Mitchell v Clayton Utz and Ors (No 2)[ [2010] NSWADT 59 (26 February 2010)

Last Updated: 26 February 2010

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Mitchell v Clayton Utz and Ors (No 2)[ [2010] NSWADT 59


DIVISION:
EQUAL OPPORTUNITIES DIVISION

PARTIES:
APPLICANT
Michael Mitchell

RESPONDENTS:
Clayton Utz
Garth Williams
Jamie Taylor
Sonia Goumenis
Katie Best
Trevor Robinson
Joseph Catanzariti
Narelle Rutz



FILE NUMBERS:
091046

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
27 January 2010



DATE OF DECISION:
26 February 2010

BEFORE:
Hennessy N - Magistrate (Deputy President)





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

CASES CITED:
Mitchell v Clayton Utz & Ors [2009] NSWADT 266

TEXTS CITED:


APPLICATION:
Application to correct decision; inconsistency between decision and statement of reasons; Administrative Decisions Tribunal Act 1997 s 87

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
In person
RESPONDENT
M Byrnes, solicitor


ORDERS:
The following order of the Tribunal, made on 13 October 2009 is corrected by adding the words in italics:Leave is granted for the following complaints or parts of complaints to proceed:c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for (i) allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless that conduct was accompanied by conduct of a sexual nature; (ii)the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'


Reasons for Decision:

REASONS FOR DECISION

Introduction

1 On 13 October 2009, the Tribunal granted Mr Mitchell leave to proceed with parts of his complaint of discrimination against Clayton Utz and two employees, Mr Williams and Mr Taylor: Mitchell v Clayton Utz & Ors [2009] NSWADT 266 (13 October 2009). Because of an alleged inconsistency between the Tribunal’s reasoning and the orders made, Mr Mitchell has applied for one of the orders to be ‘corrected’: Administrative Decisions Tribunal Act 1997 (ADT Act) s 87. Clayton Utz opposes that application saying that the order does not contain an omission or, alternatively, the correction Mr Mitchell seeks is not consistent with the Tribunal’s reasoning. The issue has been determined ‘on the papers’: ADT Act, s 76.

Power to correct decisions

2 Section s 87 allows the Tribunal to correct certain errors in decisions:

Power to correct decisions of the Tribunal

(1) If, after the making of a decision by the Tribunal, the Tribunal is satisfied that there is an obvious error in the text of the decision or in a written statement of reasons for the decision, the Tribunal may direct the Registrar to alter the text of the decision or statement in accordance with the directions of the Tribunal.

(2) If the text of a decision or statement is so altered, the altered text is taken to be the decision of the Tribunal or the reasons for the decision, as the case may be.

(3) Examples of obvious errors in the text of a decision or statement of reasons are where:

(a) there is an obvious clerical or typographical error in the text of the decision or statement of reasons, or

(b) there is an error arising from an accidental slip or omission, or

(c) there is a defect of form, or

(d) there is an inconsistency between the decision and the statement of reasons.

(4) The powers of the Tribunal under this section may be exercised by the President or by the member who presided at the proceedings to which the decision relates.

We have assumed that the basis of Mr Mitchell’s application is that there is an inconsistency between the decision (or orders) and the statement of reasons: s 87(3)(d).

Correction sought

3 The order which the Tribunal made, with the requested correction in italics, is as follows:

Leave is granted for the following complaints or parts of complaints to proceed:

c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless those names were accompanied by other conduct of a sexual nature as described in paragraphs 43 and 45 above and the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'; however

4 We have not taken into account the addition of the word ‘however’ as we have assumed that Mr Mitchell did not intend to include that word in his suggested correction. The need for the correction is said to be that the order as made is inconsistent with paragraphs 43 and 45 of the reasons for decision. We set out in full the details of Mr Mitchell’s sexual harassment

Conduct of a sexual nature

42 Submissions. Being teased, bullied or the subject of jokes does not constitute sexual harassment unless the conduct is "of a sexual nature" and the other elements of s 22A are satisfied. The conduct which Mr Mitchell says was of a sexual nature included being called ‘trench’ and ‘flasher’, being the subject of jokes about changing in his office and receiving emails making fun of him. This conduct, he says, articulated ‘the associations between overcoats and deviant sexual behaviour.’ Clayton Utz submitted that there was nothing inherently sexual about the words ‘trench’ or ‘trench coat’ and that being called that name does not amount to conduct of a sexual nature. In particular it was submitted that there was no evidence of any connection between the words ‘trench coat’ or ‘trench’ and deviant sexual behaviour.

43 Trench/trench coat. I accept Clayton Utz’ submission that conduct involving the use of the words ‘trench’ or ‘trench coat’, by themselves, does not constitute conduct of a sexual nature. There is nothing ‘sexual’ about those terms. Since the allegations against Ms Goumenis and Ms Best were that they merely called him those names, those complaints lack substance and leave is refused for them to proceed. Similarly, other incidents where it is alleged that Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’, with no accompanying conduct of a sexual nature, lack substance and leave for those aspects of the complaints to proceed is refused.

44 Flasher. The word ‘flasher’ is defined in the Macquarie Dictionary (3rd edition, The Macquarie Library) as ‘Colloquial one who briefly exposes themselves in public’. It is arguable that referring to Mr Mitchell by that name constitutes conduct of a sexual nature. Mr Mitchell says that the conduct was unwelcome and we accept that evidence for the purpose of these proceedings. It is also arguable that a reasonable person, having regard to all the circumstances, would have anticipated that Mr Mitchell would be offended, humiliated or intimidated by being referred to as a ‘flasher’. Consequently leave is given for Mr Mitchell’s complaint to proceed to the extent that it involves allegations that Mr Taylor or Mr Williams referred to him as a ‘flasher’.

45 Being made fun of by conduct or email communication and being the subject of jokes for changing in his office. These allegations may constitute conduct of a sexual nature depending on whether Mr Mitchell can establish that the behaviour ‘articulated the associations between overcoats and deviant sexual behaviours’. Leave is granted for these aspects of his complaints against Mr Williams and Mr Taylor to proceed.

46 Taking para-legals home for sex. The alleged comment about how ‘solicitors could take paralegals home for sex' is not conduct of a sexual nature in relation to Mr Mitchell. If it was said, it was a comment about the situation as Mr Williams understood it, rather than conduct of a sexual nature in relation to Mr Mitchell.

47 Conclusion. Leave is granted for the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer to proceed except for the allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’. Since there is no allegation that Mr Robinson engaged in any conduct of a sexual nature as defined in s 22A, nor any other basis on which Mr Mitchell submitted that Mr Robinson could be liable under the AD Act, leave is refused for the complaint of sexual harassment against him to proceed.

Mr Mitchell’s submission

5 Mr Mitchell submitted that it was ‘obvious’ that the Tribunal intended to grant leave in relation to allegations of joking/harassment that articulated ‘the associations between overcoats and deviant sexual behaviours’. He noted that that phrase had been quoted directly from the original complaint. Mr Mitchell submitted that by using the qualifying phrase ‘with no accompanying conduct of a sexual nature’ in [43], the Tribunal was recognising that in some cases the words ‘trench’ or ‘trench coat’ could constitute sexual harassment if, at the same time, Mr Williams or Mr Taylor ‘articulated the associations between trenchcoats and deviant sexual behaviour’. Mr Mitchell accepts that in cases where they merely used the word ‘trench’ or ‘trenchcoat’ without any accompanying conduct of a sexual nature, leave was not granted.

6 Mr Mitchell says that during a case conference on 2 December 2009, Clayton Utz submitted that the Tribunal only granted leave for Mr Mitchell to proceed in relation to the complaints against Mr Williams and Mr Taylor which referred to Mr Mitchell as ‘flasher’.

Clayton Utz’s submission

7 Clayton Utz accepted that in [45] of the decision the Tribunal granted leave in relation to behaviour that ‘articulated associations between overcoats and deviant sexual behaviours’. Clayton Utz went on to say that this behaviour constituted making ‘fun of [the Applicant] by conduct or email communication’ and making ‘jokes [about the Applicant] for changing in his office’. According to Clayton Utz, the Tribunal has distinguished this behaviour from the behaviour of calling the Applicant ‘trench’ or ‘trench coat’ with no ‘accompanying conduct of a sexual nature’ as described in [43] of the decision. Clayton Utz accepted that the order granting leave for complaints of sexual harassment against Mr Williams and Mr Taylor to proceed includes the ‘behaviour’ referred to in [45] of the decision.

Conclusion

8 Mr Mitchell says that during a case conference on 2 December 2009, Clayton Utz submitted that the Tribunal only granted leave for Mr Mitchell to proceed in relation to the complaints against Mr Williams and Mr Taylor which referred to Mr Mitchell as ‘flasher’. Whether or not that was said, Clayton Utz has accepted that the order granting leave for complaints of sexual harassment against Mr Williams and Mr Taylor to proceed includes the ‘behaviour’ referred to in [45] of the decision.

9 There is a minor inconsistency between [43] of the Tribunal’s decision and the relevant order. The decision contains a qualification to the refusal of leave in relation to being called ‘trench’ or ‘trenchcoat’ but the order does not. I am satisfied that that inconsistency is an obvious error and should be corrected.

Order

10 The following order of the Tribunal, made on 13 October 2009 is corrected by adding the words in italics:

Leave is granted for the following complaints or parts of complaints to proceed:

c) the complaints of sexual harassment against Mr Williams and Mr Taylor personally and against Clayton Utz as their employer in relation to the alleged conduct except for

(i) allegations that Mr Williams or Mr Taylor called Mr Mitchell ‘trench’ or ‘trench coat’ unless that conduct was accompanied by conduct of a sexual nature; (ii)the comment alleged to have been made by Mr Williams that 'solicitors could take paralegals home for sex'.