Debbie Murphy v State Of New South Wales


IN THE HUMAN RIGHTS AND EQUAL OPPORTUNITY COMMISSION

DISABILITY DISCRIMINATION ACT 1992

DENNIS MAHONEY

No. H99/126

Number of pages - 22

DARWIN, 11 July 2000 (decision)

#DATE 11:07:2000

Appearances

Ms Kate Eastman instructed by the Disability Discrimination Legal Advocacy Service (NSW) for the Complainant

Ms Chris Ronalds instructed by the Crown Solicitor's Office

Order

See final paragraph.

DENNIS MAHONEY

This matter is now before me under somewhat unusual circumstances. In order to indicate the issues which are now before me for decision it is necessary that I refer briefly and in general terms to what has taken place in relation to this matter.

The present matter arises from a complaint made by Ms Debbie Murphy on her own behalf and on behalf of her son, Justin Murphy, against the State of New South Wales ("the State"). She has brought these two complaints, her own and the complaint brought by her on behalf of her son, under the Disability Discrimination Act 1992 (Cth) ("the Act"). She complains that, in what it did in the teaching of her son at a public school conducted by the State, it discriminated against her son contrary to the Act. It is sufficient description of the complaint for present purposes to say that Justin Murphy is deaf and that Ms Murphy complains that in the facilities which the State provided for him and in the manner in which it dealt with him, the State was guilty of discrimination contrary to the Act.

The two complaints came before me as (as it is conventionally described) a "Hearing Commissioner". It is accepted that I am a person who was appointed to participate in the performance of the functions of the Human Rights and Equal Opportunity Commission ("the Commission") within section 77(1) and that the President of the Commission directed that, as far as here relevant, the powers of the Commission to hold inquiries under the act be exercised by me as a legally qualified person within section 80(1).

When the complaint came before me it was apparent that steps should be taken to expedite the hearing of them. Ms Murphy was suffering from a serious cancer and her expectation of life was limited. Accordingly, I directed that the hearing of the complaints be expedited. I indicated that the hearing should commence on Monday, 13 December 1999. The respondent indicated that in the time then available it would not be able to prepare fully the case it proposed to present. Accordingly it was contemplated that at the hearing commencing on 13 December 1999, Ms Murphy's evidence should be taken and that there should be such cross-examination of her as could then be undertaken. On the hearing of the complaints on 13, 14, 15 and 16 December 1999 her evidence was taken and the cross-examination of her essentially completed. Other evidence was taken.

On 16 December 1999 the further hearing of the proceeding was adjourned to 21 February 2000.

Before the last mentioned date Ms Murphy died. Shortly before 21 February 2000, following inquiry, the Commission was informed by the solicitors or body representing Ms Murphy's legal personal representative and her son that they did not wish the inquiry to continue. The respondent was informed of this and of the fact that the Commission had determined that the inquiry into the complaint was discontinued. The respondent has taken objection to what the Commission has purported to do and has claimed that the Commission has not validly discontinued the hearing of either complaint. In order to clarify the matter I arranged that there should be a hearing before me on Monday 21 February 2000 and the parties were notified accordingly.

I am informed that the purported discontinuance of the hearing of the complaints took place in the following circumstances. On receiving the information from (as I shall describe them) the legal representative of the complainants that its clients did not wish the inquiry to continue, the Director of Legal Services of the Commission, Ms Susan Roberts, in purported exercise of powers delegated to her by the Commission made an order or gave a direction that the hearing of the complaints be discontinued. She did this pursuant to the interpretation of inter alia section 79 of the Act which has, I am informed, in practice been adopted by the Commission. The Commission notified the respondent that the hearing of the complaints had been discontinued (it was originally suggested that that order or direction had been made by me as the Hearing Commissioner: subsequently what actually happened was notified to the parties).

When the matter came before me for hearing on 21 February 2000, Counsel who had represented the parties at the previous hearing appeared. The Commission had previously been informed by the legal representative of the complainants that it maintained that the hearing of the complaints had been effectively discontinued. When I commenced the matter on 21 February 2000, Ms Eastman, who had appeared for the complainants previously, indicated that she and her solicitor did not desire to take any further part in the proceeding and they then withdrew. This course was taken, as I infer, because it was not desired that further legal cost be incurred or time expended. This is a cause to which, in my opinion, was unobjectionable. The result as being that the matter before me has proceeded only by reference to the submissions of Ms Ronalds for the respondent.

The respondent has contended that what was done by the Commission in relation to the discontinuance of the hearing was invalid. No complaint was made as to the power of the legal personal representative of Ms Murphy or of the representative of her son to indicate to the Commission that it was desired that the inquiry not continue. The relevant instructions were, as I infer, given by Mr Burns who gave evidence in the earlier hearing of the inquiry. However this be, it was accepted that whoever gave the instructions had authority to act on behalf of the estate or in the interest of Ms Murphy and on behalf of Justin Murphy.

The respondent submitted that what the Commission had done was invalid and ineffective for two reasons: first, because the terms of section 79 in so far as they, expressly or by implication, would authorise the discontinuance of a hearing of a complaint and the making of orders or giving of directions for that purpose, did not apply where the original complainant no longer existed; and, second, because such power in respect of discontinuance as is given by section 79 can, where a hearing has been commenced, be exercised only by the Hearing Commissioner.

Ms Ronalds dealt with these two matters in detail and I am obliged to her for her assistance. In view of the significance of the matter in relation to the practice and procedure of the Commission in respect of such matters as remained to be dealt with under the legislation in its relevant form, Ms Ronalds agreed that I might invite a submission in writing by the Commission in relation to these matters. It was agreed that I arrange for a copy of the Commission submission to be forwarded to Ms Ronalds and to the legal representative of Ms Murphy and her son and that Ms Ronalds may have such opportunity as the respondent desires to reply to what is said by the Commission.

I have directed that the transcript of what has been said on 21 February 2000 be taken out and a copy sent to each of the legal representatives.

In the event, it was subsequently discovered that the delegation given by the Commission to Ms Susan Roberts as Director of Legal Services was no longer operative when she purported to discontinue the proceeding: it had expired. The Commission notified the parties of this and no submissions have been made by the Commission.

I come now to deal with the submissions made as to the validity of the purported discontinuance of the hearing of the complaints and generally the effect of s.79 of the Act.

Ms Ronalds' submissions were made upon the assumption that the act of Ms Roberts purporting to discontinue (or mark the discontinuance of) the proceeding was done in reliance upon a then valid delegation to her of the power so to do. As I have said, this is now known not to be correct. However, if there be a power (or the necessity) to make an order under s.79 bringing the proceeding to an end, that power arguably resides in me as Hearing Commissioner. Ms Ronalds' submissions in their essential thrust, were directed to the existence or non-existence of the s.79 power as such and to the person by whom the power was able to be exercised. At least, this is so in relation to her first submission. Accordingly, I shall deal generally with the question whether, on the death of a complainant, such a power is available to be exercised at all.

The respondent's first submission was in substance as follows: the purported power of discontinuing the hearing is a power given by section 79(2); that power does not arise unless "the complainant" is the person who indicates that he or she does not wish the inquiry to continue; and that in the present case, Ms Murphy being dead, there was no person who was a "complainant" for this purpose.

It was accepted that Justin Murphy as a complainant, could validly exercise a power of discontinuance as far as concerns his complaint if that be considered to be a separate complaint. Therefore the submission was directed to the complaint made by Ms Murphy. I shall deal with the matter on that basis.

Section 79 provides:

       (1) Subject to subsection (2), the Commission must hold an inquiry into each complaint or matter referred to it under subsection 76(1) or section 78.

        (2) The Commission must not hold, or must discontinue, an inquiry into a complaint or matter referred to it under subsection 76(1) if:

       (a) the complainant or the person aggrieved by the act notifies the Commission that the complainant or the person does not wish the inquiry to be held or to continue; and

       (b) the Commission is satisfied that the complainant or person:

       (i) fully understands the consequences of notifying the Commission that he or she does not wish the inquiry to be held or to continue; and

       (ii) did not notify the Commission as a result of the undue influence of, or under the duress of, another person.

       (3) The Commission must not hold, or discontinue, an inquiry into a complaint or matter referred to it under section 78, if the Minister notifies the Commission that the Minister does not wish the inquiry to be held or to continue.

The respondent's argument points to the fact that it is only "the complainant or the person aggrieved by the act" who can form the "wish" that the inquiry not continue and that the formation of that "wish" is a necessary component in the context which alone can give rise to the operation of section 79(2) and (as it has been assumed to be) the decision that the inquiry discontinue.

It has been assumed in argument that it is the term "the complainant" alone which is here in question and that the term "the person aggrieved by the act" is not of assistance in determining the present matter. It may be argued that this latter term includes the legal personal representative of Ms Murphy. The term "the person aggrieved by" has, I think, generally been given a broad rather than a narrow interpretation and in the present context of a remedial statute, I would give it such a broad interpretation. The person designated by the term in this case is a person aggrieved "by the act", presumably the act alleged to constitute the discriminatory conduct which the complainant has claimed discriminated against her and caused her the damage for which she seeks to recover. Accordingly, it might be argued that the formation of "the wish" by Mr Burns as her legal personal representative would not be a matter which constituted the formation of "the wish" by "the person aggrieved by the act" within section 79(2). Ms Ronalds did not direct particular attention to this portion of section 79(2). I shall refer to this aspect of the matter subsequently.

As I have indicated, the respondent did not direct this argument against the discontinuance of the proceeding brought by Ms Murphy on behalf of her son Justin. It was accepted that Mr Burns had been appropriately appointed the guardian of Justin for this purpose and that in that behalf he could and presumably did effectively act on behalf of Justin and in his name to constitute "the wish" that the proceeding not continue.

In order to deal with the respondent's first submission I shall first consider what, apart from authority, might be thought to be the effect of the terms of the Act and then consider whether, as Ms Ronalds has submitted, the matter is concluded in favour of her first submission by a decision of the Federal Court of Australia.

What is in question is whether Mr Burns as the legal personal representative of Ms Murphy is within the term "the complainant" in section 79(2)(a). The respondent's submission involves, I think, essentially that that terms denotes and denotes only the person who signed or otherwise initiated the complaint the subject of the inquiry within, for example, section 69. At least, the submission involves that, whatever "the complainant" means, it does not include the legal personal representative of the person who signed or otherwise initiated the complaint.

If that submission were correct, it would in effect restrict to the original complainant the person who could prevent or bring an inquiry to an end. That construction would involve, in my opinion, significant inconvenience or more in the administration of the Act and would do so for no purpose which would, I believe, further the objectives of the Act.

In my opinion the draftsmen of the Act would have had in mind that, as long experience is shown, there are a number of circumstances in which (I put the matter in broad terms) an original complainant may cease to have the ownership and/or the control of the rights in question in the litigation or of the rights constituted by the litigation commenced for the purpose of enforcement of them.

In the case of an individual, bankruptcy will cause both the rights which the individual has and the control of them to pass to the trustee in bankruptcy. A person who suffers mental illness may have a committee appointed and (depending upon the order made) the title to the rights will remain with the individual but the control of them will pass to the committee. The effect of the appointment of an administrator of a person's property by a court will, depending on the terms of the order made, vest the title and/or the control of the property rights in the administrator.

These examples indicate that there are well recognised circumstances in which the ownership or control of the relevant rights may cease to be exercisable by the original complainant and which circumstances may arise in which it is desirable to discontinue the proceedings.

The rights created by a complaint made under the Act and the nature of them have been considered by the Federal Court of Australia in Stephenson v Human Rights and Equal Opportunity Commission (1996) 68 FCR 290. The Full Court of the Federal Court there held that rights accrued to the complainant upon the making of a complaint and that those rights were not such as abated on the death of the complainant but continued in existence for the benefit, presumably, of her estate. In a case where, as here, substantial actual damage is said to have been caused by the discrimination and where substantial damages have been claimed, presumably the rights arising by virtue of the complaint or existing as the basis of the complaint are such as will pass, on the death of the person concerned, to her legal personal representative.

On the death of a person, her property passes, in the case of a will, to her executor or executrix. Pending the grant of probate, the ownership and control of the property was, under the general law, to an extent in suspense. In New South Wales, as the result of legislation, the title to the property pending grant of probate was vested in the Public Trustee but on grant of probate the title was seen to have been vested in the executor executrix from the date of death. The position in this regard is discussed in the classic texts upon the law of executors. It has considered in a number of decisions of the Supreme Court of New South Wales.

On grant of probate, the full title to the property of the deceased passes to the executor or executrix. Until the executorial duties have been completed the title remains in the executor or executrix and the beneficiaries under the will have, in strict terms, no proprietary interest in any asset of the estate. The beneficiaries have in essence only the right to have the estate properly administered. However, upon the completion of the executorial duties, proprietary interests in particular assets or the residue of the estate as the case may be, vest in the relevant beneficiaries.

Accordingly, by virtue of the will and the grant of probate, the executrix has, until the completion of executorial duties, the full ownership and the control of the assets of the deceased. In the present case Mr Burns, as legal personal representative, would have such title and control in respect of the proprietary rights arising from the discriminatory act and/or the making of the complaint. It is not suggested that, in the present case, the executorial duties such as they may be have been completed. Accordingly, the control of the relevant rights as well as their title is vested in Mr Burns and for the purpose of discharging these duties he has the right to determine what is done in relation to those rights and the litigation commenced for the purpose of enforcing them. He is, in that sense, the successor in title to Ms Murphy. It is not suggested that objection can or should be taken to his decision, as legal personal representative, that the present proceeding not continue.

The draftsman of the Act would no doubt have had in contemplation the possibility that in a particular case the relevant rights might pass to a successor in title or to a person succeeding to the control of them. It is in my opinion proper to assume that in deciding what provisions should be made in the legislation for the conduct of the litigation in question, the draftsmen would have been conscious of the need to accommodate the situation which would arise or be apt to arise in one or other of those events. It is in such a context that the meaning to be given to section 79(2) is to be determined.

I believe that the terms of section 79 make it clear that the legislature paid particular attention to the provision that should be made in relation to the commencement or continuance of an inquiry of the present kind. As Ms Ronalds' submissions have suggested, the holding of an inquiry may have important effects not merely in relation to the person making the complaint but also in relation to the respondent. Thus, to take but one example, in the present case complaints have been made as to the manner of the treatment by the State of pupils in its schools who suffer a disability and, in particular, allegations are made as to the conduct or misconduct of individual teachers. The commencement of proceedings and what has been said during them may cause damage to the persons concerned. The proceedings and the making of allegations take place in public. The situation may be such that justice may require such persons have an opportunity to place formally on record their answer to the complaint and the allegations made. This is a situation not without precedent. In the conventional court proceedings, the court will ordinarily have a degree of control over the circumstances in which a proceeding may be discontinued and, in deciding what is to be done in a particular case, it may have a regard, inter alia to the position in this and other respects, of the injured party. It is to be expected, that in enacting the present Act, the legislature would have in mind the effect which the commencement of proceedings, the hearing and making of allegations, and other steps taken in the proceeding might have upon a respondent. It is to be assumed that consideration was given to the adjustment which should be made between the interests of the respective parties to an inquiry under the Act: between the interests of the complainant in being able to terminate a complaint or an inquiry without unnecessary formality or cost; and the interest of the respondent in being able to record or establish its answer to the allegations made against them.

The terms of section 79 indicate that the legislators made a particular, and, it may be thought, special provision in relation to the commencement or discontinuance of an inquiry. In effect, it gave to "the complainant" an absolute right to prevent an inquiry upon a complaint being held or to cause such an inquiry, if commenced, to be discontinued. Provided the Commission be satisfied that the complainant acted voluntarily otherwise within the terms of section 79(2)(b), the power to hold or continue an inquiry is taken from the Commission: the Commission "must not" hold or continue such an inquiry if "the complainant" notifies it that the complainant "does not wish the inquiry to be held or continue". The Commission has, in that regard, no discretion: in particular, it is given no discretion to enable the inquiry to be held or to be continued so as, for example, to allow the respondent to say what it wishes to say or do what it wishes to do in order to avoid the injustice which otherwise might accrue from unanswered allegations or the like. No doubt the legislation was framed in this way because the Parliament saw the benefit which would accrue to "the complainant" by the peremptory avoidance of the inquiry as outweighing the prejudice which might possibly accrue to the respondent in such circumstances. However this be, it is in my opinion clear that the legislature granted to "the complainant" that right. Comparison may be seen in the power granted to the Disability Discrimination Commissioner under s.71(2) of the Act.

The respondent's argument involves that, while that right was given to the person who initially made the complaint, such a right was not given to or could not be exercised by those who succeeded to that person's rights or to the exercise of them. To grant the right to the one and not to the others appears to serve no purpose and to be capricious. The considerations which would suggest that the right of peremptory termination should be granted to the person originally making the complaint would appear to apply to, for example, her executor or executrix or to the person who, on her subsequent mental disability, was given the right to exercise those rights for her benefit. It is difficult to see why in this regard the power of peremptory termination should be given to the one but not to the others.

I do not think that this issue is determined by the other provisions of the Act. In particular I do not think it is determined by any definition of "the complainant" or by the use of the terms otherwise in the Act.

The term "the complainant" is not defined in the legislation. It includes, of course, the person who initially makes the complaint to the Commission. The question is: is it limited to such a person or does it extend to others who succeed to her rights and/or to the exercise of them.

In my opinion, the terms of the Act indicate that it is for use in a set of circumstances which is narrow or restricted or which is intended to limit the convenient administration of the Act or restrict the facility with which rights accruing under it may be enforced. I believe there are several things which appeal or may be argued in this regard in relation to the rights created by the Act and the enforcement of them. First, it may be argued that the Act grants rights not merely to a person actually discriminated against but to a wider class of persons; second, that (however that be) the power to make a complaint is not limited to a person actually discriminated against but extends to any person "aggrieved by the act" of discrimination; and, third, that the procedure of complaint by which such rights are to be enforced may be initiated not only by a person actually discriminated against or by a person aggrieved by that act of discrimination but also by a person who acts "on behalf of" such a person.

I shall not lengthen the statement of reasons by analysing the Act to the extent that would be necessary to deal fully with these matters. I shall refer and outline the reasoning which I would follow in relation to these matters were I to analyse the matter exhaustively.

First, in relation to the rights which the Act grants and for the enforcement of which it provides, as far as is here relevant, the Act does not, in terms, state what rights arise from discrimination and who are to have those rights. Section 5 defines what is "discrimination" and s.22 makes it "unlawful". If one is to follow the terms of the Act step by step, it is s.69 which, by implication, creates rights, determines who are to have such rights, and provides how they are to be enforced. (I put aside the judicial discussions as to the validity of the Act and the subsequent amendments). By providing that a complaint may be made against "an act that is unlawful" (discrimination), the Act, by implication, indicates that the unlawful act has created rights which, by the complaint procedure, may be enforced by determination creating monetary and other entitlements. But s.69 goes further: it does two further things. It indicates the person that is to have the relevant rights; and it makes provision for the procedural of aspects of the complaint and their enforcement. In respect of procedure, the Act provides for joint action by several persons and for representative actions. That is not of direct significance here but it indicates by whom a procedure may be taken. It allows a complaint to be lodged by "a person aggrieved by the (unlawful) act", that is, the act of discrimination.

It follows also, in my opinion, that the term "complainant" is not limited so as not to include, in the proper context, the successors of the person who physically made the complaint. It is in my opinion clear that a complaint may be made not only by the person who has suffered the damage of discrimination but also other persons. I have referred in this regard to the terms of s.69. I believe that, if the person against whom the discrimination has been made has died and if her right arising from that discrimination does not abate on her death, then a complaint may be made by the legal personal representative or by a person succeeding to her rights. Such a person would be, at the least, "a person aggrieved" within s.69.

If a legal personal representative may in this sense be a complainant, it is difficult to understand why the legislature should not have intended that, on succeeding to rights prior to the initiation of proceedings, the legal personal representative should not, in a proper context, fall within the ambit of the term "complainant". It is difficult to see why, if such a legal personal representative may be able to lay a complaint, such a person should not be intended to succeed to the rights of an original complainant within s.79. As I have suggested, if the term in s.79(2) does not include a successor such as a legal personal representative, there may in particular cases be inconvenience in the administration of the legislation. The respondents' submissions illustrated this. They suggested that, if a legal personal representative may not opt to terminate a proceeding under s.79(2), an inquiry must commence and must continue until it has been "held" and, the suggestion is, it is only after the "holding" of an inquiry within s.103(1) that the proceeding may be brought to an end. The submission involved, in my opinion, that notwithstanding the wishes of Mr Burns the inquiry must continue until all of the evidence appropriate to be received has been received and the finding of orders made within, for example, s.103. This seems not only inconsistent with, as I have suggested it to be, the decision of the legislature to permit a summary termination of an inquiry before its conclusion but also inconvenient in requiring that the formal proceedings be pursued to an end when the substance of the complaint is no longer pressed.

It is of course proper in determining which alternative possible construction of legislation is to be adopted, to have regard to the inconvenience and purpose of particular alternatives. In the present case, considerations such as these suggest that the term "the complainant" and/or the term "the person aggrieved" should be seen as including a person who succeeds to the rights the subject of an inquiry upon the death of the original complainant.

I come now to consider the submission by the respondent that this construction of s.79 is inconsistent with its construction by the Federal Court of Australia. Ms Ronalds submitted that the decision of the Full Court of that Court in Abbott Australasia Pty Ltd v Human Rights Equal Opportunity Commission (1999) (FCA 427) (14 April 1999) establishes that "the complainant" cannot include a person succeeding to rights as a legal personal representative. Ms Ronalds indicated that there was no other case in which this matter has been considered and that the submission turns upon the effect of the decision in the Abbott case.

In my opinion the Abbott case does not so decide. In Abbott, a number of matters were in issue. The only matter which directly is of concern in the present matter is the order made by Einfeld J that a Ms Stephenson "should be regarded as the `complainant' for the purposes of the inquiry": see paragraph 21. In order to understand what was decided, it is necessary to refer briefly to the relevant facts. A Ms Dibble alleged discrimination and herself lodged a complaint under the Act. She died. She had appointed Ms Stephenson as executrix of her will but, at the relevant times, Ms Stephenson had not obtained probate of the will. Notwithstanding this, Ms Stephenson sought to continue the complaint: see paragraph 2. In having been held by the court in a previous proceeding (Stephenson v Human Rights and Equal Opportunity Commission (1996) (68 FCA 290)) that Ms Dibble's rights under the Act survived her death, the matter came for hearing before Commissioner the Honourable Elizabeth Evatt AC. Commissioner Evatt noted that Ms Stephenson "has not taken out probate". She concluded that Ms Stephenson "is not a person aggrieved". She then said:

"Were Ms Stephenson the legally recognised personal representative of Ms Dibble the inquiry could possibly continue without the need to give any further direction concerning parties. Ms Stephenson could continue to represent the interest of the deceased as she did in the Federal Court. It might have been convenient to do as the Federal Court suggested merely to join Ms Stephenson as a party under section 62 not as a complainant but as a party representing the interest of the complainant.

Can this be done even though Ms Stephenson has not established that she is the legal personal representative of the deceased? I think that it can by following the approach of the Federal Court by determining what result best accords with the purpose of the Act as disclosed by its provisions.

In deciding that a complaint survives the death of the complainant the Federal Court emphasised that the Act imposed an obligation to hold an inquiry with only one exception mainly where the complainant expresses the wish that it not continue. Proceeding with the inquiry into the alleged discrimination should as the court underlined be seen as assisting in achieving the objective of the legislation to advance the elimination of discrimination...

In keeping with that approach the Commission should make such direction concerning the joinder of parties of parties under section 62 as will facilitate the holding of the inquiry was that this can be done by ensuring that the Commission has before it the parties most likely to assist it in reaching the determination concerning the alleged acts of discrimination. To achieve this end provision must be made for the interest of the deceased complainant to be represented. Ms Stephenson is willing to represent that interest and she has some claim to do so as the person named in a will which is apparently the will of the deceased. No other person has claimed the representative. It is not necessary in order to achieve the objects and purposes of the Act that the legal personal representative of Ms Dibble be a party though the absence of such a representative may present difficulties in regard to the claim for damages.

...

The Commission therefore joins Ms Stephenson as party to the inquiry to represent the interests of the deceased complainant Ms Dibble".

It appears from this that Ms Stephenson was joined as a party. She did not take part in the proceeding before the Commissioner as a successor to the rights of the deceased Ms Dibble but, the sense, by virtue of the wide power over parties given by the Act.

Ms Stephenson, by a cross application for judicial review, appealed against the Commissioner's decision "to join her as a party and not as a complainant": see paragraph 12.

On appeal to the Federal Court of Australia Einfeld J said in relation to this matter at paragraph 16:

"With respect Commissioner Evatt was not correct in holding the deceased was and remains the only complainant. I can see nothing in the statutory scheme or in the Full Court judgement to suggest that a deceased complainant can be a party to an inquiry".

His Honour, in construing "complainant" saw it as including not merely the person who actually lays the complaint within s.68 but also a person aggrieved by that or by what had occurred but also a person "who prosecutes the complaint and bears the onus of establishing an unlawful act". His Honour said at paragraph 18:

"In my opinion any person who can legitimately pursue the complaint is empowered to seek and mandate the continuance. This person may be anyone who can prove a sufficient connection with the deceased including the executrix named in the deceased will".

When the matter came before the Full Court of the Federal Court on appeal that court considered, in relation to Ms Stephenson, two matters: whether she should have been joined at all; and if she should, whether she should have been treated as the complainant see paragraph 28.

The court held it was proper that she be joined. It saw the reason for this as follows at paragraph 31:

"In the present case, the Commissioner was faced with the situation that the complainant was dead, yet the complaint survived and necessitated investigation. It would obviously assist the Commissioner to ascertain and evaluate the facts if both sides of the issue were actively represented. A person named by the deceased complainant as the executrix of her will and who might therefore reasonably be presumed to have enjoyed her confidence was willing to participate in the inquiry for the purpose of supporting the complaint. There was no other candidate for the role. In the absence of some special problem about that person's participation in the inquiry, it would have been almost irrational to refuse the application for joinder. It was certainly open to Commissioner Evatt to conclude that it was appropriate to join Ms Stephenson as a party "to represent the interests of the deceased complainant Ms Dibble". We see no legal error in her order. Ms Stephenson was joined as a party because of her apparent capacity and willingness to assist the inquiry. One of the factors relevant or appropriate was the fact that she had enjoyed Ms Dibble's confidence; that was not affected by the lack of probate. Except perhaps in relation to her ability to seek an order for damages, the lack of probate was irrelevant".

The Court then considered whether it was proper to treat Ms Stephenson "as a substitute complainant": see paragraph 33.

The Court saw "the complainant" as "a reference to the person who initiated the process by lodging a complaint under s.50": see paragraph 35. The Court pointed out that "the complainant" and "respondent" are distinguished from "any person joined by the Commission as a party". The Court said that "as we see the situation, the `complainant' is the person or persons who lodged the original complaint and the `respondent' is the person who was alleged to have done the act to which the complaint relates. The identity of these people is established by the complaint itself": see paragraph 35.

Upon this reasoning, it is clear that, Ms Stephenson having been added as a party, not as a successor to the rights of Ms Dibble but because she was apt to be able to assist the inquiry, she did not fall within the term "the complainant": see paragraph 35. It is, in my respectful opinion clear that this is right. A person joined merely for this purpose is not a complainant.

However, the Court then recognised the "practical difficulties" that would exist if there were no "complainant" before the inquiry: there would or might arise the difficulties in respect of, for example, the award of damages, to which the Court referred. The Court then added some observations which are here relevant: see paragraph 36. It indicated, in my opinion, its view that a complaint may be amended by the original complainant or by the complainant duly authorised person. One or more additional complaints might be added or one or more existing complaints deleted. Until such a step was taken, the identity of the complainant or complainants was fixed by the terms of the original complaint. But, as the Court observed, where a complainant is dead, practical difficulties arise but that does not mean that a complaint has to be dismissed. The Court distinguished the cases referred to by Einfield J in that regard.

In the present case, Mr Burns is as I have said the legal personal representative of Ms Murphy. He was, in my opinion, "a duly authorised person" within the context to which the Full Court of the Federal Court referred in considering this aspect of the matter in the Abbott case. He was a person who was, for example, appropriate to be added to the inquiry by an appropriate amendment, and to be for this purpose a complainant so as to, for example, allow the assessment of an award of damages and the award of such other relief as might be appropriate to the complaint. A person succeeding to such rights, in the manner contemplated by the Full Court is in my opinion a person entitled to exercise the powers contemplated by s.79(2).

For these reasons, I am of opinion that the decision of the court in Abbott is not inconsistent with the views which I have expressed.

I note that in the present case no formal order was made adding Mr Burns (as a legal personal representative to whom a grant had been made) as a complainant. No exception has been taken to this by the respondent. If it were necessary, such an order could and should be made and, it having been made, Mr Burns' "wishes" could and should be given effect within section 79(2).

For these reasons I am of the opinion that the respondent's first submission should not succeed.

I come now to the respondent's second submission. This is that Ms Roberts could not exercise the power given by section 79(2) and that in the circumstances that power, if available at all, could be exercised only by me as the Commissioner before whom the hearing was taking place.

This submission has become academic because, as I have indicated, it now appears that, because her delegation had expired, Ms Roberts had no power to do what she had purported to do. However, in deference to Ms Ronalds' careful submissions and because the matter may be of assistance and dealing with matters of this kind administratively, I shall express my opinion upon the substance of the submission.

In my opinion, if a Hearing Commissioner has been appointed within section 77(1) and if the President has directed that, in respect of a designated matter, the powers of the Commission to hold inquiries under the Act "be exercised by a single member of the Commission", namely that Commissioner, then if nothing more be done, the powers of the Commission under the Act in respect of the particular inquiry are exercisable by and by only that Commissioner.

The main provisions in respect of inquiries are contained in Division 3 of Part 4 of the Act. The Act appears to contemplate, in principle, that the Commission in the holding of an inquiry will do what is involved in such a manner that the members of the Commission will participate in it. Thus s.77(1) authorises a Minister to appoint a person or persons "to participate... in the performance of the function of a Commissioner". Such a person participates "in the holding of an inquiry... as if the person were a member of the Commission...": section 77(2).

Section 80 then provides that, as far as is here relevant, "the powers of the Commission to hold inquiries... may, if the President so directs, be exercised by a single member of the Commission who is a legally qualified person...": section 80(1). This in effect authorises inter alia a Hearing Commissioner appointed under s.77(1) to act as such but in doing so, he exercises the powers of the Commission "to hold inquiries" and, presumably, to hold the particular inquiry in question.

The Act does not say in terms that when doing so the Hearing Commissioner exercises the powers of the Commission exclusively and to the exclusion of the exercise of them or any of them by the Commission itself. However, this in my opinion should be seen as the effect of it having regard to the nature of an inquiry as quasi-judicial inquiry and the provisions of it: see s.80(1).

The inquiry though of an administrative nature, involves the exercise of judicial functions and the imposition of judicial duties of a quasi judicial nature upon a Hearing Commissioner. Unless there should be relocation of the authority of the Hearing Commissioner, it would not appear to be open to the Commission to exercise, for example, particular quasi-judicial functions which it is, as part of the hearing of the complaint, for the Hearing Commissioner to exercise. Those functions, once the inquiry is commenced, are in my opinion to be performed by the Hearing Commissioner alone.

Accordingly, subject to what I shall say, where an Inquiry has commenced, the power of discontinuance and the making of such orders or the giving of such directions as are involved is for the Hearing Commissioner alone. Thus, if the wish for discontinuance expressed by the complainant should involve a consideration of conduct such as is proscribed within s.79(2), it will be for the Hearing Commissioner to determine whether the facts giving rise to the proscription exists.

In the present case, my authority as Hearing Commissioner not having been revoked, it was for me to determine whether the prescribed circumstances within s.79(2) existed and consequent upon the decision inter alia of that matter to determine whether or not the inquiry should continue. Accordingly, what was done by the Commission in a purported discontinuance of the inquiry was not a valid act of the Commission.

As I have indicated, it has not been suggested that in the present case the circumstances proscribed by s.79(2) existed. It is, as I understand the submissions, accepted that they did not. In the circumstances of and in so far as the matter be now before me, I would decide or determine or accept (whatever be the correct description for what is to be done) that the Hearing is now to be discontinued.

Before parting with this matter it is I believe proper to refer to two matters. First, as I have indicated, what is here in question is the exercise of administrative powers. What a Hearing Commissioner does may involve you in the exercise of quasi-judicial powers and accordingly impose upon him or obligations of a quasi-judicial nature. But what he or she does is different from what is done by a court in the exercise of judicial powers. This in my opinion is relevant in deciding what the effect of operation of s.79. Were the relevant inquiry to be conducted by a court the proceeding before the court would require termination and it would be necessary or at least appropriate for the court, in circumstances such as are referred to in s.79, to make an order or give a direction bringing the proceeding to an end by way of discontinuance.

It is not clear whether this is so where what is involved is the exercise, albeit the subject of quasi-judicial obligations, of an administrative power by an administrative body. It is at least arguable that when the circumstances for discontinuance within s.79 have arisen, the effect of the statute is of itself to prevent the continuation of the inquiry and to effect the discontinuance of the proceeding. If this be so then no act, order or direction analogous to that of the court is necessary in order that the result be achieved that the proceeding is discontinued. On this view, once the necessary facts appear and once the Commission is satisfied within s.79(2) the discontinuance of the hearing may arguably result not from any act order or direction of the Commission or the Hearing Commissioner but by virtue of the terms in the statute alone. If this be so, then questions do not arise as to the validity of what was done by the Commission in this case. In the circumstances, in view of the conclusions of which I have arrived, it is not necessary to express a concluded opinion in this regard.

Second, it is proper to refer to the reason why the respondent has pursued the submissions it has made in this matter. The respondent has taken the view that the making of the allegations and the evidence which has been given by and on behalf of Ms Murphy and her son have cast aspersions upon the State, the educational system and the particular teachers involved. The view has, as I understand what has been put, been taken that unless the record of the present matter include the additional material which the respondent has sought to tender an injustice will be done.

There is in my opinion force in Ms Ronalds' submission. It is not necessary for me to determine whether what has been done will in fact produce such an injustice: that would require a final determination of all of the evidence. But to leave the matter as it stands would, in my respectful opinion, be unsatisfactory and apt to cause injustice to persons of the respondent on the record.

Mr Ronalds has formulated the material which, if the proceeding be not already discontinued, the respondent would wish to place before me as part of the record of the hearing. That material has been identified and will be placed with the file. I have indicated my view in the transcript of what has occurred upon the present application and of the desirability that the respondent be able to record answers to what has been alleged. The material is, as I have said, upon the file, the result is that, should the matter be considered subsequently for any reason, there will be as part of this file material indicating what the respondent would have wished to have placed before the inquiry had the inquiry not been discontinued. There will of course be no formal finding by me as to the acceptability of or the merits of what has been put in support of the complaint or of the material provided by the respondent. I am not determining whether the complaint has or has not been substantiated. But what I have direct to be done, will, I believe, remove or at least mitigate such injustice as might otherwise occur.

In these circumstances, if and in so far as an order or direction is to be made, I order and direct that the inquiry be discontinued.

I certify that this and the preceding twenty (20) pages are a true copy of the Reasons for Decision of the Honourable Dennis Mahoney QC, Hearing Commissioner.

Hearing Solicitor:

Date: 11 July 2000