FARAH v SANDILANDS (Discrimination) [2021] ACAT 92
DT 32/2020
Catchwords: DISCRIMINATION – unlawful vilification – religious conviction – application to dismiss matter for lack of jurisdiction – whether material facts give rise to the ‘other than in private act’ by the respondent necessary to make out the elements of section 67A of the Discrimination Act 1991 – audience – third-party acts – whether the alleged discriminatory act occurred within the geographical reach of section 67A – extraterritoriality – conduct and result statutory provisions – test for summary dismissal – whether claim bound to fail – Tribunal found to have jurisdiction
[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.
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AGLC
Farah v Sandilands (Discrimination) [2021] ACAT 92
Case
[2021] ACAT 92
Decision Date
CaseChat Overview and Summary
The case of Farah v Sandilands involves a dispute before the Australian Capital Territory Administrative Tribunal. The applicant, Farah, is pursuing a claim under section 67A of the Discrimination Act 1991, alleging that the respondent, Sandilands, engaged in unlawful vilification on the basis of religious conviction. The primary legal issue before the Tribunal was whether the respondent's application to dismiss the matter for lack of jurisdiction should be upheld. This included determining whether the alleged discriminatory acts occurred within the geographical reach of section 67A and if the presumption against extraterritoriality could be rebutted.
The Tribunal examined the arguments presented by the respondent, focusing on the jurisdictional reach and the applicability of the presumption against extraterritoriality. The Tribunal concluded that the respondent's arguments about the geographical jurisdiction were not bound to fail and thus rejected the jurisdictional objection based on geographical limitations. The Tribunal highlighted the need for caution in summary dismissal applications, emphasizing that such issues are better resolved after a full hearing and when the facts are established. The Tribunal also noted that the matter was arguable and should proceed to a full hearing.
Based on the Tribunal's findings, the application for summary dismissal was dismissed. The Tribunal underscored that the decision was not a judgment on the merits of the case but rather a determination that the claim was not bound to fail and that it was arguable. The matter was to be listed for further directions to determine the appropriate procedures and conduct of the case, including any further evidence that may be led by the parties.
ORDERS:
1. The application by the respondent challenging the jurisdiction of the tribunal is dismissed.
2. The matter is to be listed for further directions on a date to be advised by the tribunal.
Orders
Orders of the court
ORDER
The Tribunal orders that:
1. The application by the respondent challenging the jurisdiction of the tribunal is dismissed.
2. The matter is to be listed for further directions on a date to be advised by the tribunal.
………………………………..
Senior Member Prof. P Spender
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
However, for the current application the question is not whether or not the Tribunal ought to follow Bottril No 1. Rather, the question is whether the arguments made by the applicant (and rejected by the respondent) that the presumption against extraterritoriality may be rebutted are bound to fail. The Tribunal is not persuaded that these arguments are bound to fail. The Tribunal therefore rejects the respondent’s geographical jurisdictional objection.Conclusion on the geographical objection to jurisdiction Again, the Tribunal notes the need for exceptional caution that is invoked in the case law applicable to summary dismissal and concludes that the applicant’s arguments about the geographical jurisdiction of the tribunal are not bound to fail. Given that the Tribunal has rejected both the respondent’s substantive jurisdictional objection and its geographical jurisdictional objection, the respondent’s application for summary dismissal is dismissed. As stated by Connolly J in West:These are all arguments which, it seems to me, should be made after a hearing and when the facts are established. This decision should not be taken to mean that I have formed a view, one way or another, as to whether the plaintiffs’ claim will succeed. All that I have decided is that the plaintiffs’ claim is not one that is bound to fail and that the plaintiffs’ case is arguable.[206] Next steps[206] West at [34] The matter is to be listed for further directions. During the hearing of this application the respondent argued that no further evidence could be led by the parties because directions had been made about the filing of evidence, leading to the conclusion that the evidence filed to date represents all evidence that may be relied on by the parties both in respect of the interim application and the substantive complaint.[207] On this point, it should be observed that the tribunal has a broad discretion to determine appropriate procedures[208] and the further conduct of the matter, including questions of evidence, is an issue that is to be decided by the tribunal, in consultation with the parties.[207] Respondent’s Hearing Submissions at [5][208] ACAT Act section 23