INDUSTRIAL COURT OF QUEENSLAND

CITATION:	Michalakellis v LMM Holdings Pty Ltd & Ors [2024] ICQ 022
	
PARTIES:	
	Michalakellis, Dimitri
(Appellant)

v

LMM Holdings Pty Ltd
(First Respondent)

and

Reesby, Grant
(Second Respondent)

and

Gibson, Sam
(Third Respondent)
	
CASE NO:
	C/2023/37
	
PROCEEDING:
	Appeal
	
DELIVERED ON:
	2 December 2024	
HEARING DATES:
	28 November 2023
	
MEMBER:	O'Connor VP
	
HEARD AT:	Brisbane
	
ORDERS: 	1.	The appeal is dismissed.
2.	By 4.00 pm on Friday 20 December 2024 the Respondents shall file and serve written submissions on costs.
3.	By 4.00 pm on Friday 17 January 2025 the Appellant shall file and serve written submissions on costs in reply to the respondents' submissions.
4.	Each party may file and serve an application in existing proceedings to make oral submissions on costs by 4.00 pm on Friday 24 January 2025.
5.	In the absence of any application to make oral submissions being filed by 4.00 pm on Friday 24 January 2025 the question of costs will be dealt with on the papers without oral submissions.

	

CATCHWORDS:	INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - HUMAN RIGHTS - DISCRIMINATION LEGISLATION - where the appellant filed a complaint in the then Anti‑Discrimination Commission Queensland alleging contraventions of the Anti-Discrimination Act 1991 (Qld) (the AD Act) - where the Queensland Industrial Relations Commission dismissed the complaint - where the appellant filed appeal in the Industrial Court of Queensland - where appellant seeking six grounds of appeal - where appellant claims decision should be set aside by reason of delay between hearing the proceeding which ended on 3 September 2021 and the delivery of the decision on 30 August 2023 - where appellant alleges industrial commissioner plagiarised the respondents' post-hearing submissions - where appellant alleges industrial commissioner erred by prohibiting him from amending his statement of facts and contentions and for amending his complaint to add a sex discrimination claim - where appellant alleges industrial commissioner erred at law by relying on irrelevant material and reaching a mistaken conclusion in making credibility determinations against him - where appellant alleges industrial commissioner erred at law by dismissing the appellant's complaint based on the second respondent's perception that he was homosexual when the correct causation test is to apply an objective one - where appellant alleged industrial commissioner erred at law by inappropriately utilising hypothetical comparators - whether grounds of appeal allege error of law or excess, or want, of jurisdiction pursuant to s 557 of the Industrial Relations Act 2016 - whether errors of law or errors of fact - whether appellant established treatment by respondents unlawful discrimination or victimisation under the AD Act
	
LEGISLATION:	Anti-Discrimination Act 1991 (Qld) s 7, s 8, s 9, s 10, s 15, s 118, s 129, s 130, s 166, s 178
Industrial Relations Act 2016, s 557, s 565

CASES:	Abram v Bank of New Zealand [1996] ATPR 41-507
ACCC v Pratt (2009) 175 FCR 558
Ainger v Coffs Harbour City Council [2005] NSWCA 424
Amaca Pty Ltd v Werfel [2020] SASCFC 125; 138 SASR 295
Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Atanaskovic Hartnell Corporate Services Pty Limited v Kelly [2024] FCAFC 137
Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139
Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214
Bhagwanani v Martin [1999] SASC 406;  (1999) 204 LSJS 449
Bond v State of Queensland & Anor [2019] QCATA 60
Carlton v Simon Blackwood (Workers' Compensation Regulator) [2017] ICQ 001
Clark v New South Wales (No 2) [2006] NSWSC 914
Cojocaru v British Columbia Women's Hospital and Health Centre [2013] SCC 30; (2013) 2 SCR 357
Commonwealth v Pharmacy Guild of Australia (1989) 91 ALR 65
Crinion & Anor v IG Markets Ltd [2013] EWCA Civ 587
Curran v yourtown & Anor [2019] QIRC 059
DL v R [2018] HCA 26; 266 CLR 1
Expectation Pty Ltd v PRD Realty Pty Ltd (2004) 140 FCR 17
EY v The Store [2021] ICQ 6
Fair Work Ombudsman v Construction, Forestry, Maritime, Mining and Energy Union (The Yatala Labour Prison Case) (No 2) [2023] FCA 429
Garay v The Queen (No 3) [2023] ACTCA 2
Grace Shipping v Sharp & Co [1987] 1 Lloyd's Rep 207
Hadid v Redpath [2001] NSWCA 416
Hamod v State of New South Wales & Anor [2011] NSWCA 375
House v The King (1936) 55 CLR 499
Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd (2008) 167 FCR 314; [2008] FCA 369
In Flightdeck Geelong Pty Ltd v All Options Pty Ltd [2020] FCAFC 138; (2020) 280 FCR 479
JCN v James Cook University & Ors  [2023] QCAT 538
Johnson v Johnson [2000] HCA 48; 201 CLR 488
Kenny v Ritter [2009] SASC 139
King v Australian Securities and Investments Commission [2018] QCA 352
Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666
Li v Attorney General for New South Wales [2019] NSWCA 95; 99 NSWLR 630
 Loftus v Australia and New Zealand Banking Group Ltd [No 2] [2016] VSCA 308
Malouf v Malouf (2006) 65 NSWLR 449
Michalakellis v LMM Holdings Pty Ltd & Ors (No. 4) [2023] QIRC 248
Michalakellis v LMM Holdings Pty Ltd (No.3) [2021] QIRC 289
Microsoft Corporation v CPL Notting Hill Pty Ltd [2024] FCAFC 20
Mistral International Pty Ltd v Polstead Pty Ltd [2002] NSWCA 321
MM v State of Queensland [2014] QCAT 478
Monie v Commonwealth of Australia [2005] NSWCA 25; (2005) 63 NSWLR 729
NAIS & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor (2005) 228 CLR 470
Porter v The Queen [2024] ACTCA 9; (2024) 21 ACTLR 122
Purvis v State of New South Wales (Department of Education and Training) & Anor (2003) 217 CLR 92
Rajski v Scitec Corporation Pty Ltd, unreported, NSWCA, 16 July 1986
Re F: Litigants in Person Guidelines [2001] FamCA 348
Richards v Morgan (1863) 4 B & S 641
Rintoul v State of Queensland & Ors [2016] QCAT 211
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
Tattsbet Limited v Morrow [2015] FCAFC 62
Wren v Workers' Compensation Regulator [2024] ICQ 4

APPEARANCES:	Mr K. Bond, Solicitor for the Appellant.

Mr C. Massy of Counsel, instructed by Franklin Athanasellis Cullen Lawyers for the Respondents.	

Reasons for Decision

[1]	This is an appeal by Mr Dimitri Michalakellis ('the Appellant') against a decision of the Queensland Industrial Relations Commission ('the Commission') dismissing his discrimination and victimisation complaint made under the Anti‑Discrimination Act 1991 (Qld) ('the AD Act').

[2]	The Respondents are LMM Holdings Pty Ltd, trading as Brisbane BMW ('the First Respondent'), Mr Grant Reesby ('the Second Respondent') and Mr Sam Gibson ('the Third Respondent') referred to as ('the Respondents').

The Appeal in the Industrial Court

[3]	On 20 September 2023 the Appellant filed an appeal in the Industrial Court of Queensland ('the Court') seeking that the Primary Decision of the Commission be set aside and the matter be remitted for hearing before a different Industrial Commissioner.  The Appellant also seeks a stay of any further proceedings before the Industrial Commissioner pending the outcome of this appeal.

Grounds of Appeal

[4]	The Appellant filed a notice of appeal on 20 September 2023 seeking the following six Grounds of Review:

	First Ground of Review

	1.	The decision is rendered unsafe, and should be set aside accordingly, by reason of the delay between the hearing of the proceeding that ended on 3 September 2021, and the delivery of the decision on 30 August 2023 - a period just short of 2-years, particularly given the Commissioner's credibility determinations in favour of the Respondents' witnesses, and against the Appellant, where such conclusions on the credibility of the evidence given at hearing needed to be made promptly.

	Second Ground of Review

	2.	The Commissioner erred at law at [37]-[44] by prohibiting him from amending his Statement of Facts and Contentions to conform to the record to include a Sexual Harassment claim against the Second Respondent and, vicariously, the First Respondent.

	Third Ground of Review

	3.	The Commissioner relied on irrelevant material, reached a mistaken conclusion, and erred at law by making credibility determinations against him because, after the Commission directed him to amend his Statement of Facts and Contentions to include better and further particulars, the self‑represented Appellant included in his amended document facts and contentions that were not included in the document he was ordered to amend.

	Fourth Ground of Review

	4.	The Commissioner relied on irrelevant material, reached a mistaken conclusion, and erred at law by making credibility determinations against him because the amended Statement of Facts and Contentions that he filed at the direction of the Commission included better and further particulars that were not included in an application for an order to stop bullying that his lawyers filed on his behalf in the Fair Work Commission, and a complaint that he filed in the Anti-Discrimination Commission.

	Fifth Ground of Review

	5.	The Commissioner erred at law by, at [69], dismissing his complaint based on the Second Respondent's perception that he was homosexual on the Commissioner's conclusion that the Second Respondent subjectively did not perceive that the Appellant was homosexual when the correct causation test is an objective one.

	Sixth Ground of Review

	6.	The Commissioner erred at law by inappropriately utilising hypothetical comparators in determining that the Appellant was not treated less favourably when the Appellant provided her with suitable actual comparators who were treated more favourably than the Appellant.

[5]	At the hearing of this appeal, Mr Bond, the representative of the Appellant adopted an approach which did not necessarily reflect the notice of appeal.  Mr Massy, Counsel for the Respondents indicated that the Respondents had no objection to adopting the grounds of appeal as expressed in the Appellant's outline of submissions.  The Court has proceeded on that basis. 

[6]	An appeal from the Commission to the Court is sought pursuant to s 557 of the Industrial Relations Act 2016 (Qld) ('the IR Act').  Section 557(1) of the IR Act confers on a person aggrieved by a decision of the Commission a right of appeal to this Court on the grounds of error of law or excess, or want, of jurisdiction.  Section 557(2) of the IR Act provides that a person aggrieved by a decision of the Commission may appeal, with the court's leave, on a ground other than those grounds referred to in s 557(1) of the IR Act. 

[7]	In this matter no leave has been sought therefore the appeal is limited to grounds alleging an error of law or excess, or want, of jurisdiction. 

Background

[8]	The Industrial Commissioner outlined the relevant factual background in paragraphs [4]‑[30] of her decision.  I do not understand there to be any dispute as to the accuracy of those general facts.

[9]	In summary, around December 2015 the Appellant commenced providing spray painting services to the First Respondent as an independent contractor until he ceased providing services around 13 April 2018.  The Second Respondent was the Pre‑Delivery Manager for the First Respondent.  The majority of the Appellant's work for the First Respondent was undertaken in the Pre-Delivery Yard.  The Third Respondent was the direct Manager of the Second Respondent.

[10]	The Appellant made a complaint to the Anti-Discrimination Commission Queensland (as it then was) in June 2018.  The complaint was referred to the Commission on 4 October 2018 pursuant to s 166(1)(a) of the AD Act.

[11]	The Appellant's initial statement of facts and contentions ('SOFC') alleged he was subjected to bullying by the Second Respondent in many forms, including "derogatory comments" based on his presumed sexuality and his race which led to "further discrimination from other employees of the first respondent including the third respondent".

[12]	The Appellant also raised a complaint that he was victimised by the Second and Third Respondents.

[13]	On 16 June 2021, the Appellant filed an amended SOFC with new complaints about acts that were alleged to have occurred prior to the limitation date for the complaint, and a new claim of sex discrimination. 

[14]	An application was heard by the Commission and the Appellant was given leave to amend the SOFC to include new matters in the complaint. 

[15]	The matter before the Commission was heard over five days, commencing on 30 August 2021.  Directions were made for the filing of closing submissions on 17 September 2021.  The Appellant's closing submissions were filed on 4 November 2021.  The Respondents' submissions were filed on 24 December 2021.  The Appellant's submissions in reply were filed on 24 February 2022. 

[16]	In order to succeed, the Appellant had to establish, to the requisite standard that the Respondents had contravened the AD Act. 

[17]	The Industrial Commissioner dismissed the Appellant's complaint the Respondents had discriminated against him because of his sex, race, or because he was presumed to be homosexual.  The Commission found the Respondents did not subject the Appellant to victimisation and otherwise declined to hear the new complaints of sexual harassment, direct discrimination, and victimisation, raised by the Appellant in his closing submissions.

The statutory provisions

[18]	Part 2 of Chapter 2 of the AD Act identifies 'Prohibited grounds of discrimination'.  Section 7 prohibits discrimination on the basis of various defined 'attributes':

7	Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes -

(a)	sex;
(b)	relationship status;
(c)	pregnancy;
(d)	parental status;
(e)	breastfeeding;
(f)	age;
(g)	race;
(h)	impairment;
(i)	religious belief or religious activity;
(j)	political belief or activity;
(k)	trade union activity;
(l)	lawful sexual activity;
(m)	gender identity;
(n)	sexuality;
(o)	family responsibilities;
(p)	association with, or relation to, a person identified on the basis of any of the above attributes.

[19]	Section 8 of the AD Act provides the meaning of discrimination:

Discrimination on the basis of an attribute includes direct and indirect discrimination on the basis of - 

(a)	a characteristic that a person with any of the attributes generally has; or
(b)	a characteristic that is often imputed to a person with any of the attributes; or
(c)	an attribute that person is presumed to have, or to have had at anytime, by the person discriminating; or 
(d)	an attribute that a person had, even if the person did not have it at the time of the discrimination.

[20]	Part 3 of Chapter 2 of the AD Act identifies 'Prohibited types of discrimination'.  Section 9 prohibits 'direct' and 'indirect' discrimination, while s 10 defines the meaning of direct discrimination:

10	Meaning of direct discrimination

(1)	Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

Example -

R refuses to rent a flat to C because -

• 	C is English and R doesn't like English people
•	C's friend, B, is English and R doesn't like English people
• 	R believes that English people are unreliable tenants.

In each case, R discriminates against C, whether or not R's belief about C's or B's nationality, or the characteristics of people of that nationality, is correct.

(2)	It is not necessary that the person who discriminates considers the treatment is less favourable.

(3)	The person's motive for discriminating is irrelevant.

Example -

R refuses to employ C, who is Chinese, not because R dislikes Chinese people, but because R knows that C would be treated badly by other staff, some of whom are prejudiced against Asian people.  R's conduct amounts to discrimination against C.

(4)	If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.

(5)	In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.

[21]	Part 4 of Chapter 2 of the AD Act identifies 'Areas of activity in which discrimination is prohibited'.  Division 2 of Part 4 deals with 'Work and work-related areas'.   Section 15(1) identifies types of discrimination in the area of 'work': 

(1)	A person must not discriminate -
(a)	in any variation of the terms of work; or
(b)	in denying or limiting access to opportunities for promotion, transfer, training or other benefit to a worker; or
(c)	in dismissing a worker; or
(d)	by denying access to a guidance program, an apprenticeship training program or other occupational training or retraining program; or
(e)	in developing the scope or range of such a program; or
(f)	by treating a worker unfavourably in any way in connection with work.

[22]	Victimisation is prohibited pursuant to s 129 of the AD Act.  Victimisation is defined in s 130 of the AD Act as follows:

(1)	"Victimisation" happens if a person (the "respondent") does an act, or threatens to do an act, to the detriment of another person (the "complainant") -

(a)	because the complainant, or a person associated with, or related to, the complainant -
(i)	refused to do an act that would amount to a contravention of the Act; or
(ii)	in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
(iii)	 is, has been, or intends to be, involved in a proceeding under the Act against any person; or
(b)	because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a)(i), (ii) or (iii).

(2)	In this section, a reference to involvement in a proceeding under the Act includes -

(a)	making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
(b)	involvement in a prosecution for an offence against the Act; and
(c)	supplying information and producing documents to a person who is performing a function under the Act; and
(d)	appearing as a witness in a proceeding under the Act.

	Ground One
[23]	Notwithstanding the heading in the Appellant's written submissions, this ground of appeal raises two distinct challenges. 

[24]	The first relates to the issue of delay, which, it is contended, rendered the decision unsafe and should be set aside. 

[25]	The second issue advanced by the Appellant relates to an assertion that the Industrial Commissioner failed to assess the evidence independently but rather rendered a decision that "copied" or "plagiarised" the submissions of the Respondents.

[26]	Let me first turn to the issue of delay.

Delay

[27]	The requirement for a Commission to deliver adequate reasons for decision is not in dispute.  There is an obligation upon the Commission to explain the determination and conclusions made.

[28]	Nor is it in dispute between the parties that there was a considerable delay between the conclusion of the hearing on 3 September 2021 and the giving of the final decision on 30 August 2023, a period just short of two years.  Although the Respondents submit that the delay was approximately sixteen and a-half months from the final submissions until release of the judgment.

[29]	It is well accepted that extensive delays may raise concerns about an accurate recollection of the proceedings or about the demeanour of witnesses, however there needs to be an error in the decision-making process in order that a ground of appeal may arise.

[30]	Delay alone does not constitute a ground of appeal.  Delay does not found a proper ground of appeal unless the appellate court believes the quality of the judgment has been affected.

[31]	In Monie v Commonwealth of Australia, Hunt A-JA wrote:

44	It must, however, be emphasised that delay between taking evidence and the delivery of judgment does not, in itself, justify upholding an appeal against the judgment given.  Error must still be established on the part of the trial judge warranting either a reversal of the judgment or the grant of a new trial.  Delay may assist an appellant in establishing such error because, as the approach identified by the Full Federal Court demonstrates, the inference will more readily be drawn that a trial judge's failure to deal in a significantly delayed judgment with particular matters on which the appellant relied in contradiction of the findings made in that judgment resulted from those matters being overlooked by the judge - either because of the time which has passed or  because of the pressure on the judge in the end to complete the judgment.  In Boodhoo v Attorney General of Trinidad and Tobago [2004] 1 WLR 1689 at 1694 [11], the Privy Council acknowledged that the delay in giving the decision may adversely affect its quality to such an extent that it cannot be allowed to stand.  That is what must be shown in order to demonstrate error resulting from delay which warrants either a reversal or a new trial.  That is what I understand the judgment in Expectation Pty Ltd v PRD Realty Pty Ltd (at 32 [69] et seq) to be saying.

[32]	In NAIS & Ors v Minister for Immigration & Multicultural & Indigenous Affairs & Anor,  Gleeson CJ referred to Monie and said:

… A Court of appeal, reviewing a decision of a primary judge, may conclude that delay in giving judgment has contributed to error, or made a decision unsafe.  Again, the ground of appellate intervention is the error, or the infirmity of the decision, not the delay itself.

[33]	The Appellant relied on the Full Court of the Federal Court of Australia decision in Expectation Pty Ltd v PRD Realty Pty Ltd, and the principles that guide appellate judges in determining whether excessive delay by a trial judge in the delivery of judgment has rendered the judgment unsafe.  The Appellant further relied on Tattsbet Limited v Morrow, to support its submission that excessive delay in the delivery of judgment may render the judgment unsafe.

[34]	What was submitted by the Appellant was that it was a combination of the passage of time, combined with the fact that 'she didn't do anything to indicate that this was her decision' which rendered the decision unsafe.

[35]	For its part, the Respondents submit that both Tattsbet and Expectation make clear that delay must impact the decision-making process so as to render the judgment unsafe.  On the Respondents argument, the Appellant has not referred to any actual evidence or issues the Industrial Commissioner failed to consider.

[36]	The Appellant submits that there was a period of 'operative delay' as expressed in Microsoft Corporation v CPL Notting Hill Pty Ltd.  In that case, the delay in rendering a judgment extended over of period of some three years.  Nicholas J said:

A delay of that magnitude allows an appellate court more readily to infer that evidence or submissions not specifically addressed in the primary judge's reasons were overlooked, or that the advantages that a trial judge ordinarily possesses were lost.  Delay in the delivery of judgment must, if it is to justify the setting aside of the judgment on appeal, involve "operative" delay in the sense that the delay must have affected the quality of the decision-making process assessed by reference to the issues, the evidence and the judge's reasons. (emphasis added)

[37]	The Appellant places emphasis on paragraph [79] of the reasons to support his contention that the Industrial Commissioner's observations as to the demeanour of the Appellant as expressed in that paragraph, rendered unsafe the rejection of his evidence by virtue of the fact that the operative delay between the hearing of the evidence and the delivery of the judgment.  Paragraph [79] of the Primary Decision provides:

[79]	The Complainant gave oral evidence at the hearing.  As I observed the Complainant give evidence, it was clear that he felt strongly that he had been treated poorly by the Respondents.  Whilst I did not consider the Complainant to be dishonest in his evidence, it became apparent throughout his testimony that he was at pains to paint a picture of the Second Respondent's actions as being discriminatory even when the facts did not support this conclusion.  This led on occasion to the Complainant embellishing or overstating incidents involving the Second Respondent.

[38]	The Appellant's focus only on the above paragraph invested it with an undeserved significance having regard to the entirety and context of the balance of the reasons of the Industrial Commissioner.  Paragraph [79] needs to be read in the context of the balance of the decision, in particular paragraphs [80]-[88].

[39]	The Commissioner gave detailed reasons for the conclusions which she reached.  A careful reading of those reasons does not, in my view, support the assertion that '[i]t is readily apparent that the Commissioner, a well-regarded and generally conscientious Commissioner, felt pressured to deliver a decision because of the extraordinary amount of time that had passed from the giving of evidence and when she sat down to write the decision'.  The sole basis relied upon by the Appellant is the length of time it took for the decision to be delivered.  The Appellant has failed to articulate an argument that the Industrial Commissioner was subjected to or felt some unusual pressure to complete and publish her decision.  I do not accept that there was any adverse impact upon the decision consequent upon the delay or any undue pressure upon the Industrial Commissioner to deliver judgment.  Ground one as expressed by the Appellant amounts to no more than a complaint that the mere fact that there was a delay in rendering the judgment amounts to appealable error.

[40]	No error has been demonstrated.

	Plagiarism

[41]	The Appellant contends that rather than undertake an independent and comprehensive assessment of the evidence, the Industrial Commissioner instead relied on the submissions of the Respondents with little reference to the submissions of the Appellant.  In doing so, and coupled with the delay, the decision of the Industrial Commissioner is rendered unsafe and ought to be set aside.

[42]	During oral submissions, the Appellant argued:

So, no, I submit to you that the Commissioner's decision was written almost entirely by the respondents.  Mr Michalakellis can't have any faith that the Commissioner did any sort of independent evaluation of the evidence; any independent analysis of the law; any independent setting forth of the factual background.  Her decision was the respondents' submissions.  And she didn't include every bit of it, but what she did include was what the respondents had written in their submissions.

[43]	In the written submissions filed by the Respondents, they take issue with the Appellant's assertion that the Primary Decision does not make any reference to the Appellant's submissions.  The court's attention was drawn by the Respondents to paragraphs 87, 91, 109 and 133 of the Primary Decision which makes explicit reference to the Appellant's submissions about various matters, and these are repeated throughout the Primary Decision.

[44]	Moreover, the Respondents submit that the allegations about similarity between some passages of the judgment and the submissions should be rejected.  Instead, the Respondents contend that reference is only made to sentences or parts of sentences which are either:

(a)	facts that are not in dispute or challenged;
(b)	facts which do not go to findings critical to dismissing the complaint;
(c)	legal principles which are not challenged;
(d)	matters that appear in the appellant's own evidence and submissions; and
(e)	footnoted in the decision with reference to transcript and documentary evidence, or otherwise dealt with in the decision.

[45]	In support of his submissions, the Appellant relies on Crinion & Anor v IG Markets Ltd and, in particular, the judgment of Longmore LJ where his Lordship wrote:

[W]e trust that no judge in any future case will lift so much of a claimant's submissions into his own judgment as this judge has done and that, if substantial portions are to be lifted, it will be with proper acknowledgment and with a recitation of the defendant's case together with a reasoned rejection of it.  It is only in that way that unnecessary appeals can be avoided and the litigant be satisfied that he has received the justice that is his due.

[46]	However, despite the condemnation of the way in which the judge at first instance judgment had been presented, the appeal in Crinion was dismissed unanimously.  It was held, albeit not without some hesitation, that the judge at first instance had performed his essential judicial role and that his reason for deciding the issues in the way that he did were sufficiently apparent.

[47]	Appeals involving arguments about whether a decision should be set aside because the reasons for judgment incorporated large portions of one party's submissions are not novel.  As the following survey of cases suggest, courts in Australia and overseas have disapproved of reasons which simply adopt one party's submissions as the Court's judgment because they raise the suspicion that the judicial officer has not independently considered the evidence or reached an independent conclusion in respect of fact or law.

[48]	In Cojocaru v British Columbia Women's Hospital and Health Centre, McLachlin CJ wrote:

[32] 	To set aside a judgment for failure to attribute sources or for lack of originality alone would be to misunderstand the nature of the judge's task and the time-honoured traditions of judgment-writing.  The conventions surrounding many kinds of writing forbid plagiarism and copying without acknowledgement.  Term papers, novels, essays, newspaper articles, biographical and historical tomes provide ready examples.  In academic and journalistic writing, the writer is faced with the task of presenting original ideas for evaluation by an instructor or by peers, or of engaging in principled debate in the press. The task of judgment‑writing is much different. As Simon Stern puts it:

	Judges are not selected, and are only rarely valued, because of their gift for original expression.  Just as most lawyers would rather present their arguments as merely routine applications of settled doctrine, yielding the same legal results that other courts have delivered repeatedly, judges usually prefer to couch their innovations in familiar forms, borrowing well-worn phrases to help the new modifications go down smoothly.  The bland, repetitive, and often formulaic cadences of legal writing in general, and judicial writing in particular, can be explained in large part by a commitment to the neutral and consistent application of the law…. [T]he effort to demonstrate that similar cases are being treated alike often finds its rhetorical manifestation in a penchant for analyses that have a déja lu quality - usually because the words have been read before.  This tendency, though visible throughout the legal system, is most pronounced at the trial level.

[33] 	The scope for judicial creativity is narrow, but not non-existent.  It finds expression in the ordering of the reasons and the disposition of the arguments and issues, and in the occasional eloquent statement of the facts or restatement of the law.  Nevertheless, it remains the case that judicial opinions, especially trial judgments, differ from the kind of writings that traditionally attract copyright protection, with the concomitant demands of originality and attribution of sources. Judgments are "usually collaborative products that reflect a wide range of imitative writing practices, including quotation, paraphrase, and pastiche" (Stern, at p. 2).  Judgments routinely incorporate phrases and paragraphs from a variety of sources, such as decided cases, legal treatises, pleadings, and arguments of the parties.  Appellate judges may incorporate paragraphs borrowed from another judge on the case or from a helpful law clerk.  Often the sources are acknowledged, but often they are not.  Whether acknowledged or not, they are an accepted part of the judgment-writing process and do not, without more, render the proceeding unfair.

[34]	In this spirit, and in the interests of expediting judicial business, courts actively encourage parties to submit written arguments and proposed orders.  This process is accelerating.  In the United States, and more and more in Canada, courts welcome electronic submissions.  Such submissions help the judge get the decision right, facilitate the task of judgment writing and speed the judicial process.  As Gregory M. Silverman frankly observes, the "benefits provided by electronic filing" include "reduced time for … retyping as portions of one document can be easily transferred to another using the cut-and-paste operation of word processing software" ("Rise of the Machines: Justice Information Systems and the Question of Public Access to Court Records over the Internet" (2004), 79 Wash. L. Rev. 175, at p. 196).

[35] 	The concern about copying in the judicial context is not that the judge is taking credit for someone else's prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge's thinking.  They are not the judge's reasons, but those of the person whose prose the judge copied.  Avoiding this impression is a good reason for discouraging extensive copying.  But it is not the copying per se that renders the process of judgment-writing unfair.  A judge may copy extensively from the briefs in setting out the facts, the legal principles and the arguments, and still assess all the issues and arguments comprehensively and impartially.  No one could reasonably contend that the process has failed in such a case.

[36] 	To sum up, extensive copying and failure to attribute outside sources are in most situations practices to be discouraged.  But lack of originality and failure to attribute sources do not in themselves rebut the presumption of judicial impartiality and integrity.  This occurs only if the copying is of such a character that a reasonable person apprised of the circumstances would conclude that the judge did not put her mind to the evidence and the issues and did not render an impartial, independent decision. (emphasis added)

[49]	In Porter v The Queen, a judgment of the Court of Appeal of the Australian Capital Territory, dealt with the circumstances where a sentencing judge largely adopted the prosecution's submissions but expressed the final conclusion in her own words.  The Court found:

[78] 	It is clear from the authorities outlined above that whilst the unattributed replication of a party's submissions in a judicial decision is to be strongly discouraged, such copying does not, without more, vitiate a judgment.

[79] 	The vice in the copying of a party's submissions in a judgment is not plagiarism or the appropriation of a party's intellectual property.  Accordingly, determining whether a judgment has been vitiated by unattributed copying does not involve an assessment of the proportion of original material contained in the judge's reasons.  Rather, the question to be asked is whether the copying is such that it should be inferred that the primary judge has not made an independent decision on the whole of the evidence and the law.

[80] 	As the appellant submitted, some of the features of a judge's reasons which may be relevant to determining whether the reasons indicate that the judge made an independent and impartial decision will include:

(a)	The nature of the proceedings being determined (for example, whether the proceedings are judicial or administrative, criminal or civil, final or interlocutory);

(b) 	The extent of the reproduction, including both its volume and its nature (for example, whether the material copied is of uncontested evidence or established authority, or is of the party's arguments and conclusions);

(c) 	Whether the adoption of a party's submissions was accompanied by an independent analysis of the evidence and/or the legal principles to be applied;

(d)	Whether the judgment refers to the submissions of the unsuccessful party, and whether any aspects of the unsuccessful party's submissions were accepted; and

(e) 	Whether the judge edited parts of the submissions which had been copied.

[81] 	Whether or not the copied material is attributed to its author is also relevant to this assessment.  There is a qualitative difference between a judgment which cites portions (even extensive portions) of a party's submissions, and then indicates agreement with those submissions, and a judgment which adopts the submissions of a party as the Court's reasons without acknowledging the source of the material copied.

[82] 	In particular, where a judge openly expresses agreement with the submissions of a party, there is a transparency in the reasoning that is entirely absent where the judge simply adopts a party's submission as their own reasoning.  As Mr Game SC submitted on behalf of the appellant, where the copied material is not attributed, there is a "concealment" of the process by which the judgment was created.  For this reason, where the copied portion of the judgment is not attributed, particularly careful attention will need to be given to the assessment of whether the judge has in fact made an independent decision on the whole of the evidence and the law.

[83] 	As can be seen from Annexure A, a considerable portion of the primary judge's conclusions in the disputed facts judgment were copied from the prosecution's written submissions, without attribution.  Nonetheless, as the authorities cited above make clear, where there are other sufficient indications in the judgment that the primary judge actively engaged with the evidence and the submissions of both parties, the judgment will not be set aside by reason of the fact of copying alone.  The judgment will only be vitiated where the reasons are such that it should be inferred that they are not the product of the active application of an independent and impartial mind.

[84] 	There are features of the reasons which are cause for concern.  It is of concern that the judgment related to factual findings concerning the sentencing of an offender for grave criminal conduct, which carried a maximum penalty of imprisonment for 25 years.  It is of concern that the extracts of the prosecution's submissions that were adopted by the primary judge related to findings of credibility.  It is of concern that the primary judge adopted the prosecutor's adjectives, without attribution and so presenting them as arrived at independently, when describing the evidence of the victim and the appellant, and that the primary judge used the prosecutor's examples (and no others) when illustrating the reasons for her findings of credibility of each.  It is of particular concern that the primary judge did not cite the prosecutor's submissions, but rather adopted the prosecutor's prose as her own, without attribution, in a large portion of the conclusion.  Each of these matters have caused us to approach the judgment with considerable caution.

[85]	However, despite these matters, we do not consider that it should be inferred that the primary judge did not apply an independent mind to the resolution of the issues before her.: Garay v The Queen (No 3) [2023] ACTCA 2 at [150].  The structure of the judgment is not determinative, and the concluding paragraphs of the judgment cannot be read in isolation: Garay (No 3) at [150].

[86] 	While a substantial part of the primary judge's conclusions were copied from the prosecution's written submissions, other significant aspects of the primary judge's reasoning were not.  In particular, the primary judge accurately summarised all of the evidence that had been given in the disputed facts hearing, addressed the submissions made on behalf of the appellant in the course of her summary of those submissions and reiterated her final conclusions as to the credibility of the appellant and the victim.
...

[90] 	In summary, there are aspects of the judgment which are of concern (notably, the nature of the proceedings, the form and extent of the copying, and the lack of attribution).  Nevertheless, when read as a whole, and particularly in light of the primary judge's extensive analysis of the evidence, engagement with the offender's submissions and reiteration of her Honour's conclusions, the reasons sufficiently demonstrate that the primary judge gave independent and impartial consideration to the evidence and the issues.  Accordingly, ground 1 should be dismissed. (emphasis added)

[50]	In King v Australian Securities and Investments Commission, the Queensland Court of Appeal wrote:

[60]	Given the nature of the case, being one in which, as the primary judge remarked, many of the essential facts were not particularly contentious, and the contentious issues related to the inferences to be drawn from the events that occurred and contemporaneous documents, it is unremarkable that the primary judge drew extensively upon submissions about those events.

[61]	The authorities highlight the tension between the need for judges to demonstrate diligence in their reasoning and analysis, and acknowledgment that time-poor trial judges may adopt counsel's submissions where "... nothing would be gained by postponing other pressing work in order to rewrite the reasoning and conclusions in the judge's own words."

[62]	The adoption of one party's submissions by a judge has been described as "... one method of providing adequate reasons."  In Cojocaru (Guardian Ad Litem) v British Columbia Women's Hospital and Health Center Smith J of the Court of Appeal of British Columbia stated:

"... there is nothing inherently wrong with adopting the submissions of a party in whole or in part as reasons for judgment so long as those submissions truly and accurately reflect the judge's own independent analysis and conclusions."

	In that case Levine and Kirkpatrick JJ considered that the trial judge's reasons did not meet the functional requirement of public accountability and the appearance of the proper administration of justice.

[63]	On appeal the Supreme Court of Canada observed that judicial copying is a long-standing and accepted practice.  However, if carried to excess it raises problems and may displace the presumption of judicial integrity and impartiality.  The Court identified the issue as not so much a lack of originality or even a failure to attribute sources, but "whether a reasonable person would conclude from the copying that the judge did not put her mind to the issues to be decided".

[64]	In Crinion, the English Court of Appeal emphasised that appearances matter, and the "copying and pasting" of submissions received can reflect poorly on the administration of justice.  Nevertheless, if the trial judge "did in fact carry out a proper judicial evaluation of the essential issues and did not simply surrender his responsibility to counsel, then the judgement should stand".

[65]	Reproduction of submissions is not itself an error.  Error will exist, however, where the judge fails to engage with significant arguments.

[66]	A question to be decided in respect of each appellant's complaint about the adequacy of the reasons is whether the primary judge brought an independent judgment to bear on the decisive issues in the case.  The fact that the primary judge recited the competing submissions of ASIC and each appellant at great length does not answer that question.

[67]	As for fact finding, as the primary judge noted at the outset of his judgment, many of the essential facts were not in contention, and were proved by contemporaneous documents.  The facts which were not in contention were recited in ASIC's submissions, and little was to be gained by the judge re-writing them.

[68]	To the extent that primary facts, as distinct from inferences to be drawn from facts, were in dispute the primary judge appears to have resolved those matters by preferring contemporaneous documents over recollections. The real contests in the case of each appellant were the drawing of inferences from uncontested facts, particularly about an appellant's knowledge, intention or other state of mind. The parties' submissions about those matters were referred to, and often were recited at great length. A central issue in each appellant's appeal is whether the judge's reasons sufficiently engaged with those submissions and provided a basic explanation for preferring one side's submissions over the other's. (emphasis added)

[51]	After judgment had been reserved, the Respondents drew the Court's attention to the full court of the Federal Court's decision in Atanaskovic Hartnell Corporate Services Pty Limited v Kelly.  In that case, the Full Court was called upon to deal with an appeal from decisions of the Federal Circuit Court of Australia (as it then was) that found a long‑serving employee of the first appellant was entitled to damages for unpaid unemployment entitlements, as well as general damages, and that the appellants had breached sections of the Fair Work Act 2009 (Cth). 

[52]	Of relevance to these proceedings was the ground of appeal claiming that the reasons of the primary Judge were a "near verbatim copy, without attribution" of the now respondent's closing submissions below.  Further, it was argued that "[n]ot a single written or oral submission or contention of AHCS on the merits of the cross-claims, nor any of the extensive evidentiary references in writing, were referred to, analysed or considered and rejected (let alone accepted) by [the first primary Judge]".

[53]	In Atanaskovic the Court (Collier, Logan and Goodman JJ) adopted the principles as articulated in Porter that reasons will be inadequate where, when objectively assessed as a whole, they do not demonstrate that the judge 'gave independent and impartial consideration to the evidence and the issues'.

[54]	What is relevant to an assessment of the reasons for decision is not so much about what has or has not been copied but rather whether the Primary Decision maker has performed the task of engaging with the case of each party and making decisions on what divides the parties, whether they be matters going to evidence, or matters referable to legal principles and the proper application of those to the evidence before the court.

[55]	I do not accept the Appellant's characterisation of the Primary Decision.  Prior to this hearing, the Respondents filed a document entitled "Respondents' Aide Memoire - Plagiarism Allegations".  The purpose of the document was to enable the Court to see where there is some similarity.  The Aide Memoire paints a very different picture.

[56]	I accept that the Primary Decision sets out facts that are not in dispute or challenged; legal principles; matters that appear in the Appellant' own evidence and submissions; and appropriately footnoted in the decision with transcript references and documentary evidence, or otherwise dealt with in the decision.

[57]	In applying the principles discussed above, I am of the view that the reasons of the Industrial Commissioner demonstrate that she has addressed her mind to the issues that she was called upon to determine.  It is possible to glean from the reasons the process of reasoning upon which the decision is based.  Moreover, the reasons sufficiently reveal that the Industrial Commissioner gave independent and impartial consideration to the relevant issues. 

[58]	It follows therefore that this ground of appeal is dismissed.

The Second ground and Fourth ground of appeal

[59]	The Second and Fourth grounds of appeal were dealt with together.  Both grounds concerned issues of credit. 

[60]	The first ground asserts that the Industrial Commissioner erred in law by making credibility determinations against the Appellant.  This ground is based on a submission that the Industrial Commissioner's findings in terms of credibility were 'hopelessly compromised' by reason of the delay in rendering her reasons for decision.

[61]	The second ground asserts that the Industrial Commissioner erred at law by making credibility determinations against the Appellant because he complied with Commission Directions to file better and further particulars, and for amending his complaint to add a sex discrimination claim.  Moreover, it is contended that the Industrial Commissioner ought not to have regard to the documents filed in the Fair Work Commission which were not relevant in assessing the credibility of the Appellant. 

[62]	The second ground of appeal represents a challenge to the factual findings of the Industrial Commissioner and is not, as asserted by the Appellant, an error of law.  The Appellant may only appeal on the grounds of an error of fact with the court's leave.  No leave has been sought. 

[63]	So far as the Appellant contends that the Industrial Commissioner was not permitted to have regard to the earlier representations of his solicitors, this is an error of law.  However, to the extent the Appellant contends that the earlier representations did not support the findings made by the Industrial Commissioner, this is an error of fact.

[64]	For completeness I will deal with both grounds of appeal.

[65]	In ground one the Appellant submits that the delayed judgment and the passage of time makes it almost impossible for the Industrial Commissioner to make credibility determinations.  In relation to credibility, the Appellant submitted:

So without telling us how she remembers that he was at pains to paint a picture of the second respondent's actions as being discriminatory, we just have to take her word that after two years and after having heard probably hundreds of witnesses in the Commission in those two years giving evidence before her - how it is that she remembered these particular witnesses and what their demeanour was and who was truthful and who wasn't truthful, which gives rise to another ground of appeal, and it's closely related to it when it comes to credibility.  And, really, other than the first ground of appeal, everything is wrapped up in the credibility determinations because, really, she decided she didn't believe Dimitri.  She believed the respondents' witnesses.  So that being the case, I'll acknowledge that the other grounds of appeal are going to fail if you don't disturb her findings on credibility.

[66]	In respect of the second ground of appeal, the Appellant submitted that in order for "this ground of review to prevail, he's got to prevail on his assertion that the Commissioner erred at law by making credibility determinations against him and in favour of the respondents' witnesses".

[67]	The Respondents referred to paragraph [78] of the Primary Decision where the Industrial Commissioner made observations regarding credibility of a witness and reliability of evidence and considered Rush v Nationwide News Pty Ltd (No 7) where Justice Wigney summarised some of the authorities about findings of fact:

[68]	In assessing the credit of the Complainant and the Second Respondent, I have considered Rush v Nationwide News Pty Ltd (No 7), where Wigney J made the following observations regarding credibility and the reliability of witness evidence: 

[309]	Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence.  Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events.  (emphasis added)

[69]	In the submissions of the Respondents, the Industrial Commissioner compared the Appellant's earlier versions of events including his first complaint in his own words to the other objective evidence as well as evidence of his wife as to what transpired at certain meetings and looked at the inherent plausibility or implausibility of certain versions of events and made credibility assessments on that basis.  

[70]	In paragraph [79] of the Primary Decision the Industrial Commissioner expressed a finding about the Appellant's credibility.  In paragraphs [80] through to [88] she explains her reasons for reaching the finding.

[71]	The Respondents submit that:

But insofar as demeanour was relied upon, it was relied upon to suggest that the appellant was merely mistaken or placing undue emphasis on certain things that had happened to him, or seeing them through a particular perspective, rather than consciously lying to her.  And, in my submission, that's a perfectly orthodox approach to this question and there's no error revealed in it.

[72]	The Industrial Commissioner in paragraphs [99]-[101] of the Primary Decision compared the evidence given to some of the earlier complaints.  Likewise, at paragraph [236] the Industrial Commissioner noted inconsistent evidence between what the Appellant asserted and the way in which he agreed he acted at the time.

[73]	Further inconsistent evidence was identified by the Industrial Commissioner in paragraph [241] whereby the Appellant cancelled his invoice as confirmation that it was in fact his job to clean out the compound, despite his evidence that it was not his job to do so.

[74]	In paragraph [282] the Industrial Commissioner outlined a discrepancy between the Appellant's initial claim in relation to the meeting on 4 April 2018 when the Second Respondent told him that he had always been loyal, and his further and better particulars dated 10 March 2019 where he alleged the Second Respondent had threatened to cease using his services by 'no longer remaining loyal'.

[75]	The Industrial Commissioner at paragraphs [340]-[341] noted the Appellant's claim had changed over time as his original contentions claimed the Second Respondent had scrutinised his work excessively the entire time he had contracted with the Respondents, however the evidence indicated that the increase in expectations was a general expectation for all employees and contractors.

[76]	In paragraph [340] of the Primary Decision under the heading 'Documentary evidence' the Industrial Commissioner referred to the phone conversation between the Appellant and the First Respondent's Human Resources Manager, Mr Joshua McGee on 9 March 2018.  This conversation was recorded by the Appellant and Mr McGee was not aware it was being recorded.  The Industrial Commissioner said:

[341]	The fact that the phone call had been pre-arranged and the Complainant knew the conversation was being recorded gives further weight to the presumption that he intended this conversation to be a reliable account of his complaint.  This evidence in my view best reflects the truth of the complaint.

[77]	Paragraphs [342]-[358] provide a consideration of the Appellant's complaint which he recorded in that first telephone call.  Again, at paragraph [358] the Industrial Commissioner made the following finding:

[358]	In my view, the phone conversation is the best evidence of the actual grievance held by the Complainant.  I accept the Respondents' submissions that the Complainant's allegations at hearing bear little resemblance to the complaints he made during his recorded phone call with Mr McGee.

[78]	In paragraph [359] the Industrial Commissioner notes that other documentary evidence put before the Commission does not support the Appellant's allegations.  She goes on to observe: 'I place substantial weight on the documentary evidence on the basis that they are contemporaneous and hence more reliable than the memory of the witnesses'.

[79]	The Respondents submit that where a party has made an earlier inconsistent statement, such statement is taken to be truth of the contents, whereas in the case of a witness, an earlier inconsistent statement is not proof of its contents, however, can be considered in terms of credibility.

[80]	In this case the Industrial Commissioner relied on earlier statements made through the Appellant's lawyers so as assess the Appellant's credibility.

[81]	The Appellant submits that because the statements were made by his lawyers they cannot be relied upon.  The Appellant offers no authority to support that proposition.

[82]	Further, because the Appellant was directed to make them, they cannot be relied upon.

[83]	In ACCC v Pratt, Ryan J expressed the view that it is a question of fact as to whether or not a particular allegation or statement in a pleading is an admission, but they are capable of being admissions.

[84]	In Hoy Mobile Pty Ltd v Allphones Retail Pty Ltd, Rares J found that an affidavit filed by the solicitor in an earlier proceeding could be relied upon at the second trial, even though it was made by the solicitor.  Rares J cited with approval the observations of Cockburn CJ in Richards v Morgan where his Lordship said:

It cannot be doubted that a man's assertions are admissions, whether made in the course of a judicial proceeding or otherwise, and, in the former case, whether he was himself a party to such proceeding or not.  It may be given in evidence against him in any suit or action in which the fact so asserted or admitted becomes material to the issue to be determined.  And in principle, there can be no difference whether the assertion or admission be made by the party himself who is sought to be affected by it, or by someone employed, directed or invited by him to make the particular statement on his behalf.  In like manner, a man who brings forward another for the purposes of asserting or proving some fact on his behalf, whether in a court of justice or elsewhere, must be taken himself to assert the fact that he thus seeks to establish.

[85]	I accept the argument "that instructions given by a party to their solicitors or counsel is a matter which can legitimately [be] take[n] into account when you come to assess their credibility".  It is appropriate to treat representations made in documents filed by his lawyers as admissions.  It was perfectly reasonable for the Industrial Commissioner to look at the earlier representations and the relevance at paragraphs [93]-[103] of the Primary Decision.

[86]	The Appellant alleged the Second Respondent thought the Appellant was gay because of his taste in music, because of his clothes and what the Second Respondent allegedly said about him to other staff.  The general protections application filed in the Fair Work Commission referenced the same formulation of words used about him but not the broader range of claims which formed part of the evidence.

[87]	Exhibit 16 was relied upon by the Appellant in which there are alleged slurs in an email from the Appellant's solicitors to Sharon Young.

[88]	The email states:

I'm instructed as follows:  the gay comments regarding our client's music particularised at paragraph 13 of the statement of complaint were made repeatedly and regularly from 2016, up to our client going on sick leave on 13 April.

	….

The gay and girly comments particularised at paragraph 15 regarding our client's shoes and clothing were made repeatedly regularly from 2016 up to our client going on sick leave on 13 April.  Our client specifically remembers Mr Reesby making such comments about shoes that he purchased in late 2017.

[89]	The email goes on to state: 

The comments to other staff members and contractors particularised at paragraphs 18 and 19 were made repeatedly within the last 12 months.

[90]	The email, made on the basis of instructions, makes "… no reference to the broader range of comments now relied upon".

[91]	On 10 March 2021 further and better particulars were filed and on 16 June 2021 an amended SOFC was filed.  In the Primary Decision the Industrial Commissioner said:

[32] 	… In this document, the Complainant included a new complaint of sex discrimination and pleaded new claims alleged to have occurred before 15 June 2017, which was the commencement of the limitation period to the complaint.  Following an interim hearing regarding these issues, the Commission accepted the new complaint and the new and out‑of‑time allegations.

[92]	The further and better particulars contained matters not previously raised.  The slurs allegedly used against the Appellant by the Second Respondent were significantly expanded.  What was initially asserted by the Appellant was that the slurs were said to others and not to him directly.  However, in the amended statement of facts and contentions, the Appellant appeared to allege that the slurs were said directly to him.  On that basis and with some justification, it was argued by the Respondents that there had been some embellishment over time and the nature of the complaint had grown.

[93]	In the Primary Decision, the Industrial Commissioner observed: 

[83]	The Complainant was entitled to pursue actions in any available forum and no adverse finding is made about that conduct.  The difficulty for the Complainant, however, is that his claims have not remained consistent throughout.  The original discrimination claim filed in the ADCQ did not include allegations of homophobic slurs, allegations of sex discrimination and much less detailed complaints about the Respondents' alleged conduct.  Following the hearing, the Complainant has included additional claims relating to sexual harassment, direct discrimination and victimisation.

[94]	The Industrial Commissioner placed weight on the contemporaneous documentation; referred in her reasons to the evolution of the claim noting that the Appellant had failed to explain or acknowledge that evolution; and observed that the Appellant made submissions which did not reflect the evidence.  Her reasons reflect a thoughtful assessment of the inconsistencies in the Appellant's claim and the evidence. It was for those reasons that the Appellant's complaint was dismissed.  

[95]	It is suggested that the Industrial Commissioner somehow fell into error by requiring the Appellant to file further and better particulars and in so doing had acted unfairly.

[96]	The assertion that the Appellant was required under the rules to file further and better particulars was not unfair.  The fact the Appellant represented himself does not relieve him of the requirement to properly articulate the case that the Respondents are expected to meet. 

[97]	As Samuels JA wrote in Rajski v Scitec Corporation Pty Ltd:

An unrepresented party is as much subject to the rules as any other litigant.  The court must be patient in explaining them and may be lenient in the standard of compliance which it exacts.  But it must see that the rules are obeyed, subject to any proper exceptions.  To do otherwise, or to regard a litigant in person as enjoying a privileged status, would be quite unfair to the represented opponent … 

[98]	The Industrial Commissioner committed no error of law by directing the Appellant to file further and better particulars.

[99]	The Appellant further submits that the Industrial Commissioner held against his credibility based on the fact that he made the application to amend his SOFC.  He submitted:

So for many reasons - I mean, this - besides that first ground of appeal, the credibility determination is going to determine all the other grounds.  And if you consider the passage of time and the Commissioner didn't explain how it was that she remembers his demeanour or the demeanour of any other witness and the fact that she made a credibility determination against him based on the fact that - the things we just talked about, meaning the amendments of the statements of facts and contentions and the fact that he didn't include every allegation - every factual allegation in the documents that were filed by his lawyer - those credibility determinations clearly can't stand.  They simply can't.

[100]	The SOFC perform an important function in matters before the Commission.  They define the issues in dispute; enable the parties to know what evidence it will be necessary to have available; prevent injustice occurring when a party is taken by surprise; and to ensure that the matter is conducted within due bounds.

[101]	In assessing the evidence of the Appellant about what was said to him, or what he saw or heard, it is essential for the Industrial Commissioner to test that evidence by reference to the objective facts proved independently of the Appellant's evidence, in particular by reference to contemporary documentary evidence.

[102]	The exercise required of the Industrial Commissioner is to assess the evidence before her.  In doing so, it is necessary for her to explain in her reasons for decision why some evidence is preferred over other evidence or why the evidence of a witness is rejected.  In other words, the decision must expose her reasons for resolving a point critical to the contest between the parties in a manner which would enable the parties to identify the basis of the decision and the extent to which their arguments had been understood and accepted.

[103]	Lord Goff of Chieveley giving the opinion of the Judicial Committee of the Privy Council in Grace Shipping v Sharp & Co provides some useful guidance:

…. [W]hen considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses' motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.

[104]	I have no basis to doubt the fact-finding process adopted by the Industrial Commissioner.  She had the advantage afforded to her of seeing the Appellant give evidence and reference to documents in the case to assist her in assessing the issue of credibility.  The Industrial Commissioner was entitled to rely on this and no appealable error has been identified.

Ground Three 

[105]	This ground of appeal asserts that the Industrial Commissioner erred in not allowing the Appellant to amend his SOFC to include sexual harassment after the close of the evidence.

[106]	The Commission has a discretion under s 178 of the AD Act to amend a complaint which must be exercised judicially. The Industrial Commissioner, after considering the competing issues, and following an orthodox approach, chose not to exercise her discretion.

[107]	To deal with this ground of appeal, it is necessary to briefly put some context around the Industrial Commission's decision not to exercise her discretion.

[108]	The hearing before the Commission lasted some five days and concluded on 3 September 2021.  In the submissions of the Appellant filed on 4 November 2021 (approximately two months after the hearing) a new complaint was raised against the Second Respondent alleging sexual harassment. 

[109]	The Appellant filed a SOFC on 8 October 2018 and further and better particulars on 19 March 2019 following an order by Knight IC.  On 16 June 2021, the Appellant filed and served an affidavit with a SOFC.  The amended SOFC contained a new complaint of sex discrimination and pleaded new claims alleged to have occurred before 15 June 2017, the date of the commencement of the limitation period for the complaint.  A hearing took place on 23 August 2021 following which the Commission accepted the new complaint and the new and out-of-time allegations.

[110]	In closing submissions before the Commission, the Appellant raised a new ground of complaint being 'sexual harassment' pursuant to s 118 of the AD Act.  This ground had not previously been raised before the Commission either in advance of or during the hearing.

[111]	The facts relied on by the Appellant at first instance in support of the new complaint of sexual harassment include the allegations that: 

(a)	the Second Respondent called the Appellant "fairy features", "poof", "homo", "faggot" and "paint poof";

(b)	that the Second Defendant "told [the Appellant] that his kind could get married once same‑sex marriage was legalised in Australia"; and

(c)	that the Second Respondent called the Appellant's shoes "gay". 

[112]	Not surprisingly, an objection was raised by the Respondents in respect of all three allegations.

[113]	During the hearing, the Second Respondent denied the matters set out in paragraphs (a) and (b) but accepted that, in respect of paragraph (c), he had called the Appellant's shoes "gay".

[114]	The Industrial Commissioner dealt with these new allegations under Additional complaints in paragraphs [31]-[44] of the Primary Decision.  Paragraph [35] of the Primary Decision identified authority by Martin J in Carlton v Simon Blackwood (Workers' Compensation Regulator) outlining the necessity for pleadings and the discretion available for the Commission.

[115]	The Appellant relies on Leotta v Public Transport Commission of NSW.  In Leotta, there emerged at the conclusion of the evidence facts which, if accepted, establish a cause of action factually different from the cause of action which the plaintiff has sued upon.  In those circumstances, Leotta is support for the proposition that the issue must be considered by the tribunal of fact and the pleadings should be amended in order to make the facts alleged and the particulars precisely conform to the evidence which has emerged.  There were no new facts that emerged at the trial before the Commission which would, if accepted, establish the cause of action of sexual harassment.  This is not a case where Leotta has application. 
 
[116]	Relevantly to the present appeal, the High Court in Aon Risk Services Australia Limited v Australian National University provides general guidance on the factors which may be considered in assessing the exercise of a discretion to amend a pleaded case.  The following factors can be distilled from the joint judgment:

•	the nature and importance of the amendment to the party applying.  These factors are to be weighed against the extent of the delay that may be caused and the costs associated with it, as well as the prejudice which might reasonably be assumed to follow;

•	the point the litigation has reached relative to a trial.  The court should consider whether party has had sufficient opportunity to plead its case, having regard to the other party and other litigants awaiting trial dates;

•	the explanation for the late application to amend, which will invariably be required where there is delay; and 

•	the party proffering the explanation will need to show that its application is brought in good faith. That party will also be required to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives expressed in the rules of the court. 

[117]	In Aon, the plurality went on to state:

112	A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed.  But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced.  That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.

113	In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required.  Those times are long gone.  The allocation of power, between litigants and the courts arises from tradition and from principle and policy.  It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.

114	Rule 21 of the Court Procedures Rules recognises the purposes of case management by the courts.  It recognises that delay and costs are undesirable and that delay has deleterious effects, not only upon the party to the proceedings in question, but to other litigants.  The Rule's objectives, as to the timely disposal of cases and the limitation of cost, were to be applied in considering ANU's application for amendment.  It was significant that the effect of its delay in applying would be that a trial was lost and litigation substantially recommenced.  It would impact upon other litigants seeking a resolution of their cases.  What was a "just resolution" of ANU's claim required serious consideration of these matters, and not merely whether it had an arguable claim to put forward.  A just resolution of its claim necessarily had to have regard to the position of Aon in defending it.  An assumption that costs will always be a sufficient compensation for the prejudice caused by amendment is not reflected in r 21.  Critically, the matters relevant to a just resolution of ANU's claim required ANU to provide some explanation for its delay in seeking the amendment if the discretion under r 502(1) was to be exercised in its favour and to the disadvantage of Aon.  None was provided. (Citation omitted).

[118]	Having regard to the desirability of finality in litigation as expressed in Aon, the consequent delay, additional costs of litigation after a trial is completed and the need to encourage litigants to prepare for trial in a proper way, I can see no justification for concluding that the Industrial Commissioner's discretion has miscarried. 

[119]	Of course, the burden rests upon a person seeking to upset the exercise of a discretion as described in the well-known decision of the High Court in House v The King.

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed, and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.

[120]	In her reasons for decision, the Industrial Commissioner identified what she saw to be the relevant facts.  She properly directed herself to the discretion in s 178 of the AD Act and identified authorities which assisted her in determining whether the discretion ought to be exercised.  These reasons included the timing of the request; the fact the appellant had been given leave to amend his complaint just prior to the hearing; that there was no reasonable explanation given as to why the complaints had not been included prior to hearing; she considered the sexual harassment complaint had limited prospects of success; and the obvious issues of procedural fairness and prejudice to the respondents.

[121]	The decision to amend a complaint pursuant to s 178 of the AD Act is a matter of discretion and no error has been demonstrated by the Appellant which would vitiate the exercise of that discretion.

[122]	A sub-ground under this ground of appeal was the assertion that the Industrial Commissioner failed to assist the Appellant to amend his claim.

[123]	The Appellant was self‑represented throughout the proceedings before the Commission.  As a self-represented litigant, it was contended by the Appellant that the Industrial Commissioner had a "duty to assist", however she ruled against him "over and over and over and over again".

[124]	To advance the argument of the Industrial Commissioner's duty to assist, the Appellant relies on the decision in Loftus v Australia and New Zealand Banking Group Ltd [No 2] where the Court of Appeal held:

27	The joint memorandum rightly states that trial judges have an overriding duty to ensure a fair trial, which includes ensuring that an unrepresented litigant understands, and is therefore able to vindicate, his or her rights.   As the Court explained in Trkulja v Markovic:

In determining the proper scope of assistance to be offered to a selfrepresented litigant, the touchstones are fairness and balance.  The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed. In some cases, it may be necessary for the judge to identify the issues and the state of the evidence in relation to them so as to enable the self-represented litigant to consider whether he or she wishes to adduce evidence.  It is elementary that a judge ought to ensure that the self-represented litigant understands his or her rights so that he or she is not unfairly disadvantaged by being in ignorance of those rights.  Notwithstanding this, the judge should refrain from advising a litigant as to how or when he or she should exercise those rights. (Citations omitted)

[125]	In Re F: Litigants in Person Guidelines, the Full Court of the Family Court considered the principles in Johnson v Johnson and set out revised guidelines for judges when dealing with self-represented litigants.  Those guidelines are:

•	a judge should ensure as far as is possible that procedural fairness is afforded to all parties whether represented or appearing in person in order to ensure a fair trial;

•	a judge should inform the litigant in person of the manner in which the trial is to proceed, the order of calling witnesses and the right which he or she has to cross examine the witnesses;

•	a judge should explain to the litigant in person any procedures relevant to the litigation;

•	a judge should generally assist the litigant in person by taking basic information from witnesses called, such as name, address and occupation;

•	if a change in the normal procedure is requested by the other parties such as the calling of witnesses out of turn the judge may, if he/she considers that there is any serious possibility of such a change causing any injustice to a litigant in person, explain to the unrepresented party the effect and perhaps the undesirability of the interposition of witnesses and his or her right to object to that course;

•	a judge may provide general advice to a litigant in person that he or she has the right to object to inadmissible evidence, and to inquire whether he or she so objects. A judge is not obliged to provide advice on each occasion that particular questions or documents arise;

•	if a question is asked, or evidence is sought to be tendered in respect of which the litigant in person has a possible claim of privilege, to inform the litigant of his or her rights;

•	a judge should attempt to clarify the substance of the submissions of the litigant in person, especially in cases where, because of garrulous or misconceived advocacy, the substantive issues are either ignored, given little attention or obfuscated …

•	where the interests of justice and the circumstances of the case require it, a judge may:

•	draw attention to the law applied by the court in determining issues before it;

•	question witnesses;

•	identify applications or submissions which ought to be put to the court;

•	suggest procedural steps that may be taken by a party;

•	clarify the particulars of the orders sought by a litigant in person or the bases for such orders.

[126]	The concept of the judicial officer's role when assisting a self-represented litigant in court was also considered in Kenny v Ritter:

The courts have recognised that when faced with a litigant in person, a measure of judicial intervention is not simply permissible but necessary, in order to ensure a fair hearing.  The nature of the duty of a judge conducting a trial with a self-represented party has been the subject of a number of authoritative discussions.  The general approach which a court should take to a litigant in person in civil proceeding was addressed by Samuels JA in Rajski v Scitec Corporation Pty Ltd:

In my view, the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent.

…

The scope of the duty of the court to the litigant in person is constrained by the fact that the judge must endeavour to maintain the appearance of impartiality.

	…

[W]hen the self-represented litigant is before the court, the judge must ensure that a fair trial takes place.  In order to achieve this, the judge is required to assist the self-represented litigant.  However, the judge must equally ensure that despite any assistance to the litigant in person, the perception of impartiality is maintained. (footnotes omitted)

[127]	Both Re F and Kenny v Ritter recognise that when a self-represented litigant appears in court, there is a need for the court to provide some assistance.  However, what is also recognised is the conflict between assisting the disadvantaged self-represented litigant (the principle of fairness) and maintaining an appearance of impartiality and independence (the principle of impartiality) and, importantly, being impartial.

[128]	Impartiality is a fundamental characteristic of the court system.  Public confidence is maintained in the Commission when it is seen to be independent, impartial, fair and competent.  However, the extent to which the Commission may assist a litigant in person is limited.  The restraints upon judicial intervention stemming from the adversarial tradition are not relevantly qualified merely because one of the litigants is self‑represented.

[129]	The duty of the Commission does not extend to providing legal advice, counselling a litigant on how to exercise their rights, or conducting the case on their behalf.  In Wren v Workers' Compensation Regulator, Merrell DP referred to In Flightdeck Geelong Pty Ltd v All Options Pty Ltd where the Full Court of the Federal Court of Australia relevantly stated:

[57]	It seems to be well accepted that the extent of the Court's obligation to assist an unrepresented litigant is factually idiosyncratic and, significantly, depends upon "the litigant, the nature of the case, and the litigant's intelligence and understanding of the case": Abram v Bank of New Zealand [1996] ATPR 41-507 at 42,347.

[130]	The Appellant has failed to make out this ground of appeal.

[131]	Finally, the Appellant makes a general complaint in respect of the adequacy of reasons of the Industrial Commissioner.

[132]	Nettle J in DL v R, said: 

 … [I]n providing reasons, the judge is required to make apparent the steps he or she has taken in reaching the conclusion expressed, or reasons are not intelligible if they leave the reader to speculate as to which of a number of possible paths of reasoning the judge may have taken to that conclusion.  Failure sufficiently to expose the path of reasoning is therefore an error of law.

[133]	One reason for the obligation to provide adequate reasons is so that an appellate court can discharge its statutory duty on an appeal from the decision and so that the parties can understand the basis for the decision for purposes including the exercise of any right to appeal.

[134]	It is not a valid ground of appeal that a disappointed party disagrees with the findings at first instance.  An error of a particular type must be demonstrated and the mere fact that a member of the Commission has exercised a discretion in a particular way is not, on that ground alone, an appealable error. 

[135]	The Appellant's argument is not so much about the adequacy of the reasons of the Industrial Commissioner rather it is an objection to the fact that she took a different view to the Appellant on whether to permit an amendment at such a late stage in the proceedings.

[136]	For the reasons advanced above, the Appellant has failed to demonstrate any error in the exercise of the Industrial Commissioner's discretion or the reasons for her doing so.  

Ground Five 

[137]	The Appellant contends the Industrial Commissioner adopted the incorrect causation test concerning whether the Second Respondent presumed he was homosexual, and this is an error of law.

[138]	What is alleged against the Second Respondent is that the Appellant was discriminated against by the Second Respondent on the basis of sex, race, and presumed sexuality.  In particular, the Appellant was discriminated against on the basis that he was male, Greek, and presumed to be homosexual. 

[139]	It was not in dispute that the Appellant was male and Greek. 

[140]	Section 8(c) of the AD Act specifically states, "an attribute that person is presumed to have, or to have had at anytime, by the person discriminating".  The language of s 8(c) of the AD Act refers to an attribute that a person is presumed to have by the person discriminating. 

[141]	In JCN v James Cook University & Ors, Member Lumb dealt with the construction of s 8(c) and said:

[249]	 	… I consider that, on the proper construction of s 8(c):

(a)	the presumption contemplated is to be equated with a 'belief' by the respondent to a complaint that the complainant has (or previously had) an attribute, in the sense of 'an accepted opinion … conviction of the truth or reality of a thing, based upon grounds that are insufficient to afford positive knowledge'; and

(b)	a mere suspicion that the complainant (here, the Applicant) has an attribute (in the sense of '[a] state of conjecture or surmise where proof is lacking; a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence') is insufficient to satisfy s 8(c).

[142]	The Second Respondent gave direct evidence as to whether or not he had made a presumption.  

[143]	The Industrial Commissioner was not satisfied the Second Respondent held a presumption the Appellant was homosexual.

[144]	At paragraph [67] of her reasons for decision, the Industrial Commissioner wrote:

[67]	The Second Respondent gave evidence that he knew the Complainant was married and did not believe the Complainant was homosexual.  The Complainant submits that an objective determination must be made of whether an ordinary, reasonable person who heard the Second Respondent making the alleged remarks to the Complainant would consider the Second Respondent believed him to be a homosexual, referring to Purvis v State of New South Wales (Department of Education and Training) & Anor, in which the majority stated:

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

[145]	Moreover, the Industrial Commissioner made findings at paragraphs [94] to [103] rejecting the allegations that the Second Respondent had made homophobic slurs to the appellant.

[146]	At paragraph [103] she concluded:

[103]		In circumstances where the Complainant did not give evidence that he heard the Second Respondent use the alleged terms and where the Second Respondent denies ever calling the Complainant these terms, I am not persuaded that this allegation is made out.  As noted at [89], I have broadly accepted the Second Respondent's evidence as truthful and note that he has conceded using other language against his interest but not these terms.  In those circumstances, the allegation that the Second Respondent called the Complainant 'fairy features', 'poof', 'homo', 'faggot', 'paint poof' and 'poofter' has not been substantiated on the balance of probabilities.

[147]	In accepting such evidence, the Industrial Commissioner relied on Rintoul v State of Queensland & Ors.  In that case, the Complainant raised seventeen separate incidences of what she believed to be acts of discrimination.  It was contended in Rintoul that the Respondents thought the Complainant to be Aboriginal or perceived her to be closely associated with Aboriginal people and their culture. In Rintoul, Member Favell wrote:

[10]	It is important to note in section 8(c) that the attribute that a person is presumed to have must be a presumption by the person discriminating. For that section to apply here there the applicant will need to prove that the respondents or one of them had a presumption that the applicant was of aboriginal descent or associated with, or relation to, a person identified on the basis of aboriginality.

[148]	In considering whether the person made a presumption, the evidence of the Second Respondent was accepted and there is no reason to contend the Industrial Commissioner adopted the wrong causation test. No error of law has been demonstrated.

Ground Six

[149]	The final ground alleges the Industrial Commissioner inappropriately utilised hypothetical comparators and rejected the employees and other contractors provided by the Appellant.  

[150]	The requirement to prove that the person has been treated less favourably than a person without the attribute or a characteristic of the attribute gives rise to a requirement of identifying the proper other person against whom a comparison can be made, or a "comparator". 

[151]	The task of identifying an appropriate comparator was considered in Curran v yourtown & Anor:

[84]	In Woodforth v State of Queensland, a comparison was required between the Complainant's treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic. McMurdo JA wrote:

Section 10 of the ADA requires the comparison to be made on the hypothesis that the treatment of the person without the impairment would be ''in circumstances that are the same or not materially different'' from those that constituted the context for the treatment of the impaired person.  In that respect s 10 of the ADA is no different from s 5(1) of the DDA. But beyond that likeness, there are differences between the two statutes.  The DDA contained no equivalent of s 8 of the ADA, the effect of which, in combination with s 10 of the ADA, is to proscribe discrimination on the basis of a ''characteristic''.  In the present case it proscribed discrimination on the basis of the applicant's inability to communicate by speech.  That proscription would be ineffective if the characteristic of a disability was also to be treated as a ''circumstance'' in the comparison for the purposes of s 10.  It would mean that there could not be direct discrimination on the basis of a characteristic of an impairment, because the comparator also would be a person with that characteristic.  The Appeal Tribunal, whilst adverting to s 8, overlooked its effect upon the operation of s 10.

Further, the Appeal Tribunal incorrectly likened this characteristic of the applicant's impairment with the occurrences of violent behaviour that constituted the relevant circumstances in Purvis.  They were occurrences which formed part of the factual context in which the student was treated.  He was treated, by suspension and expulsion, in response to those occurrences.  The required comparison was between the treatment of this student and the hypothetical treatment of another student.  That hypothesis required the consideration of what would have been the treatment of another in response to occurrences of the same kind.  The complication in Purvis, caused by the student's behaviour also being an incident of his disability, did not exist in the present case.  In the present case the relevant ''treatment'' was the response of police to a complaint of criminal conduct.

	…

The Appeal Tribunal misunderstood the relevance of the reasoning in Purvis and thereby erred in law in identifying the relevant comparator.  The applicant's case required a comparison between her treatment as a person with a hearing impairment and an inability to communicate effectively by conventional speech and a person without that impairment and that characteristic.  This error affected the Appeal Tribunal's conclusions on relevant factual issues.

…

[88]   	In my view the appropriate comparator is another employer of yourtown, working in the position of a Production Administrator, who does not have anxiety or any characteristics of it. The circumstances that are "the same or not materially different", are that the person has taken extended periods of personal leave and wishes to return to work. (emphasis added) (citations omitted)

[152]	In the Reply Submission's before the Commission, it was submitted:

136.	In sum, whether the Commission uses real or hypothetical comparators, it is undeniable that the Respondents treated Dimitri less favourably in the workplace than persons without the attributes on which Dimitri bases his complaints of discrimination.

[153]	The Industrial Commissioner directed herself to the relevant provisions of the AD Act, addressed the submissions and then identified the appropriate comparator.  In her reasons she said:

[74]	In relation to the claim of discrimination on the basis of race, the Complainant submits that a real comparator may be used and identified his predecessor Mr Tom as the appropriate comparator.  The difficulty with using Mr Tom as a comparator is that he was significantly more experienced in the role than the Complainant and had worked with the Second Respondent for a much longer period of time.  A comparison between a contractor with over twenty years' experience, in the case of Mr Tom, with a contractor of less than three years' experience in the case of the Complainant, would not be appropriate as the circumstances are materially different. 

[75]	For the complaint of less favourable treatment on the basis of race, the hypothetical comparator is a contractor to the First Respondent in the pre-delivery yard who is of non‑Greek heritage and who has had similar work experience to the Complainant. 

[76]	Regarding the complaint of less favourable treatment on the basis of sex, the Complainant submits that Ms Scott or Ms Fleming could be used as comparators however this is unsuitable.  Ms Scott was a direct employee of the First Respondent rather than a contractor and so was in a situation that was materially different to that of the Complainant.  While Ms Fleming was a contractor, there is no evidence before the Commission of the type of contracting work undertaken, her skill level or length of experience.  In these circumstances, a hypothetical comparator is appropriate.  The appropriate hypothetical comparator for the claim of discrimination on the basis of sex is a woman working as a contractor for the First Respondent in the pre-delivery yard.

[154]	The Appellant has not demonstrated either in his written or oral submissions how any of these matters can constitute an error of law on the part of the Industrial Commissioner.  No error of law has been demonstrated.

Conclusion

[384]	The Appellant has failed to demonstrate that the Industrial Commissioner erred in law in determining that the Appellant had failed to discharge the onus of establishing that the alleged treatment amounted to unlawful discrimination or victimisation under the AD Act. 

[385]	The appeal is dismissed.

Costs of appeal

[155]	The Respondents seek costs of the appeal.

[156]	I will hear the parties as to the costs of the appeal.

 	Orders

[157]	I make the following orders:

1.	The appeal is dismissed.
2.	By 4.00 pm on 20 December 2024 the Respondents shall file and serve written submissions on costs.
3.	By 4.00 pm on 17 January 2025 the Appellant shall file and serve written submissions on costs in reply to the respondents' submissions.
4.	Each party may file and serve an application in existing proceedings to make oral submissions on costs by 4.00 pm on 24 January 2025.
5.	In the absence of any application to make oral submissions being filed by 4.00 pm on 24 January 2025 the question of costs will be dealt with on the papers without oral submissions.