Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 Hearing dates: 7 November 2016 Date of orders: 29 November 2016 Decision date: 29 November 2016 Jurisdiction: Appeal Panel Before: Cowdroy ADCJ, QC Principal Member S Thode, Senior Member Decision: (1) Appeal dismissed Catchwords: CIVIL AND ADMINSITRATIVE TRIBUNAL - dismissal of complaint under s 102 of the Anti-Discrimination Act 1977 - summary dismissal – no error of law – no error in the exercise of discretion Legislation Cited: Civil and Administrative Tribunal Act (NSW) 2013 Anti-Discrimination Act 1977 Cases Cited: Wickstead v Browne (1992) 30 NSWLR 1; House v The King [1936] HCA 40; (1936) 55 CLR 499;Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223; General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125;Han v NSW Department of Health [2006] NSWADT 113; Fricke v Corbett Research Pty Ltd [2004]NSWADT128 Category: Principal judgment Parties: Seventh day Adventist Church (North NSW Conference) Ltd (Appellant) Eteuati Seupule-Feau (Respondent) Representation: Counsel: N Read (Appellant) Solicitors: E Seupule-Feau (Respondent in person - assisted by Pastor Allan Saunders) File Number(s): AP 16/11832 Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Administrative and Equal Opportunity Division Date of Decision: 24 February 2016 Before: N Hennessy, Deputy President File Number(s): 1510072 Reasons for decision Background 1. This is an internal appeal from an interlocutory decision of the Administrative and Equal Opportunity Division of the Tribunal. The decision was published on 24 February 2016 (see Seupule- Feau v Seventh Day Adventist Church (North NSW Conference) Ltd [2016] NSWCATAD37). 2. The appellant seeks to set aside those orders and in lieu thereof seeks orders that the respondent's application be dismissed. 3. For the reasons that follow the Appeal Panel has decided to dismiss the appeal. The Proceedings below 1. The appellant ("the church") appeals the interlocutory decision of the Tribunal which was delivered on 24th of February 2016 (the decision). By the decision, the Tribunal dismissed an application brought by the church to strike out a claim made under the Anti-Discrimination Act 1977 (NSW) ("the Act") brought against it by a former employed pastor ("the respondent"). 2. In his claim of racial discrimination under the Act, the respondent provided to the Tribunal a large bundle of documents which was said to comprise the evidence upon which he relied in support of his alleged breaches by the church of the Act. The church considered that the material relied upon by the respondent disclosed no valid claims of racial discrimination, contrary to the Act. Accordingly, it applied to the Tribunal for summary dismissal pursuant to s 102 of the Act, and for costs. S 102 provides: "The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b)." 1. Section 92 (1) provides that, at any stage of the President's investigation of a complaint, if the President is satisfied that the complaint is frivolous, vexatious, misconceived are lacking in substance (see (a) (i)); or the conduct alleged, if proven, would not disclose contraventions of the provisions of the Act or of the regulations, see s 92 (a) (i), or, as provided by s 92 (1) (b). 2. For convenience section 92 is set out in full: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint: (a) the President is satisfied that: (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of: (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96. 1. When the matter came before the Tribunal on the strike out application, the Tribunal required the respondent to formulate a precise summary of the claims which he made against the church. The respondent thereupon formulated seven grounds upon which he relied in a document dated 24th of November 2015. Having done so, the Tribunal considered the application for summary dismissal. It found that certain claims as brought by the respondent could not be sustained and dismissed those parts of the claim which did not disclose a breach of s 8(2) of the Act. However, the Tribunal found that seven claims of the respondent should not be dismissed. 2. As to the remainder of the respondent's claim, the Tribunal found: "The remainder of the complaint is not lacking in substance, nor should it be dismissed for any other reason". 1. In reaching its conclusion, the Tribunal was required to determine, firstly, the interpretation of s 102 of the Act. 2. The interpretation was necessary in order for the Tribunal to then consider the scope of the matters that could be raised on a strikeout application as provided by s 92 of the Act. The Tribunal made such determination, which restricted the church it in its application for summary dismissal. 3. Relevantly, the Tribunal decided that there are two possible interpretations of s 102, one being that the provision empowers the Tribunal to dismiss a complaint because it is frivolous, vexatious, misconceived or lacking in substance and does not disclose a contravention of the legislation. As per paragraph 15 of the reasons for decision, the Tribunal considered that an alternative interpretation of s 102 and s 92(1)(b) is that since none of the reasons in s 92 (a)(iii) – (vii) are listed expressly as grounds for summary dismissal in s 102, dismissal under s 92(b) may only be for a reason other than those listed at 92(a)(iii) – (vii). The Tribunal adopted the latter, alternative, interpretation. 4. Based on its interpretation, the Tribunal then considered the allegations raised by the respondent. Having done so the Tribunal reached its conclusion as set out in paragraph 4 above, dismissing the strike out application. Grounds of Appeal 1. The church has provided two bases upon which it submits the decision should be set aside. Firstly, it submits that the Tribunal reached its decision without having regard to the evidence. During the hearing the respondent had stated that all the evidence upon which he wished to rely had been filed. The church submits, that by reason of the assertion that all the evidence had been filed, that the decision whether there was an arguable cause of action could not be made in the absence of referring to the evidence. 2. The second ground relied upon by the church relates to the interpretation of section 102 by the Tribunal member. In this respect, the church submits that the interpretation of the section was obviously a critical matter, yet neither party was required to provide submissions on the question of interpretation. The church submits that the Tribunal member, in making the determination of the scope of section 102 should have requested the parties to provide submissions since it was pivotal to her decision. 3. The respondent opposes the appeal. The respondent is not legally represented but has had the assistance of a pastor, who has endeavoured to assist the Tribunal by presenting submissions. Because the pastor has no legal training, the submissions made by him do not relate to the critical issues which we must determine. Consideration 1. As to the question of interpretation of s 102 of the Act, it is clear from the decision that the Tribunal did not have submissions from either party on this question. The Tribunal considered two possible interpretations of section 102 of the Act. Paragraph [16] of the decision the Tribunal said: "Because neither party made submissions on this point, I am reluctant to express a concluded view. However as the antidiscrimination Act is beneficial legislation, for the purpose of these proceedings, I will adopt the alternative interpretation. That means that the Church cannot rely on any of the reasons listed in 92 (a) (iii)-(vii) as a ground for summary dismissal." 1. Whilst the church challenges the conduct of the Tribunal member in reaching her conclusion without submissions, it does not appear that either party thought to provide the Tribunal with submissions on this issue. The Appeal Panel is not able to discern whether, in the presentation of the strike out application, the parties ought to have anticipated that this question would arise. Irrespective, it does not appear that this question was argued during the hearing, and that the Tribunal member found it necessary to formulate her interpretation as part of the decision-making process after the hearing concluded. However, as is made plain in the decision, the Tribunal expressly refrained from reaching a "concluded view" on this issue. 2. The Appeal Panel finds that, in the absence of submissions being provided by either party on the question of interpretation, the Tribunal was entitled to determine, on an interlocutory application, the interpretation of the section of the Act which it considered was open to it. Since the dismissal application was brought pursuant to s 102, which provides that the Tribunal may dismiss a complaint on which the President may decline the whole or any part of a complaint under ss 92(1)(a) (i) or (ii) or (b), it could not have taken the church by surprise that the Tribunal would be required to interpret the section. Accordingly, no lack of procedural fairness is established. 3. Based upon the interpretation of s 102 as found by the Tribunal, a number of bases for the strike out application were not considered. Consideration was, however, given to seven alleged breaches contained in the document formulated by the respondent. The Tribunal summarised its position as follows: "17 Based on this conclusion [i.e. the Tribunal's interpretation of section 102], and the principles set out [7] above], I will not consider dismissing the complaint on the basis of any of the following matters: (1) non-compliance with the timetable for the lodging and service of documents; (2) The age of the allegations as long as they are within the period of the complaint referred by the President; (3) That the Church denies some of the facts on which Mr Seupule –Feau's case is based; (4) That Mr Seupule- Feau has not adequately particularised his case as long as a reasonable cause of action has been set out; (5) That the complaint is bound to fail because there is no evidence to support a nexus between the alleged treatment and Mr Seupule- Feau's race; or (6) That the appropriate jurisdiction for the grievance is an unfair dismissal claim to the Fair Work Commission. 18 The only "other reasons" which I will consider are that: (1) Mr Seupule- Feau has not and cannot, articulate in writing a reasonable cause of action; (2) the allegations do not come within the period of the complaint as referred by the President" 1. The respondent relied upon a bundle of evidence as constituting his evidence for a final hearing. The Tribunal did not consider the evidence relied upon by the respondent in detail, but had regard to the issues to be raised at the hearing. The decision of the Tribunal showed that it considered the allegations being made, without regard to the question whether the material would succeed in establishing any one or more of the allegations. This, the church submitted, constituted an error of law. The church claims that the Tribunal should have considered all of the evidence to be relied on by the respondent in the strike out application. 2. In Han v NSW Department of Health [2006] NSW ADT 113 the Tribunal was confronted with the question of the standard which was required to be satisfied before a strike out application should succeed. In that matter, the respondent sought to strike out the claim against it pursuant to s 102 on the basis that the complaints were misconceived, frivolous, vexatious and lacking in substance. Even if the conduct complained of was proved, it would not disclose a contravention of the provisions of the Act. In its deliberations, the Tribunal referred to another Tribunal decision, namely Fricke v Corbett Research Pty Ltd [2004] NSW ADT 128, where the following appears: "Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case. It has been suggested that "prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as a hearing into the merits proceeds, rather than on a pre—hearing basis." 1. The quotation from Fricke continues: "The standard of satisfaction for a [strikeout] application is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and in the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish… The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest to show that there may be grounds on which to decide that the complaint either ought to be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent's evidence will be called". 1. The appellant submitted that Wickstead anor v Browne (1992) 30 NSWLR 1 is authority for the proposition that on a strike out application the Tribunal must examine the evidentiary materials placed before it, not for the purpose of making findings of fact but to determine whether a triable issue is disclosed. However we consider, as per Fricke above, that the decision maker is only required to determine whether the claims made are foredoomed to fail. The Tribunal on a summary dismissal application is not required to embark on a full hearing. It is a discretionary decision that must be made as to whether the proceedings have some prospects of success. If such a decision is reached, then the principles are clear that the application for summary judgment cannot succeed. Only in the clearest case should the power to strike out proceedings as disclosing no cause of action be exercised: see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. Each case for strike out must be determined on its merits. 2. In the circumstances the Appeal Panel considers that the Tribunal discharged its duty by identifying the issues raised by the respondent and by considering whether the allegations as raised were capable of establishing that the facts as put before it "at their highest" were capable of establishing that discrimination has taken place. It has by doing so, discharged its duty and was in a position to decide that the complaint ought be permitted to proceed to final hearing. 3. Before the Tribunal was material from which it could conclude that a prima facie case existed and that on this basis the application for strikeout was dismissed. The Tribunal stated that in respect of the first allegation, requiring people to leave Mr Seupule-Feau's home, could constitute a detriment under s 8(2)(c) if the provision of housing was a term or condition of employment; if he can prove that he was being denied a benefit associated with his employment. It was not a requirement of the Tribunal, on the interlocutory application for strike out, to analyse in detail the material tendered by Mr Seupule-Feau to determine if the material could support such a finding. It was merely its function to determine whether a triable issue has been raised and the Tribunal clearly identified several triable issues. 4. In conclusion, the Appeal Panel finds that summary dismissal is not available where there is a serious question of fact to be determined, or where there are serious questions of credit involved. In a number of instances the factual matters raised by Mr Seupule Feau are likely to involve evidence given by witnesses and the cross-examination of witnesses to the events which transpired on 11 February 2005. At the very least the respondent may exercise his right to give oral evidence or summons persons who made representations to give evidence at the hearing. At this stage in the proceedings the Tribunal could not be satisfied that there was "no evidence" to support each of the elements necessary to ground a claim of racial discrimination. It follows that there is no error in the exercise of discretion by the Tribunal in its decision. The decision is not unreasonable in the sense considered in House v The King [1936] HCA 40; (1964) 112CLR 125 ;nor irrational in the Wednesbury sense ( see Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223). It follows that that the Appeal should be dismissed. Orders 1. The Appeal Panel makes the following orders: 1. Appeal dismissed. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 30 November 2016 - Corrected Appellant's name 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. Decision last updated: 30 November 2016