FEDERAL COURT OF AUSTRALIA

De Domenico v Marshall [1999] FCA 1305

ADMINISTRATIVE LAW – judicial review – decision of Administrative Appeals Tribunal (ACT) – allegations of sexual harassment treated as a course of conduct rather than a series of individual acts – failure to consider discrete acts – whether sufficient evidence to establish “offensiveness” and “unwelcomeness” – whether specific findings necessary

TONY DE DOMENICO v MARGOT MARSHALL

A 14 OF 1999

SPENDER, MADGWICK & DOWSETT JJ

16 SEPTEMBER 1999

MELBOURNE (HEARD IN CANBERRA)

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

THE COURT ORDERS THAT:

1.         The appeal be allowed.

2.         Set aside the orders of Miles CJ made on 3 February 1999 and of the Administrative Appeals Tribunal made on 1 June 1998 and 4 November 1998.

3.         Remit the matter to the Tribunal for reconsideration and determination in accordance with law.

4.         Such reconsideration is to be limited to investigation and determination of the complaint made by the respondent pursuant to s 70 of the Discrimination Act (1990) (ACT) excluding those parts of the said complaint which have been rejected by the Tribunal in its reasons dated 1 June 1998.

5.         The reconsideration is to be conducted upon such of the evidence previously received as shall, to the Tribunal, seem relevant to the said complaint and such further evidence relevant to that complaint as it shall determine to receive.

6.         There be no order as to costs of this appeal or of the application in the Supreme Court of the Australian Capital Territory.

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

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

SPENDER J:

1                     I have had the benefit of reading in draft form the reasons for judgment prepared by Madgwick J.  I agree that the appeal should be allowed.  I agree with the reasons of Madgwick J and Dowsett J that the Administrative Appeals Tribunal ('AAT') failed to make findings as to material questions of fact, in particular, what acts of sexual harassment, if any, it found established.

2                     Section 44(4) of the Administrative Appeals Tribunal Act 1989 (ACT) provides:

"Where the Tribunal gives in writing the reasons for its decision, those reasons shall include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based."

3                     The duty of the Commissioner and the AAT on review was as provided by s 73 of the Discrimination Act 1991 (ACT), namely, to "investigate each complaint made in accordance with section 70".  Section 70(4) provides:

"A complaint shall be in writing specifying -

(a)               particulars of the complaint; and

(b)               so far as practicable, the respondent or each respondent to the complaint."

4                     The duty to investigate the complaint made in accordance with s  70 is not a mandate to roam at large and consider whether "there is a solid kernel of conduct that may bear the character of sexual harassment", which in my opinion is what the AAT did.

5                     Because the ground on which Mr De Domenico succeeded was not raised before the primary judge, I agree with the costs orders proposed by Madgwick J.

6                     It is unfortunately necessary that the matter be remitted to the AAT to be determined according to law.  It is not now possible for the AAT to be constituted as it was previously.  For this reason I agree with the orders proposed by Dowsett J as to the ambit of the reconsideration of this matter by the AAT.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated: 16 September 1999

ON APPEAL FROM THE CHIEF JUSTICE OF THE SUPREME COURT

OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

MADGWICK J

7                     This is an appeal from a decision of a judge of the Supreme Court of the Australian Capital Territory.  The case concerns allegations of sexual harassment made by the respondent, Mrs Marshall, against the appellant, Mr De Domenico, and raises matters of some importance about appropriate procedures under the Discrimination Act 1991 (ACT) ("the Act").

8                     At the time of the alleged harassment Mr De Domenico was a senior Member of the Legislative Assembly ("MLA") of the Australian Capital Territory.  Between 7 February and 11 November 1994, Mrs Marshall was employed by the appellant as his personal secretary "on behalf of the Territory" under the provisions of the Legislative Assembly (Members' Staff) Act 1989 (ACT).  The appellant dismissed the respondent, by a letter of 25 October 1994, with effect from 11 November 1994.

The complaint to the Discrimination Commissioner

9                     On 21 November 1994 Mrs Marshall wrote to the Discrimination Commissioner, established under the Act, following discussions she had had with one of the officers of the Commissioner.  She complained of a number of matters surrounding her dismissal.  These included that Mr De Domenico had repeatedly made comments, in her hearing, about his being sexually aroused by or interested in other women, despite her frequent requests that he refrain from doing so.  Included also was a complaint that he had repeatedly, despite her denials, accused her of having an affair with one of his fellow MLAs.  She said that she had, among other things, "been continually exposed to sexual innuendos". 

10                  By letter of 19 December 1994 Mrs Marshall advised the "Director of the ACT Human Rights Office", one of the Commissioner's senior staff, that "[as] per your request of Friday last I have put together an expanded statement" of the relevant paragraph of the letter of 21 November 1994.  Relevant to the proceedings in the ACT Supreme Court, the enclosed statement, headed "Complaint against Tony De Domenico MLA", particularised:

(a)              an alleged verbatim statement suggesting his sexual attraction to a female staff member (unfortunate enough to have acquired an unpleasant nickname) of another MLA;

(b)              a form of words and an obscene gesture evidencing his sexual desire for various women.  Both sets of words and the gestures were said to have begun in February 1998 and continued, despite Mrs Marshall's protests, until her dismissal;

(c)              crude statements made in June 1998 suggesting that another MLA was sexually interested in Mrs Marshall and repeated suggestions, from September or October 1998, that Mrs Marshall and that MLA were having an affair.

11                  Mr De Domenico was advised of the complaint by a letter from the Human Rights Office dated 20 December 1994, seeking his response.  After he had responded, in late January 1995, and his response was sent to Mrs Marshall's then solicitors, conciliation was fruitlessly attempted.  Thereafter the Commissioner decided to hold a public hearing of the complaints.

Affidavits treated as part of the complaint

12                  Presumably in accordance with directions given by the Commissioner for the conduct of the hearing, affidavits were filed by both parties.  These were evidently intended to be the evidence supporting and denying the complaints.  However, the Commissioner treated the four affidavits sworn by Mrs Marshall as being included in the "[d]ocuments making up the complaint".  One of these ran to 34 pages.  It gives the impression that everything that Mrs Marshall thought might be relevant was included, even an allegation that Mr De Domenico had told her and another woman that "he only had one ball".  Much alleged information, to the general discredit of Mr De Domenico and of other people, having no bearing on any question of sexual harassment, was included.  Also included were inflammatory statements which, though relevant, are manifestly of little value, for example, that Mr De Domenico was "a sexually harassing monster who enjoys intimidating women in a very sick way".

13                  It does not necessarily do any discredit to Mrs Marshall that her affidavit did contain such material.  If there is any truth in her allegations, she may well have been distressed on that account.  In any case, she had not long before suffered the indignity of being dismissed from her employment, a matter likely to have caused her hurt and embarrassment.  However, as explained below, firmer procedural control and greater attention to the common sense inherent in the values underlying the formal rules of evidence ought to have enabled a more orderly and efficient disposition of the case.

The Commissioner's decision

14                  After a lengthy hearing, the Commissioner dismissed the complaint, saying, among other things:

"Having carefully considered the evidence and borne in mind [other matters, including the seriousness of the allegations, if true, for the appellant's career], I am not persuaded that the primary facts establishing the alleged unlawful conduct under the Discrimination Act have been substantiated". 

15                  The Commissioner gave very detailed reasons.  Given that the Administrative Appeals Tribunal ("the AAT") considerably criticised the Commissioner's methods and conclusions, I think that I ought to record my impression that the Commissioner's procedural approach to the matter was generally reasonable.  Any fault in this respect lies in the Commissioner possibly having insufficiently reigned-in departures from her initial requirement that the evidence be by way of affidavit.  Although the Commissioner's reasoning as to the substance of the matter also reads persuasively, it is not for me to comment on the substance of that.  This is a case where one's impressions of the principal witnesses would be an important factor in the decision.  The Commissioner and the AAT seem to have had different impressions.

Proceedings before the AAT

16                  Mrs Marshall exercised her right under s 94 of the Act to seek a review of that decision by the AAT established under the Administrative Appeals Tribunal Act 1989 (ACT) ("the AAT Act"). In its reasons the AAT described its approach to the evidentiary matters:

"The hearing before the Commissioner

A great deal of hearing time was taken up before the Commissioner with questions of admissibility of material contained in affidavits that Mrs Marshall wished to put before the Commissioner.  The affidavits had been prepared without the benefit of expert assistance, and contained both irrelevant material and hearsay matter.  The affidavits were, of course, part of the material before the Tribunal by reason of section 37 of the AAT Act and would again be relied upon.  Accordingly we gave, at the commencement of the hearing, the following ruling on admissibility of material:

"1. The Tribunal is not bound by the rules of evidence.  It is permitted to inform itself as it sees fit.  Its procedure is subject to the over-riding requirement that each party must be given a fair opportunity to present his or her case and that the Tribunal is not to have regard to a document without giving the parties an opportunity to make submissions in relation to the document.

2. The Tribunal does not see any merit in combing through each affidavit to ascertain what matter should be admitted in evidence.  Rather, the Tribunal considers it should proceed on the following basis.

3. Where allegations have serious consequences for the person affected, whether in respect of reputation or otherwise, the Tribunal should not make findings unless satisfied according to the appropriate degree of satisfaction that the allegations have been substantiated.  Where the ultimate finding the Tribunal is asked to make depends upon findings that a person has committed unlawful acts the Tribunal will not act upon generalised statements that unlawful activity has occurred, but will require evidence of the commission of specific unlawful acts to the satisfaction of the Tribunal.  In particular a party to Tribunal proceedings is not required to bring evidence to disprove allegations or assertions made concerning the conduct of that person or of any other person.  A person who makes allegations or assertions about the conduct of another must produce material to the Tribunal that would, in the absence of any other material, establish to the requisite standard of satisfaction of the Tribunal that the conduct occurred.

4. Further, having regard to the seriousness of the allegations made, the Tribunal will ordinarily require direct evidence of the impugned conduct where this is reasonably available.  Reliance on hearsay, in cases where direct evidence is reasonably available, will not ordinarily be accepted as sufficient to establish the truth of the allegations.  Thus where reliance is sought to be placed on the fact that a person complained of activities by another person amounting to unlawful conduct under the Discrimination Act, the Tribunal will expect that the person complaining of those activities is brought before the Tribunal to give direct evidence.  Where the person complaining of the conduct is not reasonably available to give evidence, the Tribunal must be prepared to have regard to hearsay material, but what weight might be placed on hearsay evidence depends on the circumstances of the case and the nature of the hearsay material.

5. The Tribunal will only have regard to material that is probative of an issue to be determined by the Tribunal. The test of relevance is whether the material put before the Tribunal is capable of establishing any of the findings the Tribunal must make in order to reach a decision.  There is no rule of law or of practice before the Tribunal that requires the Tribunal to have regard to material put before it by a party and to which successful objection is not made by another party.  The Tribunal must at all times exercise its own judgement on the probative value of the material before it.

6. The Tribunal will not have regard to material concerning the conduct of third persons unless that conduct is relevant to an issue to be determined by the Tribunal.  A party wishing to bring material of that kind before the Tribunal must show to the satisfaction of the Tribunal that the conduct of the third parties is relevant and should be taken into account by the Tribunal.

…

The Commissioner heard evidence from Mrs Marshall and Mr De Domenico and from a number of witnesses. The transcript of that hearing formed part of the material available to the Tribunal pursuant to section 37 of the AAT Act.  However, because the Commissioner's findings depended to a substantial extent on her assessment of the credibility of a number of the witnesses the Tribunal found it necessary to hear the available witnesses again for itself. Except to the extent to which evidence given by those witnesses to the Tribunal contradicted or was inconsistent with the evidence they gave to the Commissioner, we have treated the evidence given to the Commissioner as part of the material on which the Tribunal must base its findings and conclusions. Where there were such contradictions and inconsistencies, then they have been taken into account in assessing the reliability of the evidence of those witnesses."  (Emphasis added).

17                  With the exception of paragraph 2, this statement represents a reasonable, and in any case permissible, approach in a case such as this. However, the Tribunal's approach of, in effect, "admitting everything" into evidence for later sifting and evaluation carries with it the risk that the precise issues may become blurred or even be overlooked.  Also questions arose about the extent to which, in the event, the AAT adhered to the guidelines it had stated, particularly in the passage I have emphasized.

18                  The AAT sought to explain the features of the complaint with which it was concerned:

"The character of the complaint

Mrs Marshall's complaint under the Discrimination Act was a complaint of sexual harassment. Section 59(1) of the Act provides that it is unlawful for an employer to subject an employee, or a person seeking employment, to sexual harassment.  Sexual harassment is defined in section 58 of the Act in the following terms:

'58.(1)      For the purposes of this Part, a person subjects another person to sexual harassment if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in other unwelcome conduct of a sexual nature in circumstances in which the other person reasonably feels offended, humiliated or intimidated.

(2)            A reference in subsection (1) to conduct of a sexual nature shall be read as including a reference to the making of a statement of a sexual nature to, or in the presence of, a person, whether the statement is made orally or in writing.'

This case does not involve complaints about unwelcome sexual advances or unwelcome requests for sexual favours.  It is concerned with things alleged to be said by Mr De Domenico to or in the presence of the complainant and actions and gestures performed by him in her presence.  In order to justify a finding of sexual harassment, the Tribunal must be satisfied as to the existence of each of the following matters:

(a)       that the conduct complained of occurred; and

(b)       that the conduct was of a sexual nature; and

(c)        that the conduct was unwelcome; and

(d)       that the conduct caused the complainant to feel offended, humiliated or intimidated by reason of the nature of the conduct; and

(e)        that it was reasonable for the complainant to feel offended, humiliated or intimidated.

Where the alleged conduct involves statements the Tribunal must be satisfied that the statements were of a sexual nature.  The Act contains no definition of "sexual nature".  It is perhaps unwise to attempt a comprehensive definition of what the term means in its context in the Act.  It is enough for present purposes to say that a statement will be of a sexual nature if it relates to or implies matters involving sexual conduct or sexual relations between persons or refers, expressly or impliedly, to sexual organs.  The Act does not mean that all statements of this description constitute sexual harassment. The elements specified in paras (c), (d) and (e) above must also be present."

19                  With those remarks, I agree.  The AAT continued:

"What was the conduct complained of?

Mrs Marshall's claims have been expressed in different terms at different times.  At their fullest, they include many separate incidents of sexual conduct by word and/or gesture including comments by Mr De Domenico about his own body, about various women's sexual characteristics, his sexual reaction to them and stories about sexual activity by and between colleagues and co-workers.  The conduct is said by Mrs Marshall to have begun shortly after she began working in Mr De Domenico's office in February 1994 and to have continued with increasing intensity until her dismissal by him in October 1994.  She described it as an `unremitting barrage of offensive, intimidating and humiliating conduct which commenced early in 1994 and became much worse in the last 3 or 4 months of my time with him'.

The alleged conduct was of several kinds:

(a)       statements by Mr De Domenico that he had a testicle removed as a consequence of testicular cancer;

(b)       repetition by Mr De Domenico to Mrs Marshall of rumours of an affair involving sexual relations between "D", another Member of the Legislative Assembly, and "E", who was then a member of his staff;

(c)       the use of a nickname for "E" said to be in common use around the Legislative Assembly and to have originated with a Canberra Times journalist and comments by Mr De Domenico relating to that nickname;

(d)       repetition by Mr De Domenico to Mrs Marshall of a rumour of an affair between "D" and Mrs Marshall;

(e)       statements by Mr De Domenico to the effect that he was, or suggesting that he was, sexually aroused following telephone conversations with women and gestures by Mr De Domenico suggesting that this had occurred;

(f)        repetition by Mr De Domenico to Mrs Marshall of a rumour that "D" was a paedophile.

Mrs Marshall had made other allegations in her complaint to the Commissioner; the ones we have listed are the ones with which she persisted before the Tribunal."  (Emphasis added).

20                  The AAT then gave a preliminary summary of what was involved in the allegations.  In the course of doing so, the Tribunal shortly rejected the respondent's allegation that the appellant's statements made to her and others, that he had had a testicle removed because of testicular cancer amounted to sexual harassment:

"There is no sufficient evidence before the Tribunal to show that the statement was so repetitious or otherwise said in such a way as to reasonably cause Mrs Marshall to be offended, humiliated or intimidated."

21                  In this context, the AAT noted Mr De Domenico's denials of anything that might reasonably be called improper and then considered the credibility of the evidence of the various witnesses, commencing with that of Mrs Marshall.  Of the respondent, the AAT said:

"Mrs Marshall must take responsibility for the presentation of her case and the evidence and submissions she put to the Tribunal.  Her evidence is in many respects in an unsatisfactory state.  It includes what are plainly exaggerations and contradictions, some of which would, no doubt, have been avoided by a more careful presentation.  The more serious contradictions concern matters, particularly the timing and content of a discussion she had with "B" and "K" following her dismissal from employment and the authenticity of a letter she is said to have written to Mr De Domenico immediately following her dismissal, that are largely collateral to the issue of sexual harassment.  She did not clearly distinguish between matters relevant to her sexual harassment claim and matters relating to her unfair dismissal claim, the latter having been settled by the proceedings in the Industrial Relations Court. We have to decide in what respects we consider the material she put before the Tribunal to be unreliable and in what respects we may rely upon it."

22                  The Tribunal then dealt with legal questions concerning onus and standard of proof.  It is unnecessary to consider these matters at any length because, despite the AAT's conclusion that a complainant under the Act bears no legal onus of proof, the AAT dealt with the matter, as to onus, in a manner practically indistinguishable (as the AAT noted) from the way a contrary conclusion would have indicated.  As to the standard of proof, the AAT applied the well-known principles referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-2 by Dixon J.

23                  In the course of the discussion, however, the AAT said:

"The procedures in this Tribunal differ from the procedures adopted by the Commissioner in other important respects.  The Commissioner devoted many hours of hearing to the task of striking out passages in affidavits presented by the applicant and her witnesses on irrelevance and other grounds.  She sought to hold witnesses including the applicant, other than in limited respects, only to matters covered in their affidavits. These are procedures pertaining to an adversarial style of hearing and are, in our view, quite inappropriate in this Tribunal.  They are especially inappropriate in the case of an unrepresented applicant who is unskilled in the drafting of affidavits and the presentation of material in a hearing.  It is, of course, true that inconvenience may be caused where a witness, having sworn an affidavit, gives oral evidence of matters not dealt with in the affidavit.  This may take other parties by surprise and may prolong a hearing.  Nevertheless, the Tribunal's primary duty is to give all sides a fair hearing.  A fair hearing requires that an unrepresented party be not disadvantaged by adherence to the forms of procedure appropriate in curial proceedings where legal representation is assumed to be the norm if that can be done with due regard to the duty to be fair to other parties to the proceedings."

24                  The AAT turned to the question of corroboration of Mrs Marshall's claims.  After a discussion of the evidence of various witnesses, the AAT said:

"We have, in the evidence of 'E' and 'B', corroboration that at least sexually explicit language was used in Mrs Marshall's presence.  Moreover, we have in the evidence of 'E' and 'B', and in the evidence of Mr Marshall, corroboration that the allegations of the use of sexually loaded language, at least, was not an invention dreamed up by Mrs Marshall after she was dismissed in an attempt at self-justification. We accept 'E''s evidence that some sexual gestures occurred."

25                  The Tribunal noted that it assessed "the key witnesses" as to corroboration, the woman known as "E" and Mrs Marshall's husband, differently from the Commissioner.  The AAT continued:

"We do not place the same weight as did the Commissioner on the fact that some matters might have been covered in oral evidence that were not set out in the affidavits tendered to the Commissioner.  We think that, in the inquisitorial nature of proceedings before the Commissioner and, indeed, proceedings before this Tribunal, to hold a witness to only what was put in an affidavit introduces an unnecessary element of adversary proceedings.  We see no justification for this procedure."

The AAT concluded, as to corroboration:

"We are therefore satisfied that the evidence of Mrs Marshall, "E", "B" and Mr Marshall would establish that, although the allegations by Mrs Marshall were often in an exaggerated form, there is a solid kernel of conduct that may bear the character of sexual harassment.  We have to assess how we regard Mr De Domenico's blanket denials in the light of this conclusion."  (Emphasis added).

26                  The Tribunal then considered Mr De Domenico's evidence and expressed the following conclusions:

"Where there is directly contradictory evidence given on oath relating to alleged conduct then, unless we have good reason for preferring the evidence of one witness over that of the other or there is some independent corroboration, we could not be satisfied to the requisite degree that allegations of harassment have been made out.  All that we could say in such a case is that the alleged conduct may have occurred but we could not bring in a positive finding that it did occur.  However, in this case the evidence of "E" and, to some extent, of "B" provides corroboration of significant parts of Mrs Marshall's evidence.  There is sufficient to satisfy us that she did not invent the conduct about which she complains. It is not necessary for the whole of her evidence to be corroborated by independent evidence. If that were the case there would be a considerable gap in the protection given by sexual harassment laws.  Mr De Domenico denied that any of the conduct that we find to constitute harassment took place.  In respect of matters for which there is no corroboration on either side, we have to weigh up his blanket denial against Mrs Marshall's evidence which is supported in some respects.  We find sufficient corroboration of the core of Mrs Marshall's evidence concerning Mr De Domenico's use of words and gestures of a sexual nature in reference to other women in the evidence given by "E".  We have said that we regard her as an honest witness."  (Emphasis added).

27                  The AAT went on to dismiss the possibility that Mrs Marshall had simply invented her story after her dismissal.  It then rejected the idea that Mr De Domenico's repetition to Mrs Marshall of the paedophile rumour amounted to harassment.  Although the Tribunal believed that the "most likely possibility" was that "Mrs Marshall's story is true or substantially true", the repetition of the rumour was not, in any relevant sense, a "statement of a sexual nature", and therefore the Tribunal declined to make a finding of sexual harassment based on that repetition.

28                  The Tribunal dealt with other matters that had arisen in the proceedings, commenting as to one of them that "we found Mrs Marshall's evidence … to be far from satisfactory".  The Tribunal noted in regard to the question of remedy, that:

"The picture that emerges from the whole of the evidence is that, if his conduct was as upsetting to her as she has subsequently claimed, she did surprisingly little about it even though she was his employee.  They were both mature people, they were both active in the Liberal Party matters and by August 1994 Mrs Marshall had come to hold a Liberal Party position of some responsibility."

Finally, the AAT wrote:

"Summary

This case ultimately turns on our assessment of the evidence and the conclusions we draw from that evidence.  Our assessment of the evidence necessarily also involves our assessment of the witnesses who gave evidence and of their credibility…  In the face of the evidence of "E" and "B" we do not accept Mr De Domenico's blanket denials of the conduct attributed to him.  Nor do we find what might be described as the evidence of his [good] general reputation helpful.  The witnesses who were called to testify to this seem to us to have been unlikely candidates for the receipt of grossly sexual language and allusions even if Mr De Domenico were inclined to do and say such things in other contexts.

Having given the matter the best consideration we can, we have come to the conclusion, on the whole of the evidence and on our assessment of the witnesses during the several days of hearing, that we are persuaded that Mrs Marshall's complaint has been substantiated, but that her claims as to the frequency and intensity of the conduct are exaggerated.  We do not accept that it was of the "unremitting" nature that she claimed it to be.  For one thing, we do not believe that the conduct complained of could have occurred with the intensity alleged after "F" came to work in Mr De Domenico's office."  (Emphasis added).

29                  The Tribunal stood the matter over to have the question of remedy debated.  After a hearing on that matter, the AAT dealt with it.  Mrs Marshall had claimed $602,000.  The AAT noted:

"almost all of the case presented by Mrs Marshall was irrelevant to the question of compensation for loss or damage arising from the unlawful conduct found by the Tribunal to have occurred during her employment by Mr De Domenico.  Loss or damage suffered as a consequence of her dismissal from that employment is not relevant because there has been no finding that the dismissal constituted unlawful conduct under the Discrimination Act and because Mrs Marshall's claim for damages for unfair dismissal was settled by a consent order in the Industrial Relations Court."

The AAT's conclusion on this matter was:

"We think this case calls for some compensation for what was some injury to her feelings and some stress suffered by Mrs Marshall during her employment with Mr De Domenico as a consequence of the harassment, but we also believe that the compensation ought to be at the lower end of the scale of damages awarded in cases of this kind.  A survey of reported decisions of the Human Rights and Equal Opportunity Commission and of State bodies shows that compensation awarded in sexual harassment cases where there is no economic loss ranges from nothing to about $10,000.

We think that an amount of $1500 is adequate in the circumstances. Accordingly, we will direct, pursuant to section 90(2)(b)(iii) of the Discrimination Act 1991, as continued in force in relation to these proceedings by section 20 of the Discrimination (Amendment) Act 1996, that Mr De Domenico pay to Mrs Marshall an amount of $1500."  (Emphasis added)

Proceedings in the ACT Supreme Court

30                  The appellant exercised his right under s 46(1) of the AAT Act to "appeal to the Supreme Court on a question of law from any decision of the Tribunal in [a proceeding before it]".  As the learned primary judge perceived the position:

"The two major grounds of appeal are, first, that the Tribunal erred in law in applying a principle that no onus lay on Mrs Marshall to prove the substance of her allegation, and, second, that in carrying out the review the Tribunal acted under the misapprehension that it was unnecessary to consider the admissibility of any of the material tendered or called in support of the allegations.  These two grounds, and perhaps some other grounds, were related.  A further ground was that the Tribunal failed to appreciate that the determination of a complaint of sexual harassment under the Discrimination Act was essentially judicial in character, although made by a body which had been established to carry out administrative functions and to make decisions of an administrative nature."

31                  His Honour dealt with the main matters argued before him in terms with which I generally agree:

"The Tribunal went to some length in its reasons to emphasise that there was no room for the application of a concept of onus of proof in proceedings before it.  The Tribunal was similarly emphatic that the provision in of the Discrimination Act that the Commissioner was not bound by the rules of evidence (former s 79(1)) meant that the Commissioner was wrong in considering and ruling on matters of admissibility.  In particular, the Tribunal stated that there was no need to "comb through" each affidavit in order to ascertain what matter should be admitted into evidence.  In similar vein, the Tribunal made repeated references to the advantages enjoyed by the parties by reason of the proceedings being non-adversarial and the advantage enjoyed both by the parties and the Tribunal itself by the non-applicability of the rules of evidence.

As the cases show, where an allegation of sexual misconduct made by one person against another can be brought before an official decision-maker in order for a decision to be made whether or not such misconduct occurred, the process leading to the decision necessarily imports a relationship of adversity between the person making the allegation and the person against whom the allegation is made.  Where the decision-making process can be invoked only by the lodging of a document called a complaint, it is difficult to regard the process as free from the features of a contest in which the complainant's allegations are made out or not made out against a person named and treated in the process as a respondent: see Ebber v Human Rights and Equal Opportunity Commission (1995) 129 ALR 455.  The Discrimination Act itself makes use of such terms as "complainant", "respondent" and "parties to an investigation", eg. s 74.

In the absence of a presumption imposed by the law that the allegations are true, the person against whom they are made does not have to demonstrate that they are not true, especially when the decision-maker is authorised to give directions, which, if not complied with, give rise to criminal liability, or, if directing the payment of compensation, give rise to civil liability enforceable as a debt.

Nevertheless it is true that as a matter of strict legal doctrine, a complainant alleging sexual harassment under s 59(1) of the Discrimination Act does not bear an onus of proof.  The concept of onus of proof in both civil and criminal proceedings in courts is well established.  The Tribunal described and discussed that concept with accuracy.  There is no point in this Court prolonging the discussion.

…

It is clear, in my opinion, that there is no general principle that either the Commissioner or the Tribunal was bound to apply the rules of evidence unless there was reason to exclude those rules.  To propound such a principle would be clearly contrary to the provisions of both the Discrimination Act and the AAT Act.  On the other hand it may well be that fairness in some cases may require the Tribunal (or the Commissioner) to have regard to the rules of evidence, particularly where the proceedings are in the nature of judicial proceedings, as they were in the present case.

In any event, it is apparent from a reading of the Tribunal's reasons that, despite its avowed distancing itself from what it regarded as the outmoded and technical procedures of the courtroom, the Tribunal did conduct itself much as a court would have done in any event.… Thus, whilst it rejected the concept of an onus of proof (noting the contrary view of Brennan J in Bushell v Repatriation Commission (1992) 175 CLR 408 at 424-425), the Tribunal recognized that "there is no practical difference in the result that would have flowed from casting an onus of proof on the applicant from the result that we have reached independently of considering the matter on that restricted basis".

…

Thus despite expressly and repeatedly disavowing the application of an onus of proof, the Tribunal correctly recognized and imposed a requirement that the allegations made by Mrs Marshall against the respondent be proved to a proper standard based on proper evidentiary material.

Mr Byrne submitted that error of law is displayed in the reference by the Tribunal in other passages to an evidentiary onus of proof as distinguished from an onus of proof, and a statement that the evidence of Mrs Marshall establishes a "prima facie case and, to that extent, she has established the evidentiary onus".  It is not, in my view, clear exactly what the Tribunal meant in this latter statement, but if it does involve an error of law, it is not an error that vitiates or even undermines the Tribunal's process of reasoning or its conclusions.

On the question of the application of the rules of evidence, it may be, as Mr Byrne submitted, that the enthusiasm  of the Tribunal for dispensing with legal niceties was expressed in such a way as to suggest that the Tribunal thought that it was precluded from applying the ordinary rules of evidence, and that the provision in s 32(1)(c) that it was not bound by the rules of evidence meant that it was bound not to apply them.  Again, as with the onus of proof, a reading of the Tribunal's decision shows that, in fact, it analysed the material before it in accordance with an elaborate set of ground rules which stated at the beginning of its reasons how it proposed to assess the considerable amount of documentary and oral testimony it had before it.  In effect, the Tribunal's ground rules laid down an over-riding test of relevance.  They encompassed corroboration and other tests of the probative value of the evidentiary material and of particular evidentiary items contained within it.  Hence, whilst it would have been an error of law for the Tribunal to proceed under the misapprehension that it was precluded from applying any of the rules of evidence, its reasons indicate that such was not the case.  It proceeded in a rational and orderly way and in general in accordance with the basic principle of evidence, that material which is irrelevant to the question to be decided is not to be taken into account.

It may have been preferable for the Tribunal to rule on the admissibility of at least those parts of the material which the Commissioner had ruled inadmissible.  The Tribunal would not have had to spend the "hours" that it saw the Commissioner as having spent in that process, because a cursory glance of the transcript of the proceedings before the Commissioner reveals that a good deal of the material objected to on behalf of the appellant was admitted over objection.  The difficulty that arises in the approach of the Tribunal to allow everything to stand and to be treated as evidence was that, unless there was an express evaluation of the probative value of every item, the appellant would not be in a position to know the precise basis on which the serious findings against him were made.  However, in practical terms, the difficulty does not arise in the present case because the Tribunal in its detailed and careful statement of reasons, appears to have assessed the weight of everything in the material before the Commissioner and before it which might reasonably be taken to have been considered by it as having potential probative value.  In other words, the reasons are such that it could not be reasonably inferred that the Tribunal gave any weight to any item that it has not mentioned and then discussed."

32                  His Honour was then critical, again, in my view generally rightly, of some particular matters referred to by the AAT but concluded that none of them amounted to an error of law which would vitiate the Tribunal's decision.  As the matter was put to his Honour, I consider that his decision was correct.

The submissions on appeal

33                  While the submissions made before the primary judge were repeated, the case of the appellant was re-articulated by his senior counsel, Mr Salmon QC.  The submission chiefly relied on was that the AAT erred in law by not making sufficiently precise or comprehensible findings as to the conduct said to constitute the sexual harassment which it concluded had occurred. There was no complaint to the AAT that the issues in the matter had been inadequately identified by the Tribunal.  Accordingly, quite properly, counsel did not make a submission to that effect before us.  However it was submitted that the alleged error as to the findings was apparently attributable in part to such an antecedent error.

The legislative framework

34                  The Discrimination Act 1991 (ACT) has been amended in recent times (seeDiscrimination (Amendment) Act 1994 (ACT), Discrimination (Amendment) Act (No. 2) 1994 (ACT) and Acts Revision (Position of Crown) Act 1993 (ACT)).  The references that follow are to the Act in its form before those amendments.

35                  The Act has far-reaching objects.  Section 3 provides that:

"The objects of this Act are-

(a)       to eliminate, so far as possible, discrimination to which this Act applies in the areas of work, education, access to premises, the provision of goods, services, facilities and accommodation and the activities of clubs;

(b)       to eliminate, so far as possible, sexual harassment in those areas;

(c)       to promote recognition and acceptance within the community of the equality of men and women; and

(d)       to promote recognition and acceptance within the community of the principle of equality of opportunity for all persons."

36                  The phrase "discrimination to which this [Act] applies" is expansively clarified in s 7; it includes discrimination on the ground of a wide range of attributes including "(a) sex".  Section 10 makes discrimination unlawful in the area of employment.  Immaterial exceptions are provided for in ss 34 - 41.

37                  Part V (ss 58 - 64) deals with sexual harassment.  Section 58 defines that term (see para 17 above for its terms) and s 59(1) makes it unlawful for an employee to subject an employee, or a would-be employee, to sexual harassment.

38                  Section 68 makes it unlawful for a person to be subjected to detriment for, broadly speaking, asserting his or her rights under or in relation to the Act.

39                  Part VIII (ss 70 - 108) deals with the "Resolution of Complaints".  Section 70 permits a complaint alleging an act, including sexual harassment, which is unlawful under the Act, to be lodged with the Commissioner.  Section 70(4) provides:

"A complaint shall be in writing specifying-

(a)       particulars of the complaint; and

(b)       so far as practicable, the respondent or each respondent to the complaint."

40                  These formal requirements, that the complaint be in writing and that it specify particulars, have evident purposes.  For example, s 72 acknowledges the importance, and provides a means, of the Commissioner's determining whether he or she has power "to investigate the matter to which the complaint relates".  Section 71(1)(b) furnishes the only quasi-limitation as to the age of complaints that might be investigated.  It provides:

"(1)       The Commissioner may decide not to investigate a complaint, or not to investigate a complaint any further, if the Commissioner believes on reasonable grounds that-

              …

(b)       the act, or the last of the series of acts, to which the complaint relates became known to the complainant more than 12 months before the complaint was made to the Commissioner;"

Section 71 otherwise enables the Commissioner to decline to investigate a complaint if the complaint possesses any of a variety of attributes.

41                  Section 73 provides for the investigation by the Commissioner of "each complaint made in accordance with section 70" (emphasis added) and, of his or her own motion, of conduct that appears to be unlawful under certain provisions of the Act.  According to s 74 an investigation has "parties" who are either defined by that section or joined by the Commissioner.  Section 80 provides that the Commissioner is ordinarily to attempt conciliation but, if conciliation looks hopeless or fails, or if the Commissioner believes it necessary or desirable, he or she may according to s 82(1) hold a public hearing in relation to a matter.  Section 82(2) provides:  "Subject to this Part, the procedure at a public hearing shall be determined by the Commissioner."

42                  Section 76 provides that, before commencing an investigation in relation to the matter, the Commissioner must give the parties written notice and "invite each party to present his or her case to the Commissioner".  Section 79 is in the following terms:

"(1)     Subject to this Part, an investigation shall be conducted in such manner as the Commissioner thinks fit.

(2)       An investigation shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of this Act and any other relevant enactment and a proper consideration of the matters before the Commissioner permit.

(3)       In conducting an investigation, the Commissioner-

(a)       shall make a thorough examination of all matters relevant to the investigation;

(b)       shall, subject to this Part, ensure that each party to the investigation is given a reasonable opportunity to present his or her case;

            and

(c)        is not bound by the rules of evidence.

(4)       The Commissioner may give such directions as to the procedure to be followed in an investigation and do such things as the Commissioner considers are necessary or expedient for the expeditious and just completion of the investigation.

(5)       The Commissioner may at any time vary or revoke a direction given under subsection (4).

(6)       Subject to subsection (7), it is not necessary for a complainant or respondent to be afforded an opportunity to appear before the Commissioner in connection with an investigation.

(7)       The Commissioner shall not give a direction under section 89 or 90 that is adverse to a complainant or respondent unless the Commissioner has afforded that person an opportunity to appear before the Commissioner and to make submissions, orally or in writing, or both, in relation to the relevant matter."

43                  Sections 76 and 79(7) express a requirement of procedural fairness.  They imply that the parties should know what the subject of the complaint is and that, if necessary, there should be some pre-determination of this by the Commissioner:  how else can a party "present" his or her case or make "submissions"?

44                  Sections 85 and 86 deal with the powers of the Commissioner to obtain information or documents and to receive and compel evidence "relevant to the investigation".  Again, the scope of those powers cannot be determined, in the case of the investigation of a complaint, without reasonable clarity as to what is the subject of the complaint. 

45                  Section 90 deals with decisions following investigations.  It provides:

"90.     (1)        In this section-

"unlawful conduct" means conduct that is unlawful under Part III, V, VII or section 66.

            (2)        After completing an investigation, the Commissioner shall-

                       (a)       dismiss any complaint that the Commissioner is satisfied has not been substantiated; or

                       (b)       if satisfied that the respondent has engaged in unlawful conduct-

                                   (i)         direct the respondent not to repeat or continue the unlawful conduct;

(ii)       direct the respondent to perform any reasonable act or acts to redress any loss or damage suffered by a person as a result of the unlawful conduct by the respondent;

                                   (iii)      except where the complaint has been dealt with as a representative complaint-direct the respondent to pay to a person a specified amount by way of compensation for any loss or damage suffered by the person as a result of the unlawful conduct by the respondent; or

                                   (iv)      decide not to take any further action in the matter.

(3)      A direction under subparagraph (2) (b) (iii) may include a direction for payment of a specified amount-

(a)        authorised by the Commissioner in accordance with the prescribed scale; or

(b)        if there is no prescribed scale-determined by the Commissioner;

in respect of the expenses reasonably incurred by a person in connection with the investigation.

(4)      A direction under subparagraph (2) (b) (i), (ii) or (iii) shall be-

(a)               in writing; and

(b)               accompanied by a written statement setting out the Commissioner’s reasons for the direction.

(5)      Where the Commissioner gives a direction under subparagraph (2) (b) (i), (ii) or (iii) in relation to an investigation initiated by a complaint, the Commissioner shall give the complainant a notice in writing setting out the terms of the direction and the Commissioner's reasons for the direction.

(6)      The validity of a direction under subparagraph (2) (b) (i), (ii) or (iii) shall not be taken to be affected by a failure to comply with paragraph (4) (b) or subsection (5.)

(7)     Where the Commissioner dismisses a complaint or decides not to take any further action in a matter, the Commissioner shall give each party to the relevant investigation notice in writing of the decision setting out the Commissioner's reasons for the decision "

Notwithstanding subs (6), the section seems clearly enough to cast on the Commissioner a duty to give written reasons, whatever the Commissioner's decision is.  Subsection (6) seems to be aimed only at preserving directions from invalidity if either of the formal requirements, that they be "accompanied by" such reasons and that the complainant also be given written notice of their terms, is not complied with.  In any case, these procedural matters do not gainsay the requirement, implicit especially in subs 2(b), that the Commissioner determine with reasonable specificity just what unlawful conduct, if any, a respondent has engaged in.

46                  It is an offence under s 91 to contravene a direction given under s 90(2)(b)(i) or (ii), and under s 92 an amount ordered to be paid under s 90(2)(b)(iii) becomes a debt owed by the respondent to the beneficiary of the order.

47                  Section 94 allows for "review" by the AAT of such a direction "or other decision of the Commissioner" under, among other provisions, s 90.

48                  Part X (ss 111 - 120) establishes the Commissioner.  Under s 111(1)(h) the Commissioner's functions include that of doing "anything incidental or conducive to any" of the Commissioner's other functions, and s 111(2) gives the Commissioner power to do "all things that are necessary or convenient to be done in relation to the performance of the Commissioner's functions".

49                  Section 112 provides for appointment of the Commissioner by the Executive.  He or she is not guaranteed any security of tenure except that, not exceeding 7 years, specified in the instrument of appointment.

Relevance of principles underlying the rules of evidence

50                  It is apparent from the subject matter of the Act that its width of operation is broad.  This is recognised expressly or implicitly by the provisions referred to above.  Complex values and subtle considerations are apt to be at play in investigations and determinations of complaints.  Difficult questions of balance will be involved.  On the one hand, vindication of the rights of complainants or other persons subjected to proscribed conduct is necessary.  Such persons may frequently occupy positions of vulnerability.  The nature and extent of those rights are to be developed from case to case, and their articulation is still in its late infancy.  On the other hand, there must be respect for the rights of respondents to fair and reasonable treatment in relation to the far-reaching interference with their conduct or property that may be involved in the remedies available under s 90 and in relation to the public opprobrium that may attach to findings against them.

51                  At least in a case such as this, with a complainant who is seeking compensation, the proceedings before the Commissioner bear many of the characteristics, despite the notable absence of a statutory guarantee of independence for the adjudicator, of ordinary civil litigation seeking the vindication of some legal right by a compensatory award of damages.  In such a case, what may be called the spirit of the rules of evidence, if not their letter, becomes of more importance than in other kinds of administrative enquiries.  Admirable attention was paid to the spirit of those rules, as to onus and standard of proof, both by the Commissioner and the Tribunal.  Considerable attention, though perhaps not enough, was paid to the essence of the rules concerning relevance.  However, very little and, in some cases, no consideration at all seems to have been paid to the capacity, under those rules, for the fact-finding tribunal to:

·        prevent, by intervention, its processes being abused, by vindictive persons gratuitously calumniating others (c.f. s 11 Evidence Act 1995 (Cth));

·        refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party or might simply waste time (c.f. s 135 ibid);

·        reject, in particular, evidence of a person's character, reputation, conduct or tendency that does not have significant probative value:  s 97 ibid; and

·        likewise, limit evidence of coincidences to prove that a person did some particular act or had some particular state of mind:  s 98 ibid.

52                  It should go without saying that there will be some cases of complaints where the search for truth may demand that less weight be given to the sorts of considerations just referred to and which inform the rules of evidence.  Cases involving a complainant with an intellectual disability or a very young or otherwise especially vulnerable person are obvious examples.  But here both parties were mature, articulate and possessed of some administrative and political experience.

Definition of issues and procedural controls

53                  It is clear from s 70(4) that the written complaint bears some of the attributes of a pleading in curial civil litigation.  It is also clear from the other provisions referred to that some such mechanism for defining the questions and issues that are to be investigated is necessary.  No doubt cases will turn on their circumstances.  However this was the case of a complaint by a mature person, such as I have described, who had another reason, her dismissal, to dislike the object of her complaints of sexual harassment.  Mrs Marshall had also received the benefit of advice and assistance, quite properly available to a potential litigant (including a potential respondent) before the Commissioner, of a case officer on the Commissioner's staff.  Mrs Marshall evidently had the capacity to profit from that assistance.  She was also, for a time, legally represented and indicated that it was not for want of financial means that she did not continue to be so represented. 

54                  The case was a heady brew.  The main ingredients were politics and sexual issues.  Indeed, an unusual variety of religious experience, the third taboo for what in some circles used to be thought polite conversation, was of possible significance for one of the important witnesses.  The mixture was apt to be volatile in terms of reasonable orderliness of and boundaries for the proceedings.

55                  In these circumstances, whatever the Commissioner reasonably did to hold the parties to her directions (see s 79(4) of the Act), including a direction that the evidence in chief be by affidavit (if such a direction was in fact given), in my view deserved encouragement and not, with respect, the sort of condemnation offered by the AAT.  If anything, the Commissioner erred favourably to Mrs Marshall and risked muddying the waters by permitting her affidavits to be treated as part of her written complaint.  It would have been preferable, in my view, to keep the documents constituting the complaint quite separate from the evidence that might support the complaint.

The nature of the AAT's review and its procedures

56                  Section 32 of the AAT Act provides, so far as is material:

"(1)     In a proceeding before the Tribunal-

            (a)          the procedure of the Tribunal is, subject to this Ordinance and the regulations and to any other enactment, within the discretion of the Tribunal;

…

(2)       For the purposes of subsection (1), directions as to the procedure to be followed in connection with the hearing of a proceeding before the Tribunal may be given-

            (a)          where the hearing of the proceeding has not commenced-by the President or by a member authorised by the President to give directions for the purposes of this paragraph;"

57                  Section 44(1) provides:

"(1)     For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision in writing-

            (a)        affirming the decision under review;

            (b)        varying the decision under review; or

            (c)        setting aside the decision under review and-

                          (i)       making a decision in substitution for the decision so set aside;
 or

                          (ii)      remitting the matter for reconsideration in accordance with any directions or recommendations of the Tribunal."

58                  It is now trite law, founded on a consideration of the Administrative Appeals Tribunal Act 1975 (Cth), that provisions such as these impose on the AAT the task of standing in the shoes of the original decision-maker and coming, on all the material before the AAT, to the correct or preferable decision.

59                  What is said above as to the relevance of the principles underlying the rules of evidence and as to the practical necessity for a firm procedural hand on the proceedings equally applies to the AAT.  Indeed, the AAT's distaste for ruling on questions of admissibility may have led to the lack of specificity in its findings of which the appellant now complains.

Conclusion

60                  In my view the point raised before us is well-founded.  Reading the AAT's reasons for decision with all due charity, that is, really trying to understand the basis of the decision and the reasoning supporting it, one is left without a sufficient understanding of what conduct the AAT found Mr De Domenico to have committed.

61                  The sufficiency of the findings of administrative (or judicial) tribunals is to be judged by the purposes for which they are made and the circumstances of the case.  These criteria include matters common to every case, such as satisfying the parties' interest in understanding what was decided and the basis of the decision and putting them in a position to decide whether to exercise their right of appeal (even if that right is limited to matters of law only):  see, generally Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65.  The purposes of the findings may also include matters particular to the case at hand.  Here, particular factors would include:  to enable a rational decision by the AAT as to whether to exercise the discretion to award any compensation to Mrs Marshall and, if so, how much.  Although Mrs Marshall did not cross-appeal as to the quantum of the compensation awarded to her, her submissions show that she is very unhappy about it.  Her failure to appeal may have been no more than an oversight.

62                  Judged in this way, it is clear that the findings of both the Commissioner and the AAT were not made with a sufficient degree of particularity.  This is not a matter of requiring an unrealistic degree of detail.  For example, although there was no express rejection of Mrs Marshall's claim that Mr De Domenico taunted her, at times in grossly explicit terms, about her supposed but non-existent affair with another MLA, it may reasonably be inferred from various comments by the AAT that it did reject this claim for want of corroboration of it.  If that is not a reasonable inference, the lack of sufficient particularity in the findings is established beyond argument. 

63                  Nor could the Tribunal reasonably have been expected to quantify the precise number of times that Mr De Domenico, in the Tribunal's view, made sexually gross remarks to Mrs Marshall and/or accompanied them with obscene gestures.  However, although it is clear that the Tribunal considered that he so behaved on considerably fewer occasions than Mrs Marshall asserted but more than once, no reasonable inference can be made as to whether he so behaved, on what might be called (i) very few occasions, (ii) quite frequently or (iii) many occasions.  Whether he did this about once or twice each three months, or once or twice a month, fortnight or week, one cannot say from reading the totality of the Tribunal's remarks.  One might possibly have drawn an inference that it occurred quite infrequently from the award of a mere $1,500 in compensation, but the Tribunal seems to have thought that there was a de facto upper limit to what might be awarded, in a case where economic loss was not in issue, of about $10,000.  Thus, the award may be consistent with a view that the offending conduct occurred often but was, nevertheless, quite minor in its true effects on Mrs Marshall.  Hence the matter remains one of mere guesswork.  All one knows is that his remarks and gestures were not "unremitting".  In the absence of findings of greater particularity and less ambiguity, no rational view could be come to by the parties or anyone else as to whether, for instance, the award of compensation was too high or too low or should not have been made at all.  Nor could an interested member of the public discern whether Mr De Domenico was a man who, on a mere handful of occasions had expressed himself to Mrs Marshall in a way that, had he done so to a man, many men might not find seriously objectionable, or a man who on many occasions truly had oppressed a women by forcing her attention to sexual matters of little interest to her, in a very gross way, and in an utterly inappropriate context, notwithstanding that the woman had exaggerated the frequency of those occasions.

64                  It is well established that the failure of an administrative body to make findings of material fact constitutes an error of law:  see Dornan v Riordan (1990) 24 FCR 564, Dolan v Australian Overseas Telecommunications Corporation (1993) 42 FCR 206, Australian Trade Commission v Underwood Exports (1997) 49 ALD 411, Copperart v Commissioner of Taxation (1993) 30 ALD 377 and on appeal (1994) 50 FCR 345.  In Copperart, at first instance, Hill J said at 377:

"The parties are entitled to know what evidence the Tribunal accepted and what evidence it took into account. Likewise, the parties are entitled to know what evidence the Tribunal rejected. Without this knowledge the parties will have but an incomplete idea of the Tribunal's process of reasoning and a lessened respect for the Tribunal's decision-making process."

65                  A failure to make findings of sufficient particularity in all the circumstances is but a special case of breach of the duty to make findings about the material facts.  In Ansett v Wraith (1983) 48 ALR 500 at 507, Woodward J said:

"The  decision-maker should set out his understanding of the relevant law, any findings of fact on which his conclusions depend (especially if those facts have been in dispute), and the reasoning processes which led him to those conclusions.  He should do so in clear and unambiguous language, not in vague generalities or the formal language of legislation"

This passage was referred to with approval by Wilcox J in Our Town FM v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 481.

66                  The Tribunal failed to make unambiguous findings here.  The appeal must therefore succeed.

67                  Had the Act not been amended and had administrative arrangements as to the composition of the AAT not altered, the appropriate remedy might possibly have simply been to remit the matter to the AAT so that, constituted as it was for the hearing of this case, it could simply refine its findings.  However, the legislation and such arrangements have in fact changed and such a course is not practicable, even if it were desirable.

68                  I see no alternative to the melancholy course of remitting for further hearing by the AAT a matter as to which the Discrimination Commission thought nothing unlawful under the Act could be found to have occurred and the AAT, showing a willingness to overlook problems about the complainant's evidence, saw fit to award only $1,500 in compensation.  Already this matter has occupied many days of public and private time and energy, at substantial financial and other cost to Mr De Domenico and probably at substantial non-financial cost to Mrs Marshall.

69                  We can however attempt to keep the scope of the further hearing within reasonable bounds.  The AAT Act provides in s 46:

"(5)     The Supreme Court shall hear and determine the appeal and may make on the appeal-

            (a)        an order affirming or setting aside the decision of the Tribunal;

(b)          an order remitting the case to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the Court; or

(c)          such other order as the Court, in its discretion, thinks appropriate having regard to its decision."

70                  Section 28(1)(b) of the Federal Court of Australia Act 1976 (Cth) enables the Court, among other things, to "make such order as, in all the circumstances, it thinks fit".

71                  Having regard to the history of the matter, to what I make of the AAT's reasons, and to my conclusions, including as to costs, I think it is appropriate to limit the future course of the matter.  The Tribunal rejected a complaint about the one-testicle statements:  see para 20 above.  The paedophile rumour matter was also not sustained:  see para 27 above. The Tribunal took the view that it needed reliable corroboration of Ms Marshall's other complaints;  it found this only as to "the case of Mrs Marshall's evidence concerning Mr De Domenico's use of words and gestures of a sexual nature in reference to other women":  see para 26 above.  Clearly, the AAT thereby rejected so much of the complaint as was founded on (a) Mr De Domenico's having repeated to Mrs Marshall the rumour that she was having an affairs; (b) his repetition of the rumours of an affair between "D" and "E"; and (c) his use of the offensive nickname in a particularly unpleasant context.  Mrs Marshall has not appealed against the rejection of those aspects of her complaint.  All that is left is so much of her complaint as alleges that Mr De Domenico made remarks to her about his sexual desire for and arousal by other women and that he accompanied those remarks by gestures.

72                  The re-hearing should accordingly be limited to the investigation of so much of Mrs Marshall's complaint as alleges that Mr De Domenico (a) repeatedly made explicit remarks to her about his sexual desire for and arousal by other women and (b) accompanied those remarks by lewd and explicit gestures.

73                  It will, of course, be open to the AAT to consider how much, if any, further oral evidence in chief it hears and, if it thinks fit, to limit the amount of further cross-examination.  Normally where credibility is in issue, it is generally held to be (and sometimes actually is) a considerable advantage to see and hear the witnesses.  However, where questions of truthfulness and the fact or degree of exaggeration are involved, an important aspect of the advantage lies in observing the fresh and untutored responses of the witnesses.  Cross-examination in a second hearing is rarely as telling as in the first.  It is likely to be even less valuable in a third.  The desirability of some reasonably proportionate commitment of the AAT's time to what appears to be involved will be a relevant factor.  Complete transcripts are available and have been obtained.  I should add that appropriate directions to the parties, among other things, to provide a detailed guide to the transcript passages deemed of importance, as well as attention to those aspects of the principles behind the rules of evidence to which I have referred, should greatly assist to shorten the matter and reduce costs.

74                  For the appellant to succeed on the ground that I think he should requires that he have leave to amend the notice of appeal.  An important question of law and practice is involved.  There is no prejudice to Mrs Marshall and I would therefore grant leave.

75                  However, the decisive matter was raised at the heel of the hunt.  The parties should, in all the circumstances, bear their own costs both as to the proceedings in this Court and before the Supreme Court.

Associate:

Dated:              16 September 1999

ON APPEAL FROM THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

REASONS FOR JUDGMENT

DOWSETT J:

76                  I have had the opportunity of reading the reasons prepared by Madgwick J and am in general agreement that this appeal should be allowed.  I wish only to add a few comments.

77                  In the present case, the Administrative Appeals Tribunal (“AAT”) treated the allegations of sexual harassment as describing a course of conduct rather than a series of individual acts.  Section 58 of the Discrimination Act 1991 (ACT) (the “Act”) provides:-

(1)       For the purpose of this Part, a person subjects another person to sexual harassment if the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person or engages in other unwelcome conduct of a sexual nature in circumstances in which the other person reasonably feels offended, humiliated or intimidated.

(2)       A reference in sub-section (1) to conduct of a sexual nature shall be read as including a reference to the making of a statement of a sexual nature to, or in the presence of, a person, whether the statement is made orally or in writing. 

78                  Sub-section 59(1) provides:-

It is unlawful for an employer to subject an employee, or person seeking employment, to sexual harassment.

79                  Section 70 of the Act provides that a complaint alleging an act contrary to the provisions of Part V (of which s 58 is part) may be lodged with the Discrimination Commissioner.  Section 73 of the Act provides that the Commissioner is to investigate such complaints.  Clearly, the investigation must be as to specific complaints.  Such an investigation would necessarily involve consideration of the essential elements of sexual harassment, namely:-

·                 whether there had been a sexual advance, request for sexual favours or other conduct of a sexual nature;

·                 whether it was unwelcome; and

·                 whether the circumstances were such that the complainant reasonably felt offended, humiliated or intimidated.

80                  The focus of any enquiry must be the act or acts complained of, and any evidence, whether before the Commission or the AAT, must be relevant to the complaint.  Unfortunately, the AAT was, in the present case, most anxious to escape the perceived constraints of the rules of evidence.  Whilst much may be said for the flexibility to be derived from a relaxation of some of the more stringent aspects of the rules of evidence, it is wrong to assume that those rules are generally of no use.  They are, after all, the distilled wisdom of centuries of dispute-resolution and largely based upon common sense.  In particular, the rule of relevance is the primary tool available to a court or tribunal to keep its factual enquiry focussed and within reasonable bounds.  In this case, the AAT allowed the parties to canvas a wide range of issues, creating the risk that the matters for determination would be unnecessarily and impermissibly broadened and blurred.  The process adopted by the AAT invites special scrutiny to ensure that there has been no injustice.

81                  The approach adopted by the majority in S v the Queen (1989) 168 CLR 266 highlights the difficulties which may arise where a tribunal of fact fails to address multiple complaints in a discrete way.  I do not suggest that the Commissioner or the AAT, in considering complaints such as these, is obliged to be as precise in identifying and determining the issues as is the case in a criminal trial.  However proceedings of the present kind would benefit from the adoption of practices analogous to those discussed in S.

82                  Four classes of conduct were eventually found to constitute sexual harassment for the purposes of these proceedings.  They were:-

·                 Repetition by Mr De Domenico to Mrs Marshall of rumours of an affair between another member of the Legislative Assembly and a member of his staff.

·                 The use of an offensive nick-name for a particular person, associated with comments by Mr De Domenico about that person in connection with the nick-name.

·                 Repetition by Mr De Domenico to Mrs Marshall of rumours of an affair between another person and her.

·                 Statements by Mr De Domenico that he was sexually aroused following telephone conversations with women, which statements were accompanied by lewd gestures.

83                  Mrs Marshall asserted that there had been numerous examples of each class.  That the AAT failed to consider the alleged acts of misconduct discretely appears from a number of passages in the reasons.  The first is at par 20:-

The totality of the evidence given by Mrs Marshall … would establish, in the absence of contrary evidence, a case of sexual harassment.  It would establish the occurrence of conduct of a sexual nature that was plainly unwelcome. 

84                  Clearly enough, the reference to “a case of sexual harassment” overlooks the fact that the allegation was of a number of acts of sexual harassment.  The reference to the conduct being unwelcome also appears to be a reference to the overall course of conduct rather than to the numerous individual incidents.  This misconception again appears in par 31 in connection with the onus of proof.  The AAT said:-

Obviously she (Mrs Marshall) must bring to the Tribunal factual material that would, on the face of it, be sufficient to establish that sexual harassment occurred.  That is an evidentiary onus, not an onus of proof.  We have already said that her evidence establishes a prima facie case and, to that extent, she has satisfied the evidentiary onus.  The position before this Tribunal is that the Tribunal must be satisfied, on the whole of the material before the Tribunal and according to the appropriate standard of satisfaction, that sexual harassment did occur.  If facts came to the knowledge of the Tribunal, independently of the evidence produced by the applicant, which would justify a finding that there had been unlawful conduct, the Tribunal could properly make such a finding on the basis of those facts.

85                  Prima facie, the sentence commencing, “If facts came to the knowledge of the Tribunal …” suggests that the AAT could conclude that conduct, other than that of which Mrs Marshall had complained, constituted sexual harassment.  If that is the intended meaning, then I doubt the correctness of the proposition.

86                  Similar problems arise in connection with the AAT’s treatment of the question of whether or not the conduct in question was unwelcome and whether or not Mrs Marshall reasonably felt offended, humiliated or intimidated.  This appears in pars 112-117 of the reasons.  The Tribunal found that Mrs Marshall regarded the “conduct of which she complains” as unwelcome but that there was little evidence that she had communicated this to Mr De Domenico.  It referred to one occasion on which she told him that she found a particular conversation to be “unpleasant and upsetting” and that she would walk away from Mr De Domenico if he said certain things.  The Tribunal then continued:-

But the picture that emerges from the whole of the evidence is that, if his conduct was as upsetting to her as she has subsequently claimed, she did surprisingly little about it even though she was his employee.  

87                  In par 115 the AAT continued:-

This does not go to the issue of harassment.  For that purpose, it is enough for the conduct complained of to have been unwelcome.  Unwelcome conduct may be tolerated if, in the circumstances of the case, it is not practicable or reasonable for the person who is the object of the conduct to do more than put up with it.

88                  Of course, “unwelcomeness” is not, by itself, enough to constitute sexual harassment.  Mrs Marshall’s case was of numerous incidents, some inoffensive and some very offensive.  Although the question of “offensiveness” must be considered separately from “unwelcomeness”, they are obviously closely related.  An inoffensive remark or act may still be unwelcome and vice versa.  Further, the nature of a remark or conduct may change with repetition or when augmented with unnecessarily lurid detail.  Thus it was necessary, at some point, that each alleged act be considered to determine whether it was, at the time, unwelcome and whether Mrs Marshall reasonably felt offended, humiliated or intimidated.  It seems that the AAT did not do this.

89                  In the course of a summary at par 199 the AAT said:-

Having given the matter the best consideration we can, we have come to the conclusion, on the whole of the evidence and on our assessment of the witnesses during the several days of hearing, that we are persuaded that Mrs Marshall’s complaint has been substantiated, but that her claims as to the frequency and intensity of the conduct are exaggerated.  We do not accept that it was of the ‘unremitting’ nature that she claimed it to be.  For one thing, we do not believe that the conduct complained of could have occurred with the intensity alleged after F came to work in Mr De Domenico’s office.

90                  If Mrs Marshall’s evidence as to the frequency of the alleged misconduct was not accepted at face value, then the question arose as to how frequently and when the incidents of misconduct occurred.  If Mrs Marshall had exaggerated the number of occasions on which these various acts occurred, then there was a very real possibility that they were so rare as to render it unreasonable for her to feel offended, humiliated or intimidated unless they were of a grossly offensive nature.  Repetition was part of her complaint.  There appears to have been no attempt to determine, with respect to any particular allegation, the precise circumstances in which it occurred, whether it was unwelcome, and whether or not Mrs Marshall reasonably found the conduct offensive, humiliating or intimidating.  The Tribunal considered that Mr De Domenico’s conduct “went well beyond the limits of office banter or the ordinary kind of risque story”.  In the absence of specific findings as to the conduct which occurred, this subjective assessment cannot be evaluated.  In view of the AAT’s rejection of the extent of the complaints made by Mrs Marshall, it is impossible to assume that they found all of the alleged misconduct to have been proven.

91                  In summary, I have come to the conclusion that the course adopted by the AAT was simply to form a view as to relative credibility and to use that as a basis for upholding the thrust of the allegations without focussing upon any individual act of harassment as required by the Act.  The finding of exaggeration against Mrs Marshall appears to have been little more than a token compromise of the general finding in her favour, but it inevitably raised the question of the extent of the misconduct actually found against Mr De Domenico.  I should say something about the proceedings at first instance before Miles CJ.  His Honour correctly identified the process which ought to have been adopted by the AAT, but in my respectful opinion, failed to identify the fact that it had not been followed.  In the circumstances, the orders made by the AAT must be set aside and the matter remitted to it for further consideration. 

92                  As to the question of costs, the notice of appeal from the AAT to the Supreme Court of the Australian Capital Territory does not seem to have raised the issue upon which Mr De Domenico has been successful, nor did his Honour address the issue, although at par 34 there is a reference to the task of the AAT being “to determine a complaint of specific instances of alleged sexual misconduct on the part of the appellant.  The present notice of appeal asserts that his Honour erred in failing to find that there was no error of law in the decision of the AAT, but it does not identify the error of law.  The real ground was only raised in the outline of argument.  In those circumstances, and given that Mrs Marshall appeared for herself before the Chief Justice and before us, the appropriate order is that there be no order as to the costs of proceedings in the Supreme Court and in this Court.

93                  I would therefore make the following orders:-

1.         Allow the appeal.

2.         Set aside the orders of Miles CJ made on 3 February 1999 and of the Administrative Appeals Tribunal made on 1 June 1998 and 4 November 1998.

3.         Remit the matter to the Tribunal for reconsideration and determination in accordance with law.

4.         Such reconsideration is to be limited to investigation and determination of the complaint made by the respondent pursuant to s 70 of the Discrimination Act (1990) (ACT) excluding those parts of the said complaint which have been rejected by the Tribunal in its reasons dated 1 June 1998.

5.         The reconsideration is to be conducted upon such of the evidence previously received as shall, to the Tribunal, seem relevant to the said complaint and such further evidence relevant to that complaint as it shall determine to receive.

6.         There be no order as to costs of this appeal or of the application in the Supreme Court of the Australian Capital Territory.

Associate:

Dated:  16 September 1999