Equal Opportunity Tribunal of New South Wales CITATION: Abrahams & Ors -V- Harwood Nominees Pty. Limited [1996] NSWEOT COMPLAINANT: Abrahams and Others RESPONDENT: Harwood Nominees Pty. Limited NUMBER: 68-100 of 1996 Judge Patten ( Judicial Member ) TRIBUNAL: Ms. S. Tracey Mr. O. MacDonald GROUNDS OF COMPLAINT: Age discrimination in the provision of goods and services DATES OF HEARING: 10/28/1996 DATE OF JUDGMENT: 11/28/1996 Complainant: Mr. J. Basten Q.C. (Counsel) LEGAL REPRESENTATIVES: Respondent: Mr. A. Sullivan Q.C. (Counsel) JUDGMENT IN FAVOUR OF: This was the hearing of an application by the Respondent under Section 111 of the Anti-Discrimination Act ("the Act") for orders that each of 43 complaints before the Tribunal be dismissed. The matters were referred to the Tribunal by the President of the Anti-Discrimination Board of New South Wales (respectively "the President" and "the Board") in May 1996. In his letter of referral the President stated that the Board had been unsuccessful in attempting to gain access to information necessary to purse its investigation and accordingly had formed the view that the complaints were not capable of conciliation. They were referred pursuant to Section 94(1) (a)(c) of the Act. The complaint to the Board signed by each of the 43 Complainants was in the following terms:- "TO: THE NSW ANTI DISCRIMINATION BOARD We the undersigned hereby make a complaint against Harwood Nominees Pty Ltd and CSR Ltd that they are discriminating against us by the following proposed actions: A payout from the CSR Staff Superannuation Fund ('SSF Fund') by its trustee Harwood Nominees Pty Ltd of $100,000,000.00 to its holding company CSR Ltd. The granting of a windfall credit of 27% of the value of their entitlements to present CSR employees. The granting of retrospective entitlements to some former members of SSF Fund to the exclusion of other former members. We say that these decisions discriminate against us on the grounds of age contrary to the NSW Anti-Discrimination Act. We say the actions described at (1), (2) and (3) above are to be carried out on Wednesday 1 March, 1995, and we ask that urgent action be taken under that Act to investigate our complaint, including urgent measures to preserve the current position of the SSF Fund until resolution of the complaint by us. Dated 28 February, 1995" The complaint was sent to the Board under cover of a letter dated 1 March, 1995 from the Complaints' Solicitors Messrs. Bryson-Taylor and Associates and was accompanied by a considerable body of documentation including correspondence with Mr. G.V. Kells Managing Director of CSR Limited, newspaper reports, etc. The Tribunal finds that this documentation together with other documentation tendered in evidence at the hearing before it establishes that each of the Complainants is a former employee of CSR Limited, that the Respondent was and is the trustee of a superannuation scheme established for employees of CSR Limited that the Complainants were members of the superannuation scheme that as such they were entitled to "defined benefits" and that they received those benefits following their retirement from CSR Limited upon various dates prior to 1990. The Tribunal further finds that in 1994 the Respondent as trustee of the superannuation scheme reached agreement with CSR Limited as to the disposal of $200m which it held and which had been actuarially calculated as surplus to the requirements of the fund that the agreement reached was to the effect that $100m of this surplus would be returned to CSR Limited and $100m would be paid to current and a small number of former members of the scheme and that the decision effectively excluded the 43 Complainants either wholly or except to a limited extent from entitlement to further benefits. As it seems, a distribution in accordance with the agreement reached between the Respondent and CSR Limited was made on 1 March, 1995. The gravamen of the complaints as understood by the President was summarised in his report in these terms:- "The complainants allege that the Directors of Harwood Nominees Pty. Limited distributed surplus funds totalling approximately $200 million on 1 March 1995 to certain current and former member of the Fund, and to CSR Limited, in a manner that disadvantaged proportionally more persons of the complainants' age group than another age group. They allege that Harwood Nominees Pty. Limited established a rule of requirement to obtain a benefit under the surplus distribution that the complainants could not meet." It is to be noted that the summary borrows from the meaning of "discriminates against another person.... on the ground of age" set forth in Section 49ZYA of the Act and also that in order to succeed upon their complaints the Complainants would need to show indirect discrimination of the type discussed by the High Court in Australian Iron & Steel Pty. Ltd v. Banovic (1989) 64 ALJR 53. At the hearing Mr. A. Sullivan Q.C., Counsel for the Respondent first submitted that the complaints should be dismissed as misconceived or lacking in substance for the reason that the Tribunal has no valid complaint before it. This submission was argued before the Judicial Member of the Tribunal only as it involves a question of law upon undisputed facts. Although for convenience the decision upon the submission will be expressed as a decision of the Tribunal it and other rulings of law contained in this judgment are decisions of the Judicial Member alone. Mr. Sullivan's contention was that as it does not appear on the face of the complaints made to the Board and the documents enclosed therewith that there were a complaints of unlawful discrimination neither the Board nor the Tribunal became seized with jurisdiction to deal with the matters. He submitted that in determining whether or not it could proceed to exercise jurisdiction the Board and therefore the Tribunal was obliged to have regard only to the instrument of complaint and the documents which accompanied it as opposed to other material contained in the President's Report. He referred to the absence from the complaints and accompanying documentation of specific reference to the only apparent basis upon which the Complainants could allege unlawful discrimination namely that set forth in the President's summary. In considering the submission it is useful to make reference first to the scheme of the Act in relation to the making of complaints of alleged contravention. It is to be noted in passing that by virtue of Section 123 a contravention of the Act attracts no sanction or consequence whether criminal or civil except to the extent expressly provided by the Act. Section 88 provides in effect that a person wishing to complain of a contravention of the statute may make a complaint in writing to the President. Section 89 requires the President to investigate each complaint lodged with him. In the course of his investigation the President has various powers and obligations. Inter alia he may decline to entertain it if at any stage he is satisfied that it is frivolous, vexatious, misconceived, lacking in substance etc. (Section 90) and he may decide not to proceed with a complaint if satisfied that a Complainant does not wish to proceed with it (Section 90A). Where the President is of the opinion that a complaint may be resolved by conciliation he is required to endeavour to resolve it by conciliation (Section 92(1)) and he may require parties to appear before him under pain of penal sanction (Section 92(2) and (3)). If he forms the opinion that a complaint cannot be resolved by conciliation or his attempts to conciliate have been unsuccessful or he is of the opinion that the nature of the complaint is such that it should be referred to the Tribunal he is required to refer the complaint to the Tribunal together with a report relating to any enquiries made by him into the complaint (Section 94). Section 96 requires the Tribunal to hold an enquiry into each complaint referred to it under Section 94. That is the obligation which has arisen in relation to the matters now before the Tribunal. The word "complaint" is defined in Section 87 relevantly to mean a complaint lodged under Section 88. Provisions in Division 3 of part 9 of the Act headed "The Functions of the Tribunal" confer upon it various powers and authorities in relation to the enquiry which it is required to hold under Section 96. No such provision however suggests that the Tribunal is entitled to do other than enquire into the complaint referred to it by the President namely the complaint made to him pursuant to Section 88. In other words, as it seems to the Tribunal, its enquiry is confined in the present case to the complaints made by the Complainants to the Board with the letter from Messrs. Bryson-Taylor and Associates dated 1 March, 1995. The question then arises whether, and if so, to what extent, the Tribunal can have regard to other material before it in order to determine whether the complaints alleged unlawful discrimination. Mr. Basten Q.C. for the Complainants submitted that in effect the Tribunal could have regard to the totality of the material in evidence before it or at least the material contained in the President's Report. In the alternative he submitted that the original complaints and accompanying documentation in identifying the Complainants, the Respondent, and the conduct complained of should be held to constitute, standing alone, complaints sufficient to attract the jurisdiction conferred by the Act upon the Board and this Tribunal. On the other hand Mr. Sullivan argued that upon this aspect of the case the Tribunal is restricted to the original complaint documentation. The earliest of the cases referred to in argument was Langley v. Niland and Another (1981) 2 NSWLR 104. That was a decision of Hunt J. who at page 107 said:- "For relevant purposes 'complaint' is defined by s. 87 as meaning a complaint lodged under s. 88(1). It is described in s. 88(1) as being 'in respect of any contravention of this Act... which is alleged to have been committed by any other person or persons.' To amount to a complaint within the provisions of the Act, the written document required by that section must therefore allege the commission by the other person or persons of a contravention of the Act. The complaint must identify that contravention, but it need not allege the relevant facts with the particularity of an indictment or of a pleading. Some account must be taken of the fact that the complainant is a lay person who may have some difficulty in articulating such a complaint." In similar vein was the judgment of Vincent J.of the Supreme Court of Victoria in Nestle Australia Limited v. The President and Members of the Equal Opportunity Board and Others (1990) EOC 92-281. In the course of his judgment His Honour said:- "Following the approach laid down by the High Court to the determination of the question of jurisdiction in a somewhat similar situation, it would seem to be clear that the capacity of the Equal Opportunity Board to inquire into a matter must, as was stated in that decision, turn 'solely on the terms of the application and the documents annexed thereto' and neither upon 'the evidence that might be adduced in the inquiry' nor any subsequently filed documents. However in dealing with this question it is important to avoid the adoption of an unduly restrictive or pedantic interpretation of the document." Later in the judgment there are further passages pertinent to the present case:- "...it is clear that the written complaint, although it is not to be treated as a formal document of pleading, must on its face raise a question of possible discrimination of a kind which will bring the matter within the Board's jurisdiction. There is, of course, also a substantial principle underlying this view. As a matter of essential fairness, no person should be subject to the processes and coercive powers of a statutorily created authority without it being apparent at the outset that a sufficient basis exists for initial intervention by that authority through the assumption of jurisdiction. .... In so far as the Board referred in the present matter to the Particulars later filed on behalf of the complainants to provide a basis for jurisdiction which had not emerged from the original complaints themselves it fell into error." In the result Vincent J. held that the alleged acts of discrimination contained in the complaints were not on their face sufficient to enable any preliminary recognition of jurisdiction to be made. "They (the Complaints) appear to relate solely to the activities of the complainants with respect to matters affecting the terms and conditions under which employees of the Plaintiff were engaged or required to perform their duties." CPS Management Pty. Limited and Ors. v. Equal Opportunity Board and Ors. a judgment of Marks J. in the Supreme Court of Victoria (EOC 92-332) was concerned with an allegation by complainants that their employments had been terminated due to their political beliefs and political activities contrary to the statute. At page 78,291 Marks J. said:- "The Board cannot, in my opinion, be asked to speculate that if the description of an activity were amplified and properly identified, it might turn out to be relevantly political. This is not permissible. The requirement that an activity need only be made to appear as capable of being political does not relieve a complainant of the need to provide some reasonably precise description of the activity on which he or she relies. He or she cannot escape through the loophole of vagueness and rely on mere assertion that the activity was 'political' or compress it into a characterisation by reason of reference, without more, to having discussed 'the matter' with a politician." In the light of those authorities the Tribunal has concluded that the matter required to found jurisdiction must be found within the walls of the complaint itself. In other words it rejects Mr. Basten's contention that regard can be had to documentation which did not accompany the formal complaints of 1 March, 1995. Further the Tribunal is of the opinion that the conduct referred to in the complaints did not specify with sufficient particularity the unlawful discrimination alleged even if (contrary to the fact, as at the time the complainants were legally represented) the complaints should be regarded as that of lay persons who may have had "some difficulty in articulating the complaint". In the view of the Tribunal the complaints made to the Board simply did not, on their face, raise a question of possible discrimination of the kind which could bring the matter within either the jurisdiction of the Board or the jurisdiction of this Tribunal. Although, as indicated, the Tribunal finds no favour with the submission that it is entitled to have regard to the whole of the material before it, even if the position were otherwise the Tribunal concludes that such material does not raise, on its face, a possible breach of the Act. It is not to the point in the view of the Tribunal that the Complainants formally claimed that there had been discrimination on the grounds of age. What was required was a statement of facts or particulars showing prima face how such a claim could arise. In the result the Tribunal would hold that there being no lawful complaint before it the complaints should be dismissed pursuant to Section 111 of the Anti-Discrimination Act. In deference to other submissions made to it however the Tribunal has considered the question whether the respondent was engaged in the provision of goods and services. Mr. Sullivan submitted that the respondent relevantly (i.e. in relation to the distribution of surplus funds by agreement with CSR Ltd) was not a person "who provides, for payment or not, goods or services" within the meaning of Section 49ZYN(1) of the Act." In the alternative Mr. Sullivan submitted that what had occurred in this case fell within Section 49ZYN(3) as the provision of services by gift in accordance with the terms of the gift. The word "services" is the subject of an "inclusive" definition in Section 4 of the Act. Notwithstanding the breadth of that definition Mr. Sullivan submitted that the payment of sums of money pursuant to the agreement reached with CSR Limited did not accord either with the ordinary meaning of the word "services" or the expanded meaning derived from Section 4. He referred to S.W.B. Family Credit Union Limited v. Parramatta Tourist Services Limited 32 ALR 365 a decision of the Full Court of the Federal Court of Australia (Smithers, Northrop and Sheppard J.J.). That decision concerned the meaning of the word "services" in Section 4 of the Trade Practices Act and in particular whether the definition encompassed the crediting of the accounts of members of a Credit Union with commission rebates. At page 383 of the report Sheppard J. said:- "Apart from the definition one would not readily conclude that a payment of money fell within the meaning of the word 'services'. The term is used in contradistinction to the word 'goods' ( which is also widely defined) but not so as to include money, certainly when used in the sense of currency. If money were intended by the draftsman to be embraced within the expression 'goods or services' in a provision such as s 47(6) one would have expected it to have been referred to expressly or to be found plainly included in one of the definitions perhaps the definition of 'goods' rather than 'services'." Later at page 384 His Honour said:- "I have referred to the fact that the term 'money' would not usually fall within the expressions 'goods' and 'services'. That puts paid, in my opinion, to any suggestion that the word falls within the ordinary meaning of those expressions. That is a question which must be separately considered because the definitions are inclusive rather than exhaustive." There is no definition of "goods" in the Act nor in the definition of "services" is there a reference to the payment of money although there is in paragraph (a) of the definition a reference to "the provision of grants". Although the Tribunal does not doubt that in performing its ordinary duties as a trustee of the superannuation fund the Respondent was providing services to the members of the fund it is of the opinion that different considerations apply here. The Respondent was engaged not in the ordinary duties of its trust which would constitute the provision of services but in the payment of a finite sum of money surplus to the needs of the trust, a payment only permissible as a consequence of an agreement entered into with CSR Ltd. In making that payment the Tribunal is of the view that even if the words "services" is given the broad meaning contended for by Mr. Basten the Respondent was not engaged in the provision of services within the meaning of the Act. For that reason too the application by the Respondent under Section 111 of the Act should be upheld. In the result the Tribunal orders that each of the complaints be dismissed. There should be no order as to costs. 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.