Sharma v Legal Aid Queensland [2001] FCA 1699 (4 December 2001)

Last Updated: 4 December 2001

FEDERAL COURT OF AUSTRALIA

Sharma v Legal Aid Queensland [2001] FCA 1699

HUMAN RIGHTS & EQUAL OPPORTUNITY - racial discrimination in employment - use of selection criteria in appointment - whether decision not to appoint highest-scoring candidate based on race - whether decision that candidate did not meet an essential criterion based on race - whether physical appearance of candidate taken into account by selection panel members - whether procedural differences adopted by panel based on race of candidate - standard of proof to be applied - small number of people from non-English speaking backgrounds employed by organisation not indicative of racist attitude

Statutes

Freedom of Information Act 1982 (Cth)

Racial Discrimination Act 1975 (Cth) ss 9, 15, 18B

Cases

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Applied

State of Victoria v McKenna (2000) EOC 93-080 Referred to

West Midlands Passenger Transport Executive v Jaquant Singh [1988] 1 WLR 730 Cited

SHARMA v LEGAL AID QUEENSLAND

Q184 OF 2001

KIEFEL J

BRISBANE

4 DECEMBER 2001

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q184 OF 2001

BETWEEN:	NARENDRA KUMAR SHARMA APPLICANT
AND:	LEGAL AID QUEENSLAND RESPONDENT
JUDGE:	KIEFEL J
DATE OF ORDER:	4 DECEMBER 2001
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1. The application is dismissed.

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

IN THE FEDERAL COURT OF AUSTRALIA
QUEENSLAND DISTRICT REGISTRY	Q184 OF 2001

BETWEEN:	NARENDRA KUMAR SHARMA APPLICANT
AND:	LEGAL AID QUEENSLAND RESPONDENT

JUDGE:	KIEFEL J
DATE:	4 DECEMBER 2001
PLACE:	BRISBANE

REASONS FOR JUDGMENT

1 Mr Sharma, the applicant, was employed with Legal Aid Queensland, the respondent, from 19 December 1997. He commenced in a casual position but thereafter applied for other positions with that organisation. Two such positions, the Solicitor-in-Charge of the Mackay office and that of Senior Solicitor in Mt Isa, are the focus of the applicant's claims that he was discriminated against on account of his race and that this resulted in him not being offered the positions. In the case of the position in Mackay, the applicant's case is that he fulfilled the selection criteria and was the highest scoring candidate, but nevertheless was not offered the position. With respect to that in Mt Isa, he was not rated as highly as the other candidate, but he says that he was not given the same latitude in preparing answers to questions. The difference in the panel's treatment of him can be explained only on the basis of views pertaining to his race, it is submitted. The balance of the submissions made on his behalf rely upon a composite picture drawn from other treatment of the applicant by other employees of the respondent during the course of his employment; from the respondent's lack of assistance in his training and by reference to the position of persons from non-English speaking backgrounds within the organisation.

2 The applicant applied for the position of Solicitor-in-Charge of the Mackay office after the position was advertised in August 1998. The "Purpose of Position" was described in the "Position Description" document as one to:

"Undertake overall responsibility for the management of the office. The office provides the full range of services offered by the Legal Aid Board to financially and socially disadvantaged people to enhance access to justice in Queensland."

3 The "Major Duties" were listed as:

1. Maintain a high standard of professional service and office management ensuring that performance targets are met in all areas of responsibility, and continually improving the productivity and cost efficiency of the office.

2. Contribute towards the formation and effective implementation of Legal Aid Queensland Strategic and Operational Plans.

3. Promote and develop a customer service focus within the office.

4. Provide legal advice and information to members of the public at the office, at hospitals and corrections facilities with the region as required.

5. Undertake casework for legally aided persons.

6. Ensure the provision of duty lawyer services in the Magistrates and Children's Courts.

7. Provide appropriate and effective supervision of staff, promoting teamwork and the ongoing development of staff.

8. Ensure effective implementation and support for new initiatives and programmes including Primary Dispute Resolution.

9. Maintain effective liaison with the local Magistrate, representatives of the Law Association, private practitioners and community agencies to ensure that the administration of assignments work is effective, efficient and within guidelines, and that the office is significantly involved in the local community and the information and education role is able to be effectively undertaken.

10. Manage the office budgets and exercise financial responsibilities as set out in the Instrument of Delegation.

11. Ensure the implementation of approved policies and practice of the legal practice and administrative functioning of the office including all Human Resource policies and practices.

12. Ensure all work undertaken on a file, by file managers, complies with prescribed standards for quality and case management."

4 Short-listing and selection were said to be based on the following criteria (the "selection criteria"):

"SC2 Demonstrated knowledge and proven ability in management including the implementation of strategies which assist in achieving strategic and operational goals and effective leadership of staff in a client focused environment.

SC3 Highly Developed communication, negotiation and representational skills including the capacity to deal with members of the public in stressful situations.

SC4 Substantial capacity to provide quality legal advice and representation.

SC5 Knowledge of or ability to rapidly acquire knowledge of Legal Aid Queensland policies and procedures.

SC6 Demonstrated reliability in meeting deadlines and commitments and working with highly confidential information.

SC7 Knowledge of contemporary human resource management issues including Equal Employment Opportunities, performance planning and review, workplace health and safety issues etc".

(Emphasis added).

In the balance of these reasons I shall refer to these criteria as "SC...". SC1 referred to the basic legal qualifications necessary. The advertisement for the position advised that the successful applicant must:

"h have demonstrated knowledge and proven ability in management and leadership

* have highly developed interpersonal, communication, negotiation and representation skills including the capacity to deal with members of the public in stressful situations

* have substantial capacity to provide quality legal advice and representation."

These proceedings focus upon SC4 and the respective panels' views about the applicant's ability to provide representation in Court.

5 The respondent's handbook contains its policy concerning recruitment and selection. It describes the use of the selection criteria in these terms:

"Merit is a relationship between an individual's job related qualities and those job related qualities genuinely required for performance in a particular position.

Properly developed selection criteria are fundamental to merit based selection.

Selection criteria are developed by taking such factors as abilities, skills, knowledge, qualifications (if necessary), potential and relating them to the position in question. The question is asked, "What are the actual abilities, skills, knowledge and qualifications (if necessary) that are needed to achieve the outcomes of the position?". These are the selection criteria for the position and each applicant is then assessed against the criteria.

It is possible that all applicants may rate highly against many of the selection criteria and each may be able to perform the duties of the position well. However, only the best/most highly rated/most meritorious person will be selected for the position."

6 Mr Sharma's qualifications at that time included degrees in law from universities in both India and Queensland and a Graduate Diploma in Legal Practice in Queensland. He was also undertaking a post-graduate degree. He had practised on his own account for four years in India. He had worked as a volunteer in various legal services in Queensland and with a firm of solicitors in Queensland in general areas of law where he had had the conduct of a small amount of criminal matters. His work with the Tenants' Union and with the respondent involved legal advice and assistance. In relation to SC4 he claimed "considerable experience in general law practice and specialist experience in family law, discrimination, immigration, tenancy and social security matters".

7 The selection panel for the position in Mackay consisted of Mr David Holliday (Chair), Mr Dermot Kehoe and Ms Karen Chapman. Mr Sharma and four other persons were interviewed. In the "Applicant Shortlisting Grid" the essential and highly desirable criteria with respect to Mr Sharma were each ticked, as they were with respect to two other applicants. Mr Sharma has produced, from documents produced in response to a request under the Freedom of Information Act 1982 (Cth), the notes of Ms Chapman on the interview which notes his experience in India as family law and "general". The comment against each of the criteria is "good". The notes kept by Mr Holliday with respect to SC4 and the selection report itself were not produced in evidence. It was said that they could not be found. The evidence suggests that they may have been placed on another file relating to a position being offered in Ipswich at the same time, and involving the same panel members, and that that file has been destroyed. The applicant submits that this is suspicious.

8 No recommendation was made for the appointment of a person to the Mackay position. In a statement of reasons provided to the applicant at his request he was advised:

"1. The selection panel determined that no applicant sufficiently met the selection criteria to warrant appointment to the position.

2. The selection panel determined you had insufficient breadth of experience as a practicing lawyer and that you did not show the capacity to lead and manage a remote regional office."

9 This is consistent with the advice provided by Mr Holliday to the applicant orally at an earlier point.

10 The position was re-advertised on 24 October 1998 and four people were short-listed for interview. Mr Sharma was one of them. He had been encouraged to re-apply. He withdrew his application, he says, when he became aware that the person who was acting temporarily as Solicitor-in-Charge in Mackay had applied for the position. He later added that he had also been concerned because Mr Holliday was again on the panel.

11 The successful applicant for the Mackay position did have one area where her experience was deficient, that of family law. She was however assessed as being "capable of performing the position" and it was said:

"While she will have a steep learning curve in relation to family law she is certainly capable of acquiring the necessary skills and knowledge."

12 Following upon this and one other position for which he unsuccessfully applied, the applicant had a discussion with the Legal Practice Co-ordinator, Ms Chapman. He had already been referred to the prospect of the Senior Solicitors' positions in Mt Isa and Southport by the Chief Executive Officer who had suggested to Ms Chapman that he be given some criminal law experience. Ms Chapman ruled out the position in Southport, as it was likely to attract considerable competition and expressions of interest from employees already classified as permanent. The applicant alleges that he was told by Ms Chapman that if he proved his capability in the section in which he was working (Committal, Duty Lawyer and Legal Advice and Prison Service) he was "a certainty" for the Mt Isa vacancy. This allegation is denied by Ms Chapman who admits only that she was encouraging, and that she suggested Mt Isa as a means of addressing the deficiencies in the applicant's criminal law and court experience. Late in June he was offered a contract in that position but one for no more than two years. He advised Ms Chapman that he desired a permanent career with the respondent. He was not concerned about the need for advertising as part of a formal selection process. Mr Sharma alleges, and Ms Chapman denies, that she then advised him to make arrangements to rent or sell his house. Ms Chapman agrees that she suggested that he test the housing market in Mt Isa. She denies that she conveyed to him that he was assured of the position.

13 Mr Sharma travelled to Mt Isa and took up the position in an acting capacity whilst the position was advertised. He advised his family, relatives and friends that he and his family would be moving to Mt Isa on a permanent basis.

14 The position of Senior Solicitor in Mt Isa was advertised in July 1999. The major duties listed in the Position Description document were the same as those numbered 1-9 of the list used for Mackay. Paragraphs 10-13 were in these terms:

"10. Serve as the Chief Executive Officer's representative for the Legal Aid Queensland Committee for the Regional Offices.

11. Ensure the implementation of approved policies and practice of the legal practice and administrative functioning of the office including all Human Resource policies and practices.

12. Undertaken Assignment Functions.

13. Ensure all work undertaken on a file complies with prescribed standards for quality and case management."

15 The selection criteria were in the same terms as those for the position in Mackay, set out above. SC4 "Substantial capacity to provide quality legal advice and representation" was said to prove the stumbling block for the applicant. The other interviewee was marked much higher on this criterion. To some significant degree this followed upon that candidate's answers to a practical problem, set in a courtroom and involving a client, upon which candidates were asked to advise about the action which should be taken. Whilst the applicant scored more highly in the other criteria, he did not in this area. SC4 was an essential criterion and a system of weighting was employed.

16 The Selection Report identified the scores for the other, successful, applicant as 57.33 out of 100 and the applicant as 53.16 and went on:

"Although the scores might appear to be relatively close the panel decided that the scores accurately reflected the merits of the candidates and that the apparently close scores were a result of averaging a different pattern of scores."

17 In the additional comments made by the panel with respect to the applicant, it concluded:

"If it was considered necessary to appoint another solicitor to Mt Isa, then the panel considers that Narendra would be an appropriate appointment to a second solicitor position in the Mt Isa office. The essential issues identified during this process for Narendra appeared to be a lack of experience and training in the representation aspects, and possibly also a tendency towards operating better in a more structured environment with clear-cut rules and operating procedures.

His level of ability would suit an appointment focussed on advice or operating to a structured program, and the panel considers Narendra would then be in a position to perform competently at this level, and have the opportunity to develop skills to perform competently in other roles."

18 The recommendation of the panel, to appoint the other candidate, was adopted by the Chief Executive Officer. The reasons given by him for the decision, dated 14 April 2000, were as follows:

"1. The selection panel rated another candidate at a higher score and concluded that the other candidate was more meritorious for the position.

2. The other candidate was assessed at demonstrating a better all round grasp of the requirements of the position and in particular, the ability to provide quality legal advice and representation as required by selection criteria 4.

3. The selection panel determined your ability to provide representation as required by selection criteria 4 was particularly low due to lack of experience and training and that this meant you were not of a sufficient level of competency to run the Mt Isa office as a sole operator.

4. The referee checks confirmed the selection panel's findings at interview."

19 On 6 August 1999 the applicant had a meeting with Ms Chapman when he was advised that the other candidate had been recommended for the position. He says that when he enquired as to the reason, she said words to the effect that it was "the way he answered the questions". The applicant then says that he asked whether it had to do with his "accent or what" and that Ms Chapman replied "Yes, but I suppose English is your second language". Ms Chapman denies this aspect of the conversation. Ms Chapman says that it was the applicant who raised the prospect that his cultural and language differences had counted against him, amongst other things, and that she told him that that was not the case. He also said that he thought that Ms Taylor and another officer of the respondent were against him. She said that she explained how the other candidate scored and that his lack of experience in criminal work had counted against him. The applicant became upset. It is evident that the applicant had suffered considerable embarrassment as a result having notified others of his family's intended move to Mt Isa.

20 Some written communications were exchanged between Ms Chapman and the applicant in the months following. It is not necessary to refer to them in detail. The applicant was offered another contract for six months but he rejected it. His current contract came to an end on 10 September 1999. On 8 June 2000 the applicant's solicitors lodged a complaint with the Human Rights and Equal Opportunity Commission. The complaint was found to be lacking in substance. On 28 December 2000 the applicant brought proceedings in this Court.

STATUTORY PROVISIONS

21 Section 9(1) of the Racial Discrimination Act 1975 (Cth) provides:

"It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life."

22 In the context of employment, s 15(1)(a) and (b) provide:

"(1) It is unlawful for an employer or a person acting or purporting to act on behalf of an employer:

(a) to refuse or fail to employ a second person on work or any description which is available and for which that second person is qualified;

(b) to refuse or fail to offer or afford a second person the same terms of employment, conditions of work and opportunities for training and promotion as are made available for other persons having the same qualifications and employed in the same circumstances on work of the same description;"

23 Submissions for the applicant extend beyond his unsuccessful applications for the two positions and require consideration of opportunities for training and other matters associated with his general employment by the respondent, matters with which par (b) is concerned.

24 Section 18B provides that if an act is done for two or more reasons and one of the reasons is the "race, colour or national or ethnic origin of a person", the act is taken to be done because of "race, colour or national or ethnic origin". It is not necessary that it be the dominant or a substantial reason for doing the act.

THE MACKAY POSITION

25 The applicant's principal contention is that he met the selection criteria and he was rated most highly of the applicants, but nevertheless was not appointed to the position. In the absence of any apparent reason he infers that the failure to do so must have been influenced by considerations of his race or national origin. Other aspects of the process of selection are pointed to by him as supporting this contention.

26 The explanation given by the persons who constituted the panel for the applicant's non-appointment are that he was inexperienced in the areas of family law and criminal law casework. He had shown ability to provide legal advice but had not had much experience in court. SC4 was then not met. Additionally, neither he nor the other candidates in the first round of interviews had any real experience in a wider management role, one which extended to implementing strategic planning. The applicant's reply to this is that the need for experience in those areas was not specified in the description of the position, nor were the selection criteria addressed to it. The applicant contends that this requirement was an afterthought, and arose only after it was obvious that he satisfied the criteria.

27 A substantial part of the applicant's case was taken up with questions as to whether the panel had followed policy guidelines regarding appointments and whether what they said was required in the position could be found in the description given of it. If the applicant had fulfilled the criteria specified and guidelines had not been followed, questions might arise as to the approach being taken by the panel. It is necessary to bear in mind however that this is not a case involving the application of principles of employment contract law, or procedural fairness. Breaches of this kind do not themselves answer the question whether race operated as a factor in the appointment process. By the same token compliance will not foreclose the possibility that considerations of race were influential in some way. The enquiry is as to what was truly in the minds of the panel members. I turn then to consider the explanations they have put forward.

28 It is not difficult to accept that the panel members, particularly Mr Holliday who had experience in criminal case work, considered that representation in court formed an important part of the function of a solicitor employed by the respondent in a regional office. The position description did not suggest a purely managerial or administrative role, but a combination. It did identify, as amongst the main duties to be performed, an obligation to provide legal advice together with casework and to ensure the provision of duty lawyer services in the Magistrates' and Children's Courts. It is well known that the respondent offers services almost exclusively in the areas of family law and criminal law. The applicant would have known this. The requirements of SC4, that a successful applicant have the capacity to provide representation as well as advice, would be understood by the panel members to refer to these areas. If the panel held the view that the applicant did not have that capacity, an essential criterion for selection would not be met. In those circumstances it is not to the point that he has scored higher than the other applicants.

29 The applicant relied upon the fact that the person who was appointed to the position following re-advertisement obtained a score similar to him as showing he ought to have been appointed. Further, the panel gave that person the benefit of the doubt by recognising her weakness in the area of family law but considering that she had the potential to fulfil this requirement.

30 I accept that it is not possible to draw much from the similarity of scores given by a differently constituted panel in another interview setting. The more important question is whether the selection criteria were met. They were not with respect to the applicant, but the other candidate was considered to meet them.

31 I can see no reason to doubt the panel's assessment of that candidate. Mr Holliday knew of the background and experience of the person in question. She had extensive experience in criminal case work preparation, advocacy and acting as a duty lawyer. She had acted in the position of Solicitor-in-Charge in Mt Isa and had provided some advice and representation in family law cases. He said that the panel recognised this weakness, but was satisfied that she had demonstrated the ability to acquire the necessary skills. There does not seem to me to be anything untoward in the panel arriving at such a conclusion. What that candidate had to acquire was knowledge of another legal subject and perhaps some procedures relevant in that area. What she did have was extensive court experience. The applicant, by contrast, was lacking in practical experience and that might take some time to remedy.

32 Having regard to the applicant's history, and more particularly his own experience listed in connexion with SC4, a view by the panel as to his lack of criminal case experience does not seem unusual. He made no reference to it himself. The applicant alleged that Mr Holliday told him that his experience as a practitioner in India was not taken into account by the panel. His curriculum vitae in this regard did contain reference to criminal court work, as one of the areas in which he had practised in a four year period. Mr Holliday denies the conversation and Ms Chapman says that all of his experience was taken into account. Her notes bear this out to an extent. It was not suggested to the panel members, in the course of their evidence, that a conclusion that he had the necessary level of experience, follows from the statements he made about his experience. There is in my view nothing to suggest that the panel members did not honestly hold the view that they did concerning his experience. In the case of Ms Chapman she had previously spoken to the applicant about addressing his lack of experience in this area.

33 It would not however appear to be consistent with a belief that the applicant had limited experience, and to have based his non-appointment upon this, to have encouraged him to re-apply for the position when it was re-advertised. Further, Ms Chapman had spoken of the applicant in a newsletter published on a previous occasion over the respondent's intranet, as a person having substantial experience. Ms Chapman now says that those comments made by her about the applicant were "`glossed-up' and superficial" because she was trying to be "up-beat and positive".

34 This aspect of Ms Chapman's evidence discloses that she did not honestly hold an opinion she expressed. A question which arises is the effect it might have upon her overall credit-worthiness. One effect it would appear to have had was to confirm the applicant in his view about his abilities.

35 It is not beyond comprehension that persons involved at management level in large organisations will pursue a policy, written or unwritten, of encouraging staff with respect to their advancement. Mr Holliday's actions, in encouraging the applicant with respect to his further application for the position in Mackay, is consistent with such a practice. The wisdom of doing so where the employee is unlikely to achieve a goal is not a matter to be determined here.

36 I did not understand the applicant to suggest that he had any substantial experience in management at the level of strategic planning and implementation, but rather that such experience was not part of the position description and the selection criteria did not refer to it. Mr Holliday said that what was required in a regional office was more than a manager of staff. The position required someone who was able to ensure the delivery of legal aid services, maintain and develop relationships with "stakeholders" and implement the organisational and strategic plans of the respondent. By comparison it might be observed that the successful applicant had had some experience in a similar position, although in a smaller office in Mt Isa.

37 In his evidence Mr Holliday said that SC4 referred not only to case work but also to the capacity of applicants to be the "public face of the CEO and the organisation [the respondent] in that town". "Public face" may refer to the physical characteristics of a person which are thought to convey something about an organisation. Mr Holliday answered that he had no problem with the applicant being the public face in Mackay, in the context of his appearance. He said that he intended by those words a reference to the functions that that person would be undertaking. Ms Chapman in her evidence recalled the question about the applicant being the "public face" as an issue, but not a primary issue. His ability to practise in the area of criminal law was more important. The context in which she put the issue was someone having a "broader responsibility in the community". She accepted the description of the question arising as "Is he [the applicant] the appropriate person for Legal Aid representing Legal Aid to the outside Mackay community?". Mr Kehoe, the third panel member, did not recall a discussion about the topic of the "public face" of the respondent in Mackay in discussions with the other panel members. He thought that the focus of their interest was upon the competency of practitioners.

38 There is little if anything in the statement of reasons, or the explanation provided to the applicant, to suggest that this particular slant on the non-lawyer aspect of the position was taken in discussions. The applicant was told that none of the candidates were considered to have the necessary level of case work experience and none of them had management experience. The evidence strongly suggests a focus on the ability of candidates with respect to representation. It is not possible to discern that the management role was thought to be particularly extensive and it may be that it has come to assume some additional importance.

39 Whether or not a representative role of the Solicitor-in-Charge is something which assumed greater importance after the interview, and when explanations were called for, it is something put forward by Mr Holliday and Ms Chapman as having been relevant in their consideration of the applicant. It would not seem to matter then whether they consciously adverted to it at the time of interview, or became aware of it upon reflection. The question is what it conveys about what they were thinking and, in particular, whether they considered the applicant's physical appearance to be something to be taken into account in this regard.

40 The use of the words "the public face [of the respondent]" to describe the aspect of the role in question has caused me concern. It is possible that it could refer to a need for someone to have physical characteristics which are different from those shared by the applicant's race. It is possible that underlying it is a view that someone of the applicant's racial background and appearance did not fit that picture. My concerns cannot however be elevated, at an evidentiary level, beyond possibilities. The evidence did not cast doubt upon Mr Holliday's explanation as to what he intended. Whilst I consider Mr Holliday, and Ms Chapman, may have expanded somewhat upon a requirement of this type, there is no other aspect of the evidence which supports any view of their approach as including race as a factor.

41 In relation to specific comments about his background, the applicant points to Ms Chapman's notes of the interview which refer to his degrees "LLB India and Australia" and then continue:

"Indian - permanent resident of Australia

LLM @ QUT

Experience in India - family law and general

Solicitor @ Welfare Rights Centre

Casual @ LAQ"

42 No issue could be taken with the reference to the place where the experience and the qualifications were obtained. The applicant's complaint centres upon what is considered to be an unnecessary reference to his status, as an Indian national and a permanent resident of Australia.

43 Ms Chapman said that she made this note because it was possible that there was some requirement that applicants for positions with the respondent have a particular status in Australia and that it may need to be addressed. It is perhaps odd that Ms Chapman did not know whether this was the case, given her role in management, but then she had not been in that position for very long. The note does indicate that Ms Chapman was conscious of the applicant's background. It does not suggest that any differences perceived to arise from it operated as a factor in her considerations in connexion with the appointment. Nothing in her evidence suggested that she had something like that in mind.

44 It was contended by the applicant that there were other indicators of a prejudiced view towards him by the panel as a whole. It was said that there was a lack of consistency in their marking of an answer by him when compared with that of another applicant. He was awarded three marks when he was said to have "covered most of the points" in connexion with an answer he had given, whereas another other candidate received 3.5 points when he was said to have answered in a brash manner, without having thought the matter through. I do not consider that it is possible to draw much from the system of marking at different points in interviews.

45 The applicant also relies upon the fact that Mr Holliday's notes and the Selection Report cannot be found to support an inference adverse to the respondent. When the applicant says that it is "suspicious" I take that to mean that some of its officers are said to have deliberately mislaid the documents because they contain something which supports the applicant's claims that a racist approach was taken, although experience would suggest that it would be most unlikely to find such comments in documents like this. If there were some other evidence to suggest that the documents might have contained references to the applicant's race, their loss would call for explanation. In any event one has been provided and I see no reason for refusing to accept that the documents have been accidentally lost, most likely because they were mis-filed and that file destroyed.

46 Mr Holliday was, it seems, the person on this panel that the applicant later came to consider was against him. It is of course quite possible that a person can later realise, when various factors are pieced together, that they have been subjected to discrimination on account of their race. The action or conduct in question may be very subtle. It is not to the point that an applicant comes to this view later. The real issue will be whether there is shown to be any substance in the factors pointed to, individually or collectively, which is to say whether the perceptions are reliable. In this case I have come to the view that the applicant's assessments are not reliable, although they are explained by the belief he has developed that people were "against him" and that this can only be accounted for because of his race.

47 The applicant considered, upon reflection, that he had always had a difficult relationship with Mr Holliday. He had difficulty in engaging in conversations with him and he considers that Mr Holliday "fobbed him off" on an earlier occasion when he approached him for feedback concerning a position he had unsuccessfully applied for in 1997. On another occasion Mr Holliday left a photocopying room when he saw the applicant in it. All of these concerns, on the part of the applicant, are thought to be confirmed by Mr Holliday's note to the Chief Executive Officer, after the interviews, which was to the effect that the Chief Executive Officer may wish to speak with him about aspects of the recommendation. He considers that it is likely that Mr Holliday had in mind saying something adverse to him.

48 The last mentioned statement, I accept, is one likely to have been intended as a matter of courtesy and implies nothing more. Mr Holliday does not have recollections of the incidents spoken of. He denies however that he would have acted in an off-handed fashion towards the applicant or other staff members. He did not understand that he had any difficulties in the dealings he had with the applicant. No one else appears to have noticed any difficulty. Mr Holliday said that he did not have a great deal to do with the applicant. He does not know why the applicant would have contacted him for his comments with respect to an appointment with which he was not concerned. In such a circumstance he would have referred the applicant on to the appropriate person, as appears to have occurred. Mr Holliday may not have been a person who readily engaged in social conversation. He maintained a focus upon his duties whilst at work. There is, in short, no ground for concluding that Mr Holliday behaved in the way described, let alone for reasons which reflected a prejudice towards the applicant - one which he later applied to the interviewing process.

49 The applicant also points to a difference in procedure adopted by the panel. Only his first nominated referee was contacted. She could not, she told him, comment on the questions of his management skills. The panel did not contact his second referee, he points out, whilst the panel for the Mt Isa position undertook that course with respect to the other candidate.

50 The lastmentioned course of action has been explained as necessary because the first referee could not comment upon aspects of that candidate's history. The comparison is not of assistance. In relation to Mackay little can be deduced from the panel's alleged failure to contact the second referee given the focus of the panel's concerns.

MT ISA

51 The questions to be asked at the interview were faxed to the applicant some 20 to 30 minutes prior to the time at which the interview was scheduled to commence. The panel did the same for the other interviewee, but that interview was postponed for some days because she had locked herself out of her house, where she was to take the call. As a result, the applicant points out, she had some days to consider the questions. Further, the applicant says that he was given only 15 minutes more time to complete a test, when he asked for further time. The other candidate was effectively given hours because she had the test faxed to her at work in the afternoon and she did not have to return it until that evening.

52 The unfairness of the process, to which the applicant points, and the favouring of the other candidate for the position, are said to have their basis in considerations pertaining to his race. It is not the whole panel he identifies as motivated in this way. Ms Chapman had been encouraging of him. Although he alleged that she had told him that the position was his, he does not point to conduct on her part in the consideration of his application. Mr Raymer was virtually unknown to him. It is Ms Taylor whom he considers to have been against his appointment.

53 The evidence of the three panel members does not bear out allegations of discrimination on the part of any panel member. When the interview with the other candidate had to be postponed, it was decided by the panel that she be asked to give an undertaking not to read the questions until shortly prior to the time of the second interview. Although the practical "in-basket" test was sent to her in the afternoon, the panel understood that she was unable to attend to its answer until after work that evening. The form itself required that an applicant spend only a set period of time on the exercise. The applicant did not ask for any more time beyond the additional 15 minutes that he was given. Whilst these alterations to the process may not have been perfectly equitable, there is nothing to suggest they were based upon a pre-judgment of the applicant's application, let alone for reasons relating to race.

54 The applicant points to the fact that he received higher overall marks on the selection criteria, but this does not take account of the weighting which the panel members had agreed upon prior to the interview. The criteria which counted most heavily against the applicant was, again, SC4 and this was mostly because of an answer he had given to a test which was set in a court room and involved difficulties with a client. The other candidate's response was said by the applicant to be substantially the same as his but it received twice the score. It is clearly quite different in its terms. The panel had concerns about the applicant's answer and sought assistance from Mr Holliday, as a senior criminal lawyer. The applicant was not identified in this process. The panel was concerned about its correctness and whether the actions suggested by the applicant were appropriate. Mr Holliday did not think that they were. The panel apparently agreed, or acted upon this advice. There does not appear to me to be anything untoward in the opinion expressed by Mr Holliday or the panel. It cannot be said to be a surprising view of the answer, such as might occur if a way was sought to be found not to appoint the applicant. In such a case one might also have expected other marks awarded to the applicant to have been lower. As it was he was assessed as weak only on this criterion. The point is that the other candidate was considered to meet all criteria.

55 The panel members did agree in cross-examination that the applicant may have been disadvantaged in a sense because SC4 refers to abilities both with respect to representation and advice. They had focussed upon representation. This is not however suggestive of an approach based in some way upon race. It reflects, consistent with their other evidence, their concerns about the importance of this aspect.

56 The applicant considered that Ms Taylor's notes of the interview appeared to disadvantage him and that and she appeared to have contacted his former supervisor for a reference. He had had a dispute with that person and was not given a chance to respond to anything they had to say which was adverse to him. The notes which the applicant referred to were not Ms Taylor's, who kept no record of the interview. They were those of Ms Chapman. The applicant's former supervisor was not contacted. Only the referee nominated by him was, and that person is said to have confirmed the view of the panel about the area in which the applicant lacked experience.

57 The applicant also referred to prior conduct on the part of Ms Taylor as indicating that she was prejudiced against him. He said that she avoided him on occasions; made odd facial gestures indicating dislike of him. On one occasion she abruptly finished a conversation when he sought advice from her on a family law matter. The last mentioned incident is most likely explained by Ms Taylor's perception of a conflict and a need, therefore, to refer the applicant to another person for advice. Such conflicts arose from time to time in the office in which they were working. There is no evidence upon which to base a conclusion that Ms Taylor behaved in a strange manner towards the applicant. Moreover, there is no relevant conduct on her part in connexion with the interviews which they would serve to confirm.

58 The applicant relies upon the conversation with Ms Chapman of 6 August 1999 as containing a reference to a racist approach that was taken to him during the interview. The versions of each of Ms Chapman and the applicant are set out above. A reference to the manner of his answer would be consistent with the view the panel took of his response to the practical test. There is nothing to suggest that any panel member had a concern with the applicant's English. There is no apparent reason why Ms Chapman would then make such a gratuitous remark. To the possibility that she did is the equal possibility that the applicant's recollection of the incident is now influenced by the conclusion he has come to about the motivations of people within the respondent's organisation.

OTHER MATTERS

59 The applicant also pointed to other incidents which occurred during his employment and which show that he was treated differently. The applicant points to the fact that he was only ever given casual or temporary appointments and that there is no Solicitor-in-Charge in the respondent's offices who comes from a non-English speaking background. The small number of people from such backgrounds who were employed by the organisation, particularly at the level of professional staff, was also pointed to.

60 In such cases statistical evidence may be able to convey something about the likelihood of people not being advanced because of factors such as race or gender. The case referred to in submissions: West Midlands Passenger Transport Executive v Jaquant Singh [1988] 1 WLR 730, 736 is one in point. There it was observed that a high rate of failure to achieve promotion by members of a particular racial group may indicate that the real reason for refusal is a conscious or unconscious racial attitude which involves stereotypical assumptions about members of the group. It will be a question of fact in each case. Here however all that can be said is that a small number of the workforce of the respondent comes from non-English speaking backgrounds.

61 The applicant also alleges that he was not given the same opportunity for obtaining practical experience in mediation as another staff member, but this person points out that she only obtained approval for the training after putting forward a submission to explain how it could be utilised by her in her position with the organisation. The fact that such training was limited in its availability is confirmed by the organiser. The applicant's complaint that he was only permitted to attend mediation training sessions on the condition that it did not conflict with his work is explained as being necessary because he was then working full-time with the legal support team.

CONCLUSION

62 It was accepted by Counsel for the applicant that the standard of proof for breaches of the Racial Discrimination Act 1975 is the higher standard referred to in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-2. It was also pointed out that claims brought under such legislation present special problems of proof, since prejudice is not always apparent and indeed persons discriminating on the grounds of race may not even be aware of them. It was then submitted that the Court should start from a point which assumes the fact of the existence of racism, and that an initial inference of racial discrimination can be drawn based upon knowledge of the existence of the phenomenon in the community. The argument sought to draw support from State of Victoria v McKenna (2000) EOC 93-080, 74,262.

63 The existence of racism in the community is acknowledged by the legislation in question. A possibility, in a given case, that it may explain a choice made in the appointment of a person, may arise. Whether that possibility can then be converted to a more substantial finding, one which allows an inference that racism in fact operated on the decision-making so as to satisfy the requisite standard, is a question of fact in each case. Counsel for the applicant submitted that an inference could be drawn because of the known existence of racism combined with the fact that the decision in question was one to be made between people of different races. It would seem to me that the two factors identified, considered individually or collectively, raise no more than a possibility that race might operate as a factor in the decision-making.

64 In this case the evidence could only be said to have raised a real concern in one respect: what was in the minds of two of the panel members in connexion with the "public face" issue. A possibility that it contained an underlying reference to someone of the applicant's race, as not fulfilling that image, was raised. However a more definite conclusion cannot be drawn.

65 Counsel for the applicant also submitted that one should take a view of the whole of the evidence rather than just the facts surrounding the two applications. In some cases practices of an organisation and conduct in the workplace might confirm other evidence tending to suggest an approach based in race. In this case the numerous complaints in this regard have not been shown to be of substance.

66 There remains the further requirement that the evidence show that race operated as a factor in connexion with the filling of the positions. The applicant was not selected for Mackay because he did not meet an essential criterion for selection. The same lack of experience, in the area of criminal case work, in large part was borne out in the minds of panel members for the position when he answered the practical problem in the way he did. In neither case was the decision made one which called for further explanation. In the case of Mt Isa the reason for the change in procedures had nothing to do with race, but arose because of the circumstances in which the other candidate found herself. There is nothing to indicate that the applicant's race was a factor which operated in the decision-making.

67 There is, I consider, some basis in the applicant's view that he was encouraged to think that the Mt Isa position was likely to be given to him, although Ms Chapman may not have gone quite as far in her representations as he suggested. Aspects of the applicant's evidence are not now wholly reliable. Whatever that encouragement may say about practices in the workplace, it does not convey a desire to act to the contrary and on account of race. It may have some relevance to the question of costs, inasmuch as the respondent might be seen to be partly responsible for the state the applicant got himself into after being refused the Mt Isa appointment and therefore for the litigation which ensued. On the other hand he proceeded with this matter in Court after a determination against him by the Human Rights and Equal Opportunities Commission. I will hear submissions as to costs.

68 The application will be dismissed.

I certify that the preceding sixty-eight (68) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Kiefel.

Associate:

Dated: 4 December 2001

Counsel for the Applicant:	Ms J Brasch
Solicitor for the Applicant:	Sharma Lawyers
Counsel for the Respondent:	Mr S Keim
Solicitor for the Respondent:	Legal Aid Queensland
Date of Hearing:	30, 31 July; 1 August 2001
Date of Judgment:	4 December 2001