Buderim Ginger Ltd v Booth, Acting Discrimination Commissioner of Qld [2001] QSC 349

SUPREME COURT OF QUEENSLAND CITATION: Buderim Ginger Ltd v Booth [2001] QSC 349 PARTIES: BUDERIM GINGER LIMITED ACN 010 978 800 (applicant) v SUSAN BOOTH, ACTING DISCRIMINATION COMMISSIONER QUEENSLAND (respondent) FILE NO: SC No 3077 of 2001 DIVISION: Trial Division DELIVERED ON: 27 September 2001 DELIVERED AT: Brisbane HEARING DATE: 11 September 2001 JUDGE: Chesterman J ORDER: The decision made by the respondent on 6 March 2001 is set aside. The respondent to pay costs of and incidental to the application, to be assessed on the standard basis CATCHWORDS: ADMINISTRATIVE LAW – APPEALS FROM ADMINISTRATIVE AUTHORITIES – STATUTORY APPEALS FROM ADMINISTRATIVE AUTHORITIES TO THE COURTS – where alleged discrimination by the applicant to an employee – where Anti-Discrimination Act limits the time to bring a complaint to one year after the act of discrimination subject to the discretion of the Commissioner if the complainant shows “good cause” – where employee complains almost two years after the act of discrimination – where the Acting Anti-Discrimination Commissioner accepts the late complaint - whether the complainant had “good cause” for the favourable exercise of the discretion – whether a consideration of the strength or weakness of the complainant’s case is relevant in assessing “good cause” – whether there was a reasonable explanation for the delay Anti-Discrimination Act 1991 (Qld) s 138 Judicial Review Act 1991 (Qld) s 20, s 24, s 28 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, cited Dempsey v Dorber [1990] 1 Qd R 418, referred to McAuliffe v Puplick (1996) EOC 92-800, not followed -- 1 of 9 -- 2 COUNSEL: Mr S Keim for the applicant Mr D Rangiah for the respondent SOLICITORS: Deacons Lawyers for the applicant Anti-Discrimination Commission Queensland for the respondent [1] CHESTERMAN J: For almost ten years Michael Sealy worked as a maintenance fitter at the applicant’s factory. He resigned on grounds of ill health on 29 December 1998 some four months short of the tenth anniversary of the commencement of his employment. He was thus not entitled to any payment in respect of long service leave. Mr Sealy turned 51 a few days after his resignation. As a young man he served in Vietnam where his experiences later led him to develop post traumatic stress disorder which was diagnosed in 1996 when Mr Sealy sought psychiatric assistance for emotional instability following his separation from his wife. [2] Mr Sealy’s usual roster required him to work from 7am till 3.30pm. However late in October 1998 his employer informed him that he was required to work nightshift, 3pm to 11pm. Mr Sealy did not want to work that shift. He attended evening classes on Tuesdays but the applicant was prepared to exempt him from night duty on those nights upon satisfactory proof that he attended his classes. [3] According to Mr Sealy’s psychiatrist, Dr Anderson, in a report dated 26 June 2000 Mr Sealy: “indicated . . . that night work brings back bad memories of the past with Vietnam and flashbacks about night patrols there. The next day he is likely to be extremely anxious with uncontrolled shivers and shakes. He would feel very insecure at night in his surroundings and was always on full alert. Because of his pre-existing problems with Post Traumatic Stress Disorder he was very much against working nightshifts and wanted to keep doing day work.” It appeared that it suited Mr Sealy’s personal convenience not to work at nights because he lived: “ . . . on acreage property where he has animals to tend and this coordinated very well with his employment when he worked days only.” [4] Doctor Anderson wrote to the applicant on 29 October 1998, presumably at Mr Sealy’s request. He said: “I am treating this man for Post Traumatic Stress Disorder relating to Vietnam military service. He has made a reasonable adjustment to his present job on dayshifts but would find it an intolerable strain if he had to do nightshift. Can consideration be given to accommodating his needs . . .” [5] On 9 November 1998 Mr Sealy worked the nightshift. He was exempt next day because of his educational commitment. He worked the usual dayshift at the conclusion of which he consulted Dr Anderson who certified that he would be unfit to work from 11 November to 5 December 1998. On 16 November 1998 Mr Sealy -- 2 of 9 -- 3 was admitted to the Buderim Hospital where he was treated for his post traumatic stress disorder. Doctor Anderson advised him to resign his employment because his disorder rendered him unfit to work. By a letter dated 22 December 1998, he informed the applicant: “Due to my ill health I regret leaving the company on the 29/12/98 with only four months short for my long service leave. On compassionate grounds could I request of the company a review on my long service leave.” On 13 January 1999 the applicant replied that its “ . . . policy on long service leave is that pro rata payments can be made after a qualifying period of ten years of continuous service. Unfortunately, as your employment ceased prior to the date of entitlement, I regret that a long service leave payment cannot be made.” Mr Sealy sought the assistance of his union, the AMWU, which wrote to the applicant on his behalf on 8 February 1999, acknowledging its legal right not to pay but urging that “ . . . as Mr Sealy was so close to completing his ten years’ service and as his resignation was solely due to ill health occasioned by previous war service . . .(the applicant) reconsider (its) position.” The applicant did not reply for sometime, but on 13 September 1999 reiterated its earlier refusal. [6] By a letter dated 20 September 1999 the AMWU Assistant State Secretary advised Mr Sealy that there was “ . . . no avenue at law for a successful claim to be lodged because you did not have the necessary ten years’service up.” [7] On 23 December 1999 Mr Sealy made an application for a damages certificate from WorkCover. His claim was in respect of “aggravation of post traumatic stress disorder” caused by having to work the nightshift on 9 November 1999. The application asserts that medical treatment was first sought for the injury from Dr Anderson on 10 November 1999. There is no explanation in the material for the obvious error in dates. [8] In February 2000 Mr Sealy retained a firm of solicitors, Ferguson Cannon, to assist him with his application for a damages certificate and, no doubt, with the prosecution of any action that might have followed the issue of the certificate. In the result the Medical Assessment Tribunal determined that Mr Sealy’s psychiatric disorder “related to problems associated with war service” and did not constitute an injury sustained at work. An attempt by Ferguson Cannon to have the Tribunal review its original findings was unsuccessful, its determination being notified to Mr Sealy by letter of 4 September 2000. [9] Consequent upon his latest failure to obtain redress Mr Sealy sought the aid of a local politician, apparently to pressure the applicant into making an ex gratia payment of long service leave entitlements. Mr Wellington, an MLA wrote on 30 October 2000 with reference to Mr Sealy’s “. . . request for Buderim Ginger to -- 3 of 9 -- 4 provide pro rata long service payment” that the applicant was “not prepared to change (its) position . . .”. Ms Simpson, the MLA for an adjoining electorate, had no more luck “investigating (Mr Sealy’s) concerns in relation to the loss of . . . long service entitlements . . .” according to her letter of 18 September 2000. [10] Mr Sealy had more luck with Ms Johnston, a councillor with the Maroochy Shire Council. She advised him by letter of 16 October 2000 that his “ . . . former employment situation . . . may present an act of you being treated less favourably by an employer because of an illness. The Anti-Discrimination Commission may consider these circumstances as a possible act of discrimination.” [11] On 23 October 2000 Mr Sealy made a written complaint to the Anti-Discrimination Commission Queensland (“ADC”) alleging that at work, “on 29/10/98 at the Ginger Factory” the applicant discriminated against him because of: (a) his impairment or disability; (b) his trade union activity; and (c) his race. Mr Sealy described himself as being of Indian background and says that he was a trade union delegate at the applicant’s factory. The particulars of discrimination were that “no assistance given to me when my psychiatrist requested of the company”. The redress sought by Mr Sealy from ADC is: (a) compensation for mental damage; (b) re-employment on Department of Veterans Affairs conditions; (c) long service leave payment; and (d) an explanation as to why he was not allowed to remain on dayshift but was required to work at night. [12] Section 138 of the Anti-Discrimination Act 1991 (“the Act”) provides that a person is only entitled to make a complaint that the Act has been contravened “within 1 year of the alleged contravention” except that: “(2) the commissioner has a discretion to accept a complaint after 1 year has expired if the complainant shows good cause.” [13] The respondent was the acting Anti-Discrimination Commissioner when Mr Sealy made his complaint. [14] Having received submissions from Mr Sealy and the applicant on the point whether the discretion should be exercised in favour of accepting Mr Sealy’s complaint the respondent by letter dated 6 March 2001 gave notice of her decision to accept the complaint which was made almost exactly two years after the alleged act of discrimination. [15] A complaint does not necessarily result in proceedings being taken pursuant to the Act. The Commissioner must first decide whether to accept or reject it. A complaint must be rejected if it is frivolous, vexatious, misconceived or lacking in substance. Although it was not made clear in her letters to the applicant the respondent in her affidavit filed in these proceedings has stated that she did not -- 4 of 9 -- 5 accept Mr Sealy’s allegation of discrimination on the basis of race or trade union activity, apparently because they lacked substance. [16] The applicant has challenged the respondent’s decision to accept the late complaint pursuant to the Judicial Review Act 1991 (“JR Act”). Despite the width of expression found in the application and the particulars given in support of it, only one ground of invalidity was argued. That was that, pursuant to s 20(2)(h) of the JR Act there was no evidence or other material to justify the making of the decision. Section 24 of the JR Act explains that that ground is not made out unless “There was no evidence or other material (including facts of which the person was or is entitled to take notice) from which the person could . . . reasonably be satisfied that the matter was . . . established. . .” Unusually, in the case of administrative decision sought to be impugned pursuant to the JR Act, the Commissioner chose to contest the application. Indeed she was the only respondent. Mr Sealy was not named as respondent in the application though he could, of course, have applied to become a party under s 28 of the JR Act. He took no part in the proceedings. [17] The point for decision is a short but difficult one. Was there evidence from which the respondent could reasonably have been satisfied that there was good cause for accepting Mr Sealy’s complaint almost a year beyond the prescribed period? It goes without saying that the discretion conferred by s 138 of the Act is to be exercised by the Commissioner and not by the court on an application for judicial review. It is equally obvious that opinions may legitimately differ on whether a given set of circumstances constitutes good cause for the purposes of the section. The question is whether there was enough evidence to support a finding that good cause had been shown. The section creates a “threshold” test. Was the evidence such that it was capable of amounting to good cause? Putting it another way, could the Commissioner, acting reasonably, have been satisfied on the evidence that there was good cause to exercise the discretion in favour of accepting the complaint? [18] The Act itself provides no definition of the phrase, “just cause”, but the context in which it appears assists understanding. The law provides other examples of prohibitions against starting or continuing legal proceeding without the leave of the court in which the proceedings are, or are to be, brought. The requirement of the Act that there be good cause for accepting a complaint after the expiration of the limitation period means that there must be some good reason for exempting the particular complaint from the general prohibition. Whether there is good reason, or good cause, involves a consideration of all relevant matters. See Dempsey v Dorber [1990] 1 Qd R 418 at 420 and the cases there discussed in the analogous situation of an application for leave to proceed with a dormant action. What factors are relevant will depend upon the circumstances of each case, but the length of the period by which the complaint is out of time, the cogency of any explanation for not complaining within time, any prejudice that the respondent may suffer by reason of the late complaint and the apparent strength of the complaint will always be relevant factors, as will the point that the Act itself expects complaints to be laid within a year giving rise to an entitlement in ordinary members of the community to conduct their affairs without being subjected to tardy allegations of unlawful discrimination. As to this last point the law now recognises that there is injustice in -- 5 of 9 -- 6 allowing stale proceedings to continue, and prejudice can be inferred from mere passage of time. See for example Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541. [19] In making her decision the respondent expressly disregarded the prospects of Mr Sealy proving his complaint. She understandably relied upon a decision of Levine J with respect to an identical provision in the Anti-Discrimination Act 1977 (NSW). The case is McAuliffe v Puplick (1996) EOC 92-800. I can see no reason in principle for excluding from a consideration whether there is good cause to accept a late complaint the apparent strength or weakness of the complainant’s case. The sub-section itself gives no justification for excluding any particular factor when determining if there is good cause, and I cannot see that the merit, or lack of it, in a complaint must always be irrelevant to the question. It is, of course, only one factor and it will often be difficult, if not impossible, to make an assessment of the prospects of the complaint succeeding, but I cannot see why, where an assessment is possible, “merit” must be disregarded. I do not, with respect, find the reasoning of Levine J on the point at all persuasive. His Honour said: “Given the important purpose to be served by the enactment itself (it is remedial and beneficial) which deals with the elimination of discrimination and the fairness and equality of treatment of all people to whom the Act applies . . . the ‘merit’ of any complaint . . . is not to be the subject of scrutiny in considering whether or not ‘good cause’ for the delay . . . has . . . been made out. . . . An extreme example (of injustice) . . . would be where an explanation for delay has satisfactorily been made, there is no prejudice, yet a view is formed that the complaint itself is without merit thereby depriving the complainant of the opportunity of conciliation . . . and remedies . . .” I cannot share the view that it would be unjust to deprive a complainant whose complaint is without merit of the opportunity to have it accepted out of time. To refuse to accept a late complaint (thereby “depriving the complainant of the opportunity of . . . obtaining some remedy”) can scarcely be unfair when, by definition, the complaint is without merit and the complainant has no right to any redress. [20] It is no doubt right to describe the Act as remedial and beneficial, and as promoting equality of treatment to those to whom it applies. But this does not justify the exclusion of factors that may otherwise be relevant from the consideration of “good cause”. The Act is concerned not only with the rights of complainants. It seeks to strike a balance between the right of citizens not to be subjected to unlawful discrimination and the rights of those accused of such discrimination to have the complaint made and dealt with promptly. The Act allows a relatively short time for the initiation of proceedings. It requires reasonable promptitude on the part of a complainant. Prima facie, there is a right not to be troubled by an accusation of discrimination after a year has passed without complaint. -- 6 of 9 -- 7 [21] The respondent in her letter of 6 March 2001 identified what she took into account in determining that good cause had been shown for the exercise of the discretion to accept the complaint. Ms Booth wrote: “. . . It is improper to take into account the merits of the case. The matters which are solely relevant . . . are . . . an analysis of the reasons why and justification for the . . . delay, and secondly whether acceptance of the complaint out of time would be unfair to the respondent because the delay would prejudice the respondent’s defence.” This approach is unduly restrictive. I have already endeavoured to explain why the merits of a complaint where they are discernible may well be relevant to the existence of good cause, and I have indicated other factors which will ordinarily be relevant. I do not think it right that in all cases the only relevant factors will be the reasons for the delay and whether it has caused prejudice. The applicant has not, however, argued that the respondent failed to take relevant considerations into account in the exercise of the power conferred by s 138(2) of the Act. The only point taken is the insufficiency of evidence to support a finding of good cause. The applicant also accepts that it cannot show prejudice by reason of the late complaint. Because the parties also accepted the correctness of McAuliffe no submissions were made with respect to the merits or the complaint, so it is not appropriate to express an opinion about them. [22] The only point for determination is whether there was evidence sufficient to justify the respondent’s finding that Mr Sealy’s explanation for his delay amounted to good cause. [23] By a document dated 23 October 2000 and apparently included with his complaint to ADC Mr Sealy recounted the events relevant to the discrimination he suffered and his attempts to obtain redress. He wrote: “ . . . Doctor Anderson . . . diagnosed . . . Post Traumatic Stress Disorder late in 1996, and as a result the Department of Veteran Affairs gave me a disability pension. I have been a believer in fair work and fair treatment of workers. With those attitudes I took on the position of being a union delegate for the workers at the factory. I believe that I have been discriminated against because of my active union involvement and my Indian background. I have struggled to continue to work at Buderim Ginger since 1997 as there was a supervisor who frequently discriminated against me. . . . In November 1998 I was very worried about the proposed change to shifts at work . . . Before it started Dr Anderson wrote . . . to the factory requesting I be taken off the evening/night shift . . . I tried to work the new shift . . . but found it to be very difficult. I was hospitalised . . . by Dr Anderson. I had worked for the factory for nine years and eight months when I resigned in December 1998. They refused to . . . pay my long service leave which was due in four months. Action taken: (1) Wrote to the . . . factory. My request was rejected . . . (2) Approached the AMWU with no success. -- 7 of 9 -- 8 (3) Approached the Worker Compensation and Queensland Comp Board where the claim was rejected. (4) Saw Fiona Simpson who referred me to (5) Brian Felton from Industrial Relations. (6) Peter Wellington. (7) Saw Bruce Lamming who spoke to the Ginger Factory (8) Spoke to Zrinka Johnston . . .” [24] In a letter to the ADC dated 30 November 2000 Mr Sealy summarised his explanation for not complaining within the twelve months required by the Act: “I had seemingly explored all avenues that I was aware of until advice . . . directed me to . . . Zrinka Johnston. . . . It was during a consultation with her . . . that she suggested the possibility of this . . . being ADCQ issue.” [25] The respondent concluded: “Mr Sealy has provided extensive documentation demonstrating that he has sought to have his concerns dealt with through other avenues but was not informed of the possibility of taking up the matter with the Commission until he sought advice from Ms Zrinka Johnston . . . I do not accept that Mr Sealy ‘chose not to investigate how to remedy’ . . . his complaint. It appears that he has sought to investigate how to resolve his matter but not necessarily in the right direction. In my view Mr Sealy has provided a reasonable explanation for the delay, particularly in light of the complainant’s medical condition and the further claim of delay in exhausting other avenues of redress.” [26] In considering whether there is a reasonable explanation for his two years’ silence it is proper to have regard to the complaint actually made, not only to that part of it which was accepted. In his letter of 23 October 2000 Mr Sealy alleged that he was discriminated against because of his union involvement and his race as well as his disability. His claimed remedies go beyond the receipt of long service leave entitlements. He seeks re-employment with the applicant on special conditions favourable to him. These are not complaints or claims made before October 2000, or in respect of which he sought assistance from his union, his solicitors, or politicians. It was submitted on behalf of the respondent that the complaint of discrimination which has been accepted, that relating to psychiatric impairment, is an example of indirect discrimination proscribed by s 11 of the Act and that this type of discrimination is unusual and easily overlooked, even by those familiar with the Act. The point of the submission is that neither the applicant nor those to whom he turned for help were aware that he may have been the subject of indirect discrimination though the facts he supplied them were sufficient to justify such a complaint. Therefore, it is said, the complaint was not made in time only because his advisers lacked the requisite knowledge to advise him properly. I cannot accept this submission. Mr Sealy when writing to ADC did not complain of conduct which could only be appreciated as unlawful discrimination by reference to some arcane legal principle. He asserted, in clear terms, that he had been singled out for unfair treatment because he was an active trade unionist and because he was Indian. His narrative gives prominence to those matters rather than his psychiatric disorder. It is not sensible to accept that these allegations would not have been investigated -- 8 of 9 -- 9 and made the subject of advice by his own solicitors as well as his union’s, if he had made mention of them. [27] Before the discretion conferred by s 138(2) of the Act can be exercised there must be good cause why a late complaint of discrimination should be accepted. It is no doubt right that Mr Sealy persistently and bitterly complained about the applicant’s refusal to pay his long service leave “entitlements”. There was, however, no suggestion of unlawful discrimination until Ms Johnston made it. There is nothing in the material to show that he was seeking redress for these acts of discrimination in the twelve months after 29 October 1998. The “concerns” which he sought to have “dealt with through other avenues”, relied on by the respondent, were not concerns of discrimination, certainly not discrimination on the basis of race or trade union activity. Nor can it be said that Mr Sealy “sought to investigate how to resolve his matter” if one understands his matter to be allegations of discrimination contrary to the Act. The matter he sought to have resolved was the non payment of long service leave entitlements. The applicant is right that there is no material to show that Mr Sealy sought advice about discrimination and received inappropriate advice, nor does the material show that his attempts to obtain long service leave payments and/or workers’ compensation or damages were a misguided attempt to obtain redress for unlawful discrimination. Mr Sealy offers no explanation at all why he did not complain of discrimination before October 2000. [28] On no reasonable view of the evidence has good cause been shown to enliven the discretion to accept the complaint out of time. This finding makes it pointless to refer the matter back to the respondent for reconsideration. The appropriate order is to set aside the decision made by the respondent on 6 March 2001. The respondent must pay the costs of and incidental to the application to be assessed on the standard basis. -- 9 of 9 --