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Jago v Anti-Discrimination Tribunal

Jago v Anti-Discrimination Tribunal

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Case Copied 26 February 2021 74 min read

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[2021] TASSC 10

COURT: SUPREME COURT OF TASMANIA

CITATION: Jago v Anti-Discrimination Tribunal [2021] TASSC 10

PARTIES:  JAGO, Benjamin
  v
  ANTI-DISCRIMINATION TRIBUNAL
  MAGISTRATES COURT OF TASMANIA
  (Coronial Division)

ATTORNEY-GENERAL OF TASMANIA

FILE NO: 2928/2018
JUDGMENT

APPEALED FROM: Jago v Magistrates Court of Tasmania (Coronial Division) [2018] TASADT 7

DELIVERED ON: 26 February 2021

DELIVERED AT: Hobart

HEARING DATE/S: 1 April 2019; written submissions filed 16 April 2019 and 8 May 2019

JUDGMENT OF: Wood J

CATCHWORDS:

Human Rights – Jurisdiction and Procedure – Tasmania – Anti-Discrimination Tribunal – Claim of discrimination made against Coronial Division of Magistrates Court – Tribunal dismissed complaint due to immunity provisions and lack of jurisdiction – Application of immunity provisions when the complaint is brought against an organisation – Whether court an "organisation" – Nature of organisational liability –– Whether application of an immunity provision involving exception of 'bad faith' should have been determined at inquiry stage rather than as a preliminary issue – Tribunal assumed facts established – No suggestion of 'bad faith' – Procedural fairness – Whether reasons exposed error in relation to onus of proof.

Coroners Act 1995 (Tas), s 67.
Magistrates Court Act 1987 (Tas), s 10A.
Anti-Discrimination Act 1998 (Tas), ss 3, 4, 14, 17(1), 101, 104.
Commonwealth v Anti-Discrimination Tribunal (Tas) [2008] FCAFC 104, 169 FCR; Waters v Public Transport Corporation (1991) 173 CLR 349; Vines v Djordjevitch (1955) 91 CLR 512; Brophov Human Rights & Equal Opportunity Commission [2004] FCAFC 16, 135 FCR 105, referred to.
Aust Dig Human Rights [53]

Courts and Judges – Judges – Immunity from proceedings – Complaint of discrimination brought against Coronial Division of Magistrates Court – Whether immunity provisions apply to forestall the proceedings – Proceedings against a court or a division of a court are in effect brought against its judicial officers – Construing immunity clauses – Immunity protecting magistrates applies to a coroner who was appointed as a temporary magistrate but exercising powers of coroner – Immunity clause for magistrates not inconsistent with immunity clause for coroners and both may have application.
Coroners Act 1995 (Tas), ss 13(3), 67.
Magistrates Court Act 1987 (Tas), ss 3, 10A.
D'Orta-Ekenaike v Victoria Legal Aid (1995) 223 CLR 1; Re East; Ex Parte Nguyen (1998) 196 CLR 354; Rajski v Powell (1987) 11 NSWLR 522; Forge v ASIC [2006] HCA 44, 228 CLR 45; Fingleton v The Queen [2005] HCA 34, 227 CLR 166; Krakowski v Eurolynx Properties Pty Ltd (1995) 183 CLR 563; Winters v Fogarty [2017] FCA 51; Commissioner of Police for NSW v Eaton [2013] HCA 2, 252 CLR 1; Ferdinands v Commissioner of Public Employment [2006] HCA 5, 225 CLR 130, considered.
Aust Dig Courts and Judges [67]

REPRESENTATION:

Counsel:
             Appellant:  R Merkel QC and J Williams
             Respondents:  No appearance
             Attorney-General as Intervenor:             J Rudolf and D Osz
Solicitors:
             Appellant:  Hobart…

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: [2021] TASSC 10
Decision Date: 26 February 2021

CaseChat Overview and Summary

The plaintiff, Jago, brought a claim of discrimination against the Coronial Division of Magistrates Court, which was handled by the Anti-Discrimination Tribunal in Tasmania. The Tribunal dismissed the complaint, asserting that it lacked jurisdiction due to immunity provisions and the nature of the complaint being against an organisation. The central legal issues before the court were whether the immunity provisions applied, and if so, whether they should have been addressed at the inquiry stage or as a preliminary issue. Additionally, the court had to determine whether the Tribunal's findings adhered to the principles of procedural fairness and correctly applied the onus of proof.

The court examined the application of immunity provisions in the context of a complaint against an organisation, specifically whether the court qualified as an 'organisation' under the relevant legislation. The court concluded that the immunity provisions did apply, as the complaint was indeed against an organisation. The court further deliberated on the nature of organisational liability and whether the Tribunal should have examined the 'bad faith' exception at the inquiry stage rather than as a preliminary matter. It was noted that the Tribunal assumed facts were established, and there was no indication of 'bad faith'. The court also evaluated the Tribunal's adherence to procedural fairness and whether the reasons provided correctly exposed any errors in relation to the onus of proof.

In its reasoning, the court found that the Tribunal correctly applied the immunity provisions and that the issue of 'bad faith' was appropriately handled as a preliminary matter. The court held that the Tribunal's decision to dismiss the complaint was correct, given the jurisdictional immunity provisions and the lack of evidence suggesting 'bad faith'. Furthermore, the court determined that the Tribunal's reasoning was in line with procedural fairness and correctly addressed the onus of proof. The appeal was ultimately dismissed, and the Tribunal's decision was upheld.

Orders