Farah v Sandilands

Case [2021] ACAT 92


ACT CIVIL & ADMINISTRATIVE TRIBUNAL

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

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 7, 23

Civil Liability Act 2002 (NSW) s 5N
Court Procedures Act 2004 s 5A
Discrimination Act 1991 s 67A
Legislation Act 2001 ss 122, 139
Human Rights Act 2004 ss 14, 16, 21
Human Rights Commission Act 2005 s 53A
Racial and Religious Tolerance Act 2001 (Vic) s 8

Cases cited:Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd [2020] SASC 161

Allatt & ACT Government Health Directorate [2012] ACAT 67
Barcelo v Electrolytic Zinc Co of Australasia Ltd [1932] HCA 52
Bottrill v Sunol [2017] ACAT 81
Brownlie v State Pollution Control Commission (1992) 27 NSWLR 78
Burns v Gaynor [2015] NSWCATAD 211
Burns v Radio 2UE Sydney Pty Ltd [2004] NSWADT 267
Burns v Sunol [2012] NSWADT 246
Catch the Fire Ministries Inc v Islamic Council of Victoria [2006] VSCA 284
Clinch v Rep [2020] ACAT 13
Clinch v Rep (No. 2) [2020] ACAT 68
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Dey v Victorian Railways Commissioners [1949] HCA 1
DLH v Nationwide News Pty Ltd (No 2) [2018] NSWCATAD 217
Dow Jones & Co Inc v Gutnick [2002] HCA 56
Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
Ex parte Iskra; Ex parte Mercantile Transport Co Pty Ltd (1962) 5 FLR 219
Fairfax Media Publications; Nationwide News Pty Ltd; Australian News Channel Pty Ltd v Voller [2020] NSWCA 102
Fairfax Media Publications Pty Ltd; Nationwide News Pty Limited; Australian News Channel Pty Ltd v Voller [2021] HCA 27
Financial Integrity Group Pty Limited v Farmer [2009] ACTSC 143
Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132
General Steel Industries Inc v Commissioner for Railways(NSW) [1964] HCA 69
Insight Vacations Pty Ltd trading as Insight Vacations v Young [2011] HCA 16
Jones v Trad [2013] NSWCA 389
Jumbunna Coal Mine NL v Victorian Coal Miners’ Association [1908] HCA 95
Kay’s Leasing Corporation Pty Ltd v Fletcher [1964] HCA 79
Kays Holdings Pty Ltd v Nassar [1968] 1 NSWR 497
Legal Practitioner P1 v ACT Civil and Administrative Tribunal [2017] ACTSC 173
Lipohar v R [1999] HCA 65
Lonrho Plc v Fayed (No 2) [1992] 1 WLR 1
Margan v Manias [2015] NSWCA 388
Meyer Heine Pty Ltd v China Navigation Co Ltd [1966] ALR 791
Momcilovic v The Queen [2011]…

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Details
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

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Evidence

Evidence Before The Court

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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

Ratio Decidendi

Legal Principle Established

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