Kowalski v Domestic Violence Crisis Service [2005] FCA 12 (21 January 2005)

Last Updated: 21 January 2005

FEDERAL COURT OF AUSTRALIA

Kowalski v Domestic Violence Crisis Service [2005] FCA 12

SEX DISCRIMINATION - complaint under the Sex Discrimination Act 1984 (Cth) – review of Federal Magistrate’s decision dismissing application for review of a decision made by the Human Rights and Equal Opportunity Commission –– whether no evidence for decision – whether decision was against the weight of evidence.

PRACTICE & PROCEDURE – appeal from Federal Magistrate’s decision under Administrative Decisions (Judicial Review) Act 1977 (Cth) by way of rehearing – where original decision limited to one issue – whether power to substitute judgment.



Sex Discrimination Act 1984 (Cth), s 5, s 22.

Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 followed
Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301 followed
Purvis v New South Wales [2003] HCA 62; (2003) 202 ALR 133 applied









STAN LECH KOWALSKI V DOMESTIC VIOLENCE CRISIS SERVICE

NO. A 18 OF 2003




MADGWICK J
21 JANUARY 2005
SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 18 OF 2003

BETWEEN:	STAN LECH KOWALSKI APPLICANT
AND:	DOMESTIC VIOLENCE CRISIS SERVICE RESPONDENT
JUDGE:	MADGWICK J.
DATE OF ORDER:	21 JANUARY 2005
WHERE MADE:	SYDNEY (HEARD IN CANBERRA)

THE COURT ORDERS THAT:

1. The appeal be dismissed with costs.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A 18 OF 2003

BETWEEN:	STAN LECH KOWALSKI APPLICANT
AND:	DOMESTIC VIOLENCE CRISIS SERVICE RESPONDENT

JUDGE:	MADGWICK J.
DATE:	21 JANUARY 2005
PLACE:	SYDNEY (HEARD IN CANBERRA)

REASONS FOR JUDGMENT

MADGWICK J:

1 This is an appeal from a decision of the Federal Magistrates Court made on 22 May 2003, which dismissed an application under the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (‘the HREOC Act’) for a declaration that the respondent had engaged in unlawful conduct in the provision of services, contrary to s 5 and s 22 of the Sex Discrimination Act 1984 (Cth) (‘the SD Act’).

2 The appellant is primarily seeking orders that the Federal Magistrate’s decision be set aside and that the matter be remitted for a full re-hearing and determination. In the alternative, the appellant seeks: a declaration that the respondent has engaged in unlawful discrimination against the appellant, a written apology, and damages to be assessed on an expedited basis.

HISTORY OF PROCEEDINGS

3 The facts of this matter are set out in detail elsewhere, see: K v Domestic Violence Crisis Service Inc (unreported, HREOC Dodson C, 20 January 1998); K v Domestic Violence Crisis Service Inc [1999] FCA 794; Kowalski v Domestic Violence Crisis Service Inc [2001] FCA 1082. Briefly, on 6 February 1990, following some discord between the appellant and his then wife (Dr Kowalski), two officers from the Australian Federal Police (‘AFP’) attended at the home of the appellant and Dr Kowalski and arranged for the attendance of workers from the Domestic Violence Crisis Service (‘the DVCS’). Relevantly for the current appeal, upon their arrival, the two DVCS workers requested to speak with Dr Kowalski first and proceeded to interview her, only speaking with the appellant briefly afterwards.

4 These proceedings have a protracted history. The appellant originally lodged a complaint with the Human Rights and Equal Opportunity Commission (‘the Commission’), alleging that the DVCS had discriminated against him in respect of the provision of services on the basis of either his gender or marital status. A threshold issue of whether the Commission had jurisdiction to investigate the complaint was decided in the appellant’s favour (see ACT Domestic Violence Crisis Service Inc v Kowalski and Anor (1997) 47 ALD 74), following which the Inquiry Commissioner, Commissioner Dodson, heard and dismissed the application. However, on appeal, a Judge of this Court set aside that decision and the matter was remitted to the Commission for further consideration (see: K v Domestic Violence Crisis Service Inc [1999] FCA 794). Although not explicitly ordered, the parties understood that the remittal was solely for the purpose of considering whether, when the DVCS workers chose to see Dr Kowalski first upon their arrival, they thereby discriminated against him as he alleged.

5 Unfortunately, by the time the matter was remitted to the Commission, Commissioner Dodson was no longer a member of the Commission and various directions were made between November 1999 and March 2000 by Commissioner Innes to bring the matter on for hearing. However, before that hearing took place, the commencement of certain provisions of the Human Rights Legislation Amendment Act (No. 1) 1999 (Cth) on 13 April 2000 had the effect of removing the Commission’s hearing function and conferring such function instead on this Court and the Federal Magistrates Court. Again, a threshold issue relating to the Commission’s jurisdiction was raised, although this time by the appellant. Commissioner Innes dismissed the challenge to the Commission’s jurisdiction, however this decision was set aside on appeal (see Kowalski v Domestic Violence Crisis Service [2001] FCA 1082; (2001) 113 FCR 67), with orders that the original complaint be regarded as terminated with effect from 13 April 2000 and permission given to the appellant to commence proceedings in either the Federal Court or the Federal Magistrates Court.

NARROW SCOPE OF THE PROCEEDINGS

6 Accordingly, on 5 April 2002, the appellant commenced a fresh application in the Federal Magistrates Court under s 46PO of the HREOC Act. Following an undertaking previously given by the appellant, the transcript of the evidence taken by Commissioner Dodson was to be used in the proceedings in the Federal Magistrates Court, augmented by documentary and oral evidence clarifying the relevant issues. The parties also conducted the hearing before the Federal Magistrate on a restricted basis, namely that the issue was whether the two DVCS workers engaged in discriminatory conduct when they first arrived at the home of the appellant and Dr Kowalski on the night of 6 February 1990. As stated above, the Federal Magistrate dismissed the application on 22 May 2003 (see Kowalski v Domestic Violence Crisis Service Inc [2003] FMCA 99) and it is this decision that the appellant now appeals.

LEGISLATIVE FRAMEWORK

7 Section 22 of the SD Act provides as follows:

‘22 Goods, services and facilities

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s sex, marital status, ...:

(a)	by refusing to provide the other person with those goods or services or to make those facilities available to the other person;
(b)	in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.’

8 Conduct amounting to sex discrimination is set out in s 5 of the SD Act as follows:

‘(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(a) the sex of the aggrieved person;

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(1A) ...

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

(3) This section has effect subject to sections 7B and 7D.’ [Sections 7B and 7D permit indirect discrimination if it is reasonable in the circumstances and special measures intended to achieve equality, and are not relevant to the present proceedings.]

DECISION OF THE FEDERAL MAGISTRATE

9 The Federal Magistrate stated the essence of the case before him (at [12]):

‘...it remains an open question what occurred to cause the two DVCS workers to see Dr Kowalski first and whether the DVCS unlawfully discriminated against Mr Kowalski in the provision of services before their interview with Dr Kowalski, by choosing to see her in preference to Mr Kowalski.’

10 The appellant’s case was then set out, and may be summarised as follows (at [16]):

‘...the complaint that Mr Kowalski presses is that Ms Simpson and Ms Reis spoke to Dr Kowalski first without interviewing him and that in doing so they treated him less favourably than his wife by reason of his gender.’

11 The Federal Magistrate noted the appellant’s submission, by his counsel, that, in circumstances where both Dr and Mr Kowalski had requested the attendance of the DVCS workers, the workers should have ‘spoken to both Dr Kowalski and Mr Kowalski and should not have immediately chosen to speak to one and not the other’.

12 For the respondent, it was submitted that the respondent did not refuse its services to Mr Kowalski at the time the DVCS workers arrived at the home because the workers did not know that he was seeking any service. The DVCS workers were informed by the police, prior to attending the Kowalski’s home, that Dr Kowalski had made a complaint of domestic violence and had requested DVCS attendance. However, the DVCS workers had no knowledge of any request for assistance by the appellant when they arrived at the home and they interviewed Dr Kowalski immediately because that is why they were there.

13 The learned Federal Magistrate found that, ‘pursuant to its constitution and the funding agreement, [the] DVCS holds itself out as providing, and provides, services to victims of domestic violence, perpetrators of domestic violence, and others affected by domestic violence’; and that whilst ‘the service was established with a view to ameliorating the position of women and children as the primary victims of domestic violence, and [had] ... a clear focus on victims of domestic violence, its services are provided without regard to gender or marital status and are available to anyone affected by domestic violence, be they a victim, perpetrator or others.’

14 His Honour further found that the respondent provided services at the relevant time within the meaning of s 22 of the SD Act.

15 The learned Federal Magistrate accepted the evidence of Ms Simpson, the manager of the DVCS and one of the workers who attended the Kowalskis’ home, in relation to the procedure for responding to requests for intervention, which was recorded as follows (at [26]):

‘In response to a telephone call seeking crisis intervention, two workers from the respondent would attend the relevant premises. If crisis intervention had been requested by a purported victim of domestic violence, the workers would attend that person and offer assistance. If two individuals requested the intervention the practice was for the workers to separate the individuals and talk to both of them (normally at the same time). If attendance of the workers had been requested by a purported perpetrator of domestic violence, the ordinary practice was for the workers to speak to that individual in the presence of the police.’

16 Turning to the question of who requested the provision of the DVCS services, his Honour found that it was Dr Kowalski who had requested the attendance of the AFP on 6 February 1990 on the basis of a complaint by her about the conduct of Mr Kowalski (see [27]). The learned Federal Magistrate also considered himself bound by a finding in the earlier Federal Court proceedings that Constable Perkins (who attended the Kowalskis’ home with Constable Lamb) arranged for the DVCS to provide assistance to Mr and Dr Kowalski.

17 His Honour then considered whether the request from Dr and Mr Kowalski was properly communicated to DVCS. His Honour said (at [30]):

‘I have no evidence as to precisely what Constable Perkins or Constable Lamb said to AFP Police Operations. However, I do have a record of the call from Police Operations to DVCS. That is ... a log of telephone calls received on the evening of 6 February 1990. That log shows that Police Operations call at 10:15pm and that this was a first contact. The log includes a final column headed, "Messages, Comment, etc", and in that column the words appear, "crisis Julia Kowalski". This telephone log was in evidence in the proceedings before me for the first time. I was told that it had been thought lost but had been recently discovered. Initially a photocopy of the relevant page of the log was tendered. I called for the original which ... was produced and tendered. The time of the call is inexact in that the AFP record discloses that Constables Perkins and Lamb only called Police Operations at 10:17pm. I accept the police record as accurate. It must have been after then that Police Operations called DVCS.’

18 The Federal Magistrate commented on the words ‘crisis Julia Kowalski’, stating his concern about the reliability of the entry and his consequent intention to ‘treat the record with some caution’, and then saying (at [31] – [32]):

‘It is, however, the only evidence of what Police operations said to DVCS. Ms Simpson has no recollection. ...

There is no evidence before me that Police Operations communicated to DVCS that it was both Mr Kowalski and Dr Kowalski who were requesting their attendance. The only evidence of what Police Operations said to DVCS is the call record.’

19 Thus, relying on the log of telephone calls received on the evening of 6 February 1990, albeit with some caution, the learned Federal Magistrate found that it was ‘more likely than not that Police Operations only made known to DVCS that Dr Kowalski had requested their attendance’.

20 Turning to consider the knowledge of the workers when they arrived at the Kowalskis’ home, the Federal Magistrate found that ‘all they knew was that their attendance had been requested by Dr Kowalski in relation to a domestic violence crisis.’ The Federal Magistrate noted the evidence of the workers that, when they arrived at the home, they had a short conversation with the police officers, but that neither had any reliable recollection of what was said.

21 His Honour recorded Ms Reis’ evidence that she did not recall hearing from the police that Mr Kowalski was claiming to be the victim of any violence at the hands of Dr Kowalski, but that she did recall that they had an invitation to attend the house which could have been from both Mr and Dr Kowalski. The Federal Magistrate then noted the minute of Constable Perkins, dated 1 October 1991, where he states:

Before leaving the premises Mr Kowalski was informed that he could also speak to the personnel of the DVCS. It was also explained to Mr Kowalski that DVCS were under no obligation to speak to any of the parties involved in such a dispute unless they wished to do so; and further that they were definitely under no direction from the police to speak to any of the parties in such a dispute.’

22 His Honour found, on the balance of probabilities, that Constables Perkins and Lamb met the DVCS workers outside the house and a brief conversation occurred in which the workers were informed that Dr Kowalski was the complainant in relation to domestic violence, but that there had been no physical violence. The Federal Magistrate further found that nothing was said to the workers to contradict the brief information conveyed by Police Operations and that, while Ms Simpson and Ms Reis probably knew when they were escorted to the premises by the police that they had an invitation to enter from Mr Kowalski, they did not know that Mr Kowalski was also complaining of domestic violence from Dr Kowalski.

23 Considering next what happened when Ms Simpson and Ms Reis entered the Kowalski home, the Federal Magistrate was satisfied that the DVCS workers entered the home in the knowledge that Dr Kowalski had made a complaint of domestic violence but also in the knowledge that there had been no physical violence.

24 His Honour rejected Mr Kowalski’s claim that ‘Ms Reis and Ms Simpson demanded to see his wife and pushed past him brusquely and made their way down the corridor themselves’, stating that this claim lacked credibility when compared with Mr Kowalski’s earlier accounts that after the two DVCS officers had introduced themselves, they asked to see Dr Kowalski and he said ‘yes’ and led them down the corridor to the master bedroom where his wife was waiting.

25 The Federal Magistrate also accepted that ‘Mr Kowalski has never claimed that when the two DVCS workers entered the premises he asked to speak to them about his complaint of domestic violence’, and made the further finding that Mr Kowalski escorted Ms Simpson and Ms Reis down the corridor to the master bedroom and left them with Dr Kowalski.

26 His Honour said (at [38] – [39]):

‘It is clear that, having entered the bedroom and commenced speaking with Dr Kowalski to obtain information from her, Ms Reis and Ms Simpson adopted Dr Kowalski as a client of DVCS. The information given to [the workers] by Dr Kowalski confirmed their understanding [that] Dr Kowalski was claiming to be a victim of domestic violence and was requesting the services of DVCS.

It is equally clear that as time progressed Mr Kowalski became agitated. He had expected an opportunity to speak to the DVCS workers. ... Mr Kowalski ... asked for what he thought was his entitlement to equal time. It is clear that Mr Kowalski expected an opportunity at least to put his version of events, if not to make his own complaint of domestic violence. It is common ground that Mr Kowalski was not given that opportunity at that time and was merely presented with a card and invited to call DVCS the following day.’

27 His Honour then considered why the workers saw Dr Kowalski first, and he accepted that Dr Kowalski was seen first because the workers believed that it was Dr Kowalski who was the victim of domestic violence on that night. His Honour stated (at [40]):

‘That belief came about because it was Dr Kowalski who had made a complaint to the police and Dr Kowalski who had requested the attendance of the DVCS workers. Mr Kowalski had also requested the attendance of the DVCS workers but his request was not communicated to DVCS.’

28 His Honour accepted that Ms Simpson and Ms Reis did not know, when they entered the premises, that Mr Kowalski was claiming to be a victim of domestic violence and that, had they known, then, in accordance with DVCS procedures, Mr Kowalski and Dr Kowalski would have been interviewed separately. The Federal Magistrate went on to say:

‘...although the police informed Mr Kowalski before the police left the premises that he could also speak to the DVCS workers, that statement was not made in the presence of Ms Reis and Ms Simpson. In addition, reference to Mr Kowalski also being able to speak to the DVCS workers suggests that it was a common understanding of the police and Mr Kowalski at that time that Dr Kowalski would be spoken to first.’

29 His Honour found that ‘whatever promise or undertaking was given by the police to Mr Kowalski, that promise or undertaking was not passed on to Ms Simpson or Ms Reis’, and that the DVCS workers were not aware that Mr Kowalski wished to communicate his grievance with his wife to them until they made to leave the premises after interviewing Dr Kowalski.

30 Accordingly, his Honour found that, in seeing Dr Kowalski first, the DVCS workers did not act in a discriminatory way in breach of the SD Act.

31 Finally, his Honour considered the appellant’s emphasis on briefing notes prepared by the DVCS and distributed at a forum in April 1990 (which, it was said, show a strong sympathy for the position of women as victims of domestic violence), and presented by the appellant as evidence of an institutional bias within the DVCS in favour of women and against men. The Federal Magistrate stated (at [42]):

‘Women and children are the primary victims of domestic violence. The briefing notes make clear that claims by women in particular about domestic violence must be taken seriously. So they should. It stretches credulity to breaking point to suggest on the basis of those briefing notes that [the DVCS workers] would refuse assistance to a person claiming to be a victim of domestic violence because the victim was male.’

32 Accordingly, the application was dismissed.

CURRENT APPEAL

33 By his Further Amended Notice of Appeal, the appellant contends that the learned Federal Magistrate erred in a variety of ways which can be loosely grouped into complaints about the following:

(1) According the DVCS telephone log with undue weight and treating it as the only evidence of what was conveyed by the AFP to the respondent;
(2) Placing too little weight on the evidence of Constable Perkins;
(3) Finding that the DVCS workers did not know Mr Kowalski was a complainant as to domestic violence as well as Dr Kowalski;
(4) Relying on the subjective views of the DVCS workers in determining whether Dr Kowalski was the sole complainant;
(5) Refusing to admit further evidence and to adjourn the proceedings to allow for oral evidence from Mr Perkins to be led;
(6) Failing to follow the findings made by Finn J in the earlier Federal Court proceedings which resulted in contradictions in the judgment of the Federal Magistrate;
(7) The circumstances in which original pages from the DVCS telephone log and original files kept or created by the DVCS in respect of Dr Kowalski and the appellant were produced before the Court either too late or not at all; and
(8) His Honour’s statement that ‘women and children are the primary victims of domestic violence’.

34 The main issue for the appeal is contained within the first three complaints and I address these first. The appellant submits that there was evidence before Driver FM to suggest that it was communicated to the DVCS workers, before they arrived at the Kowalskis’ home, that both his wife and he had requested to see them, and that this evidence should have been accepted. The appellant further contends that, upon such a finding, the DVCS workers, had they not been discriminating in favour of the wife, should have adopted their practice (as set out in [15] above) of splitting up and seeing each party separately, rather than opting to speak first to the person who was being described as the complainant.

35 The respondent submits that the Court was required to consider the following: first, why the DVCS workers saw Dr Kowalski first on 6 February 1990; secondly, whether the appellant’s gender or marital status formed any part of that reason and, if yes, whether the conduct amounted to less favourable treatment of the appellant; thirdly, if such conduct amounted to ‘less favourable treatment’, whether it occurred in circumstances which were the same or similar as between the appellant and Dr Kowalski; and finally, whether it caused the damage alleged by the appellant.

36 The respondent further submits that there was ample evidence to support the Federal Magistrate’s findings underpinning the conclusion that the two DVCS workers understood that Dr Kowalski was the person requiring assistance and that their decision to see Dr Kowalski first was for that reason and not by reason of the appellant’s gender or marital status.

37 Before the Federal Magistrate, the evidence of what was communicated to the DVCS workers included the DVCS call log (see above at [17]). That was direct, non-partisan, contemporaneous evidence. However, the Federal Magistrate also had before him the evidence of Ms Simpson, which included Ms Simpson’s handwritten notes made immediately after the event; the evidence of Mr Kowalski; the police operations report dated 6 February 1990, and the evidence of Constable Perkins, including his oral evidence before the Commission and a report dated 1 October 1991. Those police reports point indirectly but powerfully to the probabilities of what occurred.

38 Of particular note is the Police Operations report, which states:

‘[AFP] attended and spoke to comp[lainant] Julia [Kowalski] who stated that her husband had been arguing with her about a telephone which the comp[lainant] stated was removed from the bedroom. Comp[lainant] and husband requested that DVCS attend. DVCS were notified and attended. ...’

39 Constable Perkins’ report of 1 October 1991 states:

‘The [DVCS] was called by Police at the request of both Mr and [Dr] Kowalski.’

40 There was also oral evidence before the Commission from Constable Perkins:

‘Perkins: DVCS was either going to be notified by myself or through my operations branch to attend so that both he and his wife could probably speak to them. ...

Do you understand as your statement says that it was on behalf of both of them that the service was called? --- Yes.
...
Perkins: I think that they both agreed that they would like the opportunity to speak to [the DVCS] through the conversation that I had with both parties. ...

So both knew so far as you’re aware that both parties wanted to speak to the DVCS workers? ---Yes.

41 Mr Kowalski, in his statement of 8 August 1997, says as follows:

‘Approximately 10.00pm there was a knock at the door. Two police officers [came] into the house and spoke to both Julia and myself and Mark [the Kowalskis’ son]. On my complaint to the police officer that it is me who has problems with the abusive and violent wife, they advised me that they would request workers from the [DVCS] to come and assist both of us. ...’

42 Mr Kowalski also gave oral evidence before the Commission as follows:

‘I ask [the police officer] that I have a problem with wife and that is affecting very, very heavily me and my son. So after further discussion he said ... "What is the problem?" I said, "She is shouting, she is abusing, she is attacking." So he said, "In such a case you can ask court for the peace order."

...

I asked them or I requested them that I would like Domestic Violence to help me. So they subsequently requested Domestic Violence, "Please, Mr Kowalski requests assistance. Assist him. Attend to him".’

43 Ms Simpson’s handwritten notes, written after she had interviewed Dr Kowalski on 6 February 1990 contain the following:

‘Called by ops. Julia Kowalski is a Dr. who has a surgery in her home. Julia told us tonight Stan Kowalski (husband) started an argument but police were called before violence erupted. We spoke to Julia in the main bedroom, the room was a complete shambles. Stan had thrown everything from her surgery into the bedroom ... .’

44 In her statement of 21 July 1997, Ms Simpson says:

‘On 6 February, 1990 ... myself or my team partner Karla answered the telephone crisis line. It was a call from Police Operations informing us of a call they had received to attend a domestic violence incident [in] ...Pearce. I do not remember if, or whom, we were told had issued the invite, both parties or either party.’

45 The following exchange took place in Ms Simpson’s oral evidence in chief before the Commission:

‘[Counsel]: ‘What view if any did you form about whether Mr Kowalski on 6 February 1990 was in danger or was afraid?

Ms Simpson: From Mr Kowalski’s demeanour and his manner and from the fact that he didn’t say anything in relation to that, I had no thought that he saw himself as a victim of violence or that he was afraid.’

46 The following exchange occurred during cross-examination of Ms Simpson:

‘[Q] ... during the course of a crisis intervention call ... in 1990 when you attended these premises at Pearce – how was it that you determined who was the alleged perpetrator?

[A] For a start we’re not actually there to determine who the alleged perpetrator is. We’re not there to make a judgment on that. What happens is that when we actually go to the house, the police took us. We were introduced first off to Mrs Kowalski. So that was a standard thing that took place; that the police would take us to that particular person.

[Q] Well, the standard thing didn’t happen on this occasion, did it, because the introduction to [Dr] Kowalski was done by Mr Kowalski, wasn’t it?
...
[A] No, I don’t recall.’

47 It can be seen that there were several sources of evidence in relation to the issue of what was communicated to the DVCS. It seems to me that when the learned Federal Magistrate referred (at [31]) to the DVCS call log as being the only evidence of what was communicated, he was meaning the only direct evidence. Further, the reference to there being ‘no evidence ... that Police Operations communicated to DVCS that it was both Mr Kowalski and Dr Kowalski who were requesting their attendance’ (see [32] of the Federal Magistrate’s decision) again must be taken to mean no direct evidence.

48 However, even if such a characterisation of the evidence is imputed to the Federal Magistrate, the sources of indirect evidence, or evidence from which inferences may be drawn, do not appear to have been specifically taken into account in relation to the question of what was communicated to the DVCS. Whilst his Honour attended very carefully to the whole of the case, and indeed mentions some of the evidence set out above elsewhere in his reasons, it appears that he may have misdirected himself in this area as to what the available evidence was on this particular point. In any case, in my opinion, the other available evidence could have been and should have been taken into account in coming to a view on whether Dr Kowalski was the sole complainant.

49 The Federal Magistrate explicitly relied on the DVCS call log ‘with some caution’. The appellant has raised concerns, which I accept, about the contemporaneity and reliability of this document.

50 In my view, the most neutral and contemporaneous evidence on this point is the Police Operations record, set out in [38] above. That makes it clear that both Dr and Mr Kowalski were requesting DVCS attendance. In my opinion, that was the safest, and therefore the best, evidence on this point and it should have been accepted.

51 This is not a matter as to which his Honour as the primary fact finder enjoyed advantages not available to me sitting on appeal. His Honour did not decide the relevant issues by reference to acceptance or rejection of any of the oral evidence given before Driver FM on grounds of impression or credit. This is an appeal by way of re-hearing. Following the principles established by Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531, and developed through cases such as Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351 – 352, Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179, and Devries v Australian National Railways Commission [1992] HCA 41; (1993) 177 CLR 472 at 479, and restated in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, the primary Judge’s decision, made with the advantage of evaluating the witnesses’ credibility and in gaining a ‘feel’ for the case, should be given full weight and effect.

52 However, the above cases do not depart from the doctrine established by Warren v Coombes that if there is material of an objective kind that does not depend on demeanour, so that no advantage would be derived from seeing and hearing the parties, the appellate court is in as good a position to decide on the proper inference to be drawn as the court at first instance. Further, an appellate court has both a right and a duty to discharge its function in accordance with the legislation governing it and must ‘not shrink from giving effect to’ its own conclusion. As stated in Fox v Percy, a principal purpose of providing for an appeal by way of ‘rehearing’ is to ensure, within the appellate process, finality of litigation, correctly decided.

53 In the present circumstances, the Federal Magistrate’s findings, and the finding of what was communicated to the DVCS workers in particular, were, as indicated above, not dependent on findings as to the credibility of witnesses. Although there were parts of the evidence that the Federal Magistrate explicitly stated lacked credibility (see for example, [36]), issues of credibility did not impact on the crucial issue.

54 That there has, in my opinion, been a factual error does not, however, of itself mean that the appellant succeeds in the action or that there should be a new trial. The appeal is by way of re-hearing, and the evidence available is sufficient to permit the making of a final determination. Accordingly, it is appropriate for this Court to proceed to determine the case, limited as it was to one narrow issue, without remitting it for re-hearing.

55 While, the appellant’s complaints about the Federal Magistrate’s treatment of the evidence on that point are sustained, given my ultimate conclusion below, it is also necessary to address the remaining submissions.

56 The appellant submits that the Federal Magistrate’s reasons place undue emphasis on the state of mind of the DVCS workers, the ‘subjective element’, and that, the incorrect test was thereby applied in deciding whether the respondent had engaged in unlawful conduct under s 5. It is contended that the view or knowledge of the workers is not the only factor that needs to be examined; the actual conduct that occurred, the ‘objective evidence’, is what is important. Once it is accepted that there were two people requesting the service, the appellant submits that a subjective assessment, even of which of them was in the greatest need, would contravene the SD Act.

57 It is useful to recall that for discrimination to be prohibited by s 5 of the SD Act, it must be treatment less favourable than the treatment of a person of the opposite sex, in the same or immaterially different circumstances, by reason of a person’s sex etc., or characteristic generally appertaining or imputed to a person’s sex.

58 The appellant relies on Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 359 (albeit conceding that this case concerned indirect discrimination). The passage relied on by the appellant is cited in Human Rights and Equal Opportunity Commission v Mount Isa Mines Ltd (1993) 46 FCR 301, where Lockhart J stated as follows (at 321 – 322, 324 – 326):

‘In my opinion the phrase "by reason of" in s 5(1) of the [SD Act] should be interpreted as meaning "because of", "due to", "based on" or words of similar import which bring something about or cause it to occur. ...

...

In my view the [SD] Act requires that when an inquiry is being held into alleged discrimination prohibited ... on the ground of the sex of an employee, all the relevant circumstances surrounding the alleged discriminatory conduct should be examined. The intention of the defendant is not necessarily irrelevant. The purpose and motive of the defendant may also be relevant.

...

...in some cases intention may be critical; but in other cases it may be of little, if any, significance. The objects of the [SD Act] would be frustrated however, if sections were to be interpreted as requiring in every case intention, motive or purpose of the alleged discriminator: see Waters per Mason CJ and Gaudron J (at 359).

The search for the proper test to determine if a defendant’s conduct is discriminatory is not advanced by the formulation of tests of objective or causative on the one hand and subjective on the other as if they were irreconcilable or postulated diametrically opposed concepts. The inquiry necessarily assumes causation because the question is whether the alleged discrimination occurs because of the conduct of the alleged discriminator; and the inquiry is objective because its aim is to determine on an examination of all the relevant facts of the case whether discrimination occurred. This task may involve the consideration of subjective material such as the intention or even motive, purpose or reason of the alleged discriminator; but its significance will vary from case to case.’ (Emphasis added)

59 Some assistance may also be gained from a passage in Purvis v New South Wales [2003] HCA 62; (2003) 202 ALR 133, where, Gummow, Hayne and Heydon JJ, in the context of disability discrimination, said (at 187):

‘For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be – why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".’

60 These statements may, I agree, be properly applied also in the context of direct sex discrimination. In the present case, the Federal Magistrate clearly undertook the task of ascertaining why the appellant was treated as he was when the DVCS workers first arrived at the Kowalskis’ home. In answering that question, the Federal Magistrate determined that the knowledge of the workers was a factor that was relevant to determining the cause of their conduct. At no stage does the Federal Magistrate state that it was the sole legally requisite factor. As explained in Mount Isa Mines, the significance of the subjective element will vary with the facts of every case. In the present circumstances, the workers’ understanding of whom they were meant to be assisting was significant to their objective conduct as the agents of the respondent, and its cause. I see no legal error in the approach taken, and I agree with it.

61 The appellant’s other complaints may be dealt with briefly. In relation to the fifth complaint, I previously ruled ex tempore that there was no error on the part of the Federal Magistrate in refusing to admit fresh evidence or to adjourn the proceedings to allow for further oral evidence to be led (see Kowalski v Domestic Violence Crisis Service Inc (No 2) [2004] FCA 1186).

62 The appellant’s contentions of a failure to follow the findings made by Finn J in the earlier Federal Court proceedings and contradictions in the judgment of the Federal Magistrate are primarily directed towards the evidence in relation to what was communicated to the DVCS workers. Given the view that I have formed above, and the conclusion below, it is unnecessary to consider these complaints further.

63 There is, in my view, no substance to the complaint that the delay or absence of production of original pages from the DVCS call log and original files kept or created by the DVCS in respect of Dr Kowalski and the appellant constituted a miscarriage of justice. There was no gross misconduct shown nor does it appear that the result of the case might thereby have been affected.

64 Similarly, there is no substance to the appellant’s complaint that the Federal Magistrate erred in law or fact in having regard to the proposition that ‘women and children are the primary victims of domestic violence’. This general comment was made in the context of responding to briefing notes put forward by the appellant as evidence of an institutional bias. The comment was unexceptionable, notoriously being correct. In addressing that item of evidence, the Federal Magistrate was merely confirming his previous finding (see [24] of the Federal Magistrate’s judgment) that there was no institutional anti-male bias, that the DVCS was established to assist all victims of domestic violence but that those victims were most commonly women and children. Contrary to the submissions of the appellant and the grounds raised in his Further Amended Notice of Appeal, such comments were clearly not directed to the appellant’s personal circumstances and the Federal Magistrate was under no obligation to put such a general consideration to the appellant for his possible repudiation of it.

65 I return to consideration of the facts of the case. The appellant has succeeded in establishing an error of fact which affected the factual finding as to what was communicated to the DVCS workers.

66 In my view, the DVCS workers were probably told that there was a complaint from the Kowalskis’ address about marital trouble, that the wife was a doctor, the complaint was that the husband had moved some of her property, and that both Dr Kowalski and the appellant requested the DVCS to attend.

67 However, it is also highly probable that what was being conveyed was that Dr Kowalski was the complainant. Although it is likely that Mr Kowalski conveyed his position to the police, it is much less likely that the police passed on Mr Kowalski’s position in both of its two aspects: that he too wanted DVCS to attend and that he too claimed to be a victim of domestic violence. It seems highly likely that both police would have thought this was a relatively minor incident of domestic violence, and that Mr Kowalski’s complaints were considerably less significant than those of his wife.

68 The difficulty for the appellant is that, even if it is accepted that both he and his wife requested the DVCS workers’ attendance, the circumstances as a whole must be considered, including that the primary complaint was that the husband was removing property. There is no record in the police log of any complaint by Mr Kowalski of any untoward behaviour at all on the part of his wife.

69 In my view, the evidence does not permit a finding that the existence of two complainants or cross-complaints was communicated to the DVCS. I do not accept the appellant’s submission that a request for attendance by Mr Kowalski ought of itself to be viewed as a complaint or ought to have been understood by the DVCS workers as a complaint. There is a wide spectrum of domestic violence. There was no evidence, nor is it a notorious fact, that commonly enough alleged perpetrators of violence would not prefer to deal with a crisis service rather than with police.

70 The appellant submits, however, that, if two parties were requesting services and there was a DVCS instruction to provide services to both those parties, it is not a full and sufficient answer to any allegation of discrimination to say that there was an additional instruction to service one of them in particular, described as a complainant; such would defeat the purpose of s 5 and is the very mischief that s 5 is intended to address. The answer is that, although a choice to provide services in such a situation to one person in particular is a decision to discriminate between those persons, such decisions concerning the priorities and provision of services must be common. Section 5 is not intended to address such bare discrimination. The provision is aimed at the reason for the discrimination and is intended to prohibit discrimination if that reason is the person’s sex or a characteristic generally appertaining or imputed to the sex of the person. In my opinion, the reason for the discrimination was not a prohibited one. This may be demonstrated by considering what would probably have happened if the appellant had been a female member of Dr Kowalski’s family. As best as can be inferred from the evidence, the action taken by the DVCS workers to see Dr Kowalski first would have been no different.

71 Ultimately then, the conclusion recorded by his Honour must be upheld. That is, there was no discrimination against the appellant on the basis of gender or marital status.

72 Accordingly, the appeal will be dismissed with costs.

I certify that the preceding seventy-two (72) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:

Dated: 21 January 2005

Counsel for the Applicant:	Mr D. Hassall
Solicitor for the Applicant:	S & T Lawyers
Counsel for the Respondent:	Ms K. Nomchong
Solicitor for the Respondent:	Pamela Coward & Associates Lawyers
Date of Hearing:	22 and 23 July 2004
Date of Judgment:	21 January 2005