Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 (29 June 2004)

Last Updated: 29 June 2004

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Fricke v Corbett Research Pty Ltd [2004] NSWADT 128


PARTIES: APPLICANT
Randolph Fricke
RESPONDENT
Corbett Research Pty Ltd



FILE NUMBERS: 021119

HEARING DATES: 21/01/2004

SUBMISSIONS CLOSED: 21/01/2004



DECISION DATE: 29/06/2004

BEFORE: Bitel D - Judicial MemberMooney L - Non Judicial MemberNemeth de Bikal L - Non Judicial Member





LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Assal v Department of Health, Housing and Community Services (1992) EOC 92-409
Commissioner of Police v Orr (2001) NSWADTAP 16
Crewdson v President, Anti-Discrimination Board of NSW (2000) NSW ADT 60
Dee v Commissioner of Police & Anor 2003 NSW ADT 217
Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102
Fairey v Fairey (No 2) [2000] NSWCA 173
Fricke v Whyburn (2003) NSW ADT 10
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Harding v Vice Chancellor, University of NSW (2003) NSWADT 14 and 74
IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1
JA v State of NSW (2003) NSWADT 272
KB v Commissioner of Police, NSW Police Service (2002) NSW ADT 30
Kennedy v Director General, NSW Department of Industrial Relations (2002) NSW ADT 186
Lal v President, Anti-Discrimination Board (2000) NSW ADT 68
Langley v Niland (1981), 2 NSWLR
Langley v University of NSW (1984) EOC 92-018
Margan v University of Technology, Sydney (EOD) (2003) NSW ADTAP 65
Maylor No. 2 v Mid-North Coast Area Health Service (2001) NSWADT 118
Maylor(No. 1) v Mid-North Coast Area Health Service (2001) NSWADT 117
McGlade v Human Rights and Equal Opportunity Commission (2000) FCA 1477
Omeri v Quality Assurance Service Pty Limited (2003) NSW ADT 188
Prakash v Bobb Borg Enterprises Pty Limited (1999) NSWADT 73
Razaghi v Director General, NSW Department of Health & Anor (2002) NSW ADT 4
Re Refugee Review Tribunal; Ex parte H (2001) HCA 28, 75 ALJR 982
Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4 of 1997
Salama v Qantas Airways Limited (2002) NSW ADT 119
Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808
Sivanathan v Commissioner of Police, NSW Police Service (2001) NSWADT 44
State Electricity Commission of Victoria v Rabel (1998) 1 VR 102.
Tannock v State of NSW (1999) NSW ADT 73.
Tu v University of Sydney (No. 2) (EOD) (2002) NSWADTAP 25

APPLICATION: Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance

MATTER FOR DECISION: Principal matter


APPLICANT REPRESENTATIVE: APPLICANT
In person

RESPONDENT REPRESENTATIVE: RESPONDENT
K Eastman, barrister

ORDERS: 1.The Tribunal dismisses the complaint of the complainant made on 8 November 2001 pursuant to Section 111(1) of the Anti-Discrimination Act 1997
2.The Tribunal orders that the complainant pay the respondent's costs in these proceedings


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 The complainant Randolph Fricke sent a letter of complaint dated 29 October 2001 alleging sexual harassment in employment and victimisation against his then employer Corbett Research Pty Ltd to the NSW Anti-Discrimination Board. This letter was received on 8 November 2001. The Board sent a letter to the respondent on 27 June 2002 advising the respondent it had received the complaint and giving particulars and seeking a response and on 23 July 2002, the respondent replied in a letter which essentially denied the allegations made by the complainant. In its reply Corbett Research also stated the complainant had never made any official complaints of sexual harassment in the period of the employment which commenced on 19 September 2000 and ended on 3 August 2001.

2 The complaint the subject of these proceedings was referred by the President of the Anti-Discrimination Board to the Tribunal on 11 October 2002.

Background

3 After receipt of the case by the Tribunal, various case conferences were held, at all of which the complainant was represented by himself.

4 At the first case conference on 3 December 2002, the respondent was represented by its employees. At subsequent case conferences, the respondent was legally represented. A mediation arranged by the Tribunal failed to resolve the complaint and a timetable was set in relation to the filing of points of claim and supporting evidence by the complainant with subsequent consequential directions in relation to the filing of points of defence and evidence by the respondent.

5 At the case conference on 9 January 2003, the respondent foreshadowed that it would make an application under Section 111 of the Anti-Discrimination Act 1997 ("the Act"). The respondent repeated its intentions at further case conferences held on 13 August 2003 and 16 October 2003.

6 It is important to summarise what happened at these case conferences briefly:

a) A direction was made on the second case conference on 9 January 2003 for a mediation on 19 March 2003 with directions for the complainant to file points of claim and his supporting statement within 14 days. On that occasion he indicated that no witnesses would be called. The respondent advised it would make this Section 111 application if the mediation failed.

b) At the case conference held on 25 March 2003 the complainant advised that he would be relying on his complaint as his evidence. A further direction was made for the complainant to file points of claim by 16 April 2003 and the mediation date was rescheduled for 27 May 2003.

c) On 13 August 2003 the respondent requested an adjournment at a further case conference which the complainant opposed, indicating he was happy for the Section 111 application to be heard. The consideration was raised as to whether the complainant should be ordered to attend medical appointments at the request of the respondent but no orders were made. The allocated hearing date for the Section 111 application on 2 September 2003 was vacated and a further case conference was directed for 16 October 2003.

d) On that occasion a further adjournment was made at the request of the complainant and the Tribunal requested the respondent to file and serve written submissions on which it proposed to rely in support of the Section 111 application and other consequential directions were also made. The case was adjourned to a further case conference on 12 November 2003.

e) On that occasion the respondent was again directed to file its written submissions in support of the Section 111 application by 12 December 2003 and the complainant was directed to file and serve his response by 16 January 2004. The Section 111 application was listed for hearing on 21 January 2004. The respondent was also directed to provide the complainant with details of all cases on which it relied for the purpose of the Section 111 application.

7 The detailed and helpful submission in support of the Section 111 application of the Respondent was filed with the Tribunal on 12 December 2003 and served on the complainant. The Tribunal refers to these in the course of these reasons.

8 The complainant's submission dated 30 December 2003 was filed with the Tribunal on 15 January 2004. For the benefit of these reasons the full submission is now repeated.

"I have read the respondent's submissions, filed on 12 December 2003, to dismiss my complaint pursuant to Sect 111(1) of the Anti-Discrimination Act 1977.

The Board held that the matters I complained of on 29 October 2001, could not be conciliated so the matter was referred to the Tribunal under Sect 94(1), which was eventually filed on 18 October 2002.

I refer to Sect 96: Inquiries into complaints:

The Tribunal shall hold an inquiry into each complaint or matter referred to it under Sect 91(2), 94(1), 0r 95.

I understand that to mean that a Sect 111 application cannot be made unless an inquiry has commenced as required by Sect 96 of the Anti-Discrimination Act. Once an inquiry has commenced, in compliance with Sect 96, the Tribunal can dismiss my complaint under Sect 111 of the Act. The respondent has therefore no right to make a Sect 111 application before an inquiry has commenced as required by Sect 96 of the Act. If an application is made under Sect 111 before the commencement of an inquiry, then this contravenes Sect 96 of the Act. Effectively, in my opinion, the Tribunal should dismiss the Sect 111 application prior to an inquiry, otherwise it becomes a contravention of Sect 96 of the Anti-Discrimination Act.

I refer to Sect 123 of the Anti-Discrimination Act:

Effect of contravention of Act:

(1) A contravention of this Act shall attract no sanction or consequence, whether criminal or civil, except to the extent expressly provided by this Act.

I understand this to mean that Sections 312 and 319 of the Crimes Act 1900 cannot be applied. I believe that Sections 124 and 125 of the Anti-Discrimination Act can be applied. Also Sect 143 of the Administrative Decisions Tribunal Act: Proceedings for offences.

This does not dispose of my complaint. A hearing date should be set and I make further submissions if a hearing is to be commenced, as it should.

I submit that the respondent seeks to mislead the Tribunal and cause the Tribunal to show bias and prejudice against me, by making false assertions.

A hearing date has been set for 2 Sept 2003, after a failed mediation on 27 May 2003, when, in my opinion, an unreasonable offer of settlement was made by the respondent.

I submit that the Sect 111 application has been made maliciously and malevolently because I cancelled an appointment, which had been made for me by the respondent, to see a forensic psychiatrist, Dr Lisa Brown, which the respondent had no right or reason to do in the first instance.

Sections 22A and 22B of the Anti-Discrimination Act are subjective, open to interpretation and open to abuse. It is inappropriate for the Tribunal to make any decision based on subjectivity or conjecture while bias and prejudice exist for any reason.

My original complaint was made in confidence to the Board on 29 October 2001 and lodged on that date. I have no control over the date on which the Board received my complaint after lodgement. Sect 88(4) of the Act concerns itself with the President's acceptance of a complaint which is lodged more than 6 months after the date referred to in ss (3). I believe that the Board has power of investigation, whereas lawyers do not. The Board conducted an investigation on 27 June 2002, which required a response by 26 July 2002. I do not assent to the responses which have been made by the respondent. I did not receive a report from the President of the Board until after the matter was filed at the ADT on 18 October 2002.

The Tribunal has the power to conduct an inquiry and it should do so without bias and prejudice caused by a respondent who seeks to mislead the Tribunal with conjecture and subjectivity. The respondent has no right to conduct an inquiry and should not dictate to the Tribunal as to how it should conduct an inquiry.

The Tribunal should not use lawyers to intimidate a complainant and cause gross abuse of the Acts. The Tribunal should comply with Sect 108 of the Anti-Discrimination Act and also Sect 73 of the Administrative Decisions Tribunal Act 1997.

I submit that the background to the events I have complained of is relevant. The Tribunal should not view these events so as to make sexual harassment legislation impossibly unworkable due to bias and prejudice.

The Tribunal has dismissed a previous complaint pursuant to sect 111(1) without making an order for costs. (APCS File: 031034) I see no reason why the Tribunal should act unreasonably or oppressively. The respondent has acted unreasonably and oppressively in my opinion. I believe that I am the victim of gross abuse because of the misconceptions of others.

I have been unemployed since 3 August 2001 and I am now suffering financial hardship while I am seeking qualifications for a new career in a Christian environment.

I do not have a disability or an impairment of cognitive functions which would cause me to be "misconceived" about anything. I consider it to be an affront for the respondent to make this assertion. Conversely, I think that these people have their cognitive functions impaired due to "substance abuse" which is why they behave in the offensive way they do. I do not consider their behaviour to be conducive to the Christian-Judaic ethic which is all that has ever concerned me in my entire existence."

9 Further oral submissions were made by both parties at the hearing.

The Complaint

10 The complainant filed with the Board a lengthy 19-page handwritten letter which served as his complaint. Notwithstanding repeated requests and directions of the Tribunal, this was the only document the complainant filed in support of his case and as he had foreshadowed at the case conferences this was at the hearing on 21 January 2004 tendered and relied on by the complainant as the evidence in support of his complaint. He advised the Tribunal that he would not be calling any witnesses and that although he had doctor's certificates, he did not wish to produce these to the Tribunal or rely on them.

11 In his letter of complaint he alleged that during his employment he was sexually harassed by a number of staff members of the respondent. The Tribunal has identified from the letter 21 incidents which the complainant alleges occurred during the period of employment and prior to the respondent's termination of the complainant's employment. In summary, these are:

i) A co-employee Joseph Romanos ("Joseph") kept putting his hand on top of the complainant's hand whilst using the mouse at the PC and this annoyed him, particularly as he had told him previously that he did not like physical contact with men.

ii) He observed that co-employees were getting physical with each other, giving as examples, that they brushed or squeezed past each other, put their arms around each other or on their shoulders or arms and so on.

iii) Joseph made comments in relation to the breakdown of the complainant's marriage and taunted him about his liking for Asian women.

iv) Joseph became annoyed when he sensed the complainant trying to avoid physical contact with him and a verbal altercation occurred between them.

v) Pedro Raggazzini ("Pedro"), another co-employee, approached the complainant by placing his hands on his shoulders and the complainant expressed concern to Joseph about Pedro's conduct generally.

vi) On another occasion, a verbal altercation occurred between the complainant and Pedro which resulted in the complainant complaining to Joseph about Pedro hassling him.

vii) The complainant identified personal conduct which he alleges was of an unhygienic nature undertaken by John Corbett ("John") and other staff members. He complained about the lack of hygiene of staff members.

viii) On an occasion the complainant made a complaint that he was verbally abused by co-employee Phillip Harrison ("Phillip") who said to him when the complainant approached him to ask him a question, whilst Phillip was talking to Joseph, "Wrong cunt, fuck off."

ix) In mid-April 2001, he had an argument with Pedro about the relocation of the refrigerator, after which Joseph called the complainant outside and the complainant alleges Joseph tried to get physical with him, saying, "I like to touch people." The complainant then advised that he did not like physical contact with people and Joseph asked, "What are you going to do about it?" The complainant answered, "I can make a complaint about this and I can sue you." Joseph said, "Go right ahead, you might get $1.50 out of it". The complainant then said he said nothing to avoid any further confrontation.

x) A few weeks earlier, Joseph suggested to the complainant, after a discussion about the John Hopoate finger-poking incident, (concerning a well-known rugby league footballer) "You and I should have a game of football" to which the complainant stated "You will die young".

xi) The complainant complained that another co-employee Marek Jawien, whenever he passed him would try to touch him or make physical contact with him with his arms outstretched and that the complainant whenever he did this, would instantly sidestep or back step away from him and then began to raise his hands in defence.

xii) On another occasion, John put his hand on the complainant's arm after he had moved away from him in order to avoid contact. On another occasion Joseph put his hand on the back of the complainant's shoulder and gave him a shove forward.

xiii) The complainant also identified another co-employee Bob Laird ("Bob") as a person who liked to get physical with him, contrary to the complainant's wishes.

xiv) A few weeks before the complainant was dismissed on 3 August 2001, the complainant called Joseph a "dirty grotty smutty little boy", to which Terry Sheets, another co-employee, said "Give him some sex". The complainant states that John walked up with a big smile, and "his eyes lit up when he heard what Terry had suggested".

xv) A few days later, he alleged John again came up close behind the complainant whilst he was standing up. He states that John "pushed his body near mine so that I had to get out, in front of him ...Later, John hooked his thumb and fingers into his trousers to show off the size and shape of his penis, as if he thought that I would be interested."

xvi) A few days before he was dismissed, the complainant was standing in front of the spring water which was used to boil for tea or coffee. He states that Bob came up to him with an electric kettle and shoved it towards his genitals. The complainant bumped his knee trying to get out of the way and he says that just then Terry Sheets came up and asked "What you doing Rand?" and in a bullying way he ordered, "Get outa here".

xvii) On 2 August 2001 Joseph again came too close to the complainant physically and an argument ensued wherein the complainant said that he felt intimidated and told Joseph that he was going to make a complaint about sexual harassment. He alleges that John then intervened and sent him home to cool off and later rang and told him that a number of staff were fearful of him and did not want to work with him and that his employment was terminated.

12 Except as noted above, the events complained of were not identified by date.

13 For the reasons which will be provided further in this decision, it is not necessary to identify and summarise the respondent's evidence which indeed the Tribunal did not consider for the purposes of the Section 111 application.

Preliminary Issues

A. Which Complaints to Consider

14 As will be evident from the summary of the complaint and the history of the problems the complainant alleges he experienced whilst employed by the respondent, most of the complaints were not time-specific or dated.

15 It is well-settled law that proceedings before the Tribunal are limited in time and scope. As has been frequently stated in decisions before this Tribunal:

"While a complaint lodged with the President must allege the commission of a contravention of the Act, it need not allege the relevant facts with the particularity of an indictment or a pleading" Langley v Niland (1981), 2 NSWLR at 107-108. There is no statutory requirement that the initiating complaint identify which sections of the Act the impugned conduct falls within. It is enough that a contravention of the Act is alleged, however described. Further, the Tribunal has broad powers to determine its own procedure; see Section 73 of the Administrative Decisions Tribunal Act 1997 ("the ADT Act").

16 Some of the reasons for requiring parties to define their case by way of pleadings is to enable the Tribunal to determine the issues which divide the parties and to prevent cases being mired in collateral issues. It is also a question of procedural fairness. Parties are entitled to know the cases against them. However, there is no blanket rule that parties in this jurisdiction are bound by their pleadings.

17 This generous approach to pleadings is particularly relevant in the case where a complainant is self-represented.

18 Nevertheless, the scope of the complaint is confined to the matters in the complaint and as noted by the Tribunal in Kennedy v Director General, NSW Department of Industrial Relations (2002) NSW ADT 186 at para. 40:

"The statute establishing the Tribunal, the ADT Act, circumscribes its jurisdiction. The Tribunal has no power to enquire at large into matters which take its interest."

19 The Tribunal receives its jurisdiction from the complaint referred to it by the Board under Section 94(1) of the Act. The Tribunal cannot consider complaints that go beyond the parameters of the original complaint contained in the President's Report. Authority for this settled proposition appears in Dee v Commissioner of Police & Anor 2003 NSW ADT 217, at para 13.

20 In Salama v Qantas Airways Limited (2002) NSW ADT 119 at para. 16, the Tribunal confirms that the referral of the complaint by the President is the source of the Tribunal's power to hold an inquiry. The scope of the inquiry is determined by the complaint referred to the Tribunal by the President. The Tribunal has no jurisdiction to investigate and find any contravention of the Act which falls outside the ambit of the complaint referred by the President.

21 The Act provides under Sections 88(3) and (4) that unless the President accepts on good cause being shown, those parts of the complaint outside of the six-month period, a complaint shall be lodged within six months after the date on which the alleged contravention is committed.

22 The Tribunal adopts the views of the Tribunal in Razaghi v Director General, NSW Department of Health & Anor (2002) NSW ADT 4 at para 21 for the proposition that "in the absence of evidence that the President of the ADB has exercised his/her powers to accept a complaint lodged out of time, the Tribunal must proceed on the basis that the ambit of the complaint, in terms of time, is limited to the six-month period preceding the lodgement of the claim with the President (see Commissioner of Police v Orr (2001) NSWADTAP 16). The Tribunal would be acting beyond jurisdiction were it to investigate and find any contravention of the Act which fell outside the ambit of the complaint referred to it by the President of the ADB." The Tribunal also notes the comments of the Tribunal in Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4 of 1997 at para. 3.9 to similar effect.

23 Having regard to these authorities, the Tribunal accepts the respondent's submission that it can only consider those complaints which arose during the period 8 May 2001 to 8 November 2001 as in this case the President did not extend time pursuant to Section 88(4) of the Act.

24 The Tribunal cannot therefore consider the undated complaints summarized above as numbers i to xiii (the complainant himself dates numbers 9 and 10 before 8 May 2001) which appear from pages 3-13 of the handwritten complaint form and will consider the complaints contained in the remaining pages of the originating complaint, namely those summarised as numbers xiv to xvii above for the purpose hereof.

25 In reaching this decision, it is noted that the complainant was on notice of the respondent's submissions in this regard well before the hearing, but did not produce any counter submission or rely on any evidence which date or would enable the Tribunal to date the other alleged incidents within this six-month period.

B. The Issue of Bias

26 At the commencement of the hearing the parties were informed that one of the non-judicial members had been a member of a Tribunal which had earlier heard and decided one of the complainant's complaints, Fricke v Whyburn (2003) NSW ADT 10.

27 The parties were asked to advise if objection was taken to the Tribunal as presently constituted hearing and deciding the complaint and the present application. The respondent offered no objection, and the complainant after initially indicating he had not objection then requested a newly constituted Tribunal because he was unhappy with the outcome of the previous case.

28 The Tribunal decided to proceed with hearing the case notwithstanding this request, holding that there was no reason to suggest any bias could be impugned to the Member concerned against the complainant, given the approach which the Tribunal had resolved to take in relation to the complainant's evidence as explained below, and given the fact this case had been in the list for over 12 months, the complainant had not expressed any objection before the matter was raised by the Judicial Member himself at the hearing, and the balance of convenience to the parties. See Re Refugee Review Tribunal; Ex parte H (2001) HCA 28 75 ALJR 982 at para 27:

"The test for apprehended bias in relation to curial proceedings is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question to be decided."

and see in particular discussion of cases on the issue of prejudgment as an indice of bias at pages 474 to 485 in Judicial Review of Administrative Action, Aronson and Dyer, 2nd edition.

The Relevant Legal Principles for a Section 111 Application

29 It is important to understand that for a complainant to be successful in this jurisdiction, he or she does not need to prove all his or her complaints. It is sufficient to enliven the jurisdiction for a complainant to prove one instant occurred which is in breach of the legislation.

30 Section 111 of the Anti-Discrimination Act provides:

(1) Where at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason, the complaint should not be entertained, it may dismiss the complaint. ...

(2) Where the Tribunal dismisses the complaint under this section, it may order the complainant to pay the costs of the inquiry.

(3) Nothing in this section limits the generality of the power conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997

31 The ADT Act empowers a Tribunal to dismiss a complaint before a full enquiry has been completed. Section 73(5)(h) of that Act is couched in narrower terms than in Section 111(1) of the Act and provides that a Tribunal "may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance."

32 An application may be made under Section 111 at any stage during the course of the proceedings. As has been noted above, the application was foreshadowed at an early case conference in this case and this case has proceeded, with the knowledge and approval of the complainant, on the basis that the Section 111 application would be made and determined before the full hearing of this case.

33 This Tribunal has regularly been asked to consider and determine applications under Section 111 and the authorities have established well-settled principles for the hearing of such applications which are now summarised.

34 Consistent with previous decisions of the Tribunal which has considered applications under Section 111, the discretion to dismiss the complaints summarily should be exercised with "exceptional caution" and only if the circumstances clearly warrant such an action. See General Steel Industries Inc v Commissioner for Railways (NSW) (1964) [1964] HCA 69; 112 CLR 125 at 129-130, and Tannock v State of NSW (1999) NSW ADT 73.

35 The need for caution is even more apparent in cases where such an application is made prior to the adducing of the complainant's evidence at the substantive hearing. Ultimately, it is for each Tribunal to determine the application according to its own circumstances. It is for the Tribunal to decide whether the application should be heard and determined prior to the full hearing of the complainant's case.

36 It has been suggested that "prior to the Tribunal commencing a hearing on the merits, it is difficult, if not impossible, for the Tribunal to determine whether there may be substance to a complainant's allegations. Generally, it is far more appropriate that the merits of a complainant's case be reviewed as the hearing into the merits proceeds, rather than on a pre-hearing basis. This is particularly true in the case of a self-represented complainant: "Ehl v Department of Education and Training and NSW Teachers Federation (1999) NSW ADT 102 at para 14. See also Dee v Commissioner of Police & Anor (2003) NSW ADT 217 at para. 24:

"The power to summarily dismiss a complaint under that section should be exercised with extreme caution and the Tribunal must approach a Section 111 application on the basis that the applicant must be given every reasonable opportunity to set out the content of the complaint and to produce evidence to support it. "

37 It is appropriate in considering such an application to give the complainant the benefit of the doubt and for this purpose, and in accordance with this approach, the Tribunal has not taken into consideration any of the respondent's evidence. The Tribunal considers its role on a Section 111 application is to determine whether the applicant's evidence, taken at its highest, could possibly substantiate a complaint under the Act. KB v Commissioner of Police, NSW Police Service (2002) NSW ADT 30 at para. 15. This approach was also adopted in Omeri v Quality Assurance Service Pty Limited (2003) NSW ADT 188 which noted that in a case where the complainant's evidence was supported by no evidence other than his own allegations, the Tribunal is not bound by the rules of evidence, but needs to have due regard to fairness in its dealings (paras 18 to 19).

"The standard of satisfaction for a Section 111 application is quite high. The Tribunal must be satisfied in effect that the complainant has no chance of succeeding on the evidence as set out before it. It is not appropriate to find that discrimination has taken place on the mere assertion by the complainant that it is so and the absence of evidence to that effect. The complainant must, to establish the existence of discrimination, establish objective facts from which to infer the other facts which he sought to establish" (at para. 20).

38 The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there may be grounds on which to decide that the complaint either ought be dismissed or alternatively, permitted to proceed to a full hearing, in which case the respondent's evidence will be called.

39 The Tribunal also accepts as the complainant contended at the hearing that in proceeding it must have regard to Section 73 of the ADT Act concerning the rules of evidence and the conduct of a hearing.

40 In Assal v Department of Health, Housing and Community Services (1992) EOC 92-409 at para. 78, 900 Justice Wilson said "a claim which presents no more than a remote possibility of merit or which does no more than hint at a just claim would ordinarily, I think, be found to be lacking in substance."

41 In McGlade v Human Rights and Equal Opportunity Commission (2000) FCA 1477, Justice Carr distinguished the approach of Justice Wilson in Assal because in McGlade the proceedings were at a preliminary stage when they were dismissed, whereas in Assal the complainant had had their day before the Commission. Justice Carr endorsed the views of Ormiston JA in State Electricity Commission of Victoria v Rabel (1998) 1 VR 102 where His Honour said:

"There can be no satisfactory way of determining that a complaint should be dismissed at a preliminary stage, unless it can be demonstrated, either from the materials by which the complainant has instituted the claim or by reference to facts which would undoubtedly deny the complainant relief, that the complaint is so hopeless that it should be summarily brought to an end."

42 This approach was adopted by the Appeal Panel in Margan v University of Technology, Sydney( EOD) (2003) NSW ADTAP 65 at para. 14. The Panel then proceeded to repeat the warning that extreme caution must be exercised when determining a Section 111 application prior to the substantive hearing but noted that when an application is one that goes to the Tribunal's jurisdiction - one that claims, for example, that the allegations even if proved do not identify conduct proscribed by the Act, or that the respondent is exempt from the provisions of the Act - then it would often be appropriate for that application to be made at the earliest opportunity so as to save time and cost. See also the comment of the President of the NSW Court of Appeal in Fairey v Fairey (No 2) [2000] NSWCA 173:-

"The power to dismiss proceedings summarily serves the dual purposes of ensuring fairness to litigants and preserving the integrity of the judicial system. The former purpose aims essentially to protect the litigant, in this case the respondent, from the consequences of delay, be those consequences financial, impacts on litigation, psychological or otherwise. The latter purpose, namely the integrity of the judicial system promotes the expedient resolution of cases and has some regard to the interests of litigants generally in the Court. I hasten to say that regard cannot over-reach the rights of the individual litigants to justice in their own case",

quoted in Harding v Vice Chancellor, University of NSW (2003) NSWADT 14 at para 18.

43 Tribunals have in similar situations, applying this approach, not been shy to exercise their power under Section 111, even in cases where unrepresented applicants appear.

44 Having regard to these matters, the Tribunal further notes that the complainant consistently advised it that he intended to adduce no further evidence in support of his case other than that which was contained in his originating letter. This is not a case where the complainant had little opportunity to consider his position and adequately prepare for the hearing of this application.

45 For the reasons explained, the Tribunal considers that it has had the opportunity to consider all the evidence that the complainant relies on.

46 This is the approach that the Tribunal has adopted in this case.

Sexual Harassment

47 The Act provides:

Section 22A: Meaning of sexual harassment –

For the purposes of this part a person sexually harasses another person if:

(a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or

(b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated.

Section 22B(2):

It is unlawful for an employee to sexually harass a fellow employee or a person who is seeking employment with the same employer.

48 This complainant should be well aware of the law in this area and the approach taken by the Tribunal in sexual harassment cases, even though he is not legally represented. As noted by the complainant in his letter of complaint, "This will be the fifth sexual harassment complaint I have made to the Board".

49 The respondent has referred the Tribunal to the case of Fricke v Whyburn (2003) NSW ADT 10 which case involved a complaint made by the complainant against a lawyer who had formerly represented him in other sexual harassment proceedings in this Tribunal and which complaint considered the issue of sexual harassment, in that case in the context of a provider of goods and services. That case provided a summary of the applicable law in relation to sexual harassment, which this Tribunal adopts as a correct statement of the applicable law, noting the need for there to be a deliberate or intended act (See paragraphs 46 to 50). The Tribunal then considered it appropriate to dismiss the complaint because of the trifling nature of the conduct. As that was a case involving the same complainant, it is reasonable to assume that he understood the decision.

The Evidence Considered

50 The respondent has contended that the three incidents which are summarised at paras 11(xiv) to 11(xvi) above do not on their face amount to a sexual advance or a request for sexual favours within the meaning of Section 22A(a), nor do they constitute conduct of a sexual nature in relation to the applicant for the purpose of Section 22A(b). Further, the respondent contends that even if the conduct could come within Section 22A(b), there is nothing on the face of the alleged conduct which shows that it occurred in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the applicant would be offended, humiliated or intimidated. The respondent contends that even if the complainant's evidence is taken at its highest, he has therefore failed to substantiate the facts which could form the basis of a successful complaint.

51 The respondent contends and the Tribunal accepts that the evidence must support a finding based on a probability of sexual harassment, rather than a possibility of sexual harassment, and the applicant's subjective beliefs, no matter how genuinely they may have been held, are not sufficient to establish unlawful conduct. The test for the establishment of relevant discrimination is not subjective but objective. See IW v City of Perth (1997) [1997] HCA 30; 191 CLR 1.

52 Whilst at the hearing the complainant stressed that his co-workers were aware of his particular sensitivity and aversion to people encroaching on his personal space and that accordingly they should have acted with greater care not to offend him, this does not in the Tribunal's view affect the applicable test.

53 The Tribunal will now consider each of the three events which the Tribunal has found properly form the basis of the complaint in the light of further submissions given by the complainant in relation to each incident at the hearing.

a) Item 11(xiv) - The complainant explained that his comment was made in the context of his disapproval of his co-worker having these characteristics. The Tribunal notes however that the incident based on the complainant's evidence was commenced by his insulting Joseph. Amongst the words used was the word "smutty". The response from Terry whilst referring to "sex" must be viewed in the context of the statement which on the complainant's evidence initiated the response. In the context of the statement, which the Tribunal accepts for the purpose hereof was made, the Tribunal does not accept that the consequential conduct which it also accepts occurred fell within the parameters of proscribed conduct under the Act having regard to the legal principles explained above. It should be viewed in the context of the total events as described. The Tribunal finds that the act complained of does not amount to sexual harassment.

b) Item 11(xv) - The Tribunal again accepts for the purpose hereof the events as alleged by the complainant occurred. The complainant urged the Tribunal to accept that John's conduct was an unnecessary interference with his personal space and that it amounted to sexual harassment. However, the events should be viewed in the context as the complainant has reported in his statement, namely that John wanted to bring up some data which was recorded on the main PC and impatiently moved forward. The Tribunal considers that this occurred as described by the complainant, but does not accept the complainant's interpretation of the incident as an act of sexual harassment provides the explanation for the co-employee bringing his body closer to the applicant. Rather the Tribunal believes it is not unreasonable to believe that the event occurred in the normal course of movement within the office space and involved a normal interaction between co-workers. Further, while the Tribunal accepts that John may have hooked his thumb and finger into his trousers, this conduct was of such a trivial nature that when viewed objectively, no reasonable person could consider that the action could amount to sexual harassment.

c) Item 11(xvi) - While the complainant urged the Tribunal to accept there was a deliberate attempt to harass him by Bob, the Tribunal considers that the fact, as stated by the complainant, and as accepted by the Tribunal for this decision, that Bob was bringing the kettle to the water machine provides the evident reason for his bringing the kettle forward. Even if Bob did move the kettle towards the complainant's genitals, there may have been any number of reasons for this which could explain the event, such as, most obviously, he may have stumbled. Alternatively, even if the gesture was made as implied by the complainant, the Tribunal takes the same view that the conduct was of such an insignificant nature in the context of the day to day environment of the office interaction between staff, that no reasonable person could construe that an act of sexual harassment occurred such as would lead to the provisions of the Act coming into force, and more importantly justifying a Tribunal conducting a full enquiry into whether or not the complainant had been the victim of sexual harassment in consequence.

Victimisation

54 The Tribunal notes that for the complaint of victimisation to be substantiated, there is a four-fold test as enunciated by the Tribunal in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at para 78, 986:

"Firstly, the respondent must have caused the applicant to undergo or experience something. Secondly, the applicant must have suffered some consequential detriment in any circumstances. Thirdly, that detriment must have occurred on one of the grounds set out in sub-paragraphs (a) to (d) of Section 50(1). Fourthly, it must appear that the applicant did one of the things referred to in sub-paragraphs (a) to (d). Under subsection (2) of the Act, the respondent has a complete answer to the complaint if it is shown that the allegation of discrimination was not made in good faith.

55 The Tribunal has consistently followed this approach. See Lal v President, Anti-Discrimination Board (2000) NSW ADT 68 at 41, Crewdson v President, Anti-Discrimination Board of NSW (2000) NSW ADT 60 at 45 and Sivananthan v Commissioner of Police, NSW Police Service (2001) NSWADT 44 and Maylor (No. 1) v Mid-North Coast Area Health Service (2001) NSW ADT 117 at para. 55 and following.

56 The complainant has also contended that the circumstances of his dismissal were tantamount to victimisation.

57 Whilst he has not particularised this in his complaint other than by reference to item 11(xvii) above, the Tribunal accepts that there has been a complaint of victimization made by him.

58 Accepting the sequence of events as stated by the complainant occurred, for the purposes hereof, the Tribunal nevertheless finds the respondent's submission that there is nothing on the face of the evidence which would establish that the complainant's employment was terminated because he had made a complaint. On the complainant's own evidence, he states that he was dismissed because his co-workers were fearful of him as a consequence of events which had occurred in the workplace.

59 The Tribunal considers that the complaint of victimisation has not been accordingly established.

Conclusion

60 The Tribunal must now decide, having considered the evidence, whether the application of the respondent to dismiss the complaint under Section 111 (1) should be upheld.

61 Having regard to the foregoing findings of the Tribunal with regard to the evidence tendered by and relied on by the complainant in support of the complaints of sexual harassment and victimisation, the Tribunal has formed the view that it is appropriate in this case to uphold the respondent's application and dismiss the complaint.

62 In so doing, the Tribunal will now discuss the basis on which it makes this order under Section 111.

63 The Tribunal is empowered to dismiss a complaint inter alia where it is lacking in substance, appears misconceived or is frivolous or vexatious, or for any other reason. There is considerable case law which has developed by the Tribunal on the approach to be taken to these applications.

64 The Tribunal notes the useful summary which appears at para. 24 in Harding v Vice Chancellor, University of NSW (2003) NSW ADT 74 which considers where a complaint lacks substance. In that case, the Tribunal noted: "The respondent to the complaint bears the onus of showing that the complaint should be dismissed. A complaint will be lacking in substance when there exists no factual basis for the allegations, or the allegations lack merit: see Langley v Nyland & Anor (1981) 2 NSWLR 104 at 107 and Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT 4 of 1997; a complaint lacks substance if it contains "an untenable position of law or fact". State Electricity Commission of Victoria v Rabel (1998) 1 VR 102 at 108-109 per Ormiston JA:

If the Tribunal can see a substantial case, even though it is badly pleaded, the action cannot be summarily terminated. The Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action.

65 The term "misconceived" has been explained by Justice Ormiston in the Rabel case to connote a case where there has been a misunderstanding of legal principles, or a case which lacks substance and also may mean a case where there is an untenable proposition of law or fact. See also the detailed discussion in JA v State of NSW (2003) NSWADT 272 at paragraphs 11 to 23 of the principles concerning the terms "vexatious" and "lacking in substance".

66 As noted in the case of Prakash v Bobb Borg Enterprises Pty Limited (1999) NSWADT 73, there is a distinction where the Tribunal dismisses a case which is misconceived or lacking in substance from a case where the Tribunal dismisses it on the basis that it is frivolous or vexatious. The latter terms apply to an abuse of process. The Tribunal has a residual broad power to dismiss a complaint "for any other reason".

67 Applying the principles which have been explained above and which are usefully summarized in para. 35 in Prakash, the Tribunal has evaluated the evidence of the complainant and is of the view that the complainant could not succeed at a hearing in establishing the necessary onus of proving the events complained of amounted to sexual harassment and victimization and has proceeded this far because he has failed to understand the relevant legal principles and the nature of discriminatory behaviour. His history of complaints and the vindictive tone of the complaint which initiated these proceedings have served to confirm the Tribunal in this view. The Tribunal concludes he has failed to substantiate that he was the victim of sexual harassment and victimization.

68 The Tribunal considers that this is a case where it is appropriate to dismiss the complaints of the complainant that he has been subjected to sexual harassment by the respondent through its staff in his place of employment and that he has been subjected to victimization. Accordingly we exercise our power under Section 111 on the basis that the complaints as evidenced by the complainant lack substance and are also misconceived.

69 In making this order, we are cognizant that the complainant may have genuinely felt aggrieved by conduct which formed the basis of his complaint. However, it is the role of the Tribunal to determine cases in accordance with the law and in the light of their individual facts. From an objective point of view, we see no evidence which taken at its highest in the manner analysed herein would support a finding that he has been subjected to sexual harassment or been victimized, and certainly no basis for requiring the respondent to be forced to participate in an extended hearing in what would be a costly and futile enquiry.

Costs

70 The respondent has sought an order for costs of these proceedings.

71 Section 111(2) of the Act provides that where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry. The Tribunal also has power to order costs against a complainant under Section 88(1) of the ADT Act.

72 The Tribunal has a wide discretion in relation to whether or not an order for costs should be made. The legislation contemplates that absent other circumstances, no order for costs should be made. Consideration of the applicable circumstances which should exercise the Tribunal's mind have been the subject of many decisions of this Tribunal. See, for example, Tu v University of Sydney (No. 2) (EOD) (2002) NSWADTAP 25.

73 With particular reference to the Section 111 power, the considerations raised by the Tribunal in Maylor No. 2 v Mid North Coast Area Health Service (2001) NSWADT 118 are apposite. At para 10 the Tribunal noted:

"10. Respondents unjustly pursued and forced to defend themselves at significant cost have a general right to expect that the Tribunal will take appropriate action to compensate them for the reasonable and necessary costs of meeting the case mounted against them, and to deter vexatious, frivolous or unmeritorious complainants from further pursuing them."

And at para 27:

"27. In such a tribunal as this it is necessary to be armed with the sanction of forcing an unsuccessful complainant who has burdened a respondent with the cost of a complaint which ought not to have been brought in the first place, to bear at least, the cost imposed on the unfortunate, innocent respondent dragged unwillingly into the proceedings."

74 In Langley v University of NSW (1984) EOC 92-018 at 75-464, Justice Hutley at 75, 468 said:

"In my opinion the complaints in this case lack any conceivable merit in fact or law. Under those circumstances my only criticism of the proceedings so far is that this was a case in which the complainant was not ordered to pay the costs by the Tribunal. That is the one effective sanction available to keep this Act within bounds and to ensure it will not be made the subject of gross abuse."

75 In exercising its mind as to whether or not to order costs against the complainant as sought by the respondent, the Tribunal notes that:

a) This is not the first occasion in which the complainant has brought a complaint of this nature to the Tribunal. Indeed, as noted by the complainant, it is his fifth complaint. The Tribunal further notes that the complainant either chose not or was unable to obtain legal representation in these proceedings, notwithstanding that he had been legally represented in earlier proceedings before the Tribunal. People are expected to know the law and whilst the Tribunal can be expected and ought to be sympathetic in relation to costs applications to novice complainants, this complainant clearly does not fit within that category.

b) In his letter of complaint which was admitted to evidence, the applicant consistently resorted to intemperate language when describing his co-workers and admitted that his conduct had caused disharmony within the workplace.

c) The Tribunal is cognizant of the words of Justice Hutley and believes that it is important that signals be sent that the legislation should not be subject to inappropriate, if not abusive, applications.

76 Having regard to these considerations, the Tribunal believes that this is an appropriate case where an order for costs should be made in favour of the respondent.