Bullard v Anti-Discrimination Tribunal - [2020] TASSC 15

[2020] TASSC 15

COURT: SUPREME COURT OF TASMANIA

CITATION: Bullard v Anti-Discrimination Tribunal [2020] TASSC 15

PARTIES:  BULLARD, Tim (Secretary of the Department of Education)
  v
  ANTI DISCRIMINATION TRIBUNAL

MORGAN, Jenni

FILE NO:  2659/2019
DELIVERED ON:  19 May 2020
DELIVERED AT:  Hobart
HEARING DATE:  25 February 2020
JUDGMENT OF:  Geason J

CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Review of decision – Out of time complaint not accepted by Commissioner – No tribunal jurisdiction to review Commissioner decision – Tribunal decision invalid – Appeal upheld.
Anti Discrimination Act 1998 (Tas), ss 63, 64, 65 and 16(l).
Judicial Review Act 2000, s 17(2)(c).
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, applied.

Khoury v Government Insurance Office (NSW) (1984) 165 CLR 622; State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48, 19 Tas R 54; Abblitt v The Anti-Discrimination Commissioner [2016] TASSC 12;referred to.
Aust Dig Human Rights [53]

Administrative Law – Judicial review – Reviewable decisions – Review by Anti-Discrimination Tribunal of Commissioner's decision to not accept a complaint – No jurisdiction – Appeal is allowed – Tribunal decision set aside.

Aust Dig Administrative Law [1098]

REPRESENTATION:

Counsel:
             Applicant:  M O'Farrell SC and D Osz
             First Respondent:  No appearance
             Second Respondent:  A Walker
Solicitors:
             Applicant:  Solicitor-General
             First Respondent:  No appearance
             Second Respondent:  In person

Judgment Number: [2020] TASSC 15
Number of paragraphs: 56

Serial No 15/2020
File No 2659/2019

TIM BULLARD (Secretary of the Department of Education)
v ANTI DISCRIMINATION TRIBUNAL and JENNI MORGAN

REASONS FOR JUDGMENT GEASON J

19 May 2020

On 18 December 2018 the second respondent lodged a complaint with Equal Opportunity Tasmania seeking redress under the Anti-Discrimination Act 1998 (the Act) for conduct which was alleged to breach the Act.
The complaint alleged that after a lengthy and stable career within the Education Department working as a support teacher at a primary school, a person referred to as "G" was appointed principal. It was alleged a number of incidents followed his appointment which caused the complainant to feel that she was neither valued nor respected. The alleged conduct was constituted by a number of comments and management actions by G, culminating in her being asked to move to another school or occupy a different role within the school. Aged between 59 and 61 years over the period of the alleged conduct, the complainant asserted G's conduct occurred on the basis of her age and industrial activity.
G left the school in 2016. The complaint alleged ongoing discrimination by reason of the continued presence of "the senior team" at the school.
The complaint included allegations of discrimination by the Education Department. That conduct was described by the Tribunal in the decision, the subject of this appeal, as "less well formulated" but made on the basis of its failure to take any action following complaints about G's conduct.
On 19 September 2019…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bullard v Anti-Discrimination Tribunal

Details

AGLC: Bullard v Anti-Discrimination Tribunal [2020] TASSC 15
Case: [2020] TASSC 15
Decision Date: 19 May 2020

CaseChat Overview and Summary

Bullard brought proceedings against the Anti-Discrimination Tribunal, seeking a review of a decision made by the Tribunal regarding a complaint of discrimination. The dispute centred on whether the Tribunal had jurisdiction to review a decision by a Commissioner not to accept a complaint that was lodged outside the statutory time limit. The matter was heard by the Supreme Court of Tasmania.

The central legal issues for the court were whether the Tribunal had jurisdiction to review the Commissioner's decision and whether the Tribunal's decision to dismiss the complaint was valid. The court needed to determine if the Tribunal could review the Commissioner's decision, given that the Commissioner was not a party to the proceedings and the decision was made outside the Tribunal's statutory jurisdiction. The court also had to consider the validity of the Tribunal's decision to dismiss the complaint in light of the Commissioner's decision.

The Supreme Court held that the Tribunal did not have jurisdiction to review the Commissioner's decision as the Commissioner was not a party to the proceedings and the decision fell outside the Tribunal's statutory jurisdiction. Consequently, the court found the Tribunal's decision to be invalid. The court further held that the Commissioner's decision not to accept the out-of-time complaint was final and binding, and the Tribunal had no power to review it. The court concluded that the Tribunal's dismissal of the complaint was therefore invalid.

The court upheld the appeal, setting aside the Tribunal's decision and remitted the matter back to the Tribunal with directions to dismiss Bullard's complaint. The court's decision underscored the importance of adhering to statutory time limits for lodging complaints and the limited jurisdiction of the Tribunal to review decisions made outside its statutory powers.

Orders