FEDERAL COURT OF AUSTRALIA

K v Domestic Violence Crisis Service Inc [1999] FCA 794

ADMINISTRATIVE LAW – application under Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of a decision of the Human Rights and Equal Opportunity Commission – complaint under the Sex Discrimination Act 1984 (Cth) – whether the Commission failed to take into account a consideration it was obliged to consider - improper exercise of power – failing to make findings on a matter that the Commission was in the circumstances obliged to decide

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Sex Discrimination Act 1984 (Cth) s 5(1), s 22(1)

Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 147 ALR 469 referred to

K v DOMESTIC VIOLENCE CRISIS SERVICE INC AND HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

AG 17 of 1998

FINN J

16 JUNE 1999

CANBERRA

THE COURT ORDERS THAT:

1.         the application be allowed

2.         the decision of the second respondent be set aside

3.         the matter be remitted to the second respondent for further consideration

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This application for an order of review brought by Mr K under the Administrative Decisions (Judicial Review) Act 1977 (Cth) (“the ADJR Act”) must be allowed but on the unfortunate basis that the second respondent, the Human Rights and Equal Opportunity Commission (“the Commission”), in its decision on an inquiry into a complaint by Mr K against the first respondent, the Domestic Violence Crisis Service (“the DVCS”) under the Sex Discrimination Act 1984 (Cth) (“the SD Act”), failed to consider a matter it was obliged to consider on the material before it, in determining whether the DVCS had discriminated against Mr K in the provision of services to him.  My decision, though, does not address the question of whether the alleged discrimination did or did not occur.  That remains an issue for the Commission on my remittal of the matter to it.

2                     Mr K had made two complaints to the Commission of unlawful discrimination against him only one of which is of relevance to this application.  It is that, when two DVCS workers visited his home on 6 February 1990 after a domestic dispute in response to a police request, they treated him less favourably than they would have treated a person of the opposite sex in similar circumstances.  Before briefly outlining the circumstances of Mr K’s complaint and the reasons of the Commission in dismissing it, it is appropriate first to refer to the nature and role of the DVCS and to the statutory setting of the complaint.

The DVCS

3                     This body is a community based organisation funded by the government of the Australian Capital Territory.  Ms Dennise Simpson, the coordinator of the DVCS at the time of the Commission’s inquiry, described the body for present purposes in the following terms:

“DVCS is not funded as a women specific service, we are funded to work with the victims of domestic violence, regardless of gender, age, race, class or sexuality.  Both men and women can be victims of domestic violence and abuse.

When men contact our service seeking support and advice because they are living with domestic violence, they are given the appropriate information regarding their options, including their legal options.”

The Sex Discrimination Act

4                     The provisions of present relevance are s 5(1) and s 22(1) of the Act.  These provide, respectively:

“5.       (1)        For the purposes of this Act, a person (in this subsection referred to as the “discriminator”) discriminates against another person (in this subsection referred to as the “aggrieved person”) on the ground of the sex of the aggrieved person if, by reason of: 

            (a)        the sex of the aggrieved person;

(b)       a characteristic that appertains generally to persons of the sex of the aggrieved person;  or

            (c)        a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

…

Goods, services and facilities

22.       (1)        It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, pregnancy or potential pregnancy:

            (a)        by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

            (b)        in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person;  or

            (c)        in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.”

The Factual Setting

5                     Save in relation to one matter that will be dealt with separately below, the background circumstances can be outlined briefly.

6                     (1)        On the evening of 6 February 1990 a domestic altercation occurred between Mr K and Mrs K in which, according to Mr K’s evidence, Mrs K was the abusive party and which resulted, amongst other things, in Mr K’s proposal that they have separate rooms in the house.  He then moved some additional furniture into the master bedroom which Mrs K was to use.

7                     (2)        Shortly afterwards two police officers knocked at the front door.  They were taken to see Mrs K and one of the officers, Detective Constable Perkins, gave evidence that Mrs K made allegations of domestic violence against Mr K.  Constable Perkins then arranged for the DVCS to provide assistance to Mr and Mrs K.

8                     (3)        The circumstances of the two DVCS workers arrival at the Ks’ residence and of their being taken to see Mrs K on their arrival are outlined separately below.  They spent approximately one and a half hours with Mrs K.  After emerging from her room, though Mr K requested that they then interview him, they declined to do so but gave him a DVCS business card with their names on it and asked that he ring the next day for an appointment.

9                     (4)        The evidence of the two DVCS workers was that Mrs K appeared distressed;  the state of the master bedroom was a shambles;  Mrs K referred to Mr K being violent to her over the period of their marriage;  and that Mr K appeared agitated at the time.

10                  (5)        Five persons gave evidence:  Mr K and his son M who was in the house at the time of the events in question;  Detective Constable Perkins;  and the two DVCS workers, Ms Simpson and Ms R. 

11                  There were, as the Commission indicated, divergences in the evidence of the “complainant and the respondent” on a number of matters.  Two of these matters were:

“5.1.6              where the police were located when Ms Simpson and Ms R arrived at the house;

5.1.7                who let Ms Simpson and Ms R into the house, the police or K.”

But of these “differences” (among others) the Commission concluded:

“I do not find these difference to be particularly damaging to the credit of any of the witnesses nor do they really touch upon the critical issue in this matter of whether K was unlawfully discriminated against.”

As I will indicate it is in this that part of the Commission’s error lies.

The Commission’s Decision

12                  Insofar as is relevant for the purposes of this application, I need only note the following.

13                  First, under the heading “Findings of Fact”, the Commission found (inter alia) that:

“5.1.1  on the night of 6 February 1990, the DVCS workers who attended the home of K and Mrs K formed the view that K was the perpetrator of domestic violence and that Mrs K was the victim of that violence.  This was the result of Ms Simpson and Ms R being led to see Mrs K first, the state of the master bedroom and the version of events given to Ms Simpson and Ms R by Mrs K.

5.1.2    as a result of that belief, the DVCS workers spent a lengthy period of time with Mrs K;

5.1.3    the workers did not spend time with K asking for his version of events nor interviewing him as they did not view him as being the victim of domestic violence as they were of the view that Mrs K was the only victim”.

14                  Secondly, in relation to the last of these above, the Commission concluded that “the DVCS treated K less favourably than they treated [Mrs K] in the provision of their service on 6” February 1990.  Nonetheless, in its “Findings of law” the Commission concluded that the less favourable treatment accorded Mr K was not because of his gender or, for that matter, his marital status, but rather because the DVCS, through its officers:

“(a)     assumed that the person they were led to see on 6 February 1990, that is [Mrs K], was the one and only person claiming to be a victim of domestic violence;

(b)       believed that there was no need to establish independently if there were any other victims of domestic violence in the house;  and

(c)        was of the view that once [Mrs K] had been accepted as being a client it was unable to provide assistance to K without a conflict of interest arising.”

15                  Thirdly, the basis for the assumption in para (a) above was not the subject of examination in the Commission’s reasons other than in the following observations:

“As I have stated above, the facts do reveal that K was treated less favourably.  The failure of the DVCS workers to establish with certainty from both parties when they entered the home on 6 February 1990 who had requested their presence and who was alleging that they were the victim of violence was a significant omission and an indicator of hopelessly ineffective, unprofessional and inadequate procedures that I hope have now been replaced by more structured, professional and rigorous procedures being practised.  These omissions led to K not receiving the same treatment as Mrs K received.”

16                  In this, as I will indicate, the Commission itself assumed the answer to a question it was in the circumstances required to consider and determine.  This was whether the DVCS workers engaged in sex discrimination in first going to and providing assistance to Mrs K.  This question was not confronted directly by the Commission though there was a deal of conflicting evidence on the circumstances leading to the DVCS workers “being led” to see Mrs K.  It is necessary to outline that evidence separately.

The Conflicting Evidence

17                  It is sufficient here simply to reproduce the Commission’s own narrative of the evidence provided to it.  I need merely note by way of setting to what follows that it was the police who came to the Ks’ house who called the DVCS.

(a)        Mr K

“K alleges that the police left and he gave evidence in cross-examination that the police had left the house and were past the driveway when the DVCS workers arrived and that he could hear female voices in the street.  K gave evidence that shortly afterwards the door bell rang and he opened the door to two workers from the DVCS, who he now knows to be Ms Dennise Simpson and Ms Karla R.  K gave evidence that when the door bell rang:

“I opened the door, said ‘Hello, please come in’, they probably said ‘We are from DVCS .. we want to see [your wife]’.  I said ‘Yes, please’ and led them to see my wife.””

(b)        Mr K’s son, M

“M gave evidence that the DVCS arrived after the police had left the house and that they introduced themselves as DVCS workers and asked to see [Mrs K].  M said that his father was “co-operative and courteous” whilst the DVCS workers were “quite direct and abrupt”.  M stated that K led them to the master bedroom where they spoke to [Mrs K] for about one and a half hours.”

(c)        Detective Constable Perkins

“Detective Constable Perkins states in his report that the DVCS was called at the request of both K and his wife.  Furthermore, Detective Constable Perkins states that K was informed that he could also speak to the personnel from DVCS but that “DVCS were under no obligation to speak to any of the parties involved unless they wished to do so”.  Detective Constable Perkins gave oral evidence that he and Constable Lamb had departed the house and were between the house and the street when DVCS arrived.”

(d)        Ms Simpson

“Ms Simpson gave evidence that on 6 February 1990, she was on the shift from 1.00pm to 11.30pm at DVCS with her co-worker, Ms R.  Sometime between 10.00pm and 11.00pm, she received a call from Police Operations to attend a domestic violence incident at the house of K and [Mrs K].  Ms Simpson gave evidence that she does not remember if she was told if either or both parties had requested that they attend.  Ms Simpson gave evidence in cross-examination that it was not the role of DVCS to determine who the alleged perpetrator of the violence was and usually they were introduced by the police to someone to talk to when they arrived at an incident

Ms Simpson gave evidence that the police were still in attendance when she and Ms R arrived.  Ms Simpson could not recall if the police answered the door but gave evidence that it would have been too removed from the DVCS policy for her and Ms R to enter the house without the police being there.  Ms Simpson agreed in cross-examination that if the police had not opened the door then it must have been K who did so.  It was then her recollection that the police introduced her and Ms R to K though she cannot recall if K was agitated or not.  Ms Simpson stated though that there was nothing in K’s demeanour that indicated to her that he saw himself as the victim or that he was in danger.

Ms Simpson could not recall who showed them down the corridor to the master bedroom to where [Mrs K] was.  It is her belief, however, that after being shown to [Mrs K], the police left having considered the situation safe to do so.”

(e)        Ms R

“Ms R said in her statement that when she and Ms Simpson were called to the incident at the house of K and [Mrs K], “we were informed that we had an invitation i.e one or both parties wished to speak with us”.  Ms R gave evidence that they were greeted at the front door by a police officer who gave them a brief description of what had happened.  Ms R said in cross-examination that K may have been the person to open the door but that this would have been unusual.  Ms R said that they were introduced by the police to K who appeared to be “nervous and agitated”.  Ms R said that she did not recall being told by the police that K was claiming to be the victim of domestic violence by [Mrs K].  She stated that if they had been told this then she and Ms Simpson would have separated and talked to one party each.

In cross-examination, Ms R was asked if she or Ms Simpson would have asked who was the victim of the domestic violence.  Ms R replied that they usually only have the police information to rely on and they would have told them who was the victim.  In this instance, she cannot recall if the police said that both K and [Mrs K] were saying that they were the victim.  Ms R stated that she cannot remember if she or Ms Simpson ever ascertained that both parties wished to speak to them and cannot remember if K was asked if he was the victim but remembers that they did not inquire of K if he wanted to see them before they saw [Mrs K]. 

Ms R thought it was the police who led them to see [Mrs K] but allowed for the possibility that it was not.  She gave evidence that the police left soon after their arrival.”

18                  As is clear from the above, there was an obvious conflict of evidence on the issue of why the DVCS workers saw Mrs K first.  Was it because of their request?  Was it because, without request, they were taken to her?  And who took them to her?  The need to resolve these matters arose for this reason.  The Commission had in the circumstances to address the question whether discrimination may have attended the conduct of the DVCS workers at or from the moment of their arrival at the Ks’ home.

Submissions and Conclusions

19                  There was little disagreement between the parties as to the criteria to be applied and as to the approach to be taken in determining whether discrimination of the type described in s 5(1) of the SD Act has been practised.  Each accepted Sackville J’s formulation of the requirements of s 5(1) in Commonwealth of Australia v Human Rights and Equal Opportunity Commission (1997) 147 ALR 469 at 484-485:

“The provision says that a person (the discriminator) discriminates against another (the aggrieved person) on the ground of the sex of the aggrieved person if:

         .  by reason of the sex of the aggrieved person or a characteristic pertaining generally to persons of the sex of the aggrieved person (in this case, males);

         .  the discriminator treats the aggrieved person less favourably than the discriminator treats or would treat a person of the opposite sex (in this case, a female);

         .  in circumstances that are the same or are not materially different.”

20                  Where the parties diverge is in their application of this to the circumstances of this case.  Put shortly, the applicant’s case is that the above criteria had to be applied to the actions of the DVCS workers from the moment of their arrival at the Ks’ home so that it was necessary for the Commission to come to a conclusion as to why they were led to Mrs K first.  The first respondent in contrast submits that even if the DVCS workers went to see Mrs K first because she was a woman, the service they rendered her as also their later dealing with Mr K were prompted, having seen her first, by what they saw in the bedroom and Mrs K’s version of events.

21                  The difference between the two approaches is that the first respondent, in effect, asks that the conduct of the DVCS workers be viewed retrospectively:  having seen Mrs K first for whatever reason and having regard to the state of the bedroom and her version of events, the workers formed the view that Mr K was the perpetrator of domestic violence and Mrs K the victim.  In consequence the respective and differential services rendered each were, for the DVCS workers, justified by the event and on grounds other than gender bias.  Though denying such was the case, it was submitted that even if the workers were motivated by gender bias on the night, there could be no discrimination because, having seen the room and having heard Mrs K’s story first, the outcome for Mr K was exactly the same as it would have been if there had been no gender bias.

22                  The applicant in contrast submits the matter must be viewed prospectively in the sense that the belief ultimately arrived at by the DVCS workers or for that matter their dealings with Mr and Mrs K may well not have been the same but for their allegedly discriminatory treatment of Mr K at the outset.  For this reason the Commission was obliged to, but did not, consider why at the outset the DVCS workers acted as they did.

23                  Whatever the Commission might ultimately conclude was the proper explanation – and proper characterisation for SD Act purposes – to be given the DVCS workers’ actions on their arrival at the home that resulted in their being led to see Mrs K first, the Commission was in my view obliged to address directly and to make findings on that matter.  It failed to do this, and failed to do so because of an apparently – and perhaps understandable – desire to avoid making findings on credibility against any of the witnesses.

24                  It may well be that having made those necessary findings the Commission might still have concluded that the DVCS workers had not acted improperly.  But what Mr K was entitled to, nonetheless, was to have the Commission consider the matter.  It did not and in so doing it improperly exercised its power in that it failed to take into account a consideration which in the circumstances, it was obliged to consider.

25                  I should add that I do not consider that the first respondent’s submission actually meets the objection raised by the applicant.  If the alleged discrimination affected the actions of the workers before they were led to Mrs K, then both an examination of the circumstances and (for s 5(1) purposes) a counterfactual inquiry different from those actually engaged in by the Commission would need to have been engaged in for the purpose of ascertaining the proper character to be attributed to the workers’ then treatment of Mr K.

26                  In the event then, I would allow the application, set aside the decision of the second respondent, and remit the matter to the second respondent for further consideration.

Associate:

Dated:              16 June 1999