FEDERAL COURT OF AUSTRALIA

Walker v Cormack [2011] FCA 861

THE COURT ORDERS THAT:

1.    The appeal be dismissed.

2.    The appellant pay the respondent’s costs of the appeal.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

The nature and history of the proceeding

1    The principal question raised by this appeal concerns the nature of a special measure for the purpose of achieving substantive equality between men and women, pursuant to s 7D(1)(a) of the Sex Discrimination Act 1984 (Cth) (“the Sex Discrimination Act”). The appellant was a customer of a gymnasium conducted by the respondent. The appellant was a frequent participant in a class conducted at a particular time on a particular day of the week. The respondent decided to change the class at that time on that day of the week to a class for women only. When the appellant attended at the gymnasium, and attempted to participate in the class, the respondent refused to allow him to do so. The appellant contended that this refusal amounted to unlawful discrimination against him, on the ground that he was male, in the provision of services to him, in contravention of s 22(1) of the Sex Discrimination Act. The respondent relied on the defence that the designation of the class as a class only for women amounted to the taking of a special measure for the purpose of achieving substantive equality between men and women and that, by virtue of s 7D(2) of the Sex Discrimination Act, there was no discrimination.

2    The appeal also deals with allegations made by the appellant that the respondent had contravened s 86(1) of the Sex Discrimination Act, by advertising the class as a class for women only, and thereby indicating an intention to do an act unlawful by reason of s 22. The appellant also alleged that the respondent had committed an act of victimisation against him by terminating his membership of the gymnasium, in contravention of s 94(1) and (2)(g) of the Sex Discrimination Act. These allegations raise questions of the nature of the liabilities created by ss 86 and 94 and of the jurisdiction to deal with such allegations.

3    The appellant began, as he was required to, by making a complaint to the Human Rights and Equal Opportunity Commission (“HREOC”) (now the Australian Human Rights Commission), pursuant to s 46P of the Human Rights and Equal Opportunity Commission Act 1986 (Cth), now called the Australian Human Rights Commission Act 1986 (Cth) (“the Human Rights Act”). The complaint was against U2 Fitness Centre and the respondent, George Cormack. In fact, U2 Fitness Centre was a business name owned by the respondent. On 29 August 2008, a delegate of the President of HREOC terminated the complaint on the ground that there was no reasonable prospect of the matter being settled by conciliation, pursuant to s 46PH(1)(i) of the Human Rights Act. Thereupon, the appellant became entitled, pursuant to s 46PO(1) of the Human Rights Act to make an application to this Court or the Federal Magistrates Court of Australia, alleging unlawful discrimination by the respondents to the terminated complaint.

4    On 26 September 2008, the appellant applied to the Federal Magistrates Court. The application named both George Cormack and U2 Fitness Centre as respondents. The trial was conducted on 24 April and 28 August 2009. On 27 January 2010, the learned federal magistrate dismissed the application and ordered the appellant to pay the costs of the respondent and U2 Fitness Centre, including certain specified expenses for witnesses. The federal magistrate’s reasons for judgment are published as Walker v Cormack & Anor [2009] FMCA 9. The reference to 2009 in the medium neutral citation is obviously inaccurate. The reasons for judgment are now available on the internet with the correct designation [2010] FMCA 9.

5    The appellant’s notice of appeal was filed in this Court on 16 February 2010. It named George Cormack as “First Respondent” and U2 Fitness Centre as “First Respondent”. On 15 March 2010, I ordered that the title to the proceeding be amended by deleting the name “U2 Fitness Centre” and the words “First Respondent” where second appearing. Both parties to the appeal have steadfastly ignored that order and have continued to name U2 Fitness Centre as a respondent, whether described as “First Respondent” or as “Second Respondent”. Mr Cormack is the only respondent to the appeal.

6    On 22 April 2010, I ordered by consent that the appellant file and serve any amended notice of appeal on or before 27 May 2010. On 27 May 2010, the appellant did file an amended notice of appeal. The document is a complete redraft of the grounds of appeal, without any underlining or other means of signifying what the amendments are. A further version, adding additional grounds of appeal, was filed on 5 July 2010. The additional grounds include an allegation of apprehended bias on the part of the federal magistrate. The grounds generally involve the appellant taking issue with the findings of fact of the federal magistrate, to the extent to which those findings are against him, in a detailed way.

The legislation

7    Section 5 of the Sex Discrimination Act provides, so far as is relevant to this proceeding, as follows:

(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.

…

(2)    For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3)    This section has effect subject to sections 7B and 7D.

Section 6 relates to discrimination on the ground of marital status and s 7 to discrimination on the ground of pregnancy or potential pregnancy. Neither is relevant to the present case.

8    Section 7B of the Sex Discrimination Act provides:

(1)    A person does not discriminate against another person by imposing, or proposing to impose, a condition, requirement or practice that has, or is likely to have, the disadvantaging effect mentioned in subsection 5(2), 6(2) or 7(2) if the condition, requirement or practice is reasonable in the circumstances.

(2)    The matters to be taken into account in deciding whether a condition, requirement or practice is reasonable in the circumstances include:

(a)    the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the condition, requirement or practice; and

  (b)    the feasibility of overcoming or mitigating the disadvantage; and

(c)    whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the condition, requirement or practice.

Section 7D provides, so far as relevant to this case:

(1)    A person may take special measures for the purpose of achieving substantive equality between:

(a)    men and women…

(2)    A person does not discriminate against another person under section 5…by taking special measures authorised by subsection (1).

(3)    A measure is to be treated as being taken for a purpose referred to in subsection (1) if it is taken:

  (a)    solely for that purpose; or

(b)    for that purpose as well as other purposes, whether or not that purpose is the dominant or substantial one.

(4)    This section does not authorise the taking, or further taking, of special measures for a purpose referred to in subsection (1) that is achieved.

9    Section 22 is found in Pt II of the Sex Discrimination Act. Section 22(1) provides:

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.

10    Part IV of the Sex Discrimination Act is entitled “Offences”. In that part are found ss 86 and 94. Section 86 provides:

(1)    A person shall not publish or display an advertisement or notice that indicates, or could reasonably be understood as indicating, an intention to do an act that is unlawful by reason of a provision of Part II.

Penalty:

(a)    in the case of a natural person―$1,000; or

(b)    in the case of a body corporate―$5,000.

(2)    For the purposes of subsection (1), advertisement includes every form of advertisement or notice, whether to the public or not, and whether in a newspaper or other publication, by television or radio, by display of notices, signs, labels, showcards or goods, by distribution of samples, circulars, catalogues, price lists or other material, by exhibition of pictures, models or films, or in any other way, and the reference in that subsection to publish or display, in relation to an advertisement, shall be construed accordingly.

11    At the time relevant to this proceeding, s 94 of the Sex Discrimination Act provided relevantly as follows:

(1)    A person shall not commit an act of victimization against another person.

Penalty:

(a)    in the case of a natural person―$2,500 or

imprisonment for 3 months, or both; or

(b)    in the case of a body corporate―$10,000.

(2)    For the purposes of subsection (1), a person shall be taken to commit an act of victimization against another person if the first-mentioned person subjects, or threatens to subject, the other person to any detriment on the ground that the other person:

(a)    has made, or proposes to make, a complaint under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(b)    has brought, or proposes to bring, proceedings under this Act or the Human Rights and Equal Opportunity Commission Act 1986 against any person;

(c)    has furnished, or proposes to furnish, any information, or has produced, or proposes to produce, any documents to a person exercising or performing any power or function under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(d)    has attended, or proposes to attend, a conference held under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(e)    has appeared, or proposes to appear, as a witness in a proceeding under this Act or the Human Rights and Equal Opportunity Commission Act 1986;

(f)    has reasonably asserted, or proposes to assert, any rights of the person or the rights of any other person under this Act or the Human Rights and Equal Opportunity Commission Act 1986; or

(g)    has made an allegation that a person has done an act that is unlawful by reason of a provision of Part II;

or on the ground that the first-mentioned person believes that the other person has done, or proposes to do, an act or thing referred to in any of paragraphs (a) to (g), inclusive.

(3)    It is a defence to a prosecution for an offence under subsection (1) constituted by subjecting, or threatening to subject, a person to a detriment on the ground that the person has made an allegation that another person had done an act that was unlawful by reason of a provision of Part II if it is proved that the allegation was false and was not made in good faith.

12    By s 13A of the Sex Discrimination Act, Ch 2 of the Criminal Code (Cth) applies to all offences against the Sex Discrimination Act. That chapter sets out the general principles of criminal responsibility.

The facts

13    The appellant was a member of the respondent’s gymnasium for some 18 months prior to the events in question. He was a regular participant in a class on Monday evening and a class on Tuesday morning. He said that the Tuesday morning class was particularly convenient, because of his commitment to drive his children to school. The federal magistrate found that the appellant was a self-employed man with flexible hours of work. His Honour was not satisfied that the significance the appellant placed on the availability of the Tuesday morning class was justified.

14    The Tuesday morning class involved exercising to music, using small weights. The respondent determined to limit that class to women, and to designate it as “Women on Weights”, abbreviated to “WoW”. The effect of this was not to change the nature of the class, but to exclude males. The federal magistrate was satisfied that the respondent sent notice to all existing members of this intended change. When the appellant arrived to attend the class on the morning of Tuesday, 29 January 2008, he had knowledge of the change. He asked the instructor in charge of the class for permission to participate, and also asked the other persons present, all of whom were female, whether they objected to him joining them. No-one objected. The appellant participated in the class until it was interrupted by Mr Evans, an instructor who also assisted the respondent in the administration of the gymnasium.

15    The appellant went out into the foyer with Mr Evans, who told him he could not participate in the class because it was a female-only class. The appellant remonstrated with Mr Evans, argued that no-one in the class had objected to his presence, and re-entered the class, which had continued during his absence.

16    Mr Evans then conferred with the respondent, who instructed him to stop the class until the appellant left. Mr Evans carried out this instruction.

17    The evidence of the appellant and Mr Evans differed as to the manner in which the appellant behaved on this occasion, and the effect of his behaviour on others. The federal magistrate made findings adverse to the appellant, finding that his conduct was intimidating, aggressively assertive, and disruptive, although not physically threatening.

18    The appellant then went home and composed a letter, dated 29 January 2008, in which he alleged contraventions of the Sex Discrimination Act. He did not deliver the letter to the gymnasium until 6 February 2008. He attempted to attend a class on 11 February 2008, but was advised that his membership of the gymnasium had been cancelled. The respondent referred to a letter dated 7 February 2008, sent to the appellant, advising him of the termination of his membership. The appellant said that he did not know of this letter at the time he attended on 11 February 2008, but said that he found it on returning home on that day. The federal magistrate did not accept this as a truthful account. He found that the appellant was being deliberately provocative, attempting to attend the class with full knowledge of the cancellation of his membership.

19    The cancellation of membership was the subject of the allegation of victimisation. Relying on documentary and oral evidence, the federal magistrate found that the decision to terminate the appellant’s membership was made on 29 January 2008, and not after the appellant’s letter of complaint. His Honour rejected the appellant’s assertion that the documentary evidence had been concocted. His Honour found that the appellant was misinterpreting the content and the date of the respondent’s letter, when he claimed that it could not have come into existence on 29 January 2008, because it contained a reference to a later document. His Honour also accepted evidence of the respondent’s wife, and rejected the appellant’s claim that he had attended the gymnasium on two occasions after 29 January 2008, on one of which he bought a drink from the respondent’s wife.

20    At [24] of his reasons for judgment, the federal magistrate said:

I accept the evidence of the respondent that he was motivated, in part, to create the female-only class in order to provide an environment conducive for women to partake in the pleasure and benefits of gymnasium-based exercise programs which they would not normally have considered, and would not normally have partaken in, but for the female-only aspect of the program. I am also satisfied that his motivation was not only altruistic. He hoped that by the introduction of the female-only program he would attract more customers. Advice received from his industry-based association suggested that this was a market to be exploited because of the reluctance of some women to partake in gymnasium-based exercise programs in the company of men. The concern of some women about the presence of men when exercising in a gymnasium is, in my view, something generally known and accepted in the community.

21    His Honour also accepted that the respondent had a number of programs available to potential clientele that involved restricted participation, such as by reference to age or sporting activity. He was adding a female-only program.

The federal magistrate’s reasons for judgment

22    After referring to s 5 and s 22 of the Sex Discrimination Act, at [29] of his reasons for judgment, the federal magistrate said:

In broad terms, the facts of this case and the conduct of the respondent seem to be caught by the provisions of the Act, as obviously the service previously provided to the applicant was refused him on the basis of his sex.

23    His Honour then went on to deal with the application of s 7D. His Honour referred at some length to the Explanatory Memorandum to the Bill that introduced s 7D into the Sex Discrimination Act, and to the second reading speech of the Attorney-General in relation to that Bill. His Honour also referred to the judgment of Crennan J in Jacomb v Australian Municipal Administrative Clerical and Services Union [2004] FCA 1250 (2004) 140 FCR 149. At [36], the federal magistrate expressed his conclusions:

•    There is an inequality between men and women as to how they can access the gymnasium services where only mixed classes are provided.

•    The evidence presented and the understanding gained by the respondent about the reluctance of some women to access the services if men would be present is evidence of, in my view, a substantive inequality which the special measure of providing female-only services addressed. The establishment of the female-only class provided substantive equality in the context of the services provided by the respondent. I am satisfied the respondent had formed a view that there was an inequality in this regard which he hoped to address by the special measure, and by so adopting it, attract more clients.

•    The respondent acted reasonably in assessing the need for the special measure of providing a female-only class and in doing so acted proportionately, having regard to the very many other programs available to males, in particular, to the applicant;

•    The female-only class is a reasonable “special measure” when tested objectively.

•    For the above reasons, the female-only class introduced by the respondent is properly classified as non-discriminatory and not, therefore, in breach of the Act.

24    His Honour then rejected the allegation of breach of s 86 of the Sex Discrimination Act on the basis that, as the class advertised was not in breach, the advertising of it could not be. His Honour also rejected the allegation of victimisation on the basis of his factual conclusion that the decision to terminate the appellant’s membership was made, and put into effect, on 29 January 2008 as a result of his inappropriate behaviour and did not relate to any of the issues mentioned in s 94(1) of the Sex Discrimination Act.

The act of discrimination

25    In order to ascertain whether there has been unlawful discrimination, for the purposes of s 22(1) of the Sex Discrimination Act, in the circumstances of the present case, it is necessary to refer back to the definitions of discrimination in s 5(1) and s 5(2). Only if there were to be discrimination of one kind or the other would it be necessary to go to s 7D, to ascertain whether the taking of special measures eliminated the discriminatory effect. In determining whether there is discrimination by reference to s 5(2), the element of reasonableness imported by s 7B must be considered.

26    The federal magistrate’s conclusion that there was discrimination, before his Honour considered s 7D, was expressed very briefly, and very tentatively, in [29] of his reasons for judgment (quoted in [22] above). It is by no means clear that the exclusion of the appellant from a single class in a gymnasium of which he was a member should have been characterised as discrimination pursuant to s 5(1) of the Sex Discrimination Act, the only definition to which the federal magistrate referred. A conclusion as to whether there was discrimination against the appellant in the provision of services in a gymnasium, by treating him less favourably than the respondent treated or would have treated a person of the opposite sex, involved the examination of a broader field of circumstances than appears to have been carried out. It would have been necessary to consider what was available, as well as what was not available, to the appellant and to examine how the respondent did treat women, or would have treated women, in the same circumstances. If the definition in s 5(2) had been applied, it would have been necessary to examine the circumstances in a much broader compass, in order to determine whether the imposition of a requirement or condition or practice that every person attending the Tuesday morning exercise with weights class be female was reasonable.

27    It does not appear that these exercises were undertaken in the Federal Magistrates Court. The case appears to have been conducted on the basis that the exclusion of the appellant from the class on 29 January 2008 amounted to discrimination by way of less favourable treatment, unless it could be treated as not discriminatory by reference to s 7D, on the ground that the designation of the class as a class only for women amounted to taking special measures. On appeal, counsel for the respondent disclaimed any entitlement to argue that there had been no discrimination without needing to resort to s 7D, because of the way in which the case had been conducted at first instance. Accordingly, it is necessary to go in some detail to the application of s 7D of the Sex Discrimination Act to the facts of the case.

Special Measures

28    In Jacomb at [61]-[62], Crennan J summarised the submissions of counsel for the Sex Discrimination Commissioner, who appeared in that case for the purpose of assisting the Court:

As amicus curiae the Commissioner’s counsel submitted that any application of s 7D requires an assessment of whether the measure in question was taken for the purpose of achieving substantive equality noting that such purpose was not required to be the only or even primary purpose (s 7D(3)). This test was said to be a subjective test and neither party demurred from this analysis.

Next it was submitted on behalf of the Commissioner, that the Court needs to objectively test first whether the entity propounding a special measure acted reasonably in assessing the need for the special measure, and secondly the capacity of the special measure to achieve the purpose of substantive equality. It was also submitted that appropriate factors to be considered included the field of activity in which the special measure was taken, the correct comparator in relation to substantive inequality, the causes of inequality, the proportionality of the special measure and whether the special measure was still required. Again, neither party demurred from these propositions.

29    It is not altogether clear whether her Honour embraced the arguments put on behalf of the Sex Discrimination Commissioner in their entirety. Nevertheless, the appellant in the present case placed heavy reliance on the elements in the submissions as summarised by Crennan J, and contended that the federal magistrate had not evaluated the decision of the respondent to convert the Tuesday morning class to a women only class by reference to all of the criteria referred to in Jacomb.

30    There is a danger in construing s 7D of the Sex Discrimination Act in too technical a fashion. That section is designed to encourage, rather than to discourage, the taking of special measures for the purpose of achieving substantive equality. Attempts to take such measures ought not to be judged by reference to criteria that are too difficult to comply with. This is especially the case when such attempts are made by small businesses or other small organisations, lacking the resources to undertake exhaustive research as to the need for a special measure, the capacity of the proposed measure to achieve the purpose of substantive equality, the identification of correct comparators, the causes of inequality and the proportionality of the special measure. Apart from Jacomb, there is a dearth of authority relating to the application of s 7D of the Sex Discrimination Act. In Gerhardy v Brown (1985) 159 CLR 70, the High Court considered the provisions of the Racial Discrimination Act 1975 (Cth) (“the Racial Discrimination Act”) relating to special measures, holding that a South Australian statute that granted exclusive title to a large area of land within the State to members of a particular Aboriginal language group fell within those provisions. Whilst it may be possible to identify in the reasons of the members of the High Court elements of the kinds comprehended by the submissions of counsel for the Sex Discrimination Commissioner in Jacomb, the approach of the High Court generally does not disclose the application to the issue of a set list of criteria, or a strict application of any such criteria. See Gerhardy at 87-89 per Gibbs CJ, 104-106 per Mason J, 107-108 per Murphy J, 113 per Wilson J, 123-143 per Brennan J, 147-154 per Deane J and 160-162 per Dawson J. The Native Title Act 1993 (Cth) is a highly complex piece of legislation that both confers benefits on and removes entitlements from indigenous Australians, but the expression of the view that it constitutes a special measure for the purposes of the Racial Discrimination Act occupied one line in the joint judgment of Mason CJ, Brennan, Deane, Toohey, Gaudron and McHugh JJ in Western Australia v The Commonwealth (1995) 183 CLR 373 at 483.

31    In the present case, the federal magistrate found that the reluctance of some women to access the services of gymnasiums if men were to be present was evidence of a substantive inequality, that the respondent had gained an understanding of this, and that he had formed a view that there was an inequality which he hoped to address by providing a female-only class. His Honour found that the respondent acted reasonably in assessing the need for a female-only class and acted proportionately, having regard to the many other programs open to males, including the appellant. His Honour also found that the female-only class was a reasonable special measure on an objective test. Unless overturned in this appeal, these findings are enough to satisfy the requirements of s 7D of the Sex Discrimination Act, so that the respondent’s decision to designate the Tuesday morning class as a women only class amounted to a special measure, with the result that the respondent did not discriminate against the appellant by reason of that decision.

32    The appellant characterised these findings as being the result of error of law, on the basis that the federal magistrate did not provide adequate reasons for them. The reasons of the federal magistrate are sufficient to demonstrate how his Honour reached his conclusion to what was, in effect, a relatively simple question in the context of the facts of the case. The appellant also argued that the federal magistrate’s conclusion about the existence of inequality was erroneous, because his Honour did not explore the reasons for such inequality. The appellant argued that a mere preference by women against exercising in mixed classes was insufficient to give rise to inequality. He argued that there must be some disadvantage by reason of being female. This proposition cannot be accepted. It is too narrow an interpretation of the Sex Discrimination Act. Inequality can arise as a result of the existence of barriers of all kinds. It is not necessary for every barrier to participation to be applicable to all women, or to be incapable of being overcome by all women, in order for it to bring about substantive inequality. The use of the word “substantive” in s 7D(1) of the Sex Discrimination Act is designed to draw the distinction between substantive equality and formal equality. Formal equality can often lead to substantive inequality, because of the inability, or the reluctance, of women to avail themselves of opportunities that are open to them on the basis of formal equality. This is a principle that is now well understood. It is not surprising that the federal magistrate’s judgment accords with this principle. It is wrong to characterise reluctance, which might stem from embarrassment or other causes, as a mere preference, having nothing to do with the sex of the reluctant person. If a significant number of women have such reluctance, it is open to a court to conclude that there is a substantive inequality, capable of being addressed by a special measure.

33    The appellant also relied on a number of specific items of evidence to challenge the factual conclusions of the federal magistrate concerning the application of s 7D. He characterised the evidence of the respondent in cross-examination as an admission that there was no purpose of achieving substantive equality between men and women in the introduction of a women’s only class. It is true that, in answer to one question, the respondent said “There was no inequality as such.” The federal magistrate was bound to consider the whole of the evidence in making his findings. The respondent gave evidence of his experience in offering classes targeting specific groups of people, his reliance on a book called “Successful Programs for Fitness Clubs”, which referred specifically to Women on Weights classes, and to numerous requests from women wanting a female only class and complaining that they felt uncomfortable with men being in certain classes with them. He took the view that some members were less likely to come to the gym to exercise if there were men involved. Almost 90% of the membership of the gym was female. The respondent asked for an expression of interest from members of the gym and received indications from between 15 and 20 members that they desired a female only class. In his witness statement, the respondent said that his intention in creating the women’s only class “was to open up access to a certain portion of women who felt their access to the classes conducted by the gym was restricted by the attendance of men.” He also referred to women who were unable to attend mixed classes for cultural or religious reasons. The respondent adopted his witness statement in the witness box. The answer that there was “no inequality as such” came towards the end of long and unskilled cross-examination by the appellant, who disconcertingly referred to himself in the third person throughout it (as he did in making submissions on appeal). The answer was followed immediately by a reference to a number of requests for a women’s only class and to the “needs of member’s [sic] requests [sic]”. There was no reason why the one answer should have caused the federal magistrate to reject all of the other evidence of the respondent.

34    In addition, the appellant picked out from the transcript of the trial instances in which he suggested that the federal magistrate had described issues inaccurately. Such instances are not a basis on which an appeal should succeed. In the course of evidence or submissions, a judicial officer might often ask questions, or suggest propositions, that are not necessarily correct. The reasons for a judgment are those designated by the judicial officer as his or her reasons for judgment, not remarks that are made and recorded in transcript during the conduct of a case.

35    The appellant challenged the efficacy of the Women on Weights class to achieve the object of substantive equality by suggesting that the interior of the room in which the class was conducted was capable of being viewed by anyone, because its walls were composed largely of glass. It was possible to see into the room from the reception area. There was a conflict of evidence at the trial as to whether it was possible to see into the room from the carpark of the gymnasium, because the wall between the carpark and the room was entirely glass. The respondent contended that the glass was tinted, and it would have been necessary for a spectator to stand up against the glass in order to see through it. Whatever the outcome of this issue might be, it is clear that the possibility that a man might be able to see into the room in which the class was conducted did not lead to the conclusion that it was impossible to hold a class limited to women in the room. It would have been open to the respondent and his managers to take steps to control inappropriate behaviour, if advantage was being taken of the visibility of the class from outside. A special measure does not have to achieve perfection.

36    For these reasons, it is not possible to overturn the federal magistrate’s reasoning, or his Honour’s findings, in relation to the issue of special measures. His Honour’s conclusion that the respondent’s decision to designate the Tuesday morning class as being a women only class must stand. The result is that, by making that decision, the respondent did not discriminate against the appellant in the provision of services on the ground of the sex of the appellant.

Victimisation and advertisement

37    It is clear that the provisions of Pt IV of the Sex Discrimination Act create criminal offences. The title of Pt IV is “Offences”. By s 13(1) of the Acts Interpretation Act 1901 (Cth), the heading of a Part of an Act is deemed to be part of the Act (unlike marginal notes, footnotes or endnotes or headings to sections, which are excluded by s 13(3)). Section 85 of the Sex Discrimination Act creates a clear distinction between the provisions of Pt IV and those of Pt II, by providing that, except as expressly provided by Pt IV, nothing in the Sex Discrimination Act makes it an offence to do an act that is unlawful by reason of a provision of Pt II. Each of the other sections in Pt IV either commences with, or contains, the words “A person shall not”, a form of words ordinarily used in federal legislation to create a prohibition a contravention of which is a criminal offence. Many of the provisions of Pt II of the Sex Discrimination Act begin with the words “It is unlawful for a person” and then describe the activity concerned. Each of the other sections, including s 86 and s 94, provides for a penalty. In the case of s 94(1)(a), the penalty includes a possible term of imprisonment. Finally, s 13A of the Sex Discrimination Act makes it clear that the provisions of the Criminal Code, found in the Criminal Code Act 1995 (Cth), dealing with the principles by which criminal responsibility is to be attributed, are applicable to offences against the Sex Discrimination Act.

38    By s 46P(1) of the Human Rights Act, a complaint could be made to HREOC alleging “unlawful discrimination.” The term “unlawful discrimination” was defined in s 3(1) of the Human Rights Act to mean, relevantly to this case:

any acts, omissions or practices that are unlawful under:

…

(c)    Part II of the Sex Discrimination Act 1984;

and includes any conduct that is an offence under:

…

(f)    section 94 of the Sex Discrimination Act 1984.

39    The effect of the use of the defined term in s 46P(1) is to permit a complaint to be lodged with respect to alleged victimisation under s 94 of the Sex Discrimination Act, but not with respect to advertising under s 86. Once a complaint has been terminated, a person affected in relation to the complaint is entitled to make an application to the Federal Magistrates Court, or to this Court, “alleging unlawful discrimination” by a respondent to the terminated complaint. So much is provided by s 46PO(1). Section 49B of the Human Rights Act then confers on this Court and on the Federal Magistrates Court “concurrent jurisdiction with respect to civil matters arising under Part IIB or IIC.” Section 46PO is found in Pt IIB of the Human Rights Act.

40    It is difficult to find any statutory provision conferring criminal jurisdiction on the Federal Magistrates Court, whether generally or specifically in relation to offences under Pt IV of the Sex Discrimination Act. It was not possible to explore this issue fully on the hearing of the appeal, because no-one had averted to it until I raised it in the course of the hearing of the appeal. It is clear that the federal magistrate did not deal with the allegations of advertising and victimisation as criminal offences. If they were to be dealt with in that way, it would be necessary to deal with them separately from the allegation of unlawful discrimination in the provision of services, under Pt II of the Sex Discrimination Act. It would be wrong to expect a person facing criminal charges, particularly one that might lead to a sentence of imprisonment, to be asked to meet the allegations on which those charges were based in the context of a civil trial. The reading of a formal charge, followed by a plea of guilty or not guilty would be required. It would be necessary for the Court to be satisfied of the elements of the offence by reference to the criminal standard of proof, beyond reasonable doubt.

41    The specific provisions permitting a complaint of victimisation (but not in relation to advertising) to be made to HREOC, coupled with the provisions of s 46PO(1) of the Human Rights Act, permitting an application alleging unlawful discrimination, following the termination of a complaint, suggest that Parliament was contemplating that victimisation might also be dealt with as a civil matter. This would be an unusual situation. It would give rise to the possibility that a litigant dissatisfied with the result of a civil proceeding in relation to alleged victimisation might then bring a criminal prosecution. This possibility would inhibit the ability of the alleged victimiser to give evidence in the civil proceeding, because of the possibility that he or she might be giving self-incriminatory evidence that could be used against him or her in a later criminal trial. For these reasons, it may be that, despite the use of the phrase “unlawful discrimination” in s 46PO(1), coupled with the definition of that term in s 3(1) of the Human Rights Act, victimisation cannot be the subject of a civil proceeding. The conferral only of civil jurisdiction might amount to a contrary intention, to which the opening words of s 3(1) refer, so that the meaning of “unlawful discrimination” is to be construed in a more restrictive way in s 46PO(1). Again, these issues were not able to be explored fully.

42    It seems clear that the Federal Magistrates Court had no jurisdiction at all with respect to the allegation under s 86 of the Sex Discrimination Act in relation to advertising. That allegation could not properly be the subject of a complaint to HREOC and was not “unlawful discrimination” for the purposes of the commencement of a proceeding in the Federal Magistrates Court.

43    The federal magistrate rejected decisively the appellant’s allegation of victimisation. His Honour found that the decision to terminate the appellant’s membership was made, and put into effect, on 29 January 2008, in response to the appellant’s inappropriate behaviour. That was at a time before any of the events to which s 94(2) of the Sex Discrimination Act refers had occurred.

44    The appellant challenged the federal magistrate’s findings of fact. He did so by constructing his own version of the events, with detailed references to the evidence and then compiling a list of alleged errors of the federal magistrate. The alleged errors included “applying undue weight” to evidence that the appellant contended was unreliable, changing, inconsistent and based on reconstruction. He contended that some evidence did not comply with the laws of evidence. He pointed to what he said were errors of fact that, in any event, did not affect the federal magistrate’s conclusion. He suggested that relevant evidence was not taken into account. The appellant also attacked the federal magistrate’s adverse finding about his own demeanour on a number of bases, including errors of fact, application of too much weight to evidence, not complying with the laws of evidence, leading a witness to describe the appellant’s character as assertive, failing to take into account evidence, including evidence that was consistent with that given by other witnesses and making findings “inconsistent with incontrovertible fact and contrary to compelling inference.” He contended that the federal magistrate misused his advantage as to credit. The grounds on which this contention was based included errors about allegedly “incontrovertibly established” facts and failing to take into account rules of evidence, being the presumption about the receipt of posted articles and the coincidence rule. The appellant also alleged that the federal magistrate had failed to use his advantage in finding that the evidence of the respondent and his witnesses was credible, by failing to take into account “inconsistent statements, changing, implausible and illogical explanations”, not taking into account evidence that would not corroborate other witnesses, not taking into account incontrovertible facts and not taking into account evidence of the respondent’s own witnesses in certain respects. The appellant also alleged that the federal magistrate had applied undue weight to unreliable evidence that was disclosed after the appellant and his witnesses had been cross-examined, applying undue weight to the corroborative value of evidence that did not comply with the laws of evidence, not taking into account relevant evidence and acting on unreliable evidence.

45    Although an appeal of this kind is an appeal on issues of both law and fact, in which the appeal court’s task includes looking at the evidence that was before the primary court, it is not to be treated as an opportunity to re-run the entire case. An appeal court intervenes only if the primary court can be shown to have erred. The task of the appeal court is not simply to substitute findings and conclusions that it might have reached had it been dealing with the matter afresh. Error on the part of the primary court is not shown readily by an attempt to reverse everything that was done in the primary court. Findings of fact and conclusions from the facts found are based on the evidence as a whole. The task of a trial judge is to reconstruct what occurred, in reliance on the various reconstructions offered by witnesses and on such objective evidence as may be available. Attempting to unpick the entirety of such a task is a difficult one for an appellant.

46    The appellant in the present case has not succeeded in that task. He has not made out a case for demonstrating that the federal magistrate erred in making findings or reaching conclusions about the case. If the issue of victimisation was properly before the Federal Magistrates Court, then the decision to dismiss the appellant’s claim of victimisation cannot be overturned.

47    The appellant’s claim in relation to the advertising of the Tuesday morning class as only for women depended upon his success in establishing that the designation of that class as a class only for women amounted to unlawful discrimination under Pt II of the Sex Discrimination Act. Having failed in relation to that question, the appellant could not succeed in establishing that the advertisement gave rise to a contravention of s 86 of the Sex Discrimination Act.

Apprehended bias

48    The allegation of apprehended bias on the part of the federal magistrate was not made in the initial notice of appeal, or in the first amended version filed on 27 May 2010. To some extent, the allegation is based on material already canvassed, being failure to have regard to relevant material, making errors of fact, applying too much weight to evidence, not complying with the laws of evidence, failing to use the federal magistrate’s advantage to assess credibility of the respondent’s evidence and misuse of the advantage to assess the credibility and demeanour of the appellant. Assessment of the evidence, making findings of fact, determining what weight to give to individual items of evidence and assessing credibility of witnesses were all part of the task of the federal magistrate. If evidence is tendered without objection, a judicial officer is entitled to take it into account, even if it might have been ruled inadmissible had objection been taken. A result of the trial process that is adverse to a party is not evidence of bias against that party on the part of the judicial officer concerned. The outcome of a contest in court typically produces an adverse result for a party, in respect of some issue or issues if not the entire case. The losing party cannot claim, simply by reason of having lost, that the adverse result has occurred by reason of bias on the part of the judge.

49    Other matters relied on by the appellant concerned the manner in which the trial was conducted. The appellant claimed that the federal magistrate permitted him to be cross-examined in an intimidating manner, in which the cross-examiner had invited the appellant to give his opinion on the law and to agree with suggestions that the respondent had not acted in a discriminatory manner. Further, it was said that the federal magistrate assisted in that line of cross-examination. No particulars of the allegation are given. Having had the appellant appear before me in person, and having attempted to question him, I find it difficult to imagine the appellant being intimidated by cross-examination. It is common for a cross-examiner to seek agreement to suggestions that exculpate the cross-examiner’s client. I cannot imagine what might have been the legal opinions that the cross-examiner is alleged to have sought. There is no detail given of the allegation that the federal magistrate assisted in the cross-examination.

50    The appellant also alleged that the federal magistrate cross-examined him when he was not in the witness box and while he was cross-examining a witness. It is not unusual for a judicial officer to ask questions of counsel, or of a litigant who has no counsel, during the

conduct of a trial. The appellant alleges that the federal magistrate would not allow him to continue a line of questioning of the respondent about how a class only for women might achieve substantive equality. The transcript reveals that the appellant’s cross-examination was repetitive, particularly when he did not receive the answers he thought he should have been given. It was the duty of the federal magistrate to attempt to control such cross-examination.

51    Finally, the appellant alleged that the respondent was permitted to rely on documents not disclosed in the process of discovery and produced after the appellant had been cross-examined, and submitted without leave as required by the Federal Magistrates Court Rules, without the appellant having had the opportunity to view the original documents or to present arguments as to their exclusion, even though he raised those issues. The transcript references given in support of this allegation appear to relate to two documents, a typed version of an entry by a staff member in the communications book kept in the gym, and the attendance records of the gym. The transcript references on which the appellant relied show that he attempted to cross-examine from both of the documents. The fact that documents may have been received in evidence without having been discovered is not evidence of bias. It is not uncommon for documents to be overlooked in the discovery process, or for the significance of undisclosed documents to become apparent as the trial proceeds. Judicial officers are properly reluctant to exclude evidence on technical grounds, such as the failure to discover them during pre-trial processes. By allowing the documents to be admitted into evidence, the federal magistrate was giving any necessary leave.

52    None of the matters relied on by the appellant comes close to establishing a reasonable apprehension of bias on the part of the federal magistrate.

Conclusion

53    The appeal fails on all grounds. It must be dismissed. There is no reason why the usual principle, that costs follow the event, ought not to be followed. The appellant should be ordered to pay the respondent’s costs of the appeal.

Associate:

Dated:    3 August 2011