submissions on the fact that there was a lack of "any substantive evidence" to support the allegation of discrimination on the grounds of sex. This is true. In the light of the decision of the Appeal Panel in Margan, it may not be quite enough to give the Tribunal the required level of satisfaction to ground a dismissal. However, the Tribunal has the power to dismiss proceedings if it is satisfied that "for any other reason" the complaint should not be entertained. 32 In this case, the Tribunal is satisfied that there is another reason, in addition to the lack of any evidence to support the complaint, why the complaint should be dismissed. The Complainant showed throughout the documentation provided and at the hearing itself that her real complaint is not the second accepted complaint, but the broader complaints against HAHS that start in the mid-90s with allegations of complicity in her then boyfriend "drugging and raping" her, in achieving her pregnancy without her sleeping with her then boyfriend, in operating upon her so as to ensure that she had no further children and inserting a microchip, and then buying off various witnesses so that she could take her complaints no further. None of these issues are issues which could be a complaint before this Tribunal. She further concentrated, in the documentation provided and at the hearing, on the alleged sexual assault by OF and the fact, which she wishes to call doctors and other witnesses to prove, that "his sperm was on the floor in my office". That complaint was declined by the President as being out of time and it was not part of the accepted complaints referred to the Tribunal. The allegation of "causing shit for me" is, at best, peripheral to the real focus of the Complainant, and even when she was given specific opportunities to provide further detail and to outline the evidence she wished to call in relation to that allegation, she was not able to do so. 33 There is nothing in the documentation or in the conduct of the Complainant at the hearing which gives the Tribunal any comfort that the focus on the issues raised by the Complainant as being the real issues in these proceedings are likely to change. 34 The Tribunal regards the second accepted complaint as being frivolous, in the sense of being brought as a secondary part of a complaint, the main focus of which is not properly before the Tribunal but would be sought to be agitated by the Complainant if the second accepted complaint were to be allowed to proceed. To use the Tribunal to agitate matters which is has no jurisdiction to hear is an abuse of process of the Tribunal. 35 The second accepted complaint is also lacking in substance, in the sense that there is, and appears that there will continue to be, no evidence to support it. 36 Finally, the Tribunal takes the view that allowing the second accepted complaint to go forward will result in OF having to face unsubstantiated, unparticularised allegations of very broad scope in a manner which would be a breach of the rules of procedural fairness. There is no reasonable likelihood of the Complainant providing proper particulars of the case, based on the substance and style of the proceedings to this point. That in itself is a sufficient reason within the meaning of s 111 of the Act to dismiss the second accepted complaint. With the addition of the other two factors, the Tribunal has no hesitation in ordering that the Respondent's application for a dismissal be granted. 37 The Respondent has taken the view that it will not seek an order for costs. Accordingly, the complaint is dismissed with no order as to costs.