Haswell v Department of School Education [1999] NSWSC 1271

New South Wales Supreme Court CITATION : Haswell v Department of School Education [1999] NSWSC 1271 CURRENT JURISDICTION : Administrative Law Division FILE NUMBER(S) : 30053 of 1997 HEARING DATE(S) : 22/10/1998 - 23/10/1998 JUDGMENT DATE : 20 December 1999

Elizabeth June Haswell (plaintiff) PARTIES : NSW Department of School Education (1st defendant) Equal Opportunity Tribunal (2nd defendant) JUDGMENT OF : Hidden J at 1

LOWER COURT JURISDICTION : Equal Opportunity Tribunal LOWER COURT FILE NUMBER(S) : LOWER COURT JUDICIAL OFFICER :

COUNSEL : P. Hanna (plaintiff) C. Ronalds (1st & 2nd defendants) SOLICITORS : Tress Cocks & Maddox (plaintiff) Crown Solicitor (1st & 2nd defendants) CATCHWORDS : ADMINISTRATIVE LAW: Appeal from Equal Opportunity Tribunal - adequacy of Tribunal's reasons ACTS CITED : Anti-Discrimination Act 1977 CASES CITED : Absolon v NSW TAFE (1997) 75 IR 47 Absolon v NSW TAFE [1999] NSWCA 311 DECISION : Appeal dismissed

THE SUPREME COURT OF NEW SOUTH WALES ADMINISTRATIVE LAW DIVISION

HIDDEN J Monday 20th December 1999 No: 30053 of 1997 Elizabeth June Haswell v NSW Department of School Education Reasons for judgment

1 HIS HONOUR: This is an appeal, pursuant to s118 of the Anti-Discrimination Act 1977, against a decision of the Equal Opportunity Tribunal. The plaintiff, Elizabeth June Haswell, had been the complainant in proceedings before the Tribunal brought against the first defendant, the Department of Education and Training (then known as the Department of School Education). The Tribunal dismissed the plaintiff's complaints in a written decision of 26 May 1997. Section 118(1) permits an appeal to this Court on a question of law. The plaintiff contends that the Tribunal failed to give adequate reasons for its decision and seeks an order that the matter be remitted to it: s118(3)(a). The Tribunal has been joined as the second defendant and has entered a submitting appearance. 2 The plaintiff had been a teacher employed by the Department since 1970. In 1988 she was appointed head teacher of Languages other than English at the Moorefield Girls' High School. In February 1993 she filed a complaint with the Anti-Discrimination Board alleging discrimination by the principal of the school, Mr James Harkin, on the ground of her sex: ss24 & 25 of the Act. Conciliation conferences later in that year were unsuccessful, and in May 1994 the matter was referred to the Tribunal under s94(1). In August 1994 the plaintiff made a further complaint to the Board alleging victimisation: s50. In October 1995 the complaints of discrimination and victimisation were merged and particularised in Amended Points of Claim. 3 In those Points of Claim the complaint of discrimination was based on s25(1) & (2) of the Act, alleging discrimination on the ground of her sex in relation to the plaintiff's opportunities for promotion, conditions of employment and her treatment generally by Mr Harkin. The complaint of victimisation was based on s50(1), alleging that the plaintiff had been subjected to detrimental treatment of various kinds by Mr Harkin and other departmental staff after Mr Harkin became aware in late 1991 that she intended to contact the Anti-Discrimination Board about her treatment. A considerable number of incidents were particularised as the foundation for both claims. The plaintiff gave evidence, as did Mr Harkin and other witnesses. The Tribunal heard the matter over twelve days in the later part of 1996, and at the close of the evidence the parties supplied detailed written submissions. 4 The duty of the Tribunal to give reasons for its decision is expressed in s117 of the Act. Whether the reasons in the present case are inadequate, and that inadequacy is such as to amount to error of law, falls to be determined in the light of the authorities usefully summarised by Simpson J in Absolon v NSW TAFE Commission (1997) 75 IR 47 at 49-52, 60-63. It is not sufficient that this Court considers that more detailed reasons would have been desirable. The Court would intervene only if it were satisfied there was "some real basis for thinking that a more comprehensive statement of reasons might lead the Tribunal to a different conclusion…": Absolon at 64. Simpson J's decision was upheld by a majority of the Court of Appeal: Absolon v NSW TAFE [1999] NSWCA 311. As Powell JA put it (at par 68), an appeal on this ground should be dismissed "unless it can be said, first, that the reasons given by the Tribunal were inadequate, and, second, that that inadequacy warrants the inference that the Tribunal has not exercised its jurisdiction in accordance with law".