Drane -v- South Sydney City Council [2000] NSWADT 89

CITATION: Drane -v- South Sydney City Council [2000] NSWADT 89 DIVISION: Equal Opportunity Division APPLICANT Susan Drane PARTIES: RESPONDENT South Sydney City Council FILE NUMBER: 104 of 1998 HEARING DATES: 02/07/99, 27/08/99, 13/12/99, 14/12/99 SUBMISSIONS CLOSED: 12/14/1999 DATE OF DECISION: 07/06/2000

BEFORE: Rice S - Judicial Member; McDonald O - Member; Edwards K - Member APPLICATION: Sex Discrimination - In work - Victimisation MATTER FOR DECISION: Application under section 111 (1) LEGISLATION CITED : Anti-Discrimination Act 1977 CASES CITED: Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26 Grant v John Grant & Sons Pty Ltd (1954) 91 CLR 112 REPRESENTATION: D Russell, barrister M Joseph QC, barrister ORDERS: 1. Pursuant to Section 111 (1) of the Anti-Discrimination Act the complaint of discrimination on the ground of sex is dismissed, for the reason that its prosecution is barred by a release given by the complainant to the respondent on 15 September 1997.; 2. Pursuant to Section 111 (1) of the Anti-Discrimination Act the complaint of victimisation is dismissed, for the reason that its prosecution is barred by a release given by the complainant to the respondent on 15 September 1997; 3. Each party shall pay their own costs.

1 The Tribunal has decided that Ms Drane signed a deed of release exercising her own will. She was not subject to duress or undue influence. She knew the effect of the deed at the time she signed it. 2 The Tribunal says that the deed of release executed by Ms Drane on 15 September 1997 is a complete bar to her conducting these proceedings. 3 The Tribunal dismisses Ms Drane's complaints of discrimination and victimisation, and orders that each party shall pay their own costs. CHRONOLOGY 4 Ms Susan Drane is the complainant. On 27 February 1997 she complained to the Anti Discrimination Board against South Sydney City Council, the respondent. She alleged, under the Anti Discrimination Act 1977 (NSW) ("the ADA"), discrimination on the grounds of sex in the course of her employment with SSCC. 5 Ms Drane's employment with SSCC was terminated on 9 April 1997. On 23 April she commenced proceedings in the Industrial Relations Commission of NSW alleging that the termination was unfair. 6 By letter dated 2 June 1997 Ms Drane advised the Anti-Discrimination Board of her "wish to withdraw (her) discrimination complaint against South Sydney Council, due to current action in the Industrial Relations Commission." 7 On the same day, 2 June 1997, Ms Drane signed and filed in the Industrial Relations Commission an undertaking in the form of Form 11 as required by Section 90 of the Industrial Relations Act 1996 (NSW). That undertaking was "not to proceed for redress under, or seek an inquiry under the NSW Anti Discrimination Act 1997/GREAT relating to my dismissal or threatened dismissal on 9/4/1997". 8 By letter dated 1 August 1997 Ms Drane advised the Anti-Discrimination Board that she had "had further legal advice that (she) can have a case lodged with the Anti-Discrimination Board and action in the Industrial Relations Commission." She wrote "I therefore wish to re-activate my claim but do not wish any further action until after my termination case against South Sydney Council goes before the Industrial Relations Commission from 15 September 1997." 9 By letter dated 10 August 1997, Ms Drane made a further complaint to the Anti-Discrimination Board against SSCC, alleging that her "dismissal was breach of section 50(a) of the NSW Anti Discrimination Act". This was a complaint of 'victimisation'. 10 On 15 September 1997, in the course of the proceedings in the Industrial Relations Commission, Ms Drane signed a deed of release. The deed of release evidences an agreement between Ms Drane and SSCC by which Ms Drane released SSCC from any claim that she may have had against it, including "any action pursuant to the Anti Discrimination Act 1977 (NSW)". SSCC agreed to, and did, pay Ms Drane $10,000. Ms Drane and SSCC agreed to discontinue the proceedings in the Industrial Relations Commission. 11 On becoming aware of the existence of the deed of release, the President of the Anti Discrimination Board formed the view that he was unable to conciliate either complaint, and he made a referral to the then Equal Opportunity Tribunal under section 94 (1) of the ADA. 12 In summary, on the same day that Ms Drane signed the section 90 undertaking in the Industrial Relations Commission, she withdrew from the Anti Discrimination Board her complaint of discrimination on the grounds of sex. She subsequently purported to 'reactivate' that complaint, and made a further complaint of victimisation. On the day that Ms Drane signed the deed of release in the Industrial Relations Commission she had two current complaints with the Anti Discrimination Board, one relating to the terms and conditions of her employment and one of victimisation. Jurisdiction 13 The jurisdiction of this Tribunal arises from the operation of section 96 and, in this case, section 94 of the ADA. 14 When referring a complaint to the Tribunal the President also refers to the Tribunal 'a report relating to any inquiries made by the President into the complaint' (s94(1)). 15 The terms of the Presidents referral are the key to the Tribunal's jurisdiction. Unfortunately but not fatally the referral and the document supporting it are ambiguous in this case. 16 In the President's report is the President's referral letter of 18 August 1998. The letter says "On 27 February I received a complaint . . .alleging discrimination on the ground of sex. On 13 August 1997 I received further correspondence from Ms Drane alleging victimisation from her employer". The President is here describing two separate complaints. He goes on to say, however, "the complaint (sic) could not be conciliated. As a result I am now referring the complaint (sic) . . . A report of my investigation of the complaint (sic) is attached". 17 The attached report of the President's investigation includes at Tabs 1 and 4 the separate letters of complaint from Ms Drane. In the President's first letter to SSCC, dated 31 March 1998 at Tab 6, the President says "I have received complaints (sic) from Ms Drane . . ." In the same paragraph however he says "Details of the complaint (sic) are attached". Attached to that letter are documents preceded by a title page headed "Annexure A the complainant has provided the following allegations of sex discrimination. . .", and documents preceded by a title page headed "Annexure B the complainant has provided the following allegations of victimisation . . .". 18 The President's letter goes on to say that "the complaint (sic) appears to come under sections 24 and 25 of the Anti-Discrimination Act . . . ", and that "the complaint (sic) also appears to come under section 50 of the Anti-Discrimination Act . . . ". 19 Clearly the complaint of sex discrimination under sections 24 and 25 of the ADA, and the complaint of victimisation under section 50 of the ADA, were both raised with SSCC as part of the President's investigation. 20 The ambiguity in the President's referral relates to the complaint under section 50, which would necessarily be a further or additional complaint and could not, despite the wording of the President's letter, be a further particular of one complaint. Clearly it was within the contemplation of the President to refer the complaint of victimisation, although the letter of referral seems to be mistaken, or poorly worded, in characterising it as part of an existing complaint. The President's investigations treated it, properly, as a separate complaint although not consistently so. 21 As a formal matter it appears that the complaint of victimisation under section 50 has been referred to the Tribunal. Accordingly the Tribunal has and is exercising jurisdiction in relation to that complaint. Matters in issue 22 Pursuant to directions of the Tribunal, solicitors for SSCC filed an 'Outline of Argument' dated 12 November 1998 . In that Outline of Argument SSCC said that because of the executed deed of release "the Tribunal does not have jurisdiction to hear this matter", and further that "the Tribunal does not have jurisdiction to set the deed of release aside". The Outline of Argument proposed that "these proceedings should be dismissed for want of jurisdiction". 23 On 23 April 1999, however, solicitors for SSCC filed a Notice of Motion which outlined a range of arguments as to why the complaints should be dismissed. It was not suggested there that the Tribunal has no jurisdiction. Rather it was suggested variously, and apparently in the alternative, that, in summary, Ms Drane has received accord and satisfaction from SSCC; that in any event Ms Drane has released SSCC from any liability; that Ms Drane has given an undertaking not to proceed against SSCC; and that in the circumstances Ms Drane is estopped from proceeding against SSCC. 24 2 July 1999 was the first day of the hearing. The parties, each represented by counsel, agreed with the Tribunal that SSCC was, in essence, relying on the defence of release release which would bar Ms Drane proceeding at all. The parties therefore agreed that the Tribunal's inquiry would begin with an inquiry into and decision on the merits of this defence which would, if established, be a complete bar to her pursuing a claim under the ADA. 25 If the terms of the deed purported to release SSCC only from liability for damages, then Ms Drane could argue that she is at least entitled to pursue her claim under the ADA, and that the effect of the deed of release would only be relevant in relation to liability for damages if a breach of the ADA is established. But the terms of the deed purport to release SSCC not simply from liability for damages but from any claim Ms Drane might have. Thus while the Tribunal has jurisdiction arising from the President's referral, Ms Drane would be barred from prosecuting her claim at all. 26 If the Tribunal finds that Ms Drane's maintenance of the proceedings is barred by the terms of the deed of release, then there will be no need for the Tribunal to take the inquiry further, and appropriate orders will be made to dispose of the matter. Time and expense is saved in not unneccesarily conducting an inquiry into merits of the complaints. If the Tribunal finds that the proceedings are not barred by the deed of release, then the inquiry will proceed as to the merits of Ms Drane's complaints. 27 This approach was agreed to by the parties on 2 July 1999 (pages 4 and 5 of the transcript). It is consistent with the obligations on the Tribunal under section 73 of the Administrative Decisions Tribunal Act 1997 (NSW) ('the ADTA'), particularly sections 73(3) and 73(5) which oblige the Tribunal to act without regard to technicalities or legal forms, and to act as quickly as practicable. 28 The Tribunal's power to consider and decide "issues raised by the defences of release by deed" is supported in those terms by the majority on Qantas Airways Ltd v Gubbins and Others (1992) 28 NSWLR 26 at 31A-B, who said that: "the tribunal must have jurisdiction to adjudicate on those defences" (at p 31G). Parties' evidence and submissions 29 Although her complaints are properly before the Tribunal because of the President's referral, is Ms Drane barred from pursuing it because of the terms of the deed of release? On its face the deed of release has that effect. 30 The relevant clause is clause 3 which reads in full: