Alley v Australia Meat Holdings Pty Ltd, Johnson, Stewart & Veivers [1998] QSC 87

IN THE SUPREME COURT OF QUEENSLAND TOWNSVILLE No. 943 of 1997 AND: AND: AND: AND IN THE MATTER of the Anti-Discrimination Act 1991 -and- IN THE MATTER of Appeal by EDWARD SPENCER ALLEY Appellant AUSTRALIA MEAT HOLDINGS PTY LTD First Respondent MR KEN JOHNSON Second Respondent MRRAY STEWART Third Respondent MR DESMOND EDWARD VEIVERS Fourth Respondent REASONS FOR runGMENT - CULLINANE J. DELIVERED THE TWENTY-FOURTH DAY OF APRIL 1998. The appellant appeals to this Court under section 217 of the Anti-Discrimination Act 1991 as amended which allows an appeal against a decision of a Tribunal on a question oflaw. The appellant had instituted proceedings pursuant to the Act against various respondents -- 1 of 6 -- 2 alleging conduct which amounted to discrimination and victimisation on the basis of the attributes of race and/or age. The appellant is an Aboriginal man. The various attributes which the Act prohibits discrimination upon the basis of are set out in section 7(1) of the Act. Race and age are such attributes. By section 7(1)(k) "Trade Union Activity" is also one of those attributes. The appellant was employed by the first respondent as a stockman and had been employed as the senior stockman since approximately 1966. On two occasions he was transferred to perform work in what is described as a race which was not work which fell within his duties as head stockman. One of these occurred on or about 16 February 1993 and this is one of the actions the subject of his complaint as was a later transfer to perform the same work. In an extensive judgment extending over some 57 pages, the Tribunal dealt with this aspect of the matter in the following findings at p.55: "It is obvious from the actions of the company in the way that management placed Mr Alley in the race, that the company, through the General Manager andMr Stewart hadformed the impression that Mr Alley was the trouble in the stock camp. I do not find on the facts that his placement in the race had anything to do with the fact that -- 2 of 6 -- 3 he was Aboriginal, but rather that it had to do with the fact that the company perceived that he was a trouble-maker and a union man. I do not find that the company discriminated against Mr Alley on the basis of his race and I dismiss the complaint against the company, Mr Johnson and Mr Stewart. " It is in relation to this finding that the appeal has been lodged and in particular it is· contended that the Tribunal ought not to have made such a finding without giving notice of its intention to do so to the parties, thus affording the appellant the opportunity to consider his position in relation to such a proposed finding and to consider amending the claim so as to include reliance in relation to this aspect of the matter on section 7(1)(k:). The appeal was based upon a claimed denial of natural justice by a failure to afford the appellant procedural fairness in the respect I have just referred to. There are many authorities dealing with the need to ensure that a person who might be adversely affected in relation to the matter under consideration is given an opportunity to meet material upon which such a finding might be based where that has not already occurred .. Some of these concern factual matters not previously disclosed, some concern a use which the decision maker was contemplating making of material already disclosed where such use would not have appeared as a probable use of such material. Some concern a proposed finding on a basis not previously canvassed . See cases such as Commissioner for Australian Capital Territory Revenue v. Alphone Pty Ltd [1994-5]127 ALR 699, Jones v. Director of Public Prosecutions [1994] 76 A erim R 422 and -- 3 of 6 -- 4 Annamunthodo v. Oilfields Workers' Trade Union [1961] AC 945. In F. Hoffmann-Laroche & Co A. G. and Others v. Secretary ofState for Trade and Industry [1975] AC 295 Lord Diplock said at page 369: "Even in judicial proceedings in a court of law, once a fair hearing has been given to the rival cases presented by the parties, the rules of natural justice do not require the decision maker to disclose what he is minded to decide so that the parties may have a further opportunity of criticising his mental processes before he reaches a final decision. " Whilst the Tribunal is not bound by the rules of evidence and has extensive powers to deal with the matters free from many of the formalities which attend hearings before Courts, the proceedings are as was conceded, plainly adversarial. The appellant chose to rely upon grounds of race and/or age. At no time did he advance a case based upon trade union activity. I think that, as counsel for the respondent contended, when one looks at the findings as a whole, there is room to doubt that the Tribunal made a finding which would give rise to a ground for complaint under section 7(1)(k), that is, "trade union activity". Even if this is not so, the authorities to which I have been referred do not in my view, provide any basis for the complaint made against the Tribunal. They are all concerned with -- 4 of 6 -- 5 circumstances in which for one reason or another a person adversely affected or likely to be adversely affected in terms of the matter to be dealt with by a finding or a proposed course of action has not been afforded the opportunity to be heard in relation to it. None of the cases, in my view, provide support for the claim that the Tribunal ought, before proceeding to make its finding, have notified the parties of what it was intended to find in relation to the aspect of the matter under consideration here, so as to give the appellant the opportunity to amend his claim by adding an additional ground. Nor, in my view, do cases such as Leotta v Public Transport Commission 9 ALR 437 and Mummery v Irvings Pty Ltd [1957] 96 CLR 99 provide any support for what is claimed here. Those cases are concerned with trials where the particulars of the cause of action as pleaded are not supported by the evidence led but the evidence supports such a cause of action as differently particularised. The Court has an obligation to allow necessary amendments to enable the real questions in issue to be determined between the parties. At least in part, those cases are based upon the fact that the action between the parties finally determines the rights of the parties in respect of the cause of action with the consequent importance of ensuring that those issues which the evidence does give rise to in terms of the cause of action sued upon are determined. In the present case, trade union activity would represent an entirely different ground to those relied upon in the claim. I am not persuaded that the Tribunal denied the appellant natural justice in the respects alleged -- 5 of 6 -- , " 6 by failing to notifY him of the intention to make a finding that the transfer to other duties was based not upon race or age but upon other grounds one of which might arguably provide a ground for complaint so as to afford him the opportunity to consider whether his claim should be amended to add this. I should add that it is still open for the appellant to institute proceedings based upon these grounds although it would be necessary to persuade the Tribunal to exercise its power under section 178. It seems to me that had the appellant succeeded here and the matter been remitted to the Tribunal, it would have been necessary to consider somewhat similar factors in determining whether the amendment should have been allowed. The result will be that the appeal is dismissed with costs to be taxed. -- 6 of 6 --