Bond v State of Queensland [2022] ICQ 14

INDUSTRIAL COURT OF QUEENSLAND CITATION: Bond v State of Queensland [2022] ICQ 014 PARTIES: KIRK S BOND (appellant) v STATE OF QUEENSLAND (respondent) FILE NO/S: C/2020/5 PROCEEDING: Appeal DELIVERED ON: 16 May 2022 HEARING DATE: 25 August 2020 MEMBER: Davis J, President ORDER/S: 1. The appeal is dismissed. 2. The respondent file and serve upon the appellant by 20 May 2022 any written submissions on the costs of the appeal. 3. The appellant file and serve upon the respondent by 3 June 2022 any written submissions on the costs of the appeal. 4. Each party have leave to file and serve by 24 June 2022 any application for leave to make oral submissions as to the costs of the appeal. 5. In the absence of any application to make oral submissions on costs of the appeal being filed by 24 June 2022 the question of costs will be decided on any written submissions filed and without further oral hearing. CATCHWORDS: APPEAL AND NEW TRIAL - RIGHT OF APPEAL - WHEN APPEAL LIES - ERROR OF LAW - where the appellant was employed by the respondent - where the appellant commenced anti-discrimination proceedings in 2015 against the respondent - where the discrimination allegedly occurred in the workplace - where the 2015 proceedings were settled - where the terms of settlement included that the appellant resign his employment and have no contact with former work colleagues except with consent - where the appellant applied for re-employment with the respondent - where the respondent refused to progress the application - where the respondent alleged discrimination - where the discrimination alleged was reprisal for the 2015 proceedings - where the Queensland Industrial Relations -- 1 of 25 -- 2 Commission (QIRC) dismissed the application - whether the QIRC erred in law by considering whether reprisal was “the substantial and operative factor” behind not progressing the application for re-employment - whether the applicant was only required to show that the reprisal was “[a] substantial and operative factor” - whether the QIRC otherwise asked itself the wrong question - whether the QIRC took into account irrelevant considerations - whether the QIRC failed to take into account relevant considerations - whether the appellant was denied natural justice - whether any errors amounted to jurisdictional error by the QIRC - whether the QIRC gave adequate reasons for its decision Anti-Discrimination Act 1977 (NSW), s 50 Anti-Discrimination Act 1991, s 129, s 130 CASES: Abalos v Australian Postal Commission (1990) 171 CLR 167, cited AK v Western Australia (2008) 232 CLR 438, cited Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services) [2019] ICQ 23, considered Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, cited Bond v State of Queensland (Department of Justice and Attorney-General) [2020] QIRC 044, related Briginshaw v Briginshaw (1938) 60 CLR 336, cited Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842, cited Camden v McKenzie [2008] 1 Qd R 39, considered CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76, cited Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280, followed Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243, cited DL v The Queen (2018) 266 CLR 1, followed Fox v Percy (2003) 214 CLR 118, cited Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123, cited Kirk v Industrial Court (New South Wales) (2010) 239 CLR 531, cited Lamont v University of Queensland (No 2) [2020] FCA 720, cited Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, followed Minister for Immigration and Citizenship v SZIZO & Ors (2009) 238 CLR 627, cited Nicholls and Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP 20, considered Plaintiff M64/2015 v Minister for Immigration and Border -- 2 of 25 -- 3 Protection (2015) 258 CLR 173, cited Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, followed Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, followed SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507, followed Wainohu v New South Wales (2011) 243 CLR 181, cited APPEARANCES: Mr Bond appeared on his own behalf SJ Hamlyn-Harris instructed by GR Cooper, Crown Solicitor for the respondent [1] This is an appeal by Mr Kirk Bond against a decision of the Queensland Industrial Relations Commission (QIRC) dismissing his victimisation complaint made under the Anti-Discrimination Act 1991 (AD Act). [2] The respondent is the State of Queensland who, through the Department of Justice and Attorney-General, employed Mr Bond. For convenience, I will refer to the respondent as “the Department”. Background [3] Section 129 of the AD Act criminalises the victimisation by one person of another. Section 130 then provides, relevantly here: “130 Meaning of victimisation (1) Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant)— (a) because the complainant, or a person associated with, or related to, the complainant— (i) …; (iii) is, has been, or intends to be, involved in a proceeding under the Act against any person; … (2) In this section, a reference to involvement in a proceeding under the Act includes— (a) making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and (b) involvement in a prosecution for an offence against the Act; and -- 3 of 25 -- 4 (c) supplying information and producing documents to a person who is performing a function under the Act; and (d) appearing as a witness in a proceeding under the Act.” [4] Mr Bond was employed up to October 2015 by the Department as a Youth Justice Conferencing Convenor in the North Coast Youth Justice Conferencing Team in Mooloolaba. He held that role for about six years. He met his wife, Robyn, in that workplace. [5] Mr Bond’s supervisor was a Ms Thomas. Ms Thomas’s manager was Ms Arnold- Nagas and another manager was Mr Wells. [6] Putting it neutrally, there was disharmony between members of the Youth Justice Team at Mooloolaba and Mr Bond. Mr Bond lodged two complaints with the Anti- Discrimination Commission Queensland (ADCQ). The first complaint was lodged on or about 6 February 2015 and alleged discrimination by Ms Thomas. That complaint was accepted by the ADCQ. The second anti-discrimination complaint was lodged with the ADCQ on about 21 August 2015. As will become apparent, the claims were settled and the second claim was not accepted by the time the settlement eventuated. [7] Mr Bond was off work for a lengthy period and made a WorkCover claim. He was the subject of a directed Independent Medical Examination (IME). The result of the IME was that Mr Bond was considered fit to return to work. Ms Arnold-Nagas and Mr Fairbank, the Manager of Workplace Safety, met with Mr Bond and concerns were raised about various things, including the relationship between Mr Bond and Ms Thomas. Again, putting it neutrally, discussion was had about whether Mr Bond should return to his job. [8] On 2 October 2015, Mr Bond filed proceedings in the QIRC seeking reinstatement to his substantive position. Negotiations followed and a settlement was reached. On 12 October 2015, a deed was made between the State and Mr Bond.1 [9] By Recital E of the Deed:2 “E. By mutual agreement the parties have now agreed to settle the First and Second ADCQ Complaints3 and the Claim,4 and all other disputes or potential disputes arising from the Applicant’s5 employment with the Respondent and/or the subject matter of the Claim and the First and Second ADCQ complaints, in accordance with the terms set out in this Deed.” [10] Clause 2.1 is the main operative clause of the Deed. Importantly, it provided: 1 Mr Bond signed it on 9 October 2015 and it was accepted on behalf of the Department on 12 October 2015. 2 Recitals form part of the Deed; clause 1.1. 3 The two anti-discrimination complaints lodged by Mr Bond. 4 The reinstatement application. 5 A reference to Mr Bond. -- 4 of 25 -- 5 “2.1. In resolution of the First and Second ADCQ Complaints and the Claim, and all other disputes or potential disputes arising from the Applicant’s employment with the Respondent and/or the subject matter of the Claim and the First and Second ADCQ complaints, the parties agree that: 2.1.1. The Applicant hereby, by his execution of this Deed, tenders his resignation from his employment with the Respondent, with immediate effect; …” And: “2.1.5. With the exception of Mrs Robyn Bond,6 the Applicant agrees not to have any direct or indirect contact whatsoever, whether verbally or in writing, with any current or former employee/s of the North Coast Youth Justice Conferencing Team, Mooloolaba Office, without being granted the prior express written permission of the Regional Director, Youth Justice Brisbane North and Gold Coast.” (the no contact clause) [11] By clause 2.2.1, the Department agreed to provide Mr Bond with a statement of service and by clause 2.2.2, it agreed to pay him a sum of money. Other clauses provided for the formal discontinuance of the two claims under the AD Act and the reinstatement application. Mutual discharges were also given. Of some significance, the Deed did not contain a clause prohibiting Mr Bond from applying for further employment with the State or, more specifically, the Department, or more specifically still, the Justice Team in Mooloolabah. [12] Some two and a half years later, in February 2018, a position became available in the Restorative Justice Team, Department of Child Safety, Youth and Women in Mooloolaba. Since Mr Bond’s resignation, there had been internal reorganisation of the North Coast Youth Justice Team and the Restorative Justice Team had been created. It was headed by Ms Arnold-Nagas and Ms Thomas was a supervisor in the team. [13] Mr Bond’s application for employment came to Ms Arnold-Nagas who was concerned that Mr Bond’s employment would cause a breach of the no-contact clause in the Deed. She contacted Ms Phillips who then sought advice from Crown Law. [14] On 23 February 2018, Crown Law wrote to Mr Bond in these terms: “I refer to the Deed of Settlement between yourself and the State of Queensland, signed by you on 12 October 2015 (the Deed). As you are aware, pursuant to clause 2.1.5 of the Deed: With the exception of Mrs Robyn Bond, the Applicant [you] agrees not to have any direct or indirect contact whatsoever, whether verbally or in writing, with any current or former employee/s of the North Coast Youth Justice Conferencing Team, Mooloolaba Office, without being granted the prior 6 Mr Bond’s wife. -- 5 of 25 -- 6 express written permission of the Regional Director, Youth Justice, Brisbane North and Gold Coast. (My underlining) I have received notification that you recently applied for a position of Resource Officer, Sunshine Coast Restorative Justice Team, with the Department of Child Safety, Youth and Women. I am instructed that due to an expansion of services, and the most recent machinery of government changes, the Sunshine Coast Restorative Justice Team, Department of Child Safety, Youth and Women is the former North Coast Youth Justice Conferencing Team, Mooloolaba Office, Department of Justice and Attorney-General. I am further instructed that the position of Resource Officer you have applied for, would require direct and indirect contact, both verbal and written, with current or former employees of the North Coast Youth Justice Conferencing Team, Mooloolaba Office, as at the time of the execution of the Deed. In the circumstances, your application for the position of Resources Officer is unable to be progressed, as it would result in a contravention/s of the Deed. I also take this opportunity to remind you of your obligations pursuant to the Deed, in particular clause 2.1.5.” [15] Mr Bond made a complaint to the ADCQ in March 2018. In his complaint, Mr Bond carefully detailed the history of his employment with the Department and the circumstances surrounding his resignation. After referring to the Deed, Mr Bond said: “8. The clause from the settlement agreement cited by Ms Tucker7 as the basis for refusing to consider his application was never meant to operate to preclude Mr Bond from gaining employment with the State of Queensland if his employment might result in him having contact with any current or former employees of the North Coast Youth Justice Conferencing Team. Rather, the clause was only intended to preclude him from contacting his former colleagues while neither an applicant nor a rehired employee. 9. The State’s proffered interpretation would grant it complete discretion to refuse to consider any application for employment that Mr Bond might submit because of the possibility that his reemployment might result in him having contact with one or more of his former co-workers. Clearly, such an interpretation would sanction continuing retaliation against him for reporting workplace discrimination. Enforcing such an onerous and discriminatory post- employment restraint would be unreasonable and contrary to public policy.” And later: 7 The lawyer at Crown Law who signed the letter of 23 February 2018. -- 6 of 25 -- 7 “15. The State of Queensland victimised Kirk S Bond as that term is defined by section 130 of the Anti-Discrimination Act 1991 (Qld) (the Act) by, in violation of section 129 of the Act, acting to the detriment of Mr Bond, namely, refusing his application for employment as a Resource Officer, not on the alleged ground that working in the Resource Officer position would result in a contravention of the settlement agreement that he entered into with the State, but rather, because he in good faith, alleged that Christine Thomas committed acts that would amount to a contravention of the Act, and because he was involved in a proceeding under the Act against the State of Queensland and Christine Thomas. 16. In the alternative, should the Commission determine that the ‘no contact’ clause set forth in paragraph 7 above is applicable to his application for employment as a Resource Officer, acting through the Regional Director, Youth Justice, Brisbane North and Gold Coast, the State of Queensland victimised Kirk S Bond as that term is defined by section 130 of the Anti-Discrimination Act 1991 (Qld) (the Act) by, in violation of section 129 of the Act, acting to the detriment of Mr Bond, namely, refusing to grant him permission to have contact with his former colleagues so he could perform the job of Resource Officer, not for any legitimate reason, but rather, because he in good faith, alleged that Christine Thomas committed acts that would amount to a contravention of the Act, and because he was involved in a proceeding under the Act against the State of Queensland and Christine Thomas.” [16] Therefore, the victimisation was particularised as: 1. not progressing Mr Bond’s employment application; 2. not consenting to Mr Bond having contact with his former colleagues; thus effectively denying the progression of his employment application. [17] The central factual question was the motivation of whoever in the Department made the decision not to progress Mr Bond’s application for employment and, as an incident of that, refusing Mr Bond permission to have contact with his former colleagues. If that motivation was a reaction to his commencing discrimination proceedings in 2015, then he had been victimised. The decision in the QIRC [18] The Industrial Commissioner held that the person who made the decision not to progress Mr Bond’s application for employment was not Ms Arnold-Nagas, but Ms Phillips. It was then held that the motivation of Ms Phillips was not the 2015 anti-discrimination complaints. [19] These are the critical findings: “[113] Mr Bond did not actively approach Ms Phillips and seek permission to have contact with his former colleagues, as contemplated in the Deed. However, in determining not to progress his application, it follows that he was also not -- 7 of 25 -- 8 provided permission to have any contact with his former colleagues . [114] Having observed Ms Phillips give her evidence, I am not persuaded she decided not to progress Mr Bond’s application or not provide permission for him to contact his former colleagues, due to his prior complaints of discrimination. [115] Instead, it is clear she considered the employment relationship had come to an end in 2015 as a result of a negotiated outcome. Ms Phillips determined she was able to rely on the Deed when deciding not to progress Mr Bond’s job application. [116] The Deed settled two anti-discrimination complaints, however I agree with the State of Queensland’s submissions that it does not automatically follow that the decision ‘not’ to progress the application or provide permission to contact former colleagues was because of the discrimination complaint (my emphasis). [117] I accept Ms Phillips’ evidence that she had specifically requested a no contact clause in the Deed in October 2015, because she held genuine concerns about any interaction between Mr Bond and at least two of his former colleagues. In my view, Ms Phillips was entitled to rely on the no-contact clause. [118] During the proceedings it became very clear that Mr Bond held Ms Thomas in very low regard. [119] I accept Ms Phillips’ evidence that the reason for the no contact clause was because she held genuine concerns about any hostility that existed and the potential consequences for the broader workplace in the event he8 returned in October 2015. Those concerns were still present when he applied for the role in February 2018. [120] Ms Phillips was genuinely concerned about the impact of any interaction between Mr Bond and his former colleagues. She was particularly concerned about the psychological health of both Mr Bond and Ms Thomas as well as the impact on workplace culture and safety should he return, in circumstances where he would be reporting to Ms Thomas. [121] It is not the Commission’s role in this matter to determine whether this was a reasonable position to take. Instead, I have to determine whether the reasons Ms Phillips chose not to progress the application and/or not provide permission for contact, were because he previously filed a discrimination complaint. [122] Having considered all the materials before the Commission, I am not satisfied the substantial and operative factor behind Ms Phillips’ decision not to progress Mr Bond’s application 8 A reference to Mr Bond. -- 8 of 25 -- 9 was because he had previously made a discrimination complaint about his supervisor. Nor am I satisfied the decision to not progress the application and therefore not provide permission to Mr Bond to contact his former colleagues, was substantially driven due his prior discrimination complaint. [123] Although I have no reason to question that Mr Bond genuinely believes that his application was refused because he had previously made a discrimination complaint, the difficulty I have with his submissions is that there is insufficient evidence before the Commission to support such a claim. [124] Instead, I am satisfied Ms Phillips’ predominant reasons for not progressing the application were because she considered Mr Bond had signed a Deed which operated to finalise his employment relationship with the Department, and secondly, that he had agreed to not contact his former colleagues as part of the Deed, without her express permission.” And: “[129] For the reasons set out above, I am not satisfied Mr Bond’s application for the Resource Officer position was not progressed as a result of his prior complaints of discrimination. [130] Likewise, I am not satisfied Mr Bond was not provided with the express approval to have contact with his former colleagues from Ms Phillips, as a result of his prior complaints of discrimination. [131] Mr Bond has not been able to satisfy the statutory elements that must be addressed to succeed in his application.”9 [20] The QIRC dismissed Mr Bond’s complaint.10 The appeal [21] Mr Bond filed an application to appeal and he later filed amended grounds of appeal. There were three such grounds. He later added a fourth. There was no objection to either the amendment of the grounds or the addition of the extra ground. Ground 1 [22] This is: “1. In concluding at [124]11 that she was satisfied that one of the ‘predominant reasons for not progressing the application’ was that Pam Phillips, the officer who made the decision to refuse to progress 9 Bond v State of Queensland (Department of Justice and Attorney-General) [2020] QIRC 044 at [113]- [124] and [129]-[131]. 10 Bond v State of Queensland (Department of Justice and Attorney-General) [2020] QIRC 044 at [132]- [133]. 11 A reference to Bond v State of Queensland (Department of Justice and Attorney-General) [2020] QIRC 044; paragraph [124] which appears at paragraph [19] of these reasons. -- 9 of 25 -- 10 the application, ‘considered Mr Bond had signed a Deed which operated to finalise his employment relationship with the Department’, the decision-maker: a. identified the wrong issues and asked the wrong questions; b. relied on irrelevant material; c. denied the Appellant natural justice by deciding that the Respondent refused to consider his application for employment because of a reason that had never been identified prior to the hearing; and d. for the reasons in (a) - (c) above, exceeded the authority or powers given by the Anti-Discrimination Act and the Industrial Relations Act, and did so in a way that affected the exercise of power, and thus amounted to an error of law.”12 [23] Mr Bond points to the statement of facts and contentions filed by him and the response by the Department. He also points to the submissions filed by the Department in preparation for the hearing in the QIRC. It is clear from those documents that the asserted reason for Ms Phillips not progressing Mr Bond’s application for employment is that he would, if employed, breach the no-contact clause in the Deed. Nowhere does the Department assert that one of Ms Phillips’ reasons was the fact that the Deed finalised Mr Bond’s employment. In other words, the only asserted reason for not progressing Mr Bond’s application for employment was the no-contact clause in the Deed. [24] However, Ms Phillips’ evidence was: “That’s based on the advice that I received from Crown Law and on the fact that there was a deed of settlement in terms of finalising of the - the employee - employment… relationship. …Because we’d reached a deed of settlement that actually finalised the employment relationship.”13 And when Mr Bond asked Ms Phillips whether the non-contact clause was “the sole reason that you directed Crown Law to send me that letter”, she replied: “No, that was part of the reason. The other part was that we’d entered a - there was a deed of settlement that actually was finalising the employment relationship.”14 [25] At paragraph [124] of the decision below,15 the Industrial Commissioner found that there were two “predominant reasons” for Ms Phillips not progressing the application, being: 1. the Deed operated to finalise Mr Bond’s employment with the Department; and 2. the non-contact clause. 12 Written submissions filed 7 May 2020. 13 QIRC transcript, T 2-58, ll 20-30. 14 QIRC transcript, T 2-59, ll 40-45. 15 Which appears at paragraph [19] of these reasons. -- 10 of 25 -- 11 [26] Mr Bond, therefore, says that: 1. The Industrial Commissioner asked herself the wrong question. He submits that the correct questions are: “(a) Did the Respondent refuse to progress the Appellant’s application because, as the Respondent asserts, if successful, it would result in a breach of the settlement deed, or, as the Appellant asserts, because he previously made anti-discrimination complaints against the Respondent and its employees? (b) Did the Respondent, acting through its Regional Director, Youth Justice, Brisbane North and Gold Coast, refuse to grant the Appellant permission to have contact with his former co-workers because, as the Respondent asserts, if successful, it would result in a breach of the settlement deed, or, as the Appellant asserts, because he previously made anti-discrimination complaints against the Respondent and its employees?” 2. He further submits that by relying upon Ms Phillips’ evidence that she relied on the fact that the Deed finalised Mr Bond’s employment, that evidence was irrelevant. 3. Finally, he submits that procedural fairness has been denied him. He submits that he would have either run his case differently or taken different action altogether had he realised the two bases upon which Ms Phillips acted. [27] The central question in the case was the motivation of Ms Phillips. Mr Bond had to prove that the motivation was a reaction to him having made the 2015 anti-discrimination complaints. That is the question which the Industrial Commissioner asked herself. During the forensic exercise of answering that question, Ms Phillips said that she took into account two alternative motivations. The Industrial Commissioner considered both as alternatives to the alleged motivation which Mr Bond had to prove. The Industrial Commissioner did not ask herself the wrong question. [28] The evidence was not irrelevant. It was Ms Phillips’ explanation of the motivation for her actions. That was the point in the case. The Industrial Commissioner rightly focused on this evidence as being central to her consideration of the issues before her. [29] Ms Phillips gave her evidence. The evidence was not objected to. The evidence that is set out at paragraph [24] of these reasons was specifically referred to by the Department in its final written submissions to the QIRC as was other evidence of Ms Phillips to like effect.16 Mr Bond filed reply submissions on 19 June 2019 in which he did not respond to that evidence. That was obviously a forensic choice he made. [30] Of more significance, a large part of Mr Bond’s submissions to the QIRC concerned what he saw as his right to be re-employed by the Department.17 That the Department 16 Filed 5 June 2019; paragraphs 30, 31, 32 and 33. 17 Complainant’s Post-Hearing Written Submissions signed and filed on 8 May 2019. -- 11 of 25 -- 12 had acted as if his settlement in 2015 precluded Mr Bond from seeking re-employment was part of his case. He anticipated that as a reason for not progressing his case. [31] Even if Mr Bond should have been formally placed on notice of Ms Phillips’ dual motivation, “the concern of the law is to avoid practical injustice”.18 [32] For the reasons explained,19 no unfairness has been inflicted upon Mr Bond, and Ground 1 fails. Ground 2 [33] Ground 2 is: “15. In multiple ways detailed below, the decision-maker: (a) failed to give any, or any adequate, reasons for her decision; (b) came to conclusions without making relevant and necessary findings of fact and conclusions of law; (c) ignored relevant material and relied on irrelevant material; and (d) for the reasons in (a)-(c), exceeded the authority or powers given by the Anti-Discrimination Act and the Industrial Relations Act, and did so in a way that affected the exercise of power, and thus amounted to an error of law. …”20 [34] In his written submissions, Mr Bond purported to address each complaint made in Ground 2(a), (b), (c) and (d) in paragraphs which followed, but unfortunately did not directly correspond with the complaints as articulated in the subparagraphs to Ground 2. [35] The written submissions were: “17. The Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law, and relied on irrelevant material by concluding: (a) at [122] that she was ‘not satisfied the substantial and operative factor behind Ms Phillips’ decision not to progress Mr Bond’s application was because he had previously made a discrimination complaint about his supervisor’ and that she was not ‘satisfied the decision to not progress the application and therefore not provide permission to Mr Bond to contact his former colleagues, was substantially driven due his (sic) prior discrimination complaint’; 18 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38], Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123 at [27], Minister for Immigration and Citizenship v SZIZO & Ors (2009) 238 CLR 627 at [35]- [36] and CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76. 19 Paragraphs [27]-[29] of these reasons. 20 This is how Ground 2 appears in Mr Bond’s written submissions. -- 12 of 25 -- 13 (b) at [113] that Pam Phillips refused the Appellant permission to contact his former colleagues, but that, at paragraph [122] the Commission was not satisfied that Pam Phillips’ reason for refusing ‘permission to Mr Bond to contact his former colleagues was substantially driven due his (sic) prior discrimination complaint’; and (c) at paragraphs [117] and [119], by accepting as true Pam Phillips’ understanding of the purpose of the no contact clause in the Settlement Deed between the Appellant and the Respondent over the purpose identified by the Appellant, when Pam Phillips admitted that she was not involved in the negotiation of the settlement deed, and the language contained in the settlement deed was much different than what she admittedly had requested. … 24. The Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of law, and relied on irrelevant material by concluding: (a) at paragraphs [20] - [21] that Ms Phillips’ ‘recollection of the circumstances that led to the decision not to progress Mr Bond’s job application was, in the Commissioner’s view, ‘generally clear’; that ‘the reasons Ms Phillips provided for not progressing the application were largely consistent’; and that, ‘on balance, [the Commissioner] consider[ed] Ms Phillips was generally a credible witness’ and that ‘[s]he attempted to answer the questions asked of her as best she could; (b) at paragraph [22] that she ‘'found Ms Melody Arnold- Nagas to be a credible witness and accept[ed] her evidence’; and (c) at paragraphs [23] - [27] of its decision that the Appellant did not ‘intentionally’ attempt to mislead the Commission; that he was not an ‘overtly’ dishonest witness; that his evidence ‘lacked a degree of objectivity’; that, because he made ‘a complaint or multiple complaints against a supervisor or other colleagues’, the Appellant likely considered himself a whistleblower who viewed any action or decisions taken by the Respondent after he made his complaints of unlawful discrimination as retribution. … 32. The Commissioner failed to give adequate reasons and make relevant and necessary findings of fact and conclusions of 1aw, and reached a mistaken conclusion by failing to conclude that, as a matter of law under sections 129 and 130 of the Anti-Discrimination Act 1991 (Qld), the Respondent victimised the Appellant. … 35. The Commissioner failed to make any relevant and necessary findings of fact as evidenced by the fact that, at [49], [51], [53], [55], [62], [108], [109] and [126], she qualified at least eight findings -- 13 of 25 -- 14 with language such as, ‘as best I understand it’, ‘as far as I can tell’, and ‘as best I can tell’.”21 [36] Ground 2 alleges a number of matters which Mr Bond submits amount to jurisdictional error.22 One of the errors alleged is a failure to give adequate reasons. The giving of reasons is a necessary incident of the exercise of judicial power. The Industrial Commissioner was no doubt required to give reasons.23 [37] Many cases have considered the content of the obligation to give reasons. In Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services),24 the principles were summarised as: “[15] I have, in other decisions, set out the principles relating to the requirement for reasons to be given which are adequate in the circumstances.25 Decisions of tribunals do not attract the same degree of scrutiny as those of the ordinary civil courts. But the general principles still apply even though they may not be enforced with the same degree of rigour. I will repeat some of them which are particularly relevant in this case: (a) the content and detail of reasons will vary according to the nature of the jurisdiction which the court or tribunal is exercising and of the particular matter the subject of the decision,26 (b) one reason for the obligation to provide adequate reasons is so that an appellate court can discharge its statutory duty on an appeal from the decision and so that the parties can understand the basis for the decision for purposes including the exercise of any right to appeal,27 (c) a tribunal member will ordinarily be expected to expose his or her reasoning on points which are critical to the contest between the parties - this applies both to evidence and to argument,28 (d) where a party relies on relevant and cogent evidence which is rejected by the tribunal, then the tribunal should provide a reasoned explanation for the rejection of that evidence,29 and 21 Written submissions filed 7 May 2020. 22 Mr Bond’s reference to the errors resulting in the Industrial Commissioner exceeding powers. See Kirk v Industrial Court (New South Wales) (2010) 239 CLR 531 at [98] and [100]; Hossain v Minister for Immigration and Border Protection & Anor (2018) 264 CLR 123 at [20]-[26]. 23 AK v Western Australia (2008) 232 CLR 438 at [89], followed in Wainohu v New South Wales (2011) 243 CLR 181 at [56]. 24 [2019] ICQ 23. 25 For example Queensland Independent Education Union of Employees v Local Government Association of Queensland [2015] ICQ 3. 26 Wainohu v New South Wales (2011) 243 CLR 181 at [56]. 27 Douglass v R (2012) 290 ALR 699 at [8]. 28 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279. 29 Sun Alliance Insurance Ltd v Massoud [1989] VR 8 at 18. -- 14 of 25 -- 15 (e) where parties advance conflicting evidence on a matter significant to the outcome, both sets of evidence should be referred to and reasons provided for the preference of the tribunal of one set of evidence to the other.30 [16] Of particular relevance to this case is the observation by Nettle J in DL v R31 where he said: ‘… in providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, for reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion. Failure sufficiently to expose the path of reasoning is therefore an error of law.’” [38] It is well-established that reasons “… are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern [error]”.32 Further, in Soulemezis v Dudley (Holdings) Pty Ltd,33 in a passage subsequently approved by the High Court in DL v The Queen,34 Kirby P (as his Honour then was) in dissent in the result, said: “This decision does not require of trial judges a tedious examination of detailed evidence or a minute explanation of every step in the reasoning process that leads to the judge’s conclusion. But the judicial obligation to give reasons, and not to frustrate the legislative facility of appeal on questions of law, at least obliges a judge to state generally and briefly the grounds which have led him or her to the conclusions reached concerning disputed fact questions and to list the findings on the principal contested issues.”35 [39] In DL, the High Court observed: “At one extreme, reasons for decision will not be inadequate merely because they fail to address an irrelevant dispute or one which is peripheral to the real issues. Nor will they be inadequate merely because they fail to undertake ‘a minute explanation of every step in the reasoning process that leads to the judge’s conclusion’.36 At the other extreme, reasons will often be inadequate if the trial judge fails to explain his or her conclusion on a significant factual or evidential dispute that is a necessary step to the final conclusion. In between these extremes, the adequacy of reasons will depend upon an assessment of the issues in the case, including the extent to which 30 Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110 at [66]. 31 (2018) 356 ALR 197 at [131]. 32 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, following Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 and followed in Plaintiff M64/2015 v Minister for Immigration and Border Protection (2015) 258 CLR 173 at [59]-[60]. 33 (1987) 10 NSWLR 247. 34 (2018) 266 CLR 1 at [33]. 35 At 259. 36 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 259. -- 15 of 25 -- 16 they were relied upon by counsel, their bearing upon the elements of the offence, and their significance to the course of the trial.”37 [40] In paragraph [17] of his written submissions, in relation to Ground 2,38 Mr Bond points to paragraphs [113], [117], [119] and [122] of the Industrial Commissioner’s judgment. These are set out at paragraph [19] of these reasons. [41] Mr Bond points to evidence that during the negotiations with Mr Fairbank it was agreed that there be no provision in the Deed restricting Mr Bond’s right to be re-employed in Youth Justice Conferencing, including in Mooloolaba. Mr Bond complains that the Industrial Commissioner made no findings about this. [42] What was in issue was the motivation of Ms Phillips in making the decision not to progress Mr Bond’s application for employment. Mr Bond had to prove that the motivation was a reprisal to him making the discrimination complaints in 2015. If Ms Phillips was motivated by anything else, Mr Bond’s case failed. [43] There is nothing in the Deed which expressly prohibits Mr Bond from applying for re-employment. He says that there was some collateral agreement with Mr Fairbank to the effect that he could apply for re-employment. [44] As Mr Bond acknowledges, Ms Phillips was not a party to the negotiations which resulted in the Deed. Mr Bond would not establish a victimisation case by establishing a breach of some implied term in the Deed, or a breach of some agreement with Mr Fairbank made collaterally to the Deed. [45] Ms Phillips interpreted the Deed in the way she explained; that it finalised Mr Bond’s employment with the State. Proof that she was wrong about that (if she was) does not advance Mr Bond’s case. A legally incorrect reason for not progressing Mr Bond’s employment application is not a discriminating reason. [46] There was no need for the Industrial Commissioner to descend into a detailed analysis of the evidence and submissions concerning the negotiations with Mr Fairbank. As the Industrial Commissioner rightly found, the true issue was as to Ms Phillips’ motivation. [47] Mr Bond submitted that the Industrial Commissioner did not properly address his evidence or submissions on that crucial issue; Ms Phillips’ motivation. Mr Bond says, in his submissions: “21. In relation to her conclusions at [113] and [122], while the Commissioner concluded that the reason that Ms Phillips refused to grant Mr Bond permission to have contact with his former co-workers was not because he made discrimination complaints against his supervisor, nowhere in her decision did the Commissioner make a finding or reach a conclusion as to the reason why Mr Phillips did refuse to grant him permission. It was insufficient for the Commissioner to conclude that Ms Phillips did not refuse Mr Bond’s application because of an unlawful reason, without identifying a lawful reason for her decision for her refusal.” 37 At [33]. 38 Filed 7 May 2020. -- 16 of 25 -- 17 [48] The reasons39 must be read fairly and as a whole. There is no finding in paragraph [113] that Ms Phillips refused permission pursuant to clause 2.1.5 of the Deed. Paragraph [113] observes that Mr Bond did not ask her for permission. [49] Paragraph [114] is the crucial finding which is fatal to Mr Bond’s application. There, the Industrial Commissioner said she is “not persuaded” that Ms Phillips was motivated by the fact that anti-discrimination claims had been lodged earlier. She expressed herself in terms of “not [being] persuaded” in deference to the onus of proof which was upon Mr Bond. [50] In the paragraphs which follow [114], including paragraphs [117] and [119], the Industrial Commissioner explained why she concluded what she did in paragraph [114] and then made positive findings as to Ms Phillips’ actual motivation. They are the findings in paragraph [124]. [51] Those findings follow a painstaking examination by the Industrial Commissioner of the credibility of Ms Phillips’ evidence.40 [52] Therefore, having correctly directed herself that the crucial issue was Ms Phillips’ motivation, the Industrial Commissioner considered the evidence which she gave about her state of mind when refusing to progress Mr Bond’s employment application and found that she was not motivated by consideration of the discrimination complaints in 2015. [53] In my view, the Industrial Commissioner’s reasoning is clearly exposed. [54] At paragraph [24] of his written submissions in relation to Ground 2,41 Mr Bond points to various expressions used by the Industrial Commissioner which might be described as not emphatic. He points particularly to paragraphs [20] to [27]. They are: “[20] There were occasions in the proceedings where Ms Phillips took her time responding to questions asked by Mr Bond, particularly in so far as they related to her understanding of the finer details of the Deed. However, her recollection of the circumstances that led to the decision not to progress Mr Bond’s job application was, in my view, generally clear. Likewise, the reasons Ms Phillips provided for not progressing the application were largely consistent. [21] Although there were moments where she appeared nervous and at times, struggled to understand and respond to some of Mr Bond’s questions, on balance, I consider Ms Phillips was generally a credible witness. She attempted to answer the questions asked of her as best she could, in circumstances where she had retired by the time of the hearing and where the events leading to the preparation of the settlement Deed and the resignation of Mr Bond had taken place four years earlier. 39 Paragraphs [113]-[120] and [129]-[131] which are set out at paragraph [19] of these reasons. 40 Bond v State of Queensland (Department of Justice and Attorney-General) [2020] QIRC 044 at [15]- [27]. 41 Filed 7 May 2020 -- 17 of 25 -- 18 [22] I found Ms Melody Arnold-Nagus to be a credible witness and accept her evidence. [23] Although I do not consider Mr Bond intentionally attempted to mislead the Commission or was an overtly dishonest witness, I have found him a witness whose evidence lacked a degree of objectivity. For example, he alleges his employer went to extreme lengths to protect his supervisor after he formally complained about her in May 2014, which extended to ensuring that he did not return to his role after he took extended leave, having lodged a Workers’ Compensation Claim. [24] In his complaint to the ADCQ, which he provided to the Commission Mr Bond also alleged the Department of Justice and Attorney-General endorsed discrimination, bullying and harassment against he and his wife, by refusing their pleas to investigate their allegations. He maintains the Department’s lawyers blindly accepted his supervisor and managers’ denials of discrimination, bullying and harassment to avoid liability for a Workers’ Compensation claim. [25] Separately, in a file note provided to the Commission by the Department, he is recorded as acknowledging in April 2014 that because he ‘felt that they had been discriminated against by Christine previously, that now he feels like this impacts on every decision.’ [26] It is not uncommon for some employees who make a complaint or multiple complaints about a supervisor or other colleagues to consider themselves a whistleblower. Of those employees, a number will likely view any subsequent action or decisions taken by an employer or their representative as retribution. [27] This was also the impression I gained after observing Mr Bond giving evidence.” (emphasis added) [55] Mr Bond submits that the credit findings evidenced in those paragraphs are not sufficiently explained. He then refers to Ball v State of Queensland (Department of Justice and Attorney-General, Queensland Corrective Services)42 where President Martin J (as his Honour then was) adopts a passage of the judgment of Keane JA (as his Honour then was) in Camden v McKenzie43 where his Honour said at paragraph [34]: “[34] Usually, the rational resolution of an issue involving the credibility of 35 witnesses will require reference to, and analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.44 In Goodrich Aerospace Pty Ltd v 42 [2019] ICQ 23. 43 [2008] 1 Qd R 39. 44 Cf Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 209 ALR 568. -- 18 of 25 -- 19 Arsic,45 Ipp JA, with whom Mason P and Tobias JA agreed, explained:46 ‘It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another, and then assert that having seen and heard the witnesses he or she prefers or believes the evidence of the one and not the other. If that were to be the law, many cases could be resolved at the end of the evidence simply by the judge saying: ‘I believe Mr X but not Mr Y and judgment follows accordingly’. That is not the way in which our legal system operates … Often important issues of credibility involve sub-issues. Often, objective facts, or facts that are probable, are capable of having significant bearing on the sub-issues. In cases of this kind, it is incumbent upon trial judges to resolve the sub-issues and to explain, by reference to the relevant facts, the conclusions to which they have come. This having been done, they should then turn to the ultimate facts in issue and explain how their decisions on the sub-issues have assisted them in forming a conclusion on the ultimate issue. It is only when adequate reasons of this kind are given that an unsuccessful party will be able to understand why the judge has believed his or her successful opponent.’” [56] The principles explained in Camden v McKenzie must be understood against the recognised limitations of appellate review of credit based findings. An appellate court must recognise the advantage of the judge at first instance in hearing and seeing the witnesses.47 Usually, findings based on credit will only be set aside where they are inconsistent with non-contentious evidence or are “glaringly improbable”.48 [57] The principles explained in Camden v McKenzie must be applied to the circumstances of the particular case at hand. The evidence given by Mr Bond and Ms Arnold-Nagas only gives context to the crucial evidence which was that given by Ms Phillips. As has been previously observed, Ms Phillips was the one who made the decision not to progress Mr Bond’s application for employment. It was her state of mind that was relevant. She was the one who Mr Bond had to prove was motivated by the earlier discrimination claims. It was therefore Ms Phillips’ credit which was primarily in issue. That explains why the Industrial Commissioner conducted a detailed examination of Ms Phillips’ evidence to assess its credibility.49 [58] The reasons, in my view, correctly identify the relevant credit issues and give proper explanation as to how they were resolved. 45 (2006) 66 NSWLR 186. 46 (2006) 66 NSWLR 186 at 191–192. 47 Abalos v Australian Postal Commission (1990) 171 CLR 167 at 178-179, followed in Fox v Percy (2003) 214 CLR 118 at [65]. 48 Brunskill v Sovereign Marine and General Insurance Co Ltd (1985) 59 ALJR 842 at 844, followed in Fox v Percy (2003) 214 CLR 118 at [66]. 49 Bond v State of Queensland (Department of Justice and Attorney-General) [2020] QIRC 044 at [15]- [27]. -- 19 of 25 -- 20 [59] In paragraph [32] of Mr Bond’s written submissions in relation to Ground 2,50 he complains that insufficient reasons are given for the ultimate finding that there has been no victimisation. For reasons already explained,51 that should be rejected. [60] In paragraph [35] of Mr Bond’s written submissions in relation to Ground 2,52 Mr Bond again complains that the Industrial Commissioner expresses herself in terms that are less than emphatic. He submits: “38. With due respect, the Commissioner’s role is to make concrete findings based on cogent and relevant evidence, and not on her ‘best understanding’ of the facts. Her failure to make any relevant concrete findings of fact constitutes an error of law.”53 [61] The law has long recognised that it is not always possible to make “concrete findings”. That is why cases are decided on the basis of attainment of a particular standard of proof. Even in criminal cases where the standard is proof beyond reasonable doubt, this has been said: “Evidence which satisfies the minds of the jury of the truth of the fact in dispute, to the entire exclusion of every reasonable doubt, constitutes full proof of the fact; absolute mathematical or metaphysical certainty is not essential, and in the course of judicial investigations would be usually unattainable. Even the most direct evidence can produce nothing more than such a high degree of probability as amounts to moral certainty.”54 (emphasis added) [62] No doubt the reasons that the Industrial Commissioner did not find the need to make more emphatic findings about the subject matter of those paragraphs is that they were not important: 1. Paragraph [49] refers to Mr Bond’s WorkCover claim. 2. Paragraph [51] concerns Mr Bond raising concerns about Ms Thomas but that was before the separation deed was executed. 3. Paragraph [53] concerns Ms Thomas denying Mr Bond’s claims of bullying and harassment. Again, that refers to events before the Deed was signed in 2015. 4. Paragraph [55] refers to Mr Bond’s concerns about returning to the same workplace as Ms Thomas. Again, that relates to a period before the Deed was signed. 5. Paragraph [62] concerns conversations with Mr Fairbank. For reasons already given, they are all but irrelevant. 6. Paragraph [108] concerns complaints made by Mr Bond about Ms Thomas and the Department beyond the issues the subject of the application before the Industrial Commissioner. 50 Filed 7 May 2020. 51 Paragraphs [47]-[53] of these reasons. 52 Filed 7 May 2020. 53 Written submissions filed 7 May 2020. 54 Briginshaw v Briginshaw (1938) 60 CLR 336 at 360. -- 20 of 25 -- 21 7. Paragraph [126] again concerns conversations with Mr Fairbank. Ground 3 [63] Ground 3 is: “39. The Commissioner erred in law at paragraphs [107]-[111], and [118], by taking account of irrelevant considerations, namely that the employment relationship between the Appellant and some of his former colleagues had supposedly deteriorated, making it possible that employing the Appellant in his former workplace would result in an unpleasant work environment.” [64] Paragraphs [107]-[111] and [118] of the Industrial Commissioner’s judgment all appear in that part of the judgment entitled “Conclusions”. Paragraph [118] is set out at paragraph [19] of these reasons. Paragraphs [107]-[111] are: “[107] Although Mr Bond’s evidence was that he left work on good terms and had never been the subject of a complaint, the events that unfolded in the workplace, particularly those that followed the request from Ms Thomas to complete the new templates, reveal his relationship with his supervisor and Mr Wells had deteriorated before he sent his complaint to Ms Arnold-Nagus on 12 May 2014. [108] Over time, Mr Bond’s complaints about Ms Thomas and the Department extended well beyond discrimination. He accused his supervisor and another Manager of engaging in suspect pay practices. As best I can tell, he also made a Public Interest Disclosure about his supervisor’s conduct. He alleged his supervisor was a bully and openly considered she was a liar. Mr Bond also held the view the Department had actively engaged in practices to discredit his version of events. [109] Mr Bond was absent from work for approximately seventeen months. As far as I can tell, it was not until he was advised his Workers’ Compensation benefits would be suspended in August 2015, that he received a full clearance to return to his normal duties. Prior to that time, he had resisted returning to a position where he would be required to work closely with or report to Ms Thomas. [110] Although he eventually received a full clearance to return to his role, the IME report noted Mr Bond continued to be unhappy about working in the same environment as his supervisor. [111] It is not difficult to comprehend the challenges this situation presented not just for Mr Bond, but also his colleagues and the Department. It is also not surprising, given the situation, that eventually Mr Bond entered into a Deed of Settlement and binding agreement with the State of Queensland, that resulted, among other things, in his resignation and a no-contact clause with his former colleagues.” -- 21 of 25 -- 22 [65] At paragraph [119],55 the Industrial Commissioner accepted Ms Phillips’ evidence that she believed that the no-contact clause in the Deed was because of genuine concerns about hostility which existed between Mr Bond and co-workers. In paragraph [120],56 the Industrial Commissioner found that Ms Phillips still had concerns about hostility between Mr Bond and Ms Thomas. Those considerations were relevant to the Industrial Commissioner’s inquiry as to the state of mind of Ms Phillips. [66] At paragraph [121]57 of the judgment, the Industrial Commissioner specifically and correctly observes that the reasonableness of those concerns is not an issue. The issue, the Industrial Commissioner rightly identified in paragraph [121]58 is as to Ms Phillips’ state of mind and whether the decision not to progress the application was motivated by the 2015 discrimination complaints. [67] The relationship between Mr Bond and his former colleagues prior to his separation from the Department is relevant to Ms Phillips’ assessment of how Mr Bond’s re-introduction would impact upon the workplace. That was the consideration she took into account. That was relevant as it was an alternative consideration to the one that Mr Bond had to prove, namely that Ms Phillips took into account the 2015 discrimination complaints. [68] The Industrial Commissioner then went on to make findings on that ultimate point in paragraph [124].59 Ground 3 has no substance. Ground 4 [69] Ground 4 is the ground which was added by amendment. It is: “Ground 4 The Commissioner committed an error of law at paragraphs [28], [29], [96] and [122] by applying the wrong test when she determined that, to prove victimisation, the Appellant ‘must demonstrate that his allegations against his employer are ‘the substantial and operative factor’ behind the allegedly victimising conduct of which he complains.” [70] The Industrial Commissioner directed herself to Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd60 which she took as authority for the proposition she then articulated at paragraphs [28] and [29] of her judgment: “[28] Mr Bond must demonstrate that his allegations against his employer are the substantial and operative factor behind the allegedly victimising conduct of which he complains.61 55 Appearing at paragraph [19] of these reasons. 56 Appearing at paragraph [19] of these reasons. 57 Appearing at paragraph [19] of these reasons. 58 Appearing at paragraph [19] of these reasons. 59 Appearing at paragraph [19] of these reasons. 60 (2014) 253 CLR 243. 61 Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2014] HCA 41; Wadsworth v Akers and Woolworth Limited t/a Big W Discount Stores [2007] QADT 17. -- 22 of 25 -- 23 [29] In order to determine whether his allegations were the substantial and operative factor behind the decision not to progress his application or provide permission to contact his former colleagues, it is essential to consider the reasoning employed by the decisionmaker, when determining not to progress the application.” [71] Mr Bond, in reliance upon Nicholls and Nicholls v Director-General, Department of Education and Training (No 2),62 submits that he was only obliged to prove that the 2015 discrimination complaints were one cause for the decision of Ms Phillips to decide that his employment application would not be progressed. That differs from the approach taken by the Industrial Commissioner who cast upon him the burden of proving that the discrimination applications were “the substantial and operative factor” behind Ms Phillips deciding not to progress his application for employment. [72] Ultimately, the issue is one of construction of s 130 of the AD Act. That is determined by construing the text of the section in the context of the AD Act as a whole and any other relevant context, and with regard to the purpose of the provision.63 There are always dangers in attempting to discern the legislative intent of a particular provision by reference to other provisions in other statutes in different terms. [73] Nicholls concerned the Anti-Discrimination Act 1977 (NSW). The relevant New South Wales provision is different to the AD Act. Section 50 of the New South Wales Act is in these terms: “50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has— (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects 62 [2009] NSWADTAP 20. 63 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14], The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507 at [32]-[36]. -- 23 of 25 -- 24 that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.” (emphasis added) [74] The causal connection prescribed by the New South Wales provision between the act of victimisation (the detriment) and the improper motive is expressed in terms of “on the ground that”. Section 130 of the AD Act uses the term “because”. [75] The Department points to various cases which have considered sections similar to s 130 of the AD Act and submits that the proper test is that identified by the Industrial Commissioner.64 [76] Here, it is unnecessary to decide the question. The Industrial Commissioner understood that she was obliged to ascertain the subjective intention of Ms Phillips, the decision-maker, and determine whether she in fact took into account, in making her decision, the fact that the discrimination complaints had been made in 2015. [77] At paragraph [114] of her reasons, the Industrial Commissioner was “not persuaded” that Ms Phillips was motivated by the 2015 discrimination complaints. At [115], she made a positive finding that Ms Phillips understood that the employment relationship had come to an end. At [117]-[120],65 the Industrial Commissioner explained and accepted Ms Phillips’ concerns that Mr Bond’s reintroduction into the workplace may have an adverse impact. [78] At paragraph [122]66 of her judgment, the Industrial Commissioner expresses her findings in terms that the “substantial and operative factor” motivating Ms Phillips was not the 2015 discrimination complaints. She expressed herself in these terms consistently with the test that she had held was the appropriate one. However, any fair reading of the reasons reveals that: 1. Ms Phillips denied that the 2015 discrimination complaints were a factor motivating her; 2. Ms Phillips said that the two factors were, firstly what she saw as the finality of the Deed and, secondly the no contact clause; 3. the Industrial Commissioner accepted Ms Phillips; 4. the Industrial Commissioner accepted that the 2015 discrimination complaints were not a factor. [79] Ground 4 fails. 64 See Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500 and Lamont v University of Queensland (No 2) [2020] FCA 720 at [83]. 65 Appearing at paragraph [19] of these reasons. 66 Appearing at paragraph [19] of these reasons. -- 24 of 25 -- 25 Conclusions [80] All Mr Bond’s grounds of appeal having failed, it is appropriate to dismiss the appeal. It is also appropriate to make directions on the question of costs so that issue can be decided efficiently. Orders 1. The appeal is dismissed. 2. The respondent file and serve upon the appellant by 20 May 2022 any written submissions on the costs of the appeal. 3. The appellant file and serve upon the respondent by 3 June 2022 any written submissions on the costs of the appeal. 4. Each party have leave to file and serve by 24 June 2022 any application for leave to make oral submissions as to the costs of the appeal. 5. In the absence of any application to make oral submissions on costs of the appeal being filed by 24 June 2022 the question of costs will be decided on any written submissions filed and without further oral hearing. -- 25 of 25 --