Kentish Council v Wood, H M

• Jurisdiction: Tasmania
• Judge: Evans J,Blow J,Porter J
• Judgment Date: 17 August 2011
• Docket Number: 864/2010
• Court: Full Supreme Court
• Date: 17 August 2011

[2011] TASFC 3

[2010] TASSC 43

SUPREME COURT OF TASMANIA (FULL COURT)

Evans, Blow and Porter JJ

864/2010

Kentish Council

and

Wood, H M

Bartlett, M

Brett, M

Taylor, Sandra

REPRESENTATION:

Counsel:

Appellant: S B McElwaine

Respondent Taylor: G Casement

Judicial Review Act 2001 (Tas), s4(1).

Aust Dig Administrative Law [1008]

Administrative Law — Judicial review — Reviewable decisions and conduct — Decisions to which judicial review legislation applies — Decisions of an administrative character — Decision of Anti-Discrimination Tribunal after an inquiry — Finding of discrimination and order for payment of compensation.

Order of the Court

Appeal dismissed.

REASONS FOR JUDGMENT

FULL COURT

Evans J

1 I agree with the reasons of a Blow J and would also dismiss the appeal

Blow J

2 During 2005 one of the respondents to this appeal, Sandra Taylor, made a complaint under the Anti-Discrimination Act 1998 (‘the AD Act’), s60, alleging discrimination on the part of the appellant, the Kentish Council (‘the council’). She was confined to a wheelchair. She alleged that discrimination by the council prevented her from having wheelchair access to various places in Sheffield. Pursuant to the AD Act, s78, the Anti-Discrimination Commissioner referred the complaint to the Anti-Discrimination Tribunal for an inquiry. The tribunal held an inquiry, found that the complaint was substantiated, and ordered the council to pay Mrs Taylor $10,000 by way of compensation. The council was aggrieved by the tribunal's decision. The AD Act, s100(1), permits a person to appeal to the Supreme Court against such a compensation order. The council did not appeal under that section, but instead made an application for the review of the tribunal's decision under the Judicial Review Act 2000 (‘the JR Act’). On the hearing of that application, Tennent J held that the JR Act did not permit an application to be made for the review of such a decision: Kentish Council v Wood [2010] TASSC 43. This is an appeal by the council from her Honour's decision. The council contends that it was entitled to make an application under the JR Act.

3 The council has joined as respondents to this appeal the three individuals who constituted the tribunal for the inquiry into Mrs Taylor's complaint (collectively called ‘the first respondents’), and Mrs Taylor. Mrs Taylor was represented by counsel on the hearing of the appeal, but the other respondents, the decision-makers, took no part in the proceedings.

The legislation

4 The JR Act, s17(1), provides:

‘ (1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision.’

5 The JR Act, s4(1), provides:

‘ (1) In this Act,

“decision to which this Act applies” means a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion).’

6 The critical question in this appeal is therefore whether the tribunal made ‘a decision of an administrative character’ within the meaning of s4(1). In order to answer that question, it is necessary to consider, amongst other things, the scheme put in place by the AD Act for dealing with complaints as to discrimination and prohibited conduct. The relevant provisions of that Act can be summarised as follows:

• • Section 16 prohibits discrimination by one person against another on any of various grounds that are listed in the section. Those grounds include ‘disability’: s16(k).

• • Sections 17 – 21 prohibit other forms of conduct including, amongst others, sexual harassment, victimisation, and inciting hatred: ss17(2), 18(1), and 19 respectively.

• • Section 60(1) permits complaints to be made to the Anti-Discrimination Commissioner about discrimination or prohibited conduct in certain circumstances. Under s60(1)(a), a complaint may be made by a person against whom alleged discrimination was directed.

• • Under s64(1), the Commissioner may reject a complaint if it is trivial, vexatious, misconceived, or lacking in substance, or if it does not relate to discrimination or prohibited conduct, or, in certain situations, if other remedies are or have been available.

• • Under s69(1), the Commissioner may investigate a complaint.

• • Under s71(1), on the completion of an investigation, the Commissioner must either dismiss the complaint, refer it for conciliation, or refer it to the tribunal for an inquiry.

• • When the tribunal holds an inquiry, it may, amongst other things, amend a complaint, permit a person to be represented or accompanied, require a person to attend a preliminary hearing, make an order as to security for costs, take evidence on oath or affirmation, require any person to appear before it to give evidence, and make an order for costs: ss84(1), 85(2), 86(2), 86A(1), 87(1), 87(2), 99A. It is required to observe the rules of natural justice: s87(4)(a). However the tribunal is required to conduct the inquiry with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before it permit, is not bound by the rules of evidence, and may inform itself on any matter as it thinks fit: ss86(1), 87(4).

• • There is no express requirement that the tribunal is to decide whether a complaint is substantiated or unsubstantiated.

• • Under s89(1), if the tribunal finds after an inquiry that a complaint is substantiated, it may make various types of orders including, amongst others, an injunction under s89(1)(a), an order for re-employment under s89(1)(c), a compensation order under s89(1)(d), an order for the payment of a fine under s89(1)(e), or an order under s89(1)(g) that it is inappropriate for any further action to be taken in the matter.

• • If the tribunal finds after an inquiry that a complaint is unsubstantiated, it may dismiss the complaint: s99(1).

• • The tribunal has no powers to compel the enforcement of its orders but, under s90, a certified copy of an order made by it may be filed in the Supreme Court and may then be enforced as if it were an order of the Supreme Court.

• • Apart from its role in conducting inquiries, the tribunal has a second role – that of reviewing decisions of the Commissioner relating to exemptions, withdrawals, rejections and dismissals of complaints: ss13(b), 59, 65(2), 68, 71(3), 72.

7 The JR Act was modelled on the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘the ADJR Act’). Many of the provisions in the two Acts are identical or substantially similar. By virtue of the definition of ‘decision to which this Act applies’ in the ADJR Act, s3(1), that Act only applies to ‘a decision of an administrative character’...