Clinch v Rep

Case [2020] ACAT 13

ACT CIVIL & ADMINISTRATIVE TRIBUNAL



CLINCH v REP (Discrimination) [2020] ACAT 13

DT 6/2019

Catchwords:                DISCRIMINATION – vilification – victimisation – jurisdiction – can the Tribunal hear discrimination matters between parties from different states – gender identity – application to dismiss – meaning of incitement – material provided that was created after the referral from the Human Rights Commission

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 7

Australian Constitution s 75
Discrimination Act 1991 ss 7, 67A, 68
Human Rights Commission Act 2005 s 53A
Legislation Act 2001 ss 169A, 169B

Cases cited:Bailey v Bottrill(No 2) [2019] ACTSC 167

Bottrill v Sunol& Anor [2017] ACAT 81
Bottrill v Sunol [2018] ACAT 21
Burns v Corbett [2018] HCA 15
DLH v Nationwide News Pty Ltd(No 2) [2018] NSWCATAD 217
Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
May-Welby v Capital Q Pty Ltd [1997] NSWEOT (No 33 of 1997)
Lee v Wilson & Mackinnon [1934] HCA 60
Piscioneri v Brisciani [2015] ACTSC 106
Sunol v Collier (No) 2 NSWCA 44
Trkulja v Google LLC [2018] HCA 25
Webb v Bloch [1928] HCA 50

Tribunal:  Senior Member B Meagher SC

Date of Orders:  20 February 2020

Date of Reasons for Decision:         20 February 2020

AUSTRALIAN CAPITAL TERRITORY  )

CIVIL & ADMINISTRATIVE TRIBUNAL       )          DT 6/2019

BETWEEN:

BRIDGET CLINCH

Applicant

AND:

BETHANIE REP

Respondent

TRIBUNAL:Senior Member B Meagher SC

DATE:20 February 2020

ORDER

The Tribunal being satisfied as a preliminary question that a number of the posts complained of are capable of incitement contrary to section 67A of the Discrimination Act 1991 and some are capable of being regarded as victimisation contrary to section 68 of that Act the Tribunal orders:

1.The application to dismiss the proceedings, on the basis that there is no jurisdiction, is refused.

2.The proceedings are limited to conduct occurring between 25 July 2018 and 18 April 2019.

3.The application to dismiss the proceedings on the grounds that the complaint is vexatious or frivolous is refused.

4.The matter is listed for hearing of the substantial application on 22 and 23 April 2020 at 10:00am.

5.The Registrar is to provide a copy of these reasons to the Attorney-General and the ACT Discrimination, Health Services & Disability and Community Services Commissioner and draw their attention to paragraph 23.

6.The applicant is to file and serve within 14 days a schedule of allegations identifying with particularity and in chronological order each of the respondent’s acts said to contravene the Discrimination Act 1991 and attaching the relevant social media posts. The schedule should respond as far as it can to the schedule filed by the respondent and be capable of showing the context of the posts identified and respond to the arguments made by the respondent in her schedule.

7.Any further evidence concerning access to the posts in the ACT be filed by the applicant within 21 days and by…

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AGLC
Clinch v Rep [2020] ACAT 13
Case
[2020] ACAT 13
Decision Date

CaseChat Overview and Summary

The applicant, Clinch, initiated proceedings against the respondent, Rep, in the Australian Capital Territory Civil and Administrative Tribunal. The dispute concerns alleged discriminatory and victimising conduct by Rep on social media. The court was tasked with deciding preliminary jurisdictional and procedural issues, including the admissibility of certain social media posts as evidence and the merits of a motion to dismiss the proceedings as vexatious or frivolous.

The court identified the legal issues to be resolved, focusing on the applicability of sections 67A and 68 of the Discrimination Act 1991 to the social media posts in question. The court examined whether certain posts could incite discrimination or constitute victimisation, and whether the proceedings should be dismissed for being vexatious or frivolous. The court also considered the proper procedure for the scheduling and exchange of evidence between the parties.

In its decision, the court found that several social media posts were capable of incitement under section 67A and some constituted victimisation under section 68 of the Discrimination Act 1991. The court refused the application to dismiss the proceedings for lack of jurisdiction and on the basis that the complaint was vexatious or frivolous. The court outlined the procedural steps to be taken, including the scheduling of a hearing, the exchange of schedules of allegations, and the filing of further evidence. The court also directed the Registrar to notify relevant authorities of specific findings.

The court made several orders, including the refusal of the application to dismiss the proceedings, the limitation of the proceedings to a specified timeframe, and the scheduling of a hearing. The applicant was required to file a detailed schedule of allegations and any further evidence within specific deadlines. The court also instructed the Registrar to provide a copy of the reasons for the decision to certain authorities and to highlight a particular paragraph in its decision.

Orders

Orders of the court

The Tribunal being satisfied as a preliminary question that a number of the posts complained of are capable of incitement contrary to section 67A of the Discrimination Act 1991 and some are capable of being regarded as victimisation contrary to section 68 of that Act the Tribunal orders:

1. The application to dismiss the proceedings, on the basis that there is no jurisdiction, is refused.

2. The proceedings are limited to conduct occurring between 25 July 2018 and 18 April 2019.

3. The application to dismiss the proceedings on the grounds that the complaint is vexatious or frivolous is refused.

4. The matter is listed for hearing of the substantial application on 22 and 23 April 2020 at 10:00am.

5. The Registrar is to provide a copy of these reasons to the Attorney-General and the ACT Discrimination, Health Services & Disability and Community Services Commissioner and draw their attention to paragraph 23.

6. The applicant is to file and serve within 14 days a schedule of allegations identifying with particularity and in chronological order each of the respondent’s acts said to contravene the Discrimination Act 1991 and attaching the relevant social media posts. The schedule should respond as far as it can to the schedule filed by the respondent and be capable of showing the context of the posts identified and respond to the arguments made by the respondent in her schedule.

7. Any further evidence concerning access to the posts in the ACT be filed by the applicant within 21 days and by the respondent within a further 14 days.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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