Gindy & Chief Minister & ACT Government and Ors
[2011] ACAT 67
•5 September 2011
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
GINDY & CHIEF MINISTER & ACT GOVERNMENT AND ORS (Discrimination) [2011] ACAT 67
DT 12, 13, 15 of 2011
Catchwords: DISCRIMINATION – referral of complaints by the Human Rights Commission – application to strike out as frivolous and vexatious – powers of the tribunal – principles applying to strike out applications – interpretative obligation under the Human Rights Act 2004 – when tribunal acts in an administrative capacity –right to a fair hearing - strike-out not inconsistent with right to fair trial – applicant unable to establish essential element relating to services – applications for costs refused
List of legislation: ACT Civil and Administrative Tribunal Act 2008, ss 6, 7, 9, 32 and 48, and Schedule 1
Discrimination Act 1991, ss 20 and 30, and the definition of “services”, and former s 79
Human Rights Act 2004, ss 21 and 30
Human Rights Commission Act 2005, ss 30, 53A, 53C, 53E and 78
Oaths and Affirmations Act 1984, Schedule 1A
List of cases: ACT Department of Education and Training v Prendergast [2000] ACTDT 6
Brooks v ACT Government [2008] ACTDT 5
Council of the Law Society v The Legal Practitioner [2011] ACAT 49
Firestone v Legal Aid Office (ACT)
[2007] ACTDT 3
Gardner and Beaver v TheACT Planning and Land Authority
[2010] ACAT 64
IF v Commissioner for Housing[2004] ACTDT 1
Jackson v Sterling Industries (1987) 162 CLR 612
Jamieson Mary v The Australian Workers Union & Another
[1999] VCAT 628King v Higgins [2009] ACTSC 153
McCormack v Charles Sturt University [2008] ACTDT 4
Parsons v Martin (1984) 5 FCR 235
Pitt v One Steel Reinforcing Pty Ltd [2008] FCA 923
King v Higgins [2009] ACTSC 153
Re Cameron [1996] 2 Qd R 218
The State Electricity Commission Board v Rabel
[1996] VSC 78
The Appellants v The Law Society of the ACT and the Legal Practitioner. [2011] ACTSC 133
Tribunal: Ms L. Crebbin, General President
Date of Orders: 5 September 2011
Date of Reasons (Ex Tempore): 5 September 2011
ACT CIVIL AND
ADMINISTRATIVE TRIBUNAL ) NO: DT 11/12RE: MS LAILA GINDY
Applicant
AND: CHIEF MINISTER OF THE ACT & THE ACT GOVERNMENT
Respondent
ORDERS
Tribunal:Ms L Crebbin – General President
Date of Order: 5 September 2011
The Tribunal Orders that:
- Upon being satisfied that the application DT11/12 is frivolous and vexatious, the tribunal orders that the application be dismissed.
Sgd Ms L Crebbin
General President
ACT CIVIL AND
ADMINISTRATIVE TRIBUNAL ) NO: DT11/13
RE: LAILA GINDY
Applicant
AND: BRIAN LOFTUS, WILLIAM STEFANIAK
& ACT CIVIL AND ADMINISTRATIVE TRIBUNAL
Respondents
ORDERS
Tribunal:Ms L Crebbin – General President
Date of Order: 5 September 2011
The Tribunal Orders that:
- Upon being satisfied that the application DT11/13 is frivolous and vexatious, the tribunal orders that the application be dismissed.
Sgd Ms L. Crebbin
General President
ACT CIVIL AND
ADMINISTRATIVE TRIBUNAL) NO: DT 11/15
RE:LAILA GINDY
Applicant
AND: SIMON CORBELL, ATTORNEY GENERAL OF THE ACT
Respondent
ORDERS
Tribunal:Ms L Crebbin – General President
Date of Order: 5 September 2011
The Tribunal Orders that:
- Upon being satisfied that the application DT11/15 is frivolous and vexatious, the tribunal orders that the application be dismissed.
Sgd Ms L Crebbin
General President
REASONS FOR DECISION
1.These reasons for decision relate to three complaints referred to the ACT Civil and Administrative Tribunal (the Tribunal) by the ACT Human Rights Commission (the Commission) under section 53A of the Human Rights Commission Act 2005. The Tribunal regards complaints referred by the Commission under this section as applications made to the Tribunal under section 9 of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act). The complainant becomes the applicant for the purposes of the proceedings before the tribunal. The person or entity complained about is the respondent. This is consistent with section 53C of the Human Rights Commission Act 2005 which provides that the parties to tribunal proceedings on a complaint referred to the tribunal, are the complainant and the person complained about.
2.
The complaints were referred to the Tribunal by letter dated 14 April 2011.
3.The referral letter dealt with a number of complaints made by Ms Laila Gindy (the applicant) in one complaint form dated 15 March 2011.
The Complaint
4.
The complaint identified the Law Society of the Australian Capital Territory and various people associated with it as respondents. That part of the applicant’s complaint is being dealt with by the Tribunal separately.
5.The balance of the complaint identified Mr Jon Stanhope, the then ACT Chief Minister, and the ACT Government as a respondent; Mr Brian Loftus and the ACT Civil and Administrative Tribunal as a respondent, and Mr Bill Stefaniak and the ACT Civil and Administrative Tribunal as a respondent. These complaints were dealt with by the Tribunal at the same time.
6.The complaint was made by the applicant on the basis that she is the person against whom each respondent had discriminated. Her complaint said that she believes she was treated unfavourably by each respondent because of her race and because of her association with another person, on the basis of their race. She identified her race as a particular middle eastern nationality.[1] She did not identify the person with whom she is associated, but we have proceeded on the basis that it is her husband. The applicant’s husband represented her in these proceedings.
[1] see sections 8(1)(a) and 7(1)(h) and (n) of the Discrimination Act 1991
7.The complaint form showed that the applicant believes that the respondents each discriminated against her in respect of the provision of goods or services or facilities. It was accepted in these proceedings that the applicant’s complaint relates to the provision of services, rather than of goods or the making available of facilities. Section 20 of the Discrimination Act 1991 makes it unlawful to discriminate against another person in this area.
8.The complaint form contained some details of the complaints made against each respondent. It also referred to and attached a letter dated 16 February 2010. The date on the letter is an error. It should have been dated 16 February 2011. I note that a number of the letters before the tribunal in this matter bear dates in 2010, but it is clear and accepted by the parties that, the relevant items of correspondence were prepared in 2011.
9.The letter of 16 February was addressed to the then Chief Minister. It was relied on by the applicant as providing further detail about her complaints.
10.The Attorney-General was not specifically named as a respondent in the complaint form but was referred to in the 16 February letter. On about 7 April 2011, the applicant asked the Commission to include the Attorney-General in her complaint. That was done.
11.The Commission closed the complaints on 8 April 2011. In respect of each respondent, the complaint was closed under section 78(2)(iv) of the Human Rights Commission Act 2005 on the basis that “the complaint does not appear to raise any issues under the Discrimination Act 1991”. The applicant asked the Commission to refer the complaints to the Tribunal very shortly after.
12.In these proceedings, the Tribunal considered the referral of the complaints relating to the Chief Minister, the Attorney-General, Mr Brian Loftus, Mr Stefaniak and the ACT Civil and Administrative Tribunal. The respondents applied under section 32 of the ACAT Act to have the complaints dismissed as frivolous and vexatious.
The Powers of the Tribunal
13.The tribunal is a creature of statute. This statement, while trite, encapsulates a proposition that underpins each action the tribunal takes. The tribunal may only do things, make decisions and exercise powers, which a law specifically authorises it to do. It is recognised that a statutory decision‑making body may do things that are, by implication, necessary to give effect to an express power,[2] but the Tribunal must be able to ground its actions on an express power.
[2] see Jackson v Sterling Industries (1987) 162 CLR 612 per Deane J; also Parsons v Martin (1984) 5 FCR 235 at 241
14.The importance of this fundamental principle has been reinforced in relation to this tribunal recently by his Honour Refshauge J in the matter reported as The Appellants v The Law Society of the ACT and the Legal Practitioner. [2011] ACTSC 133.
Section 32, ACAT Act
15.Section 32 of the ACAT Act provides:
32 Frivolous and vexatious applications
(1) This section applies if—
(a) the tribunal considers an application is frivolous or vexatious;
or
(b) a person who has made an application to the tribunal has been dealt with as frivolous or vexatious by a court or tribunal in Australia.
(2) The tribunal may, by order, do 1 or more of the following:
(a) refuse to hear the application;
(b) dismiss the application;
(c) direct that the person who made the application not make
a subsequent application to the tribunal of the kind stated in the direction—
(i)within a stated period of time; or
(ii)without the leave of the tribunal.
16.This is a generic power used by the Tribunal in relation to various matters that come before it.
17.Before the Tribunal commenced operation, section 79 of the Discrimination Act 1991 permitted a person against whom a discrimination complaint was made, to apply to the former Discrimination Tribunal to strike out the complaint. An application could be made under section 79 before the former tribunal started hearing the complaint. The section provided that a complaint could be struck out on the grounds that it was frivolous, vexatious, or not made honestly; or on the ground that the complaint lacked substance. There was a separate power to dismiss a complaint on those grounds after the Discrimination Tribunal had heard the complaint. These provisions were omitted by the ACT Civil and Administrative Tribunal Legislation (Amendment) Act 2008 and replaced with the generic power that now exists in section 32 of the ACAT Act. I am satisfied that although the language of the former section 79 of the Discrimination Act 1991 was different, the power in section 32 of the ACAT Act is intended to have the same scope and operation.
18.The phrase “frivolous and vexatious” is a term of art that has been considered in many cases. In Pitt v One Steel Reinforcing Pty Ltd[3], Gray J said:
The word “frivolous”, especially when coupled with “vexatious” is a technical legal term, in substance, meaning the absence of a cause of action.
[3] [2008] FCA 923 at [9].
19.It was recently considered by Member Chenoweth in the matter of Council of the Law Society v The Legal Practitioner reported at [2011] ACAT 49. Mr Chenoweth said:
The use of the term “frivolous or vexatious” has a pejorative note to it. It has the implication that an application has been made for no good reason at all, or for a purpose designed to harass or annoy. The term is also used to describe a cause of action which has no reasonable prospects of success.
20.Mr Chenoweth noted the comments made by President Fitzgerald in the matter of re Cameron[4], to the effect that proceedings may be regarded as vexatious if there is a lack of reasonable grounds for the application sought to be made. Mr Chenoweth also referred to the comments of Refshauge J in the ACT Court of Appeal matter of King v Higgins [2009] ACTSC 153.[5]
[4] [1996] 2 Qd R 218.
[5] See paragraphs 40 - 42
21.The phrase has been used in a number of cases in the context of an action designed to harass or annoy a party. I accept that that meaning is not relevant in these matters. I accept that the applicant genuinely believes that she has been subject to unfavourable treatment and that she has, to that extent, a genuine grievance.
22.The parties were, in my view, largely in agreement about the principles that the tribunal should adopt in relation to the question of whether a matter is frivolous and vexatious, although there was disagreement between them about how the principles should be considered and applied.
23.A complaint cannot be dismissed unless it is clear that the complainant has no arguable case which should be allowed to be resolved at hearing. The onus is on the person applying for the dismissal to establish that that is the case.
24.Considerable attention was given to the application of the principles under the former section 79 of the Discrimination Act 1991 by the Discrimination Tribunal[6]. I am satisfied that the exercise of the power in relation to discrimination claims is no different from the exercise of the power in relation to civil and administrative matters.
[6] See for example ACT Department of Education and Training v Prendergast [2000] ACTDT 6; Firestone v Legal Aid Office (ACT) [2007] ACTDT 3; Brooks v ACT Government [2008] ACTDT 5; McCormack v Charles Sturt University [2008] ACTDT 4; IF v Commissioner for Housing [2004] ACTDT 1
25.The principles were also considered in detail in the context of a discrimination matter by the Victorian Court of Appeal in The State Electricity Commission Board v Rabel.[7] The principles are usefully and relevantly summarised in the VCAT case of Jamieson Mary v The Australian Workers Union & Another.[8] In that case, VCAT was considering an application to strike out a discrimination complaint as frivolous and vexatious at a preliminary stage of the proceedings under section 109 of the relevant Victorian Act. The following aspects of the summary are relevant here:
[7] [1996] VSC 78
[8] [1999] VCAT 628
(1) The respondent bears the onus of showing that the complainant's case ought not be allowed to proceed.
(2) The respondent must show that the complainant's case is obviously hopeless and untenable, or that it could on no reasonable view, justify relief. A complaint can be dismissed or struck out if it is obviously unsustainable in law or in fact. This will include, but is not limited to, a case where a complaint can be said to disclose no reasonable cause of action.
(3) A clear distinction must be drawn between the complaint and the evidence which is to be given in support of it. A complaint cannot be dismissed or struck out as lacking in substance merely because it does not in itself contain the evidence supporting the claims.
(4) The Tribunal should not apply technical, artificial or mechanical rules in coming to a view about the case that a complainant wishes to advance.
(6) The proceeding may be determined on the “pleadings” and submissions alone, or by allowing the parties to put forward material including affidavits and oral evidence.
(7) If the complainant indicates that the whole of their case is contained in the material before the Tribunal, the Tribunal is entitled to determine the strike out application by asking whether, on all the material before it, there is a question of real substance to go to a full hearing.
(8) However, if the complainant indicates that there is other evidence they can call to support their claim and the Tribunal does not permit that evidence to be called, the Tribunal cannot determine the matter on the basis that the complainant's material contains the whole of their case.
(9) If the material before the Tribunal shows that there is a dispute between the parties about a fact and the material does not assist the Tribunal to resolve the dispute, it will be difficult for the Tribunal to be satisfied that the complaint is so lacking in substance that it should be dismissed or struck out.
(10) It is a serious matter for the Tribunal, in an interlocutory proceeding
which will generally not involve the hearing of oral evidence, to deprive a
litigant of the chance to have their complaint heard in the ordinary course.(11) If the respondents have satisfied the Tribunal that the complaint or any
part of it is frivolous, vexatious, misconceived or lacking in substance in
respect of any element that is essential for the complainant to prove, then
the complaint or the relevant part of the complaint should be dismissed or
struck out.
26.In the cases before me, the strike-out applications have been considered at an interlocutory stage on the basis of “pleadings” and submissions alone. No affidavits or witness statements were filed, no oral evidence was given.
27.A decision to strike out a claim under section 32 of the ACAT Act has the inevitable consequence that the applicant for the matter will not have access to a full hearing on the merits. This prima facie engages the applicant’s right to a fair hearing under section 21 of the Human Rights Act 2004.
28.I adopt the views of Professor Spender in relation to this, as set out in the decision of Gardner and Beaver v TheACT Planning and Land Authority [2010] ACAT 64 (the Gardner case). I stress that I refer to this decision only in relation to that part of it that considers the relevance of the Human Rights Act 2004 to an application under section 32 of the ACAT Act. In the Gardner case Professor Spender referred to the two bases which found the obligation of the tribunal to consider the Human Rights Act, the first being the interpretive obligation under section 30 of that Act, and the second being the obligation under section 40B of that Act which makes it unlawful for a public authority when making a decision, to fail to give proper consideration to a relevant human right.
29.In respect of the interpretive obligation, it is relevant for this tribunal, when considering an application under section 32 of the ACAT Act, to turn its mind to the engagement of section 21 of the Human Rights Act 2004. In my view, a consideration of fair trial principles is unlikely to bring this tribunal to any different interpretation of the relevant law. It is clear that the body of jurisprudence, both in relation to the exercise of a statutory power to dismiss proceedings summarily, and the exercise of a common law power to proceedings summarily, recognises the overarching right of an applicant to have a sustainable case considered in a full hearing.
30.Secondly, there will be occasions on which this Tribunal is required to act consistently with human rights because it is acting as a public authority. The Tribunal will only be considered to be acting as a public authority when it is acting in an administrative capacity.[9] This occurs in many of the cases that come before the tribunal; in matters involving administrative review, in matters involving the application of guardianship and management of property legislation and of mental health legislation. The Tribunal is probably also acting as a public authority when it considers matters involving occupational or professional discipline. There are a large number of such matters that the tribunal considers under a range of authorising laws.
[9] The Human Rights Act 2004 defines “court” to include the ACAT; section 40, given below, defines “public authority”:
31.It is not clear that the tribunal acts as a public authority when it is considering complaints under the Discrimination Act 1991. I could not find any consideration of this issue in Victoria. Further, it is not clear that the tribunal acts as a public authority when it is considering a strike out application under section 32 of the ACAT Act. This is because both discrimination proceedings and proceedings under section 32 of the ACAT Act, determine rights between individuals. This is not on the face of it, an exercise of power by the tribunal in an administrative capacity as a public authority. However, like Professor Spender in the Gardner case, I do not think it is necessary to formally decide that matter. I note that the Victorian Civil and Administrative Tribunal has taken the approach that its power to strike out proceedings at a summary stage does not involve an exercise of power in an administrative capacity.
32.I have considered the extent to which a decision under section 32 of the ACAT Act is consistent with the human rights contained in the Human Rights Act and, specifically with the right to a fair trial. The right to a fair trial does not, in my view, mean that the tribunal cannot or should not exercise its strike-out power in a matter which it is satisfied is doomed to fail, or in a matter which lacks substance in respect of any element that is essential for the complainant to prove. The right of access to the tribunal and the right to a full hearing is not absolute. Section 32 of the ACAT Act pursues a legitimate aim of discouraging litigants from bringing claims that have no merit. I adopt the reasoning of Professor Spender set out at paragraphs 54 to 57 of the Gardner case.
33.In matters under the Discrimination Act 1991, a complainant must establish each of the following elements in order for a complaint of unlawful discrimination to succeed:
(i)that he or she was treated unfavourably by the respondent;
(ii)in an area of public life;
(iii)because of a particular relevant attribute.
34.In these applications, each complaint is made in relation to the applicant only. The complaints were not made or pursued on a representative basis, although in some of the documents before the tribunal there are broad general references to the applicant’s husband, to her family unit and to people of her nationality generally. She believes that she was treated unfavourably by each respondent.
35.Each complaint is made in relation to the provision of services to the applicant. In each complaint the applicant assets that she was subject to unfavourable treatment because of her race, or her association with a person who has the attribute of race.
36.I have formed the view that in each of the complaints the applicant will be unable to establish the second element necessary to substantiate a complaint of discrimination. That is, she will be unable to establish that the respondents treated her unfavourably in relation to the provision of services under section 20 of the Discrimination Act 1991. Section 20 provides:
20 Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a)by refusing to provide those goods or services or make those facilities available to the other person; or
(b)in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c)in the way in which the provider provides those goods or services or makes those facilities available to the other person.
37.There is an inclusive definition of the term “services” in the Dictionary to the Discrimination Act 1991. It provides:
services includes—
(a)services relating to banking, insurance or the provision of grants, loans, credit or finance; and
(b)services relating to entertainment, recreation or refreshment; and
(c)services relating to transport or travel; and
(d)services of any profession, trade or business; and
(e)services provided by a government, government authority, local government body or corporation in which a government has a controlling interest; and
(f)the provision of scholarships, prizes or awards.
38.In relation to the Chief Minister, the Attorney-General, the tribunal members and the tribunal itself; the applicant’s representative pointed to a number of documents, for example oaths of office[10] and various other documents, that establish that each individual and the tribunal, “serve” in some generic way. Of that there is no doubt. Members of the Tribunal, for example, give an undertaking that they will well and truly serve in their office. The oath of office made by the Chief Minister and the Attorney-General as members of the Legislative Assembly requires them to commit to the service of the people of the Australian Capital Territory. “Service” in this generic context is a different concept from the concept of the provision of services to a person as dealt with by section 20 of the Discrimination Act.
[10] See Schedule 1A, Oaths and Affirmations Act 1984; Schedule 1, ACAT Act
The Chief Minister
39.
The applicant’s case is that the Chief Minister refused to provide her with services by refusing or failing or omitting to respond to her letter dated
16 February, or to do the things that she requested be done in that letter; namely to hold public inquiries about the ACT Law Society and its members, the conduct of some judges, the conduct of ACT Legal Aid, the conduct of ACAT and some of its members and to consider contacting her in order to resolve her various complaints without the need of court proceedings.
40.It is the case that the Chief Minister failed to respond to the letter, other than to indicate that he had passed the letter to another person; namely the Attorney General, for response. He also failed to do the things requested by the applicant in her letter. I am not satisfied, on any basis, that the Chief Minister’s actions constitute a refusal to provide services to the applicant, or involve placing terms or conditions on services that were being made available to her. Responding or failing or refusing to respond to correspondence from a member of the public does not involve the provision or the refusal of a service or of services to that person. This is not the provision of services in the context that section 20 concerns itself with.
The Attorney-General
41.In this complaint the applicant says that the Attorney General failed to provide services to her because, while he did respond to the letter, his response did not address the issues raised in the letter in full. He was said also to have failed to provide her with services by failing to establish the various inquiries in accordance with her request. I am not satisfied that a failure to adequately respond to correspondence is a failure to provide services to the applicant, nor am I satisfied that an Attorney-General, in establishing commissions or inquiries, is providing services to an individual. In my view, a commission or an inquiry established under the Judicial Commission Act 1994 is not the provision of a service to the person who has sought the inquiry. The Judicial Commission Act is designed to uphold the administration of the justice system generally – not to provide a service to, or for, an individual. Likewise the Inquiries Act 1991 establishes a system for the holding of inquiries for the interest of the public generally – not for the benefit of an individual. It is not a service provided to or for an individual.
ACAT and its Members
42.In this complaint, the applicant says that the tribunal and its members discriminated against her when dealing with, and making decisions about, disciplinary action brought by the ACT Law Society against her husband. I am not satisfied that there is any relevant sense in which members of the tribunal or the tribunal itself, was providing services to the applicant. I have some doubt as to whether a member of the tribunal, or the tribunal when it is hearing a matter, can ever be said to be providing services to or for an individual. I think the more appropriate characterisation of the work of the members of the tribunal and the tribunal itself, is that it provides services for the broader administration of justice. In this case, there is no way that, in dealing with an application relating to her husband; Mr Loftus or Mr Stefaniak, or the other members of the tribunal dealing with the matters before it, or the tribunal itself, could be said to have refused to provide services to the applicant, or to have put any terms or conditions on the way in which it was providing services to her, or to be acting in any way that was relevant to the provision of services to, or for, her. I accept that the decisions of the ACAT and its members have affected the applicant, but the provisions of the Discrimination Act 1991 do not recognise that as a relevant area of discrimination.
Other Submissions
43.
The respondents have also relied on an exemption provided by section 30 of the Discrimination Act. Because of the view that I have formed of this matter,
I have not considered whether that exemption applies in this matter. Prima facie I think that it does, but it is not an issue that I feel necessary to consider in detail.
44.The applicant’s representative provided other detailed and broad ranging arguments designed to elucidate the basis of her grievances and the impact of those matters upon her and those connected to her, as well as on the broader community of people of her identified race. I have not considered, and will not comment, on those broad ranging arguments. I do not wish to be seen as being dismissive of them simply because I have not dealt with them. I have not dealt with them because it is not necessary for me to do so.
45.I accept that the applicant has a sense of genuine grievance about the things that have occurred to her. I accept that the matters raised by her representative have caused her significant distress and, indeed, grief. However, even if these complaints had proceeded to a full hearing, the tribunal could not have made some of the orders that the applicant is seeking.
46.She sought orders in relation to each complaint for various declarations relating to discrimination towards, and breach of domestic and international rights of herself, her husband, her family and people of her race. She sought a written apology for herself, her husband and her family. Initially, she sought punitive damages in the sum of twenty million dollars. That was later amended to a claim for damages of thirty million dollars for herself, her husband and her family, excluding punitive damages.
47.I do not accept that the tribunal has power under section 53E of the Human Rights Commission Act to provide declaratory relief.
48.To the extent to which the applicant indicated she was seeking orders for the benefit of other people or other groups and that she was seeking orders in respect of things other than the matters dealt with in her complaint, and by this I include vilification; I emphasise that the tribunal is only authorised to deal with the matters that are before it. Those matters concern her and an allegation of unlawful discrimination on the basis of the attribute that she identified in her complaint, in the area that she referred to in her complaint. The tribunal can only exercise the powers that are given to it under the relevant authorising law. Regardless of the outcome of these applications, it would have been impossible for the tribunal to make orders providing apologies to, or compensation for damage or loss suffered by people other than the applicant.
49.The tribunal does not have the power to order punitive damages. Section 53E of the Human Rights Commission Act makes it clear that the tribunal’s power is limited to orders for compensatory damages. The applicant’s representative raised an interesting argument in relation to a general power to give orders for damages arising from sections 6 and 7 of the ACAT Act. It was an argument that exercised my mind somewhat, but it is clear that sections 6 and 7 of the ACAT Act are not sources of power for the tribunal.
50.These sections establish the objectives of the tribunal and the principles on which the tribunal must exercise the powers given to it. They are not in themselves sources of power from which an implied power to make orders so as to do justice between the parties can be derived. A reading of his Honour Refshauge J’s decision in the matter of The Appellants v The Law Society and the Legal Practitioner makes it clear that the Supreme Court would take a dim view of an attempt by the tribunal to exercise such a broad ranging power as that advocated by the applicant’s representative.
51.Each application is dismissed.
52.The respondent’s representative submitted that a costs order should be made against the applicant pursuant to the power given by section 48(1) of the ACAT Act. It was argued that costs should be awarded against the applicant because she should have known from the outset that she had no prospects of success, because the allegations made against the respondents were intemperate and, in some instances, scandalous.
53.
I declined to exercise the discretion to make an award for costs against the applicant under section 48(1) of the ACAT Act because I am satisfied that the applicant genuinely believes that she has been the subject of discrimination.
I am satisfied that it was not her intention or motivation to annoy, harass, or to do anything other than to pursue what she perceives to be her legitimate grievance.
54.The applicant’s representative sought a costs order against the respondents because, he submitted, of the way in which the respondents’ representative presented the strike out applications. He said that he was required to put a large amount of material and cases before the tribunal because the respondents’ case was not adequately prepared. I also declined to exercise any discretion to make a costs order against the respondents.
………………………………..
Ms L. Crebbin
General President
PUBLICATION DETAILS
TO BE PUBLISHED
To be completed by Tribunal Staff
PART A FILE NO:
APPLICANT:
RESPONDENT:
COUNSEL APPEARING: APPLICANT:
RESPONDENT:
SOLICITORS: APPLICANT:
RESPONDENT:
OTHER: APPLICANT:
RESPONDENT:
TRIBUNAL MEMBER/S:
DATE/S OF HEARING: PLACE: CANBERRA
DATE/S OF DECISION: PLACE: CANBERRA
PART B
RECOMMENDATION:
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
COMMENTS:
Meaning of public authority
(1) Each of the following is a public authority :
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
.....
(2) However, public authority does not include—
(b) a court, except when acting in an administrative capacity.
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