Tracey Lee Thompson v Nissan Motor Co (Australia) Ltd [1998] FCA 359 (9 April 1998)

Last Updated: 16 April 1998

FEDERAL COURT OF AUSTRALIA

ADMINISTRATIVE LAW - judicial review - strike out motion - grounds of review - relevant and irrelevant considerations - invitation to Court to review findings of fact - merits review - application not tenable - application dismissed.

Sex Discrimination Act 1984 (Cth) ss 14(2), 28 and 106(2)

Administrative Decisions (Judicial Review) Act 1977 (Cth)

Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 (cited)

Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 (discussed)

Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 (applied)

TRACEY LEE THOMPSON v NISSAN MOTOR COMPANY (AUSTRALIA) LIMITED (ACN 004 663 156)

WAG 8 OF 1998

FRENCH J

PERTH

9 APRIL 1998

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	wag 8 of 1998

between: tracey lee thompson

applicant

and: nissan motor company (australia) limited

(acn 004 663 156)

respondent

JUDGE:	FRENCH J
DATE OF ORDER:	9 APRIL 1998
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant is to pay the respondent's costs of the application.

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

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAG 8 of 1998

BETWEEN:	TRACEY LEE THOMPSON APPLICANT
AND:	NISSAN MOTOR COMPANY (AUSTRALIA) LIMITED (ACN 004 663 156) RESPONDENT

JUDGE:	FRENCH J
DATE:	9 APRIL 1998
PLACE:	PERTH

REASONS FOR JUDGMENT

Introduction

The present proceedings were instituted by application by Tracey Lee Thompson seeking an order for review of a decision of the Human Rights and Equal Opportunity Commission. The Commission had, on 18 December 1997, dismissed Ms Thompson's complaint against the Nissan Motor Company of unlawful sexual harassment and discrimination. The complaint had been brought under ss 28 and 14(2) of the Sex Discrimination Act 1984 (Cth).

The application was filed on 16 January 1998 and amended by order of the Court on 24 February. The respondent has moved for dismissal of the amended application on the ground that no reasonable basis for it is disclosed.

The amended application attacks the decision of the Commission on the ground that it took into account irrelevant considerations, failed to take into account relevant considerations, acted unreasonably, made errors of law and lacked evidence or other material to justify certain of its findings.

The motion to dismiss is brought primarily on the bases that the matters of which the applicant complains are not reflected in the reasons for decision or are outside the scope of judicial review.

Statutory Framework

The conduct complained of took place between February and August 1985. The relevant parts of the Act as they stood at that time are in the following terms:

"14(2) It is unlawful for an employer to discriminate against an employee on the ground of the employee's sex, marital status or pregnancy:

(a) in the terms or conditions of employment that the employer accords to the employee;

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer, or training, or to any other benefits associated with employment;

(c) by dismissing the employee; or

(d) by subjecting the employee to any other detriment."

Section 28 provided:

"28(1) It is unlawful for a person to harass sexually:

(a) an employee of that person;

(b) an employee of a person by whom the first-mentioned person is employed; or

(c) a person who is seeking employment by the first-mentioned person or by an employer of the first-mentioned person.

.

.

.

(3) A person shall, for the purposes of this section, be taken to harass sexually another person if the first-mentioned 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 relation to the other person, and:

(a) the other person has reasonable grounds for believing that a rejection of the advance, a refusal of the request or the taking of objection to the conduct would disadvantage the other person in any way in connection with the other person's employment or work or possible employment or possible work; or

(b) as a result of the other person's rejection of the advance, refusal of the request or taking of objection to the conduct, the other person is disadvantaged in any way in connection with the other person's employment or work or possible employment or possible work.

(4) A reference in subsection (3) to conduct of a sexual nature in relation to a person includes a reference to the making, to, or in the presence of, a person, of a statement of a sexual nature concerning that person, whether the statement is made orally or in writing."

The applicant's complaint was brought against her former employer which she alleged to have been vicariously liable for the unlawful acts of its employees. This involved reliance upon s 106 which provides:

"106(1) Subject to subsection (2), where an employee or an agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b) an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply in relation to an act of a kind referred to in para (1)(a) or (b) done by an employee or agent of a person if it established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph."

The Commission's Reasons for Decision

The Commission delivered lengthy reasons (81 pages) which included extensive reference to the evidence and submissions of the parties. Findings of fact were made. It is sufficient to summarise these. The Commission found that the applicant was employed by the respondent from 6 February 1985 until 23 August 1985 as secretary to its General Manager at Adelaide, Mr Paul Peasnell. In the course of her employment she was subjected to sexual harassment in a number of respects. The episodes of sexual harassment identified by the Commission were as follows:

(a) Two salesmen employed by Nissan made inappropriate "sexualised" comments about the applicant's body and appearance.

(b) An offensive remark with sexual connotations was made by the Sales Manager when the applicant asked if she could attend an office function.

(c) The Sales Manager grabbed the applicant's breasts at a social function.

(d) A salesman presented the applicant in early August with an obscene cartoon while she was at work.

(e) The same person engaged in sexually explicit conduct at her desk on 23 August 1985.

In May 1985 the applicant complained to Mr Peasnell about the behaviour of the salesmen and about the Sales Manager's comment. Mr Peasnell called a meeting that afternoon of all the salesmen and the Sales Manager and spoke to them. The conduct which concerned the applicant then ceased for a period of time but there were later incidents. In particular, the presentation of the cartoon and the sexually explicit behaviour of 23 August 1985 occurred after the complaint had been made. The applicant did not make any further complaint concerning the cartoon or the resumption of any other offensive behaviour in the workplace.

On 23 August 1985 the applicant was dismissed from her position and given one week's pay in lieu of notice. The respondent's business at the place where the applicant was employed had been sold and ownership was transferred to new purchasers the week after her dismissal. Shortly after her dismissal she returned to work for Mr Peasnell for a short period on a casual basis but was then unemployed until December 1985 when she obtained employment as a legal secretary at ANZ Executor and Trustee.

The Commission found that the applicant experienced difficulty with legal terminology and with the work she had to do for her employer and the demands of one of the other staff members. She was highly stressed.

In relation to the applicant's experiences after her dismissal, the Commission found that she consulted a doctor who told her that she had "anxiety" and gave her a prescription. She resigned from her employment with ANZ Executor and Trustee in early 1987 and undertook casual and temporary work for most of that year. In April she became pregnant and was pleased and optimistic about this. Her baby was born in December 1987. The birth was painful and difficult and the baby had difficulty in feeding and sleeping. The applicant was disappointed at her reaction to the experience of motherhood and had considerable difficulty in coping with her baby.

In April 1988 the applicant and her husband bought a house in Perth in the expectation of her husband's transfer to Perth. In September 1988 he was stood down from his employment with the West Australian State Tourism Commission. Shortly after that she was hospitalised and given anti-depressant medication. She was diagnosed as having a major depressive disorder.

In February 1989 the applicant and her husband moved to Perth. After she came to Perth she consulted another doctor who treated her with anti-depressants and gave her counselling and referred her to a psychiatrist. In February 1990 she was again hospitalised with a major depressive condition. In February 1991 she discussed the sexual harassment episodes with another psychiatrist. She consulted a Dr Terace in mid 1994 for the purpose of obtaining an assessment for the complaint to the Commission. She has consulted with him since as his patient and has also been seeing a consultant psychologist since November 1994.

In March 1996 the applicant was again hospitalised with a major depressive disorder. The Commission found that she was suffering from a significant psychiatric illness with high anxiety and depressive symptoms which have persisted over a lengthy period of time and certainly since her first hospitalisation in late 1988. Her first medication associated with those symptoms was 1986.

Since 1990 she had nightmares which she associated with the sexual harassment. She felt disturbed and distressed by references, for example on television and in advertisements, to Nissan. After psychotherapy in 1993 she had "recovered a memory of a fear in 1985" when the harassment occurred that she might be raped by one of the salesmen.

Following increasing difficulties in her marriage the applicant and her husband separated in 1993 and divorced in 1995. She formed a new relationship but there were difficulties with it. Her doctors were all of the view that she was totally incapacitated for work and her prognosis for future employment was not good. The Commission said:

"There have been a number of significant difficulties in [the applicant's] personal circumstances since 1985 which have created stress and unhappiness for her: these include the sexual harassment to which she was subjected when employed by Nissan in 1985; the stresses and difficulties which she encountered at her next employment at ANZ Executor and Trustee; the difficulties surrounding the birth of her child and his early months; her husband's traumatic loss of employment and subsequent lengthy dispute with his former employer which in [the applicant's] view was unsatisfactory and unfairly settled; and the gradual disintegration of her marriage and loss of intimacy with her husband accompanied with some problems in her relationship with her son and loss of expectation from her marriage; and difficulties in her subsequent relationship." (pp 65-66)

The Commission identified as the central issue in dispute whether the "cause" of the applicant's medical condition was to be found in the sexual harassment to which she had been exposed when employed by Nissan. As to this the Commission concluded:

"All the medical evidence put before the Commission indicated that there had been a number of significant and distressing events in [the applicant's] life, not only since 1985, but before it: a considerable amount of time was spent distinguishing her reactions to various events that occurred prior to 1985 and events that occurred then and after. All the medical evidence agreed that various events could have predisposed [the applicant] to the symptoms which she now suffers. Having carefully considered the evidence it is my view that it is not possible to conclude that [the applicant's] undoubtedly severe medical condition from which she now suffers is traceable to the distress and offensive events of the sexual harassment in 1985. In my view, there have been too many other distressing and unhappy and difficult events in her life since that time, the consequences of which cannot be discounted but which, in my mind, must have contributed significantly to her present medical condition." (p 68)

The Commission expressly stated that it made no finding as to the cause of or what had specifically contributed to the applicant's condition.

The Commission found that a number of occurrences during the course of the applicant's employment amounted to sexual harassment under s 28(3). It was not, however, satisfied that she had any reasonable ground for believing that a rejection of any sexual advance or the taking of objection to the conduct constituting harassment would disadvantage her in her employment:

"...her evidence was that she complained to Mr Peasnell in about May 1985 and that he took her complaint seriously and respectfully and spoke to the salesmen and Mr Hart in the office and the conduct then ceased for a period of time. [The applicant's] evidence is that there were no adverse consequences to her in terms of her employment as a result of making this objection. Her evidence was that she had a good relationship with Mr Peasnell and she believed he treated her appropriately and respectfully." (p71)

The applicant contended that she had been dismissed because she objected to the harassing conduct. If true, this allegation would have established a breach of s 28 on the part of the respondent. But in the Commission's opinion the only evidence of it was the applicant's interpretation of things said to her at the time of her dismissal. Her evidence was that Mr Peasnell had told her "you're too much of a lady for this industry" and "I can't stand crying females". There was no evidence from the respondent on this beyond a formal denial. In the event, after reviewing the evidence, the Commission was not satisfied on the balance of probability that the applicant was dismissed from her employment as the result of her objection to the conduct of fellow employees.

The Commission concluded that there was no unlawful conduct for which the respondent was directly liable. It said:

"I have indicated above that I am not satisfied that there were any unlawful acts within the meaning of section 28 of the Act which occurred in respect of [the applicant's] employment by Nissan in 1985. I have indicated that although I am satisfied that conduct to which section 28(1) refers and is described in the first part of (3) of the Act did occur, that conduct did not fulfil the requirements of section 28(3)(a) or (b) of the Act. Under these circumstances, there are no unlawful acts for which Nissan can be vicariously liable." (p 75)

The Commission however went on to consider whether the "all reasonable steps" defence under s 106(2) would in any event have protected the respondent from vicarious liability. It found that the applicant's complaint was acted upon by Mr Peasnell and that his action was effective. There was no evidence to suggest that the respondent had a sexual harassment policy in place. Nor was there any formal process for dealing with complaints of sexual harassment. The Commission accepted a submission that in assessing whether all reasonable steps had been taken under s 106(2) it should bear in mind that the events occurred in 1985 only twelve months after the enactment of the Act and that what was reasonable then might well require a lower standard than might be applicable now.

The Commission was satisfied that even if any unlawful acts occurred within the meaning of the Act the respondent took steps that were reasonable at the time so that it could take advantage of the exception in s 106(2).

The Commission then considered whether the applicant had suffered damage as a result of the behaviour of the respondent's employees in 1985. It made no specific findings on the applicant's submissions. It did, however, find that it was not satisfied on the balance of probabilities that the applicant had made out a case, that her psychiatric condition was solely or primarily a result of the harassment or, indeed, that the harassment even contributed to her present condition or the medical conditions from which she had suffered in the past. The Commission added:

"In my view there have been too many significant negative events in [the applicant's] circumstances during the relevant period for me to be so satisfied that all of these problems have resulted from or have been materially contributed to by the sexual harassment. In my view, the novus actus doctrine is not excluded and, in particular, I refer to the difficult birth of [the applicant's] son and her difficulties in coping with her baby, and especially the very difficult and traumatic circumstances of [the applicant's] husband's employment which, on all the evidence, led to very significant unhappiness and disturbance to her." (pp 78-79)

The Commission also considered whether Nissan could be found liable for sexual discrimination under s 14 and concluded that it was not.

The Grounds for Review and the Challenges to Them

In approaching the grounds for review and the respondent's challenge to their viability, it is important to bear in mind certain general principles. The well settled principle governing motions for the summary disposition of proceedings mandates judicial restraint so that proceedings are not summarily dismissed or struck out unless manifestly untenable. It may be that in the case of judicial review applications which are confined to issues of law and principle, it is easier to discern such cases than those in which there are factual issues not readily resolvable on the papers.

There is another principle of judicial restraint related to the nature of the proceedings and that is that judicial review of administrative action is essentially review of the lawfulness, procedural fairness and, in a limited sense, the rationality of administrative decision making. It is not an opportunity to revisit the merits of such decisions.

As Brennan J said in Attorney-General (New South Wales) v Quin (1990) 170 CLR 1 at 35-6 and as the joint judgment in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 136 ALR 481 at 491 approved:

"The duty and jurisdiction of the court to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and, subject to political control, for the repository alone."

The High Court also reaffirmed the proposition that the reasons of an administrative decision maker are meant to inform and not to be scrutinised upon over zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed.

The improper exercise of power by taking into account irrelevant considerations and failing to take into account relevant considerations figures prominently in the amended application. It is therefore appropriate to have regard to what was said by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39. There his Honour reviewed the principles governing the approach to be taken to these grounds of review. In relation to failure to take into account a relevant consideration, he linked it to abuse of discretion rather than fact finding. The following propositions were contained in his Honour's review of the law in this regard.

(a) The ground of failure to take into account a relevant consideration can only be made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision.

(b) What factors a decision-maker is bound to consider in making the decision is determined by construction of the statute conferring the discretion.

(c) Not every consideration that a decision-maker is bound to take into account but fails to take into account will justify the court setting aside the impugned decision and ordering that the discretion be re-exercised according to law.

(d) The limited role of a court reviewing the exercise of an administrative discretion must constantly be borne in mind. It is not the function of the court to substitute its own decision for that of the administrator by exercising a discretion which the legislature has vested in the administrator. Its role is to set limits on the exercise of that discretion, and the decision made within those boundaries cannot be impugned. It follows that, in the absence of any statutory indication of weight to be given to various considerations, it is generally for the decision-maker and not the court to determine the appropriate weight to be given to the matters which are required to be taken into account in exercising the statutory power.

I have set out the relevant principles from his Honour's judgment in an abbreviated form. Similar considerations apply to the ground of "taking into account irrelevant considerations".

The first ground of the amended application in paragraph 3 asserts an improper exercise of power by the Commission in reaching its finding that the termination of the applicant's employment was unrelated to the proved unwelcome conduct of a sexual nature of the respondent's employees and that accordingly there had been no unlawful conduct under s 28.

First under this heading, in paragraph 3(i), the applicant contends that the Commission took an irrelevant consideration into account namely that the re-employment of the applicant by Mr Peasnell was evidence that her dismissal was not as a result of her reaction to the sexual harassment.

As to this the respondent says that the alleged finding was not made. The Commission in considering the applicant's evidence that Mr Peasnell said that she was too much of a lady and the contention that he was irritated at her crying said:

"Further, that Mr Peasnell thought [the applicant] was "too much of a lady" and that he was irritated at her crying does not seem consistent with his request to her, shortly after her dismissal, to come back and work for him on a casual basis."

The Commission evidently did not accept or give much weight to the applicant's evidence of what Mr Peasnell said to her. On the other hand, it had regard to his request to her to come back and work for him on a casual basis. This, in my opinion, was linked to the Commission's finding that it was not satisfied on the balance of probabilities that the applicant was dismissed from her employment as a result of her objection to the conduct of other employees towards her. To the extent that the respondent would seek to have paragraph 3(i) struck out on the basis that the Commission did not take the question of her re-employment into account, the attack on the ground must fail. That is not to say however that I am satisfied that the consideration was at all irrelevant. It was legitimate to take it into account and the weight to be given to it was a matter for the Commission. As I put to counsel for the applicant in argument, this ground was really little more than a direct challenge to the fact finding function of the Commission, in effect seeking a review of an inference said to have been drawn. In my view it invites the Court into merits review and is, for that reason, unsustainable.

Secondly, the applicant contends that the Commission failed to take various relevant considerations into account. These grounds are also fairly transparent invitations to the Court to engage in merits review.

In paragraph 3(ii)(a) of the amended application it is said that the Commission failed to take into account the fact that the respondent did not call evidence in support of its contention that the applicant was dismissed as a result of the sale or transfer of the respondent's business nor to refute the applicant's contention that she was dismissed because of her reaction to and objection to the conduct of the respondent's employees being matters which were substantially within the knowledge of the respondent. However as counsel for the applicant has pointed out, this matter was referred to by the Commission in its reasons at pp 72 and 73. Counsel for the applicant conceded that it was obviously true that the Commission had noted there was a failure to call that evidence. However in counsel's submission it didn't take into account the appropriate inference from that, namely that it was a matter peculiarly within the respondent's knowledge and that if there were evidence to assist the respondent in disputing the applicant's account of her reasons for dismissal the respondent could and should have brought that evidence before the Commission. I do not accept that that is a proper application of the judicial review process in relation to failure to take into account relevant considerations. Rather, it is an attack on the factual conclusions drawn by the decision-maker which in this case was the Commission.

Paragraph 3(ii)(b) complains of a failure to take into account that a particular document was evidence from the respondent that the applicant's employment was expected to continue following the change of ownership in September 1985. There was a reference to this at p 73 of the reasons where the Commission said:

"....her evidence was that she had understood that she would be kept on because of various things that she had typed for Mr Peasnell."

Again this ground is an attack upon the merits of the Commission's fact finding and not within the scope of judicial review.

Paragraph 3(ii)(c) refers to the alleged failure of the Commission to take into account evidence of the applicant and another employee, Ms Donaldson, which was said to have given rise to an inference that Ms Donaldson's employment (presumably unlike that of the applicant) had continued after the changeover of ownership in September 1985. Again, the Commission did refer to the position of Ms Donaldson in its reasons and again this was a matter of fact finding rather than failure to take into account relevant considerations in the sense applicable to the judicial review process.

Paragraph 3(ii)(d) of the application complains that the Commission failed to take into account that a necessary inference (in the absence of evidence to the contrary) should be drawn from the fact that the applicant was subjected to sexual harassment by a salesman, reacted adversely to such harassment and was dismissed all on the same afternoon. As counsel for the respondent rightly said, this is not failure to take into account a relevant consideration but a complaint that an argument was not accepted.

Paragraph 3(ii)(e) asserts that the Commission failed to take into account that the applicant suffered a disadvantage in connection with her employment within the meaning of s 28(3)(b) of the Act, being her loss of enjoyment in that employment by reason of taking objection to the sexual harassment to which she was subjected. It was said, however, that the applicant's case was never put on this basis as the Commission pointed out at p 74, paragraphs 1 and 2 of the reasons. There the Commission said:

"Further, I am not satisfied that, although [the applicant] was quite probably disadvantaged in her employment in the sense that she became unhappy there and may have lost enthusiasm for, and interest in, her work, this is not the disadvantage [of] which she complains and it did not lead to her dismissal."

Paragraph 3(iii) asserts that the Commission made a finding that was so unreasonable that no reasonable decision-maker could have made the same, the finding being that the termination of the applicant's employment was unrelated to the conduct of the employees. This ground on the face of it is untenable. It is quite clear from the factual findings made by the Commission that it was open to it to come to the conclusion that it did.

My conclusions with respect to paragraph 3 of the amended application are sufficient to dispose of the matter for, as counsel for the applicant conceded, if he cannot succeed on paragraph 3, he cannot succeed on the remaining grounds of his application. I will nevertheless make reference to them.

Paragraph 4 of the amended application challenges the Commission's finding that because the respondent had taken all reasonable steps to prevent its employee from engaging in the conduct complained of, it attracted the protection of s 106(2). But as the Commission pointed out in its reasons there were no unlawful acts for which the respondent could be vicariously liable in any event.

Paragraph 5 of the amended application challenges the finding by the Commission that it could not be satisfied that the sexual harassment had contributed to the applicant's medical condition. As to that, counsel accepted that the Commission's finding could only be relevant if the applicant could succeed in having the substantive questions reviewed.

Paragraph 6 alleges various errors of law. Counsel for the applicant accepted the proposition that to a great extent they covered the same ground as in the earlier grounds but "in different packaging". Paragraph 6(i) characterises as an "error of law" the Commission's finding that it was not satisfied that the applicant's reaction to the sexual harassment amounted to an objection to such sexual harassment within the meaning of s 28(3) of the Act. Reliance was placed on a passage in the Commission's reasons, at p 72, which was as follows:

"There is no evidence that [the applicant] took objection to the conduct in a formal way other than in her original complaint to Mr Peasnell in May 1985."

And at the bottom of p 73 and over to p 74 of the reasons:

"Although [the applicant] did object to the conduct when it recommenced and, in particular, objected to the conduct associated with the cartoon and Mr Simmons' behaviour on 23 August, it is difficult to be satisfied that she took an objection to that conduct in the sense with which section 28(3)(b) is concerned. I am satisfied that she took an objection in the sense that it was clear to Joe Simmons and perhaps others who were involved in the conduct that she objected to the cartoon, and in her reaction to Mr Simmons' behaviour on 23 August. However, Mr Peasnell as Nissan's representative was unaware of this."

As counsel for the respondent has pointed out, the Commission had correctly directed itself that the taking of objection had to be viewed in the context of s 28(3) namely that it had to lead to a reasonable fear of detriment or to actual detriment. In the absence of evidence that Mr Peasnell knew of the showing of the offensive cartoon and of the applicant's distress resulting from it, there was no connection between the objection in the sense described by the Commission and the detriment. In this respect there is on the face of it no error of law.

Paragraph 6(ii) characterises as an error of law what is said to be the Commission's finding that the objection referred to under s 28(3)(b) of the Act required an objection of a formal nature to the manager of the applicant's workplace. In this respect I accept the respondent's submission that the Commission made no such finding.

Paragraph 6(iii) asserts that the Commission erred in law in finding that words spoken by Mr Peasnell on 23 August 1985 in the circumstances were capable of bearing a meaning other than that the applicant's employment was being terminated by reason of her reaction to, or her objection to, the unwelcome conduct of a sexual nature to which she had been subjected. This ground does not disclose an error of law. It invites the Court to review a finding of fact.

Paragraph 6(iv) complains of the Commission's failure to find that the applicant's loss of enjoyment in her employment by reason of her objection to the sexual harassment to which she was subjected was in itself a disadvantage in connection with her employment within the meaning of s 28(3)(b) of the Act. This replicates paragraph 3(ii)(e) which has already been dealt with.

Paragraph 6(v) says that the Commission erred in law in reaching the finding that the applicant's dismissal from her employment was not as a result of her taking objection to the sexual harassment and its failure to properly apply the law of evidence in circumstances where the respondent failed to call evidence as to the reasons for the dismissal or to challenge in cross examination the applicant's evidence as to the reasons for her dismissal. Again, I accept the respondent's submission that this is a complaint about a finding of fact. It appears to substantially replicate the ground raised in paragraph 3(ii)(a).

Paragraph 7 of the amended application asserts that there was no evidence or other material to justify the making of the following findings:

(i) The termination of the applicant's employment by the respondent on 23 August 1985 was for a reason other than her reaction to and objection to the unwelcome conduct of a sexual nature to which she had been subjected.

(ii) The respondent had taken all reasonable steps to prevent the unwelcome conduct of a sexual nature to which the applicant was subjected from continuing to occur.

(iii) The sexual harassment in 1985 had not contributed to the applicant's current psychiatric condition.

The first of these is again a challenge to a finding of fact which, for reasons already outlined, cannot succeed. The second matter relates to the application of s 106(2) which, as indicated, is academic. The third relates to the question of causation of loss which is also, in the circumstances, academic.

The test upon a motion to strike out an application for failure to disclose a cause of action or a basis for review or, as in this case, the absence of any reasonable basis, is well established. The application must be manifestly untenable. For the reasons I have already outlined, I am of the view that this application falls into that category. It is essentially an invitation to the Court to engage in merits review of the findings of fact of the Commission. That is not the function of the Court under the Administrative Decisions (Judicial Review) Act 1977 (Cth).

For these reasons, the amended application will be struck out.

In the course of his submissions counsel for the applicant submitted that in the event the motion were successful the applicant should be given an opportunity to submit redrafted grounds for review having regard to the objections raised.

I am not inclined to accede to that request. The objections raised were not matters of form but went to the substance of the grounds upon which review is sought. They covered a range of the available grounds under the Administrative Decisions (Judicial Review) Act. In my opinion the application should be dismissed with costs.

I certify that this and the preceding sixteen (16) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice French

Associate:

Dated: 9 April 1998

Counsel for the Applicant:	Mr H N H Christie
Solicitor for the Applicant:	Legal Aid WA
Counsel for the Respondent:	Ms F P Hampel
Solicitor for the Respondent:	Freehill Hollingdale & Page
Date of Hearing:	11 March 1998
Date of Judgment:	9 April 1998