Hofer v Anti-Discrimination Commissioner - [2011] NTSC 20

Hofer v Anti-Discrimination Commissioner [2011] NTSC 20

PARTIES: BERTRAM HOFER

ANTI-DISCRIMINATION COMMISSIONER

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO: 1 of 2011 (21100428)

DELIVERED: 11 March 2011

HEARING DATES: 15 February 2011

JUDGMENT OF: BARR J

CATCHWORDS:

ADMINISTRATIVE LAW – Judicial Review – Anti Discrimination Act (NT) – Commissioner to accept or reject complaint within time limit – whether acceptance of complaint in breach of provision invalid – test to be applied – purpose of legislation – acceptance of complaint not invalid.

ADMINISTRATIVE LAW – Judicial Review – Anti Discrimination Act (NT) – Commissioner to reject frivolous or vexatious complaint – meaning of vexatious – productive of serious and unjustified trouble and harassment.

ADMINISTRATIVE LAW – Judicial Review – Anti Discrimination Act (NT) – Commissioner to reject frivolous or vexatious complaint – mandatory considerations – whether failure to expressly consider renders decision invalid – consideration implied – plaintiff unable to discharge onus of proof as to Commissioner’s failure to consider.
Anti-Discrimination Act (NT) s 22(2), s 64, s 65, s 66, s 67, s 68, s 70, s 74(1)(b), s 75(3), s 76(1), s 83(b), s 88(1)(b), s 88(3), s 141
Native Title Act (NT) s 63, s 66

Greg Gedling v Anti Discrimination Commission & Charles Darwin University [2004] NTMC 34; Lambe v Anti-Discrimination Commission and Commissioner of Police [2001] NTMC 54; McDonnell Shire Council v Miller & Ors [2009] NTSC 46; Minister for Immigration & Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; Re Waanyi People’s Native Title Application (1994) 129 ALR 100, referred to

Martin v McGowan, McCue and Anti-Discrimination Commissioner [2001] NTMC 63; State of Queensland v Walters and Anor [2007] QSC 12, considered

Oceanic Sun Line Special Shipping Company Inc v Fay (1988) 165 CLR 197
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355, followed

REPRESENTATION:

Counsel:
Plaintiff: L Silvester
Defendant: M Grant QC

Solicitors:
Plaintiff: The Northern Territory Police Association
Defendant: Solicitor for the Northern Territory

Judgment category classification:    B
Judgment ID Number:   Bar1102
Number of pages:   19

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Hofer v Anti-Discrimination Commissioner [2011] NTSC 20
No 1 of 2011 (21100428)

BETWEEN:

BERTRAM HOFER
Plaintiff

AND:

ANTI-DISCRIMINATION COMMISSIONER
Defendant

CORAM: BARR J

REASONS FOR JUDGMENT

(Delivered 11 March 2011)

Introduction
The plaintiff seeks an order in the nature of certiorari setting aside the decision of the defendant (by his delegate) purporting to accept a complaint of discrimination and harassment made against the plaintiff under the Anti-Discrimination Act (NT), and an order in the nature of prohibition preventing the defendant from further considering the complaint. The grounds are that the decision to accept the complaint was beyond the defendant’s power, and/or that the decision was invalid by reason of the asserted failure on the part of the defendant to consider whether the complaint was…

Grounds of appeal

[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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Details

Case: [2011] NTSC 20
Decision Date: 11/03/2011

CaseChat Overview and Summary

Bertram Hofer brought a claim against the Anti-Discrimination Commissioner seeking a quashing order in relation to the Commissioner's acceptance of a complaint of discrimination and sexual harassment made against him. The plaintiff argued that the decision was beyond the Commissioner's power because it was not made within the statutory time limit. Alternatively, he contended that the decision was invalid because the Commissioner failed to consider whether the complaint was vexatious. The court was required to determine whether the Commissioner's acceptance of the complaint was invalid because it was made outside the statutory time limit and whether the Commissioner's failure to expressly consider whether the complaint was vexatious rendered the decision invalid. The court held that the purpose of the time limit in s 66 of the Anti-Discrimination Act (NT) was to regulate interactions between complainant and Commissioner and not to permanently affect the rights of the complainant and respondent in the event of non-compliance by the Commissioner. It followed that the Commissioner's acceptance of the complaint outside the 60-day period was not invalid. The court further held that while s 67 of the Anti-Discrimination Act (NT) did not expressly require the Commissioner to consider the various grounds for mandatory rejection of a complaint, there was nonetheless an implied obligation on the part of the Commissioner to consider in every case whether a complaint was any of the things specified in s 67, including whether it was frivolous or vexatious. However, the Commissioner had impliedly considered whether the complaint was vexatious and could not have been of the reasonable belief that the complaint was vexatious. The plaintiff had failed to establish on the balance of probabilities that the Commissioner's decision was invalidated by the Commissioner having failed to consider whether the complaint was vexatious. The proceeding was dismissed.

Orders