Johnson v Jahanpanah (Appeal)

Case [2024] ACAT 6

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

JOHNSON v JAHANPANAH (Appeal) [2024] ACAT 6

AA 4/2022 (DT 30/2021)

Catchwords:               APPEAL – discrimination – whether Original Tribunal erred in applying s13 of the Discrimination Act – discrimination by a principal in relation to a contract worker – no principal and contract worker relationship – Whether s20 of the Discrimination Act applies instead of s13 – unlawful discrimination in providing goods, services and making facilities available – unfavourable treatment – causation – whether the appellant is the provider – contributory liability – primary wrongdoer not a party to the proceedings – appeal allowed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 ss 38, 39

Discrimination Act 1991 ss 7, 8, 13, 20, 73,121A, Dictionary
Human Rights Act 2004 s 21
Human Rights Commission Act 2005 ss 10, 53A; div 4.2A

Subordinate

Legislation cited:        ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91

Cases cited:Andreopoulos v University of Canberra [2020] ACAT 95

Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 14
Applicant DT 30 of 2021 v Respondent DT 30 of 2021 [2022] ACAT 17
Casino Canberra Limited ACN 051 204 114 v Kidman [2022] ACAT 22
Cornwall v Aerial Capital Group Pty Ltd trading as Canberra Elite Taxis [2022] ACAT 32
Dixon v RNJ Sicame Pty Ltd & Anor; Sims v RNJ Sicame Pty Ltd & Anor [2002] NSWADT 154
Dornan & Ors v Riordan & Ors [1990] FCA 264
Gaia Partners Pty Ltd ACN 627 832 455 v Jahanpanah [2021] ACAT 128
Honeybrook v Owners of Units Plan 836; Frogbott Pty Limited v Owners of Units Plan 836 [2023] ACAT 2
Kerslake v Sunol [2022] ACAT 40
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Kovac v Australian Croatian Club Limited [2014] ACAT 41
McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34

List of

Texts cited:Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 3rd edition, 2018)

Tribunal:Temporary Presidential Member Prof P Spender

Senior Member K Katavic

Date of Orders:  8 January 2024

Date of Reasons for Decision:   8 January 2024

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 4/2022

BETWEEN:

PETAR JOHNSON

Appellant

AND:

OMID JAHANPANAH

Respondent

APPEAL TRIBUNAL:       Temporary Presidential Member Prof P Spender

Senior Member K Katavic

DATE:8 January 2024

ORDER

The Tribunal orders that:

  1. The appeal is allowed.

  2. The orders dated 25 February 2022 in DT30/2021 are set aside and substituted with an order that the application is dismissed.

  3. The orders made on 25 February 2022 in DT30/2021 pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 are set aside.

  4. There is to be no public access to the tribunal file.

    ………………………………..

Temporary Presidential Member Prof P Spender
For and on behalf of the Appeal Tribunal

REASONS…

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Details
AGLC
Johnson v Jahanpanah (Appeal) [2024] ACAT 6
Case
[2024] ACAT 6
Decision Date

CaseChat Overview and Summary

In the case of Johnson v Jahanpanah, the applicant sought an order that her personal information be removed from a tribunal file. The tribunal had previously ordered the removal of certain information but later reconsidered its decision and allowed the respondent to retain the information in the file. The applicant appealed against the tribunal's decision, arguing that the tribunal had failed to properly consider her privacy rights. The respondent argued that the tribunal had correctly exercised its discretion under section 39 of the ACT Civil and Administrative Tribunal Act 2008. The court had to determine whether the tribunal had properly considered the applicant's privacy rights and whether it had exercised its discretion under section 39 of the Act appropriately.

The court found that the tribunal had not properly considered the applicant's privacy rights and that it had failed to adequately weigh the applicant's privacy interests against the public interest in the information being retained. The court held that the tribunal had not provided sufficient reasons for its decision and that it had not properly considered the impact of its decision on the applicant's privacy rights. The court also found that the tribunal had not exercised its discretion under section 39 of the Act appropriately, as it had not adequately considered the impact of its decision on the applicant's privacy rights. The court held that the tribunal's decision was Wednesbury unreasonable and that it should be set aside.

The court allowed the appeal and set aside the tribunal's orders. The court found that the tribunal had not properly considered the applicant's privacy rights and that it had failed to adequately weigh the applicant's privacy interests against the public interest in the information being retained. The court held that the tribunal had not provided sufficient reasons for its decision and that it had not properly considered the impact of its decision on the applicant's privacy rights. The court also found that the tribunal had not exercised its discretion under section 39 of the Act appropriately, as it had not adequately considered the impact of its decision on the applicant's privacy rights. The court held that the tribunal's decision was Wednesbury unreasonable and that it should be set aside. The court further ordered that there should be no public access to the tribunal file.

Orders

Orders of the court

The Tribunal orders that:

1.

The appeal is allowed.

2.

The orders dated 25 February 2022 in DT30/2021 are set aside and substituted with an order that the application is dismissed.

3.

The orders made on 25 February 2022 in DT30/2021 pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 are set aside.

4.

There is to be no public access to the tribunal file.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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