Tony De Domenico v Margot Marshall and Australian Capital Territory [1997] ACTSC 20 (17 April 1997)

SUPREME COURT OF THE ACT

TONY DE DOMENICO v. MARGOT MARSHALL and AUSTRALIAN CAPITAL
TERRITORY
No. SC 45 of 1996
Number of pages - 13
Discrimination
law - Employment law - Estoppel

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MILES CJ

CATCHWORDS

Discrimination law - Administrative Appeals Tribunal (ACT) - appeal on question of law - whether member of staff of member of Legislative Assembly was an employee of the latter for purpose of complaint of sexual harassment under sub-s.59(1) of Discrimination Act 1991 (ACT) - she was.

Employment law - whether member of staff of member of Legislative Assembly an employee of latter for purpose of sub-s.59(1) of Discrimination Act 1991 - tests to be applied - whether tests confined to common law indicia - whether statutory context indicates otherwise - effect of Legislative Assembly (Members Staff) Act 1989 - whether employment by Australian Capital Territory excludes employment by member of Legislative Assembly.

Estoppel - release by appellant of Australian Capital Territory in proceedings for unlawful termination of employment in Industrial Relations Court - dismissal of proceedings by consent - whether estoppel against member of Legislative Assembly raised by deed of release or by court order - no estoppel as member not a party to deed, not a party to proceedings and no determination of issues when dismissal by consent order.

Administrative Appeals Tribunal Act 1989

Administrative Appeals Tribunal Act 1975 (Cth)

Discrimination Act 1991 (ACT)

Legislative Assembly (Members' Staff) Act 1989

Payroll Tax Assessment Act 1941 (Cth)

Commissioner for ACT Revenue v. Rosnet Pty Ltd [1994] ACTSC 236; (1994) 28 ATR 399 at 402

The Commissioner of Taxation of the Commonwealth of Australia v. Barrett and Others [1973] HCA 49; (1973) 129 CLR 395

Australian Timber Workers' Union v. Monaro Sawmills Pty. Ltd. [1980] FCA 43; (1980) 42 FLR 369

Building Workers' Industrial Union of Australia and Others v. Odco Pty Ltd (1991) 99 ALR 735

McDonald v. The Commonwealth (1945) 46 SR (NSW) 129

A.C.I. Metal Stamping and Spinning Pty Limited v. Boczulik [1964] HCA 26; (1964) 110 CLR 372

The Queen v. Foster and Others, Ex parte The Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10; (1951-1952) 85 CLR 138.

Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1986) 160 CLR 16

Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd [1946] UKHL 1; [1947] AC 1

Pitcher v. Langford (1991) 23 NSWLR 142

An Electorate Officer v. A Research Officer (1992) EOC 92-436

The Commissioner of Taxes (Queensland) v. Ford Motor Company of Australia Proprietary Limited [1942] HCA 16; (1942) 66 CLR 261 at 272

HEARING

CANBERRA, 7 April 1997 (hearing), 17 July 1997 (decision)

17:4:1997

Counsel for the appellant: Mr. R. Refshauge

Solicitors for the appellant: Deacons Graham & James

Counsel for the first respondent: Mrs. M. Marshall in person

Counsel for the second respondent: Mr. I.W. Nash

Solicitors for the second respondent: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

1. The appeal be dismissed.

2. The proceedings be remitted to the Administrative Appeals Tribunal for further hearing in accordance with this decision.

DECISION

MILES CJ

Nature of proceedings

This is an appeal from a decision of the Administrative Appeals Tribunal (ACT) (the Tribunal) delivered on 18 June 1996.

Sub-section 46(1) of the Administrative Appeals Tribunal Act 1989 (the AAT Act) provides:

"46(1) A party to a proceeding before the Tribunal may appeal to the Supreme Court on a question of law from any decision of the Tribunal in that proceeding."

Sub-section 46(1) is identical to sub-s.44(1) of the Administrative Appeals Tribunal Act 1975 (Cth), except for the provision in the latter that an appeal from the Commonwealth Tribunal is to the Federal Court of Australia.

An appeal "on a question of law" under sub-s.46(1) will be successful only if error of law on the part of the Tribunal is identified. Error of law is to be distinguished from error of fact. Furthermore, not every error of law will result in the decision of the Tribunal being set aside: see Commissioner for ACT Revenue v. Rosnet Pty Ltd [1994] ACTSC 236; (1994) 28 ATR 399 at 402 where Higgins J mentions some of the authorities. As his Honour observed, a court examining an administrative decision for error of law will not perceive error so readily as when determining an appeal from another court. The decision of the Tribunal is an administrative decision and as such does not determine the rights and liabilities of parties or other persons as does the judgment of a court.

The error of law relied upon in the present appeal is not identified in the notice of appeal and is not required to be identified either by the AAT Act or by Rules of court. What is required under Order 81 Rule 3 inter alia is that the appellant state in the notice of appeal the "decision of the Tribunal", "the question or questions of law to be raised on the appeal", the order sought and "briefly, but specifically, the grounds relied upon in support of the order sought". The notice of appeal in the present case identifies the decision as the decision of the Tribunal constituted by Professor L.J. Curtis, Ms. P. O'Neil and Dr E. McKenzie given on 18 June 1996 at Canberra whereby the Tribunal decided that, for the purposes of sub-s.59(1) of the Discrimination Act 1991 (ACT) (the Discrimination Act), the first respondent (Mrs. Marshall) was, at the relevant times, an employee of the appellant (Mr. De Domenico).

The notice of appeal proceeds to state the questions of law "raised on the appeal". They are:

"(a) the correct construction of Part III of the Legislative Assembly (Members' Staff) Act 1989;

(b) the meaning of the word "employer" in subsection 59(1) of the Discrimination Act 1991;

(c) whether in the circumstances as found by the Tribunal the appellant was in law the employer or, in the alternative, the only employer, of the first respondent;

(d) whether under the Discrimination Act 1991, in the circumstances as found by the Tribunal the appellant was in law the employer, or, in the alternative, the only employer of the first respondent.

(e) whether as a result of the proceedings in the Industrial Relations Court between the first respondent as applicant and the second respondent as substituted respondent and in the events that have happened the respondents are estopped from denying that the first respondent was employed by the second respondent.

(f) whether by the execution of the Deed between the first respondent and the second respondent by which the proceedings between them in the Industrial Relations Court were settled and in the events that have happened the respondents are estopped from denying that the first respondent was employed by the second respondent.

(g) whether any such estoppel as is found in (e) or (f) binds the Tribunal or, in the alternative, it is required to give effect to it."

The proceedings in the Tribunal arose out of a complaint made by Mrs. Marshall to the Commissioner under s.70.

Neither the complaint made by Mrs. Marshall to the Commissioner nor the decision of the Commissioner is part of the appeal book or otherwise before the Court. A written application to the Tribunal for review of decision dated 11 January 1996 refers to the decision as that of "dismissal of my complaint of sexual harassment sex discrimination against Tony De Domenico" made by Ms. Robyn Burnett of the ACT Human Rights Office on 29 December 1995. The reason given for wanting the review is "bias in process lead (sic) to wrong decision being brought down". As it eventuated, the review by the AAT of the Commissioner's decision was not directed to bias. At a directions hearing before the President of the Tribunal, it was agreed between Mrs. Marshall and counsel who was granted leave to represent the Territory, that it would be desirable for the Tribunal to deal, as a preliminary issue, with what was called "the employer issue". The President of the Tribunal approved of that course and subsequently ordered that Mr. De Domenico be made a party to the review. The Commissioner then sought and was given leave not to appear further in the review. It appears that Mr. De Domenico, or his counsel who represented him at that stage, did not seek to oppose the proposal that the "employer issue" be decided first.

At the hearing of the review, the Tribunal took oral and written submissions from Mrs. Marshall in person, from counsel for the Territory and counsel for Mr. De Domenico. The Tribunal also took further evidence in addition to that taken before the Commissioner. The Tribunal handed down its written decision in two parts. The first is as follows:

"The Tribunal finds that, for the purposes of subsection 59(1) of the Discrimination Act 1991, the applicant was, at the relevant times, an employee of Mr. De Domenico."

The second part of the decision, under the heading "Reasons for Finding", is in the nature of a lengthy judgment, including findings of fact, considerations of case law and legislation and reasoning, all of which lead to the ultimate conclusion as expressed in the first part of the decision. It may be noted that, in the course of its reasons, the Tribunal ruled that a prior determination of the Industrial Relations Court did not have the effect of disentitling Mrs. Marshall from alleging that she was an employee of Mr. De Domenico for the purposes of sub-s.59(1) of the Discrimination Act.

The ultimate question for this Court in determining the appeal is whether the first part of the decision of the Tribunal, namely, that, for the purposes of sub-s.59(1) of the Discrimination Act, Mrs. Marshall was, at the relevant times, an employee of Mr. De Domenico, was correct or incorrect as a matter of law. Whilst it is important and indeed essential for the Court to look at the second part of the Tribunal's decision, namely its "Reasons for Findings", the Court must decide the precise question of law for itself. An examination of the Tribunal's reasoning and its intermediate findings of fact and rulings on matters of law may assist in determining whether the Tribunal's ultimate conclusion was correct or incorrect as a matter of law. However, because the decision of the Tribunal is an administrative decision, that reasoning and those intermediate findings and rulings need not, and perhaps should not, be scrutinised as closely as in the case of an appeal from an inferior court of law. Furthermore, it must be emphasised that this Court in hearing the appeal is not concerned with errors of fact on the part of the Tribunal. Nevertheless it will be necessary to refer to some of the Tribunal's findings of fact in order to place the question of law in context.

The appeal turns on the provisions of the Discrimination Act, and in particular on sub-s.59(1). The provisions of the Legislative Assembly (Members' Staff) Act 1989 (the LA(MS) Act) are also of importance. Before referring in some detail to the legislation, it is necessary to observe that it has been amended extensively since the relevant times. Whilst I shall be referring to the legislative provisions as they existed and were in force at the relevant times, it is convenient nevertheless to use the present tense. As the Tribunal observed in its "Reasons for Findings", it is unlikely that the problems presented by the present case will recur. Amendments in 1995 may have removed doubt about the relationship between an Assembly member and a staff member for the purposes of the Discrimination Act and have introduced a new concept of harassment between workplace participants. Furthermore, appeals from decisions of the Commissioner no longer lie to the Tribunal but to a newly established Discrimination Tribunal. Appeals from the Discrimination Tribunal now lie direct to the Supreme Court: see sub-s.108D(1) of the Discrimination Act.

The Discrimination Act: scope and structure

Sub-section 59(1) of the Discrimination Act provides as follows:

"59(1) It is unlawful for an employer to subject an employee, or a person seeking employment, to sexual harassment."

Because of the legislative changes already mentioned, I do not propose to set out exhaustively all the relevant provisions of the Discrimination Act. However, it is instructive to consider the legislative context of sub-s.59(1).

The Discrimination Act is entitled "An Act to render certain kinds of discrimination unlawful and to provide for related matters". The objects of the Act are set out in s.3. They 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."

The term "employee" is not defined in the Discrimination Act and the terms "employer" and "employment" receive treatment in the interpretation section, sub-s.4(1) only to the following extent:

"Employer", in relation to an unpaid worker, means the person for whom the unpaid worker performs work.

"Employment" includes - "(a) work under a contract for services; (b) work as a Territory employee; and (c) work as an unpaid worker."

"Territory employee" is defined to mean a person who is:

"(a) a member of the Public Service; (b) employed in an administrative unit of the Public Service otherwise than as a member of the Public Service; or (c) employed by a Territory authority."

The Tribunal appears to have held that Mrs. Marshall was not a Territory employee. That finding was not subject to challenge.

Section 59 also declares sexual harassment to be unlawful when one person in a certain relationship to another person subjects that other person to sexual harassment. The relationships are specified, namely those between fellow employees, between a principal and an agent, between partners and between certain persons and a "contract worker" (a person who does work for another person pursuant to a contract between the employer of the first-mentioned person and that other person).

Although Part II of the Discrimination Act restricts the application of the Act to a number of grounds, as enumerated in s.7 and described as "attributes". These attributes range very widely, and include sex and race. Section 8, in effect, defines discrimination in relation to the enumerated grounds. Section 8 provides in part as follows:

"What constitutes discrimination 8(1) For the purposes of this Act, a person discriminates against another person if - (a) the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or (b) the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging persons because they have an attribute referred to in section 7."

Part III deals with unlawful discrimination and Division 1 thereof with discrimination in work. Division 2 deals with discrimination in other areas, namely education, access to premises, goods, services and facilities, accommodation and clubs.

Part IV provides in extensive detail for exceptions to unlawful discrimination. They include matters relating to domestic duties and accommodation, care of children, insurance and superannuation, religious bodies, single sex accommodation and services, and sport.

Part V deals with sexual harassment and it is within Part V that ss. 58 and 59 are to be found. Section 58 provides as follows:

"Meaning of sexual harassment 58(1) For the purposes of this Part, a person who 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."

Other sections in Part V declare it unlawful for persons generally, or in some cases certain persons, to engage in sexual harassment in educational institutions, in the provision of access to premises, in the provision of goods, services and facilities, in the provision of accommodation, and the activities of clubs.

Part VI deals with racial vilification and Part VII deals with other acts made unlawful by their tendency to frustrate the effectiveness of the Discrimination Act. Part VIII sets up a regime for the resolution of complaints of conduct made unlawful by the Act.

The office of Discrimination Commissioner is created (Part X). The Commissioner is given various powers in relation to the investigation of a complaint. Under s.79 an investigation shall be conducted in such manner as the Commissioner thinks fit, but with minimum formality and technicality and with maximum expedition. Among the various powers conferred is the power to take evidence on oath or affirmation and to give notice to persons for the purpose of providing information or producing documents.

Under s.90, the Commissioner after completing an investigation, shall dismiss any complaint not substantiated or, if satisfied that the respondent has engaged in unlawful conduct, direct the respondent as to future conduct, reparation or payment of compensation. Contravention of any such direction is made an offence (s.91). Compensation is recoverable as a debt (s.92).

Under s.94 application may be made to the Tribunal for review of a direction or other decision of the Commissioner under various sections, including s.90 (relating to dismissal of complaint).

The above summary of the relevant portions of the Act goes to show that whilst the Act may be seen as comprehensive, it does not purport to be concerned with all forms of discrimination within the community. It is, notably, restricted to the grounds of discrimination set out in s.7. Such grounds do not include, for instance, lack of education or a prior criminal record. In some respects discrimination on one or other of the enumerated grounds is made unlawful as between people in a particular relationship (as in the present case) and in other respects where there is no such relationship (for instance with regard to racial vilification). Generally speaking the Act does not make discriminatory conduct an offence (serious racial vilification is an exception, s.67). Allegations of discrimination under the Act are to be made and determined in accordance with the provisions already mentioned.

The Legislative Assembly (Members Staff) Act 1989, s.10: Mrs. Marshall accepted an offer by Mr. De Domenico to employ her

In the course of its reasons the Tribunal stated as follows:

"It is common ground that Mrs. Marshall's employment on the staff of Mr. De Domenico's office was employment under the LA(MS) Act. The crux of the employer issue is whether the effect of the LA(MS) Act is that Mrs. Marshall thereby became an employee of the Territory or an employee of Mr. De Domenico. If she became an employee of the Territory the next issue is whether she thereby became an employee of the Territory for all purposes or whether, for the purposes of the Discrimination Act, she was to be regarded as the employee of Mr. De Domenico."

With respect to the Tribunal, I would not have put the relevant matters in those precise terms. As the Tribunal put it later in its reasons, "employment under the LA(MS) Act" does not determine the identity of an employer for the purpose of sub-s.59(1) of the Discrimination Act. With regard to the first sentence in the passage above, I think it would be more correct to say that Mrs. Marshall accepted an offer by Mr. De Domenico to employ her under s.10 of the LA(MS) Act. However, I do not think that the question then becomes whether Mrs. Marshall "thereby became an employee of the Territory, or an employee of Mr. De Domenico". Rather, in my view, the precise question is whether she became an employee of Mr. De Domenico for the purposes, not of the LA(MS) Act, but for sub-s.59(1) of the Discrimination Act. It must first be decided whether employment by the Territory necessarily excludes employment by Mr. De Domenico for the purposes of sub-s.59(1). If it did, then the question whether she was employed by the Territory would be determinative of the ultimate question. However, there is another preliminary question whether, for the purposes of sub-s.59(1) employment by one person necessarily excludes employment by another. (This question was addressed by the Tribunal later in its reasons.) Accordingly, I do not think it is necessary to consider whether, if Mrs. Marshall became an employee of the Territory, she thereby became a employee of the Territory for all purposes. Rather, the preliminary question is concerned with the issue whether, if she became an employee of the Territory under the LA(MS) Act, she became, for the purposes of sub-s.59(1) an employee of the Territory only and not an employee of Mr. De Domenico.

The relevant provisions of the LA(MS) Act are as follows:

"Members may employ staff 10 (1) A member of the Assembly may, on behalf of the Territory, employ, under an agreement in writing, a person as a member of the staff of the member.

(2) The power conferred on a member of the Assembly by subsection (1) is not exercisable otherwise than in accordance with arrangements approved by the Chief Minister, and the exercise of that power is subject to such conditions as are determined by the Chief Minister.

Terms and conditions of employment

11. (1) Subject to any applicable determination made under subsection (2), the terms and conditions of employment of a person employed by a member of the Assembly under this Part, other than terms and conditions (in this section referred to as 'prescribed terms and conditions') relating to any matter in relation to which - (a) a determination is to be made by the member under section 12; or (b) express provision is made by section 13; are the same as the terms and conditions applicable in relation to an officer performing the duties of an office in the Government Service having a classification specified in the agreement for the employment of the person.

(2) The Chief Minister may by writing determine that the terms and conditions of employment of a person employed under this Part (other than prescribed terms and conditions) are varied (whether by the variation of particular terms and conditions or by the inclusion of new terms and conditions, not being prescribed terms and conditions) as specified in the determination.

(3) A determination under subsection (2) may be expressed to apply in relation to all persons employed under this Part, in relation to all persons included in a class of persons so employed or in relation to a specified person so employed.

(4) A determination under subsection (2) shall be tabled in the Assembly on the first sitting day after the date of that determination.

.....

Termination of employment 13. (1) The employment of a person under this Part terminates if the member of the Assembly by whom the person was employed - (a) dies; or (b) ceases to be a member of the Assembly.

(2) For the purposes of paragraph (1)(b) a member of the Assembly shall be deemed not to have ceased to be such a member while he or she continues to be entitled to an allowance that was payable to him or her as such a member.

(3) A member of the Assembly may at any time, by notice in writing given to a person employed by the member under this Part, terminate the person's employment.

(4) A person employed by a member of the Assembly under this Part may at any time, by notice in writing given to the member, terminate the person's employment.

(5) Where the employment of a person under this Part is terminated by subsection (1), the Chief Minister may, by writing direct that the employment of the person shall be deemed - (a) not to have been so terminated; and (b) to have continued, or to continue, until a specified date; and, where the Chief Minister so directs, the employment of the person under this Part shall for all purposes be deemed to have continued, or to continue, until that date."

The Tribunal considered that the phrase "on behalf of" in s.10 of the LA(MS) Act is to be read in the context of that Act, namely the general purposes of the Act being to create an appropriate employment structure for the staff of members of the Assembly who are independent of the executive government of the Territory. The Tribunal concluded that the phrase ought not to be construed as implying a strict agency relationship having the effect that the Territory, necessarily in its executive arm, is the employer of the staff of Assembly members. In general I would agree with this conclusion. The use of the word "strict" by the Tribunal indicates that the Tribunal recognized that, for some purposes, the Member might be the agent of the Territory in relation to the employment of staff members. It is not necessary to consider that point further for the moment.

Was Mrs. Marshall an employee of Mr. De Domenico?

The Tribunal went on to say that "the question of who was Mrs. Marshall's employer at the relevant time cannot be determined solely by reference to the LA(MS) Act. It must therefore be decided by reference to the principles of the general law" (emphasis added). Again, I would agree with this observation, so long as it is understood that by the term "general law" the consideration is not restricted to the common law.

However, in relation to sub-s.59(1), the Tribunal came to the conclusion that as there was no definition in the Discrimination Act the terms "employer" and "employee" in s.59 must be given their ordinary meaning at common law.

I disagree with that conclusion. I do not think that reference to the judgment of Stephen J in The Commissioner of Taxation of the Commonwealth of Australia v. Barrett and Others [1973] HCA 49; (1973) 129 CLR 395 is to the point. In that case, which was concerned with the use of the term "employee" in the Payroll Tax Assessment Act 1941 (Cth), Stephen J said that the common law concept of those terms was decisive only if "not affected by special statutory context". As I have already indicated, the general objects and structure as well as some of the detailed provisions of the Discrimination Act are a clear indication that the terms "employer" and "employee" in s.59(1) do occur in a special statutory context. The declaration of the Discrimination Act that sexual harassment as between employer and employee is unlawful does not indicate an intention of the legislature that the terms are restricted to their common law meaning. The legislation itself includes, for instance, persons working under a contract for services, who at common law are regarded as independent contractors: see Australian Timber Workers' Union v. Monaro Sawmills Pty. Ltd. [1980] FCA 43; (1980) 42 FLR 369. It includes also contract workers, who, as defined, are in effect employees on loan to third parties. The latter, according to the circumstances of the case, may or may not be regarded as employers at common law: Building Workers' Industrial Union of Australia and Others v. Odco Pty Ltd (1991) 99 ALR 735.

Indeed it may well be that Mrs. Marshall was not an employee at all, either of the Territory, or of Mr. De Domenico in the common law sense. The point does not need to be decided, but it is, in my view, doubtful that the terms "employ" and "employment", where in the LA(MS) Act, are restricted to their common law meaning. The LA(MS) Act appears to avoid the use of the terms "employer" and "employee"

The Tribunal made a number of findings of fact as to the circumstances of Mrs. Marshall's recruitment to the staff of Mr. De Domenico and as to the performance of her duties whilst a member of the staff. It was within the province of the Tribunal as administrative decision maker to ascertain whether the facts could be of assistance in deciding whether Mrs. Marshall was an employee of Mr. De Domenico within sub-s.59(1). The Tribunal considered a good deal of evidence on these aspects, including evidence as to the actual way in which staff members carried out and were expected to carry out their duties. It is important to recognize that by virtue of s.10 of the LA(MS) Act, the Assembly Member is not free to impose the terms and conditions of engagement. The terms and conditions are determined by the Chief Minister. Those terms may vary from case to case, and from time to time. If not the subject of a determination of the Chief Minister, the terms and conditions of officers in the Public Service apply in any event. Whatever the terms and conditions, they are of relevance for determining the identity of the staff member's employer for whatever purpose is in mind.

The question of whether a person is an employee or an employer or whether a relationship of employer and employee exists is a familiar one in the courts and tribunals of this country, and of England and Scotland, and presumably elsewhere. Employment is at the heart of modern industrial society. Various tests in various legal contexts have been promulgated in order to determine whether a contract of employment exists between two persons, e.g. McDonald v. The Commonwealth (1945) 46 SR (NSW) 129. In past years the terms "master" and "servant" were used and attention was directed to whether a contract of service existed (in which case the master-servant relationship was established) or whether there was a "contract of services" (in which case the person performing the work was regarded as an "independent contractor"). Often the question arises in the context of determining whether one person (usually insured) is the employer of another (usually uninsured) for the purpose of being held vicariously liable at common law for the negligence of the other resulting in injury to a third party. In other cases the question arises in the context of determining whether one person is the employer of another for the purpose of being held personally liable at common law for breach of the duty of care owed as employer to another as employee. There are also various statutory contexts, e.g. A.C.I. Metal Stamping and Spinning Pty Limited v. Boczulik [1964] HCA 26; (1964) 110 CLR 372. In worker's compensation legislation the term "employer" remains, but the term "employee" has been discarded in favour of the term "worker" and the range of situations in which the worker-employer relationship exists has been expanded well beyond the common law contract of employment. In other legislation providing for the protection of industrial conditions of hours of work and the like, the range of such relationships has also been expanded beyond the confines of the common law, e.g. The Queen v. Foster and Others, Ex parte The Commonwealth Life (Amalgamated) Assurances Limited [1952] HCA 10; (1951-1952) 85 CLR 138.

But, it is possible and indeed common for a person in employment to have different "employers" for different purposes. If one is to seek to identify a person's employer for the purpose of payment of salary or wages, for the purpose of industrial legislation or industrial award or collective agreement, for the purpose of deductions or payment of income tax instalments or payroll tax, for the purpose of worker's compensation, the identity of the employer may vary according to the purpose in mind and will not be established necessarily by exclusive reference to the common law tests if there is a legislative context which requires a different approach.

The classic test used to decide whether the relationship of employer or employee exists at common law is the degree of control, whether actual or potential, which the one engaging the other to perform work may exercise over the other thus engaged. In Stevens v. Brodribb Sawmilling Company Proprietary Limited [1986] HCA 1; (1986) 160 CLR 16, Mason CJ (as he then was) said at 24:

"But the existence of control, whilst significant, is not the sole criterion by which to gauge whether a relationship is one of employment. The approach of this Court has been to regard it merely as one of a number of indicia which must be considered in the determination of that question: Queensland Stations Pty Ltd v. Federal Commissioner of Taxation [1945] HCA 13; (1945) 70 CLR 539 at 552; Zuijs v. Wirth Bros. Pty Ltd [1955] HCA 73; (1955) 93 CLR 561 at 571; Federal Commissioner of Taxation v. Barrett [1973] HCA 49; (1973) 129 CLR 395 at 402; Humberstone v. Northern Timber Mills [1949] HCA 49; (1949) 79 CLR 389 at 404.

.....

Other relevant matters include, but are not limited to, the mode of remuneration, the provision and maintenance of equipment, the obligation to work, the hours of work and provision for holidays, the deduction of income tax and the delegation of work by the putative employee."

With respect, I do not think that the test at common law can be put more accurately or succinctly. However, the Tribunal appears to have approached the question on the basis that where a worker is subject to the control of more than one person, or where one or more of the indicia suggest that a relationship of employment may exist between one person as employee and more than one person as employer can be identified, then a choice has to be made as to which one is the employer. This approach assumes that a person in employment has a single employer only. On that assumption the Tribunal made reference to Mersey Docks and Harbour Board v. Coggins and Griffith (Liverpool) Ltd [1946] UKHL 1; [1947] AC 1 and McDonald v. The Commonwealth (vicarious liability) and Pitcher v. Langford (1991) 23 NSWLR 142 (worker's compensation), cases concerned with identifying which of two "possible employees" was the employer of the person engaged.

In seeking to make the choice whether Mrs. Marshall was employed by the Territory or by Mr. De Domenico for the relevant purpose, the Tribunal made a finding of fact (or mixed fact and law) that the usual indicia of the existence of the employer/employee relationship was split as between the Territory and the Assembly member (or more precisely, Mr. De Domenico) and that actual control over Mrs. Marshall in relation to the work she did was exercised by Mr. De Domenico and not by the Territory, subject to the terms and conditions determined by the Chief Minister and subject to the power of the Chief Minister to vary the terms and conditions pursuant to s.11 of the LA(MS) Act. The Tribunal also found as a fact (or as a matter of mixed fact and law) that Mr. De Domenico had the right or legal authority to exercise the control which he in fact exercised.

This latter finding was put in the following terms:

"It was he who decided to employ her. It was he who determined when she worked and what work she did. He alone had the authority to tell her how she was to do the work. He alone had the power to dismiss her. If she objected to any direction he gave her in respect of the work she was to do or how she was to do it, there was no person to whom she could turn who had authority to countermand his instruction. In the day to day performance of her work, and in her liability to dismissal if he was not satisfied with her services, she was in every respect in the same position as if he were paying her wages out of his own pocket. In respect of the work she was employed to do in his office, she was in every respect in precisely the same position as his employee and as if the relationship of employer and employee existed between them."

The Tribunal gave some consideration to the hypothesis that Mrs. Marshall, as an employee, might have had the Territory as her employer for one purpose and Mr. De Domenico for another purpose, and came to the conclusion, somewhat tentatively, that for the purposes of the LA(MS) Act the Territory should be regarded as Mrs. Marshall's employer "in a general sense". The Tribunal went on to consider whether the application of a conventional control test might not be a more appropriate test for the "proper operation of the Discrimination Act and its remedial objects" rather than the provisions of the LA(MS) Act. Reference was made to a decision of the Supreme Court of Western Australia under the Equal Opportunity Act 1984 of that State: An Electorate Officer v. A Research Officer (1992) EOC 92-436. The issue in the case was whether two persons were fellow employees for the purpose of the West Australian legislation. One person was employed by the Joint House Committee of Parliament as an electorate officer for a member of Parliament, the other was a civil servant in the Department of Transport assigned to the Minister of Transport as a research officer. It was held that whilst "in a general sense" the employer of the latter (and apparently the former) was the Crown, there was a notional employment between the head of the Department and public servants employed in it, so that the two persons could not be regarded as having the same employer. Little assistance is to be obtained from this case, although the Tribunal cited the decision at some length.

It may well be as the Tribunal pointed out, that Mr. De Domenico could not be regarded as the employer of Mrs. Marshall for the purposes of provisions in the Discrimination Act other than sub-s.59(1). For instance, Part III, Division 1 deals with discrimination "in work". Para.10(1)(c) makes it unlawful for an employer or potential employer to discriminate against a person in relation to terms and conditions on which employment is offered. Para.10(2)(a) makes it unlawful for an employer to discriminate against any employee in the terms and conditions afforded to an employee. Insofar as the terms and conditions are determined by the Chief Minister, or, if not determined, insofar as they are the terms and conditions of an officer of the Public Service, it could hardly be said that the Assembly Member could be guilty of discrimination in offering or affording them. On the other hand, as only the Minister has the right power to fire, it is difficult to see how anyone but the Minister could be guilty of discrimination in determining who should be offered employment or in dismissing the employee under para.10(1)(b) or para.10(2)(c) respectively. With relation to these latter provisions it may well be that the Minister and not the Territory is the only employer. However, the question whether Mrs. Marshall was an employee of the Territory as well as an employee of Mr. De Domenico does not need to be decided. It is necessary and sufficient to decide only whether she was an employee of Mr. De Domenico for the purposes of sub-s.59(1). In this regard it seems to me that the right to control and the de facto control by the Minister are so closely connected with the circumstances that might give rise to discrimination during the course of employment that the staff member should be regarded as an employee for the purposes of sub-s.59(1) and that to hold otherwise would defeat the objects and language of the Act.

In summary then, on the major issue of the appeal, the Tribunal was correct in law in finding that, for the purposes of sub-s.59(1) Mrs. Marshall was an employee. In its finding that the applicant was an employee of Mr. De Domenico, the Tribunal was also correct.

Estoppel

The other substantial matter raised on the appeal was the matter of estoppel. On behalf of Mr. De Domenico it was submitted both before the Tribunal and the Court that because Mrs. Marshall and the Territory had executed a deed of release in which she covenanted to discontinue proceedings in the Industrial Relations Court against the Territory for unlawful termination of employment, she and the Territory should not be permitted to assert that Mr. De Domenico was her employer at the relevant time. It was also submitted that because the Industrial Relations Court had dismissed the proceedings in accordance with the agreement manifested in the deed, the issue of the identity of Mrs. Marshall's employer could not be re-litigated by the parties.

The Tribunal ruled against these submissions and it is necessary for me to say only that I agree entirely with the ruling and the reasons given. There can be no issue estoppel in favour of a person who is not a party to the proceedings in which the issue is decided: The Commissioner of Taxes (Queensland) v. Ford Motor Company of Australia Proprietary Limited [1942] HCA 16; (1942) 66 CLR 261 at 272.

Further, the dismissal of a proceeding by consent does not determine an issue so as to give rise to a determination on which an issue estoppel can be based: Baines and Another v. State Bank of New South Wales [1985] 2 NSWLR 729.

Further, any estoppel arising from the execution of a deed is binding only on the parties to the deed: The Commissioner of Taxes (Queensland) v. Ford Motor Company of Australia Proprietary Limited.

Finally, the Tribunal was not adjudicating on a matter as between parties, but reviewing a decision made as a result of an investigation by the Commissioner. I would add to the reasons given by the Tribunal but without deciding the point, that it is doubtful whether an administrative decision maker is bound to observe the principle of issue estoppel, although it may be that in certain circumstances a court would act in accordance with general principles of law to prevent a party against whom an issue estoppel is raised from gaining the advantage of an administrative decision which is or would be contrary to the issue already decided.

Disposition of appeal

Unfortunately, this appeal is not the end of the matter. Because of the course taken in the Tribunal by Mrs. Marshall and the Territory, the appeal confirms the decision made by the Tribunal that Mrs. Marshall was an employee of Mr. De Domenico for the purposes of sub-s.59(1). The determination of the appeal takes the matter no further. The Tribunal has made no decision as to what facts are established, or, as to whether the established facts substantiate the complaint of sexual harassment. The matter must go back to the Tribunal to make its decision or decisions about those matters.

The appeal is dismissed. The proceedings are remitted to the Administrative Appeals Tribunal for further hearing in accordance with this decision.

I will hear the parties, if they wish to be heard, on the question of costs. Otherwise I propose to order that the appellant pay the costs of the first respondent with no order as to the costs of the second respondent.