Smith v State of South Australia & Anor [2003] HCATrans 301 (14 August 2003)

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Smith v State of South Australia & Anor [2003] HCATrans 301 (14 August 2003)

Last Updated: 27 August 2003

[2003] HCATrans 301

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A319 of 2002

B e t w e e n -

BRIAN SMITH

Applicant

and

THE STATE OF SOUTH AUSTRALIA

First Respondent

HUMAN RIGHTS & EQUAL OPPORTUNITY COMMISSION

Second Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 14 AUGUST 2003, AT 2.38 PM

Copyright in the High Court of Australia

MR B. SMITH appeared in person.

MR M.D. WALTER: Your Honours, I appear for the first respondent. (instructed by Crown Solicitor for the State of South Australia)

MR M.B. MANETTA: If your Honours please, I appear for the second respondent. (instructed by Australian Government Solicitor)

CALLINAN J: Yes, Mr Smith, proceed.

MR SMITH: Your Honours, the Full Court has based its decision on a - - -

CALLINAN J: You have to come up to the microphone, Mr Smith, so that what you say can be recorded.

MR SMITH: Thank you, sir. I did not realise that. The Full Court has based its decision on the tort of negligence which is on AB 25 in the application book. They failed to take into account the applicant’s claim which was for a breach of statutory duty and ground 1, the Full Court stated at AB 26 lines 10 to 12 – do you want me to read that, sir, or do you want to read it?

CALLINAN J: No, we can look at that ourselves.

MR SMITH: Okay.

CALLINAN J: Yes, you proceed.

MR SMITH: They failed to take into account that the written complaint lodged by Ms K on that date, 11 August 1993, was for discrimination and victimisation only. This was verified under oath by a Mr Cheok, a solicitor of the Commission at that time. The complaint of sexual harassment was added five weeks later on 17 September 1993 after Mr Cheok read a letter from a Ms Kath Kelsey of the WWC. Ms Kelsey was not an agreed party as set out in section 50(1)(a) of the Sex Discrimination Act (Cth).

Section 52 of the Sex Discrimination Act, which is at AB 29, your Honours, was inserted by the legislators solely for the protection of respondents to a claim. The obligations imposed on the Commission by this section are at lines 6 and 7, and lines 10 to 14, your Honour.

CALLINAN J: Yes, we have read those.

MR SMITH: And lines 21 to 24 starting at (b).

CALLINAN J: Yes.

MR SMITH: Ground 2, section 52 placed the investigator, Ms Melvin, under a statutory duty to investigate the claim in a professional manner. By refusing to look at documentary evidence in regards to the dismissal of Ms K, she was in no position to pass on to the Commissioner any information which may have cleared the applicant of a breach of Part II of the Act. The Full Court stated at AB 30, lines 22 to 25, your Honour.

CALLINAN J: Yes.

MR SMITH: The Full Court was in error by not applying the statute and the Full Court was in error by treating this as a negligence claim, which it was not. Ground 3, your Honour, section 52 placed Ms Melvin under a statutory duty to interview any witness who could verify or deny the version of events complained of, which she failed to do. The Full Court stated at AB 31, lines 9 to 12.

CALLINAN J: Yes.

MR SMITH: The Full Court was in error by not applying the statute and the Full Court was in error by treating this as a negligence claim. Ground 4, your Honour - - -

CALLINAN J: Yes.

MR SMITH: - - - section 52, only authorised Ms Melvin to inquire into the act complained of. It did not authorise her to work beyond power by asking the applicant for an arbitrary list of ex-employees going back as far as 12 years. The Full Court stated at AB 31, lines 25 and 26. The Full Court was in error by not applying the statute.

Ground 7, AB 45, your Honour, concerns altering of statements, starting with interview one, line 22 to 24. At a later date Ms Melvin typed up notes of this interview at lines 35 to 36, and underlined. These alterations changed what Ms K had told her. They made it appear as if Ms K had not told this customer that she had been retrenched, sacked or dismissed.

Going on to interview two at AB 46, your Honour, at the top of the page. In line 4, and underlined, the applicant denied this accusation during his interview on 10 January 1994 at line 8. At a later date Ms Melvin typed up and changed what the applicant had told her on 10 January 1994, at line 10, underlined. Instead of interviewing Lyn to find out the truth of this accusation, or looking at the applicant’s employment records, Ms Melvin
altered what the applicant had told her. She in fact made it appear as if the applicant was confirming what Ms K had said.

Going on to interview three, your Honour, at the centre of the page, line 20 to 21, the underlined portion. She interviewed a Ms Hardman on 12 January 1994. She wrote down what Ms Hardman had said, line 26, underlined, and the rest of it. At a later date, Ms Melvin typed up and changed what Ms Hardman had told her – lines 31 to 32, your Honour, and underlined.

These were just three of 29 changes made by Ms Melvin. They were all slanted in favour of Ms K. They lent substance to Ms K’s claim that she had been victimised by being dismissed. At AB 32, line 36 and 37, the Full Court stated. They failed to take into account the discrimination and victimisation part of the claim, whereby Ms K claims she was victimised by being dismissed.

Ground 10 concerns the validity of the State/Federal agreement. The Full Court stated at AB 33, lines 32 and 33, your Honour. This statement denies the applicant any hope of an appeal of this decision, because nobody can know on what criteria the Full Court has based their decision. The Full Court was in error by failing to adjudicate on the points raised, namely, No 1, the ministerial responsibility in regards to the Equal Opportunity Commission; the Attorney-General, as the upholder of public rights of South Australia; and, No 3, the authority Attorney-General (NSW); Ex rel Clark v Publishing and Broadcasting Ltd.

The High Court needs to hear the applicant’s argument, because it involves a breach of the South Australian Constitution. The Full Court made nine errors of law. This must be of grave concern to the High Court under section 35A of the Judiciary Act 1903. The fact that a public servant of South Australia altered what she was told in order to slant a case in favour of a complainant has to be of grave concern to the High Court and the public at large. Ms Melvin committed perjury under oath by stating that she had not added anything that was not said by Ms K, Ms Hardman or the applicant. In the interests of justice, this case must be heard before the Full Bench of the High Court. That is all, your Honour.

CALLINAN J: Thank you, Mr Smith. We need not hear from you, gentlemen.

The applicant’s principal, but not his only submission, in support of his application for special leave is that the Full Court erred in failing to deal with a claim by him of breach of statutory duty and disregarded statutory provisions imposing duties of investigation and care upon persons acting under them.

The Full Court did, however, give consideration to the relevant enactments. In any event, we have considered for ourselves those provisions to which the applicant has referred and would reach the same conclusion as the Full Court that his appeal to that court should be dismissed. Any appeal to this Court would have no prospects of success. The application must be dismissed. Do you ask for costs?

MR WALTER: Your Honour, we have not asked for costs in this matter.

MR MANETTA: Nor we.

CALLINAN J: Yes, well that will be the order of the Court. Application dismissed. Thank you.

AT 2.52 PM THE MATTER WAS CONCLUDED