De Domenico v Marshall

In De Domenico v Marshall, the respondent, an employee of the Australian Capital Territory, appealed a decision of the Administrative Appeals Tribunal regarding allegations of sexual harassment. The Tribunal found that the respondent had sexually harassed the appellant and ordered the respondent to apologise to the appellant, to pay the appellant $500, and to undergo training. The Supreme Court of the Australian Capital Territory was asked to review the decision of the Tribunal. The primary issue before the Court was whether the appeal was limited to questions of law as provided by section 46 of the Administrative Appeals Tribunal Act 1989, or whether a more expansive appellate jurisdiction was provided by section 20 of the Supreme Court Act 1933. The Court also considered whether section 48A of the Australian Capital Territory (Self-Government) Act 1988 conferred appellate jurisdiction on the Supreme Court or prevented the appellate jurisdiction otherwise conferred by section 20 of the Supreme Court Act from being reduced or limited by laws of the Territory.

The Court found that the appeal was not limited to questions of law as provided by section 46 of the Administrative Appeals Tribunal Act 1989. Rather, the Court held that a more expansive appellate jurisdiction was provided by section 20 of the Supreme Court Act 1933. The Court also found that section 48A of the Australian Capital Territory (Self-Government) Act 1988 did not confer appellate jurisdiction on the Supreme Court or prevent the appellate jurisdiction otherwise conferred by section 20 of the Supreme Court Act from being reduced or limited by laws of the Territory. The Court held that the Tribunal had failed to make adequate findings and give sufficient reasons for its decision, and that the appellant had not been given sufficient warning of the Tribunal’s intention to depart from the approach taken by the Discrimination Commissioner in the decision appealed from. The Court also found that the Tribunal had taken irrelevant considerations into account and failed to take relevant considerations into account, and that the decision was based upon errors of law and fact.

The Court upheld the appeal, set aside the decision of the Tribunal, and remitted the matter to the Tribunal for re-hearing. The Court also ordered that the appellant be paid $5,000 in costs.