Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140

CITATION: Lavery v Commissioner of NSW Fire Brigades (No 2) [2003] NSWADT 140 DIVISION: Equal Opportunity Division APPLICANT PARTIES: Terence Lavery RESPONDENT Commissioner of New South Wales Fire Brigades FILE NUMBER: 011023 HEARING DATES: On the papers SUBMISSIONS CLOSED: 05/20/2003 DATE OF DECISION: 06/12/2003

BEFORE: Rees N - Judicial Member; Nemeth de Bikal L - Member; Silva A - Member APPLICATION: Damages MATTER FOR DECISION: Damages Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Supreme Court Act 1970 Supreme Court Rules 1970 Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93 Hungerfords v Walker (1989) 171 CLR 125 CASES CITED: Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 APPLICANT REPRESENTATION: B Vukadinovic, barrister RESPONDENT G Farkas, barrister ORDERS: 1. Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $21,851.51 by way of damages for economic loss

Reasons for Decision 1 On 6 May 2003 the Tribunal delivered its decision in this case. The applicant's complaint of discrimination on the ground of disability against his employer, the respondent, was found to be substantiated. The Tribunal made a number of orders for relief. Reasons for the decision and the orders for relief were published (see Lavery v Commissioner of NSW Fire Brigades [2003] NSWADT 93, hereinafter referred to as the 'earlier decision'). 2 The first order made by the Tribunal was as follows: Within 14 days of the date of this order the parties are to file and serve documents which contain calculations concerning the additional wages and other remuneration which the applicant would have received had he been employed by the respondent as a Firefighter Level 4 from 9 September 1999 to 8 September 2000 and as a Qualified Firefighter from 9 September 2000 to date. 3 The Tribunal explained its reasons for making this order at [136] to [139] in its earlier decision. As the Tribunal did not have before it, in an easily accessible form, the information which was needed to enable it to calculate the applicant's loss of wages and other remuneration which resulted from the respondent's contraventions of the Anti-Discrimination Act 1977 (the Act), the parties were ordered to undertake those calculations and to file documents in which they were recorded. The purpose of this document is to explain how we have reached the conclusion that the respondent should be ordered to pay the applicant the sum of $21,851.51 by way of compensation for economic loss. 4 At [139] in the earlier decision the Tribunal expressed the hope that the parties would find it possible to reach agreement about the precise details of the applicant's economic loss and file a joint document in which the calculations were explained. This hope has not been realised. On 20 May 2003 the solicitors for the applicant filed a letter which contains calculations of the applicant's loss of wages, including overtime, during the period referred to in the Tribunal's order. No other calculations were included in that document. 5 The solicitors for the respondent did not file any material during the 14-day period stipulated in the order. On 26 May 2003 those solicitors sent a letter to the Registrar in which they stated that the applicant's solicitors did not consult them before filing their letter of 20 May 2003 and that as the respondent disputed the applicant's calculations, "it will be necessary for this matter to be re-listed for directions regarding those outstanding issues". 6 We decided not to re-list this matter for further directions as the steps both parties were required to take in order to permit the Tribunal to calculate the applicant's economic loss were clearly set out in the earlier decision. The obvious import of the Tribunal's first order, especially when read with the comments made at [139] in the earlier decision, was that the parties were encouraged to attempt agreement concerning what we consider to be arithmetical calculations. In the event that they were unable to agree, or were not inclined to even attempt agreement, both parties were given a reasonable opportunity to prepare and file their own calculations. 7 On 11 June 2003 the solicitors for the respondent filed a letter with the Registrar in which they disputed matters set out in the applicant's solicitors' letter of 20 May 2003. No reason was advanced for the failure to comply with the 14-day time period stipulated in the first order made on 6 May 2003. The respondents' submissions are 22 days late. There have been a number of occasions throughout this case when the respondent, without explanation, has failed to comply with reasonable time limits. In the circumstances we do not propose to take the matters set out in the letter of 11 June 2003 into account as it is unfair to the applicant if the respondent continually chooses to litigate according to his own timetable rather than that set by the Tribunal and complied with by the applicant. 8 As the respondent did not avail himself of the opportunity to file his own calculations of the applicant's economic loss within the time stipulated in the order, we propose to deal with this matter by considering the applicant's letter of 20 May 2003 and the evidence which was adduced at the earlier hearing. 9 The applicant has calculated his loss of wages from 9 September 1999 to 29 May 2003 as being $11,859.16. These calculations appear to have been made in accordance with the Tribunal's decision concerning his entitlement to the remuneration of a Firefighter Level 4 from 9 September 1999 to 8 September 2000 and to the remuneration of a Qualified Firefighter from 9 September 2000 to the date of the Tribunal's orders. The only adjustment we need to make to the applicant's figures is to reduce the total sum by $232.17, which is the sum claimed from the date of the original orders (6 May 2003) to 29 May 2003. This period was dealt with in the third order made by the Tribunal on 6 May 2003 which stipulated that the applicant was to be paid at the rate of a Qualified Firefighter from that date. Thus, this minor adjustment causes the applicant's total loss of 'standard' wages during the defined period to amount to $11,626.99. 10 The applicant has also claimed the sum of $10,224.52 for lost overtime pay during this period. The Tribunal specifically referred to overtime at [138] in its earlier decision. In the absence of any evidence or submissions from the respondent which challenges the applicant's estimate of lost overtime we can see no reason why we should not include this sum in the final award of damages for economic loss. 11 The applicant's solicitors did not include any calculations for any other heads of loss in their letter of 20 May 2003. There were no claims for lost annual leave and long service leave loadings which were referred to at [138] in the Tribunal's earlier decision. There was no itemised claim for any shortfall in superannuation contributions. The applicant's solicitors simply recorded in their letter of 20 May 2003 that "[t]he Applicant's superannuation benefits under the [State Superannuation] Scheme are dependent upon the number and value of units subscribed under the scheme, which in turn is dependant upon rank". In the absence of any specific information about the number of units in the superannuation scheme which the applicant has lost as a result of the respondent's unlawful failure to promote him we are unable to award him any damages for this loss. 12 The applicant's solicitors also submitted that the applicant should be entitled to "the interest foregone or time value of the wages and overtime income the Applicant would have received but for the discrimination identified in the Tribunal's judgement and the value of superannuation contributions during the relevant period". No calculations were made but the applicant's solicitors quoted the applicable Supreme Court interest rates during the defined period. 13 This is the first occasion in this case upon which there has been any reference to a claim for interest on the applicant's economic loss. Two issues arise for consideration: first, whether the Tribunal has the power to order interest and, secondly, if the Tribunal does have that power, whether it should be exercised in the present case. 14 The Tribunal has no powers other than those granted to it by statute. Unlike the courts the Tribunal has no express statutory power to include an interest component within an award of damages (see e.g. s 94 Supreme Court Act 1970). Section 113 (1)(b)(i) of the Anti-Discrimination Act permits the Tribunal to "order the respondent to pay to the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct". Consequently, the issue for determination is whether the grant of power to award compensatory damages for loss, in this case the loss occasioned by the respondent's discriminatory failure to promote the applicant and to pay him the salary due to a firefighter at a higher rank, encompasses a power to characterise the applicant's loss of use of money as loss or damage suffered by reason of the respondent's conduct for which the applicant should be compensated by requiring the respondent to pay interest upon the sum which the applicant was 'underpaid', and hence lost the use of, during the defined period. 15 Whilst we have concluded, for the reasons set out below, that the Tribunal has the power to make such an order, we do not propose to make an order for interest in this case because the applicant has left it too late to make this claim. 16 Until recently it was clear that the courts had no power at common law to award interest for the late payment of damages (see Hungerfords v Walker (1989) 171 CLR 125 at 136-137 per Mason CJ and Wilson J). Since the nineteenth century, however, the courts have possessed a statutory power to award interest. For example, s 94 of the Supreme Court Act 1970 grants a discretionary power to that Court to award interest in respect of the period prior to judgment upon all or part of an order for damages. The existence of the courts' statutory power to award interest appears to have stalled any developments in the common law until the High Court determined in Hungerfords v Walker (1989) 171 CLR 125 that, in an appropriate case, a successful plaintiff should be entitled to receive, as part of his/her award of damages, "an actual award of damages as compensation for a wrongfully and foreseeably caused loss of the use of money" (per Brennan and Deane JJ (1989) 171 CLR 125 at 152). 17 Whilst the decision in Hungerfords v Walker (1989) 171 CLR 125 clarifies the circumstances in which a court may award interest on damages at common law, it is also of use when determining the extent of the power granted to the Tribunal by s 113(1)(b)(i) of the Act. By applying the reasoning in Hungerfords, it seems axiomatic that in proceedings under the Anti-Discrimination Act an applicant's loss of use of money, caused by the respondent's discriminatory conduct, is a "loss" within the meaning of s 113(1)(b)(i) for which the applicant may be compensated by ordering the respondent to pay a fair rate of interest upon the monies withheld or foregone. The award of compensation in this case for economic loss, being wages and other remuneration due to the applicant, falls squarely within the type of loss which may attract interest. 18 In this case the applicant did not record a claim for interest in his Amended Points of Claim. There was no reference to a claim for interest by his counsel in her written or oral submissions. The first occasion upon which there has been any reference to a claim for interest was in the applicant's solicitors' letter of 20 May 2003. Thus, this is the first occasion upon which the respondent and the Tribunal have been informed that the applicant claims interest. 19 In the courts in this State it is necessary to plead interest in order to receive an award of interest. Part 7 rule 1(5) of the Supreme Court Rules 1970 stipulates that "an order for interest…shall be specifically claimed without claiming any amount". Whilst Part 40 rule 1 permits the Court to make an order in any proceedings even though it was not specifically claimed in the originating process, this rule has been cast as a discretionary power to order relief not pleaded rather than as one which waters down the general rule that a claim for interest should be pleaded (see Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 at 605-606 per Moffitt P). As Moffitt P pointed out in that case, the rationale for the rule that a claim for interest should be specifically pleaded is that "justice requires that the defendant fairly be made aware that interest is being claimed and of the nature of the claim, so that the defendant has a proper opportunity to adduce evidence…" (Pheeney v Doolan (No 2) [1977] 1 NSWLR 601 at 606). In other words it is an issue of natural justice or procedural fairness; the defendant in any action in the Supreme Court has a right to receive reasonable notice of the claims made against him/her, and the relief sought should those claims be successful, in order to have the opportunity to exercise the right to counter those claims by leading evidence and making submissions. 20 There are no provisions in the legislation which governs this Tribunal, or in any rules made pursuant to that legislation, which stipulate that claims for relief must be stipulated in pleadings. In fact there are no statutory provisions, or rules, which govern pleadings. It is common practice in the Equal Opportunity Division to order the parties to prepare Points of Claim and Points of Defence. Such orders are made pursuant to sub-sections (1) and (6) of s 73 of the Administrative Decisions Tribunal Act 1977. Section 73(1) permits the Tribunal to determine its own procedure, subject to complying with other provisions in the Act and the rules, whilst s 73(6) permits a judicial member of the Tribunal to give directions in relation to matters of procedure. A Practice Note issued by the President of the Tribunal also governs these matters. 21 Section 73(3) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') stipulates that the Tribunal must "act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms". Whilst the precise meaning of provisions of this nature is rather difficult to articulate (see Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 and Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611), it certainly does mean that the Tribunal is directed by its governing legislation to ensure that it does not permit form to prevail over substance. 22 The Tribunal is also bound to observe the rules of natural justice (see s 73(2) ADT Act). An element of the rules of natural justice, or procedural fairness as they are now commonly known, is the right to be informed of the claims made against a person in order that there is an opportunity for evidence to be led, and submissions made, in opposition to the claims. This was the reason given by Moffitt P in Pheeney V Doolan (No 2) [1977] 1 NSWLR 601 at 606 for the existence of the rule which provides that a claim for interest must be specifically pleaded in the Supreme Court. 23 In this case the applicant has been legally represented from the time his initial complaint was lodged with the President of the Anti-Discrimination Board (see the earlier decision at [10]). The solicitors for the applicant have had numerous opportunities to inform the respondent that they proposed to make a claim for interest. None of those opportunities have been taken and, as we pointed out at [16] above, the claim for interest was first made in the letter of 20 May 2003. To reject the claim for interest is not to permit form to prevail over substance for it is clear that the respondent would be denied procedural fairness were we to make an order for the payment of interest upon the applicant's lost wages and other remuneration. Conclusion and Order 24 The applicant is entitled to receive the sum of $21,851.51 for economic loss. That figure is comprised of $11,626.99 for loss of 'standard' wages and $10,224.52 for loss of overtime during the defined period. 25 The Tribunal makes the following order: Within 28 days of the date of this order the respondent is to pay to the applicant the sum of $21,851.51 by way of damages for economic loss.