Johnston v State of New South Wales - [2009] NSWADT 314

No judgment structure available for this case.

CITATION: Johnston v State of New South Wales [2009] NSWADT 314

DIVISION: Equal Opportunity Division

PARTIES:
Applicant:
Shirley Johnston
Respondent:
State of New South Wales (Attorney General's Department)

FILE NUMBER: 091091

HEARING DATES: 9 September 2009

SUBMISSIONS CLOSED: 25 November 2009

DATE OF DECISION:
16 December 2009

BEFORE: Kavanagh J

CATCHWORDS: Application for leave to appeal - s96 of Anti-Discrimination Act 1977 - age and disability complaint - consideration of complaint requires original decision - consideration of leave necessary for appeal - respondent raises protection from suit under principle of judicial immunity - in public interest to hear issue at earliest stage of litigation - principles of judicial immunity - act within powers of President of Tribunal - Registrar acts on delegation of President's power - Registrar acts within jurisdiction so is protected - effect of s44B&C of Judicial Officers Act 1986 - act of Registrar has statutory protection from suit even if administrative (ministerial) act - Registrar of Tribunal/Department indemnified from suit - leave refused

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Equal Opportunity Act 1995 (Vic)
Freedom of Information Act 1989
Interpretation Act 1987
Judicial Officers Act 1986
Public Sector Employment and Management Act 2002
Racial Discrimination Act 1995 (Cth)

CASES CITED: Brian Rochford Ltd (Administrator Appointed) v Textile Clothing & Footwear Union of NSW (1998) 85 IR 332
Budd v State of New South Wales [2007] NSWADT 112
Budd v State of New South Wales (Attorney General’s Department) [2009] NSWADT 215
Ekermawi v Administrative Decisions Tribunal of New South Wales and Ors [2009] NSWSC 143
Mahenthirarasa v State Rail Authority Of New South Wales (No 2) [2008] NSWCA 201
Re East and Ors; Ex Parte Nguyen [1998] 196 CLR 354
Scanlon v Director-General, Department of the Arts, Sport and Recreation [2007] 70 NSWLR 1
Singleton v The King (2005) 227 CLR 166
Towie v the State of Victoria (2008) 19 VR 640
Wentworth v Wentworth and Ors (2001) 52 NSWLR 602

REPRESENTATION:
Applicant Representative:
Mr Phillip Johnston, Agent
Respondent Representative:
Mr J. Cahill, Crown Solicitor's Office

ORDERS: The application by Mrs Johnston for leave of the Tribunal to proceed with a complaint under s92(1) of the Act is refused and the complaint is dismissed.

1 Mrs Shirley Johnston seeks leave to have a review of her complaint of discrimination on the ground of her age and disability in the provision of a service by the Administrative Decisions Tribunal in the course of its dealings with a different complaint made by her. The Anti-Discrimination Board considered the complaint "lacking in substance". She requested the complaint be referred to the Administrative Decisions Tribunal.

2 The State of New South Wales (Attorney General's Department and its Director General) has become the named respondent on behalf of the Administrative Decisions Tribunal of New South Wales. The respondent has been represented first by the Department's Legal Services Branch and then by Counsel, instructed by the Crown Solicitor's office.

History

3 It is necessary to consider the challenge to the Administrative Decisions Tribunal's conduct which led to this complaint. Mrs Johnston made application before the Administrative Decisions Tribunal, asking for a Review of a Decision under s 53 of the Freedom of Information Act 1989. On 19 September 2008, the Registrar of the Administrative Decisions Tribunal gave notice to Mrs Johnston's agent, her son, Mr Phillip Johnston, of a listing of the matter for a "planning meeting" on 14 October 2008. When the listing date was advised Mrs Johnston, through her agent, requested the listing be altered as Mrs Johnston, a "post 80 year old War Widow" (her words), cited the fact the Tribunal had previously been informed she was not available on any Tuesday until mid December. The Tribunal had had prior notice Mrs Johnston attended regular medical specialist appointments each Tuesday. An exhaustive list of alternative suitable dates for the Registrar to consider in rescheduling the planned meeting were provided by Mrs Johnston to the Registrar.

4 The Registrar on 30 September 2008 wrote to Mr Johnston:

I confirm the Tribunal's standard practice of listing all new applications for an initial planning meeting on any given Tuesday. A period of approximately one month is afforded to parties so as the necessary arrangements can be made to attend either in person or by telephone at the nominated time. Your request to re-arrange the planning meeting set down for Tuesday, 14 October 2008 at 2.00pm is therefore refused.

5 Mr Johnston replied to the Tribunal that, given his mother's fragile health and given she attended a medical specialist each Tuesday, he requested the matter be listed with two other matters before the Tribunal, matters which were also scheduled for a planning meeting but on Thursday 23 October 2008 at 2.30pm. Mr Johnston asserted the same member of the Tribunal and same parties were to be present at the planning meeting on 23 October 2008. It is of note these were listed on a Thursday. The Registrar was informed there was no objection to this course of action by Counsel for the Crown Solicitor representing the respondent.

6 On 9 October 2008, the Registrar replied:

Judicial Member Higgins

Judicial Member Pearson

7 It is the decision of the Registrar related to the listing of the planning meeting on a date not suitable to the applicant to which this complaint is addressed.

8 The Anti-Discrimination Board, through its conciliation officer, after receiving this complaint on 18 November 2008, wrote to the Attorney General's Department requiring a reply to the complaint. It appears the President of the Board, made a determination under s 90B(3) to require the Attorney General to reply on behalf of the Tribunal. The Director of Legal Services Branch of the Attorney General's Department replied as follows:

I refer to your letter dated 18 November 2008 concerning a complaint made by Shirley Johnston.
...
I do not accept that Ms Johnston's complaint falls within the scope of the Anti-Discrimination Act 1977 . In the circumstances, on her own statement, the Tribunal did not breach either section 49B(1)(a) or section 49B(1)(b). There is no allegation of less favourable treatment towards Ms Johnston. There is also no allegation that Ms Johnston was required to comply with a condition that she could not comply with because of her age or disability. Ms Johnston was represented by an agent (Mr Johnston). It would appear that her inability to comply with a listing on a Tuesday was because her agent was at work.

Further, by analogy with the reasoning in Budd v State of New South Wales (Attorney General's Department) [2007] NSWADT 112, the processes in the Administrative Decisions Tribunal for dealing with a review of an administrative decision are not services within the Anti-Discrimination Act 1977. It may also be the case that the conduct of the Registrar in listing a matter is protected by judicial immunity, however I do not presently consider there to be a need to elaborate on this point.

9 On 19 January 2009, Mrs Johnston replied having received a copy of the Attorney General's reply:

…
Attorney Generals Dept stated interpretation of Shirley Johnston's inability to attend is wrong, her inability to attend was solely due to a pre-existing medical appointment. This is stated clearly in her agent's letter to the ADT Registrar on 3 ^rd October 2008 , and was attached as Appendix 5 to her original complaint to the ADB.

The suggestion by the Attorney Generals Legal Services Director that Shirley Johnston's complaint is not captured by the scope of the relevant parts of the NSW Anti-Discrimination Act is rejected, and the case law quoted cited by the Director of the Attorney Generals Legal Services is not relevant in the circumstances.

I can, but choose not to quote case law at this stage

10 On 5 June 2009, Gerardo De Liseo, Regional Manager - Wollongong, on delegated authority from the President of the Anti-Discrimination Board and, therefore, acting in the capacity of the President, wrote to the applicant:

The Board has now finished investigating your complaint. I have considered all the information you and the respondent have given the Board and I have decided to decline your complaint under section 92(1) of the Anti-Discrimination Act (NSW) 1977 (ADA) on the basis that I am satisfied that it is lacking in substance. …

The reasons for my decision are:

The Board's investigation has not disclosed any evidence that:
You have been subjected to less favourable treatment than any other person in the same or not dissimilar circumstances; and,
That, in the event, that you were subjected to less favourable treatment, there is insufficient evidence to substantiate a causal link to the grounds of age and disability; and,
That the Respondent imposed a requirement or condition with which you could not comply and which are not reasonable in the circumstances.

11 On 29 June 2009, the Anti-Discrimination Board received a letter from Mrs Johnston seeking a referral of her complaint against the Administrative Decisions Tribunal pursuant to s 93A of the Anti-Discrimination Act 1977 to the Administrative Decisions Tribunal for determination.

12 I have been nominated pursuant to s 14(2)(b) of the Administrative Decisions Tribunal Act 1997 by the President of the Tribunal as an independent member of the Tribunal given the complaint raises questions as to the course of conduct followed by the Registrar of the Administrative Decisions Tribunal.

Procedures

13 Under s 96(1) of the Anti-Discrimination Act 1977, "leave" is required if the referral to the Tribunal is under s 93A(1) as was Mrs Johnston's complaint. It is necessary to state it is the "complaint" which is referred. This is not an appeal or review of the decisions of the President of the Board who determined the complaint was "lacking in substance".

14 Importantly, the referral of a "complaint" by the Anti-Discrimination Board to the Administrative Decisions Tribunal is taken to be an application for an original decision within the meaning of the Act (s 95(3) of the Act). Before the Tribunal has an opportunity to consider the merits of the complaint, however, the question of leave must be addressed.

15 Schmidt J considered the Tribunal's approach to the question of leave in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [36]-[40]. Schmidt J held:

[36] … In my view, the question of leave should be approached by the Tribunal in the same way as discussed by the Court of Appeal in Salido . There the Court of Appeal was concerned with an unfettered discretion to grant leave under the Motor Accidents Act 1988. The trial judge had accepted an argument that an applicant for leave had to 'show something truly special or extraordinary before leave should be given’. Gleeson CJ observed at 531-2:

With all respect to the argument that was put to Clachan DCJ and accepted by him, the proposition that leave under s 52(4) should not be given lightly is one that provides little assistance. It cannot be intended to be taken literally; what kind of judicial discretion would be exercised lightly? Presumably its forensic purpose is cautionary, and one can hardly take exception to that. Even so, proceeding with all proper caution, the court must exercise the statutory discretion in a judicial manner. The proposition that an applicant "must show something truly special or extraordinary" adds a gloss to the statute which alters its meaning and effect. It is true that, in Hall v Nominal Defendant [1966] HCA 36; (1966) 117 CLR 423 at 445, Windeyer J, in a similar context, approved of a statement that said that a discretion could only be exercised where there are special circumstances which create a real reason why the statutory limitation should not take effect. However, his Honour referred to that proposition in the course of pointing out that time-limits are prescribed for a purpose and, to set them aside, there must be something more than a belief that no harm might come of doing so. I see no reason to characterise the circumstances that might, in a given case, justify leave under s 52(4) as necessarily extraordinary, or truly special. The question is what is fair and just. To take a simple example, delay in the onset of symptoms is a circumstance that might make it equitable to grant leave to commence proceedings out of time. Such delay happens from time to time, and in many cases it would be inappropriate to describe it as extraordinary, or truly special. It is true that the exercise of the discretion is to be approached on the basis that the onus is on the applicant to show why it is fair and just that in his or her case there should be a dispensation from a general rule established by the statute. Nevertheless, the statute recognises that there may be cases where it is fair and just to grant such a dispensation, and the applicant should not be required to bear some additional forensic burden of indeterminate nature and unquantified weight.

…
[40] In this case, it is apparent that had the question of leave been approached by the Tribunal on the basis discussed in Salido , namely that leave had to be granted, or refused, depending on what was fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted, a different conclusion may have been reached to that which flowed from a consideration of whether the plaintiff had established a substantial reason for leave being granted.

16 Given the papers indicated the applicant was not representing herself, and her son was acting as her agent, the matter was first listed before me at the convenience of both parties. Before the matter was called on, having been notified by the Administrative Decisions Tribunal Registrar there was a question of "leave" required, the respondent made written submissions raising the defence that the actions of the Registrar were protected by legal immunity. The respondent asserted leave should not be granted and would be futile as the actions of the Registrar were protected from challenge by the principles of judicial immunity or, alternatively, derivative immunity.

17 The Tribunal, at the first hearing, identified for the applicant that a legal issue had been raised by the respondent. Counsel for the respondent noted:

GINTERS: Your Honour has rightly identified that there is this leave threshold. Lest there be any doubt about it, the submission we make as to immunity in our submissions, we say as to why leave would not be granted. The matter just cannot proceed, we say.

HER HONOUR: I carefully did not go too far into your submissions because I wanted to make it clear to people. Mr Johnson (sic), if they have raised the question of immunity as part of their case for leave then I will allow you to address it. I have not gone into their submissions too far.
JOHNSON(sic): I can fully flesh out a response in 21 days to both their submissions and leave.

18 Directions were then given to the filing of submissions. The respondent had initially filed submissions on 8 September 2009. The applicant filed submissions on 30 September 2009, the respondent replied on 16 October 2009, and the applicant, in reply, on 26 October 2009. The respondent provided by letter dated 23 October 2009, a further legal authority on the issue of immunity as well as a submission as to its application on the facts. The applicant, however, objected to the Tribunal considering the further authorities. The matter was re-listed and the applicant was given a further 14 days to reply and forwarded further submissions with three attachments including authorities relied upon.

Consideration

19 Three preliminary objections have been raised by the applicant. She defends her right to have her son represent her; she challenges the named respondent (the Attorney General's Department) asserting it has a conflict of interest in representing the Tribunal; and she asserts the Department, in its conduct on behalf of the Tribunal, has not conducted itself in accordance with the Government's Model Litigant Policy.

Representation

20 On 2 August 2009, Mrs Johnston in a Statutory Declaration notified the Administrative Decisions Tribunal her son was her Agent and this fact was on the record and she objected to the aspersions cast upon the character of her son, in the Department's original reply to the Board (see [8]).

21 The respondent, in its reply to the Board when first addressing the complaint, did challenge the status of her Agent. Hence the applicant felt the need to sign her Statutory Declaration when the matter was referred to the Tribunal. The objection raised by the Department at that time is one not supported by the documentation before me. Papers from the Tribunal clearly indicate the Tribunal had accepted Mr Johnston was acting as her Agent and the Registrar of the Tribunal had directed its correspondence to Mr Johnston acting as Mrs Johnston's Agent.

22 It can be gleaned from correspondence, perhaps Mrs Johnston, and perhaps even Mr Johnston, separately have (or had) a number of complaints before the Board and/or Tribunal. However, each complaint must be fairly investigated in accordance with procedures defined under the relevant Acts. The submission of the Department made to the Board (as to representation by Mrs Johnston's son and his alleged unavailability) has not been pursued on this referral of the complaint to the Tribunal and it is necessary to note the issue before the Tribunal is the "complaint" against the Registrar in the conduct of dealing with another complaint and not the conduct of the Board or the Department.

23 The Tribunal has always accepted, and I accept, Mrs Johnston is represented by her son.

24 The applicant submits:

… not granting leave would be a significant conflict of interest given the ADT Registrar is an employee of the Attorney Generals Department, & the Applicant is applying to have her complaint heard by the ADT a divisions of the Attorney Generals Department which is being defended by Crown Solicitors, (also division of the Attorney Generals Department) for the Attorney Generals Department, & state of NSW on behalf of the Administrative Decisions Tribunal.

25 The respondent contends, at least indirectly, the applicant has submitted the Tribunal has a conflict of interest. I am sitting as the Tribunal on the question of leave. I am an independent judicial officer appointed to the Tribunal pursuant to s 14(2) of the Anti-Discrimination Act 1997. No particulars as to my conflict of interest have been argued. The applicant, in reply, explained her objection as to "conflict of interest" was the naming of the respondent as the Attorney General's Department, as representing the Administrative Decisions Tribunal. She asserts the fact the Tribunal operates under the auspices of the Attorney General's Department is evidence of a conflict. I reject this proposition. The applicant has chosen to lodge a complaint against the Administrative Decisions Tribunal.

26 It appears the decision to name the Attorney General's Department as the respondent was taken initially by the Board when it required a reply to the complaint under s 90B(3) of the Anti-Discrimination Act 1977 by the Department. The President of the Board, therefore, could require a person, other than a complainant or a person against whom a complaint is made, to respond to a complaint.

27 Under s 97(3) of the Act, the Tribunal is empowered to substitute a complainant or a respondent if the Tribunal is of the opinion the other party to the proceedings will not be prejudiced by the substitution. It appears on the papers before me the President of the Tribunal has accepted the substitution of the Attorney General's Department as the named respondent. However, lest there be any doubt, I, in accordance with the Tribunal's powers under s 97(3) of the Anti-Discrimination Act 1977 have ordered the substitution of the Department as the respondent as I do not believe the applicant is prejudiced by the substitution.

28 I have considered the applicant's submission there is a "conflict of interest" in the Department representing the Tribunal. I reject the submission. While the Tribunal members are appointed by the Attorney General, I have been appointed to sit as the Tribunal because of my Judicial independence. Further, the Registrar has been appointed to her position in accordance with the provisions of the Public Sector Employment and Management Act 2002. Her employment conditions are managed by the Attorney General's Department. It is proper, when a complaint of "misconduct" has been alleged against the Registrar (as Mrs Johnston has done), the Registrar is properly represented by her employer. Under s 50 of the Anti-Discrimination Act 1977 both can be jointly and separately liable if a complaint is found proven. In such a circumstance, I find it proper the Attorney General's Department be the nominated respondent before the Tribunal.

29 A further general submission mounted by the applicant was the failure by the respondent to comply with the government's Model Litigant Policy for civil litigation. There is an obligation on the Crown Solicitor to act as moral litigants (Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201). However, cl 3.3 of the Policy provides:

The obligation [to act as a model litigant] does not require that the state or an agency be prevented from acting firmly and properly to protect its interests. It does not prevent all legitimate steps from being taken in pursuing litigation, or from testing or defending claims made.

And cl 3.4 of the Policy provides:

30 Mrs Johnston is a litigant in person (represented by her son). The Tribunal, when considering serious matters such as a complaint about the conduct of a statutory Tribunal, is greatly assisted in its consideration by representation before it of qualified members of the legal profession. Each party has that opportunity. A litigant in person may well feel at a disadvantage in such a circumstance where a respondent chose to be legally represented. However, once litigation is on foot, it is a right of either party to have representation and to mount a defence to the challenged action. In this matter a legal issue has been raised. The Tribunal is greatly assisted when it is referred to the relevant law in New South Wales and Australia. Counsel has a professional obligation to draw to the Tribunal's attention to the law as it stands and the relevant legal authority on the issue. In this matter, Counsel for the respondent has fairly placed before the Tribunal the relevant authorities on the principle of judicial immunity, including those not necessarily in support of its submission. I am satisfied the Department has been a model litigant. I therefore reject the applicant's submission.

Judicial Immunity From Suit

31 The applicant contends the actions of the Registrar in refusing to change the date of the listed planning meeting was an act of unfairness and was misconduct by the Registrar and discriminatory because of the applicant's age and disability. These contentions are denied by the respondent. A preliminary point has been raised in this leave application by the respondent. The respondent submits the action of the Registrar is protected by judicial immunity and therefore a grant of leave would be futile as the applicant could not succeed even on a merit basis.

32 In written submissions the applicant, on the question of the Registrar's immunity, submitted:

- The registrar ignored the applicants legitimate reason for non availability due to her regular specialist medical appointments of which the Registrar knew. The Tribunal is a merit based forum (see University of New South Wales v Gerard Michael McGuirk [2006] NSWSC 1362) and this was discrimination on the ground of age and disability.

- The Administrative Decisions Tribunal Registrar does not have judicial immunity and if, in the alternative, it is found he/she has such an immunity, the Registrar will be given a free pass to refuse to comply with her charter of service.

- No listing practice policy existed so the Registrar's behaviour was unacceptable.

- Any denial of leave to appeal would be unfairness and a breach of natural justice.

- The complaint deserves a hearing ( Ekermawi v Administrative Decisions Tribunal (NSW) [2009] NSWSC 143).

- The conduct of the Registrar was administrative and the act of the Registrar which was an act of misconduct ( Scanlon v Director General, Department of Arts and Sports [2007] 70 NSWLR 1).
- The failure to comply with directions was a breach of the Model Litigant Policy.

33 The respondent, as to leave, submits:

- The decision of the President of the Tribunal to list the applicants matter (file number 083273) for a planning meeting on the 14 October 2008 and a subsequent refusal to alter that date cannot be the subject of a claim pursuant to the Anti-Discrimination Act as the performance of judicial and ministerial duties by the President attracts judicial immunity (s 3(1) definition of a Judicial Officer and s 44(b) of the Judicial Officers Act 1986 (schedule 3 Clause 5 of the Administrative Decisions Tribunal Act 1997).

- The decisions of the Registrar and decisions of the President are therefore protected by judicial immunity.

- The Registrar's power only arises by virtue of the fact that he/she is exercising the delegated jurisdiction granted by the President pursuant to s 25(3) of the Act, meaning the Registrar is acting as the President's alter ego.

- In Re East and Ors; Ex Parte Nguyen [1998]196 CLR 354 at [30] Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ and at [80] per Kirby J is authority for the proposal, the parliament did not intend that the President of the Tribunal by virtue of delegation to the Registrar would be subject to the Anti-Discrimination Act , nor that a judicial officer delegated with judicial duties to aid a tribunal should be "a lightning rod for harassing litigation" ( Kermit Construction Corporation v Banco Credito Y Ahorro Ponceno 547 F 2d 1 at 3 (1 ^st Cir 1967), cited by Rogers A-JA in Najjar v Haines (1991) 25 NSWLR 224 at 274G).

- The Registrar cannot be subject to a claim under the Anti-Discrimination Act as he/she attracts by definition judicial immunity ( Wentworth v Wentworth and Ors (2001) 52 NSWLR 602 at [15]).

- The function of determining time and place for sitting of the Tribunal as exercised was on delegation by the Registrar under s 25(3) of the Act. It was a function incidental to, or collateral to the exercise of the Tribunal's substantive administrative law jurisdiction. The registrar of the Administrative Decisions Tribunal, like the registrar of the Supreme Court is an integral part of the Tribunals organisational structure through which its jurisdictions and powers are exercised ( Wentworth and Wentworth at [44]).

- The same immunity held by a Registrar is the judicial immunity awarded to a judge in respect of his/her exercise of the Tribunal's power and jurisdiction.

- There are sound public policy reasons as to why the decisions of the Registrar attract defined immunity. The proposition can seriously affect the Registrar in performing his/her independent function.
- The decision of the Registrar as to a listing cannot be described as the provision of a service or services (the act).

Applicable Principles

34 The respondent relies upon a number of legal authorities to contend the asserted act of the Registrar of the Administrative Decisions Tribunal cannot be called into question as it is protected by judicial immunity. It is necessary first to consider the law related to judicial immunity.

35 Judicial immunity is a long-standing protection provided to judicial officers performing their functions under jurisdiction. This immunity was considered by Davies A-JA in Wentworth at [24]:

… Judicial immunity is an essential corollary of judicial independence, which requires that judges be free to administer justice free from not merely the risk of personal liability but also the burden of resisting the claims and allegations of disaffected litigants. The protection which judicial immunity is intended to provide to those who perform the controversial but essential function of adjudicating disputes would be denied them if the ambit and operation of the doctrine were open for debate. Decisions subsequent to Sirros [31] illustrated that, if judicial immunity is subject to the exception there suggested, the exception is unlikely to have any practical utility. There seems to be no reported case in Australia or England in which effect has been given to the suggested exception and attempts to do so here have failed.

36 Heydon JA held in Wentworth at [260]:

The importance of the judicial immunity as recognised in the older cases lies in its absolute and non-qualified character - its capacity to be pleaded in bar to suits at the outset, so as to secure their dismissal at that point, rather than permitting the allegations to be tried:

“’absolute privilege’ ... is [not] a very accurate expression and I am sure that calling it a ‘privilege’ is sometimes misleading. Privilege means, in the ordinary way, a private right. Now there is no private right of a judge ... to be malicious ... . The real doctrine of what is called ‘absolute privilege’ is that in the public interest it is not desirable to inquire whether the words or acts of certain persons are malicious or not. It is not that there is any privilege to be malicious, but that, so far as it is a privilege of the individual - I should call it rather a right of the public - the privilege is to be exempt from all inquiry as to malice; that he should not be liable to have his conduct inquired into to see whether it is malicious or not - the reason being that it is desirable that persons who occupy certain positions as judges ... should be perfectly free and independent, and, to secure their independence, that their acts and words should not be brought before tribunals for inquiry into them merely on the allegation that they are malicious”: Bottomley v Brougham [1908] 1 KB 584 at 586-7 per Channell J.

37 In Singleton v The King (2005) 227 CLR 166 at [185] Gleeson CJ cited the following passage from Sirros v Moore [1975] QB118 at [132] as stating "the general principle" related to immunity at [36]:

We are concerned with the application of the Code, not the common law. Even so, it is material to note the policy of the common law, reflected also in the Code. Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is as stated by Lord Denning MR in Sirros v Moore [27} :

Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.

Accordingly, a Judicial Officer, even one who misconducts himself/herself or who, in the exercise of jurisdiction, is malicious or uncharitable when acting within jurisdiction, holds the immunity.

38 Therefore, it is the law that in the public interest, a judicial officer acting within its jurisdiction (read "functions") is not to be challenged: that is, that officer is protected from suit.

39 Fitzgerald JA in Wentworth said at [28]:

A judge is acting within jurisdiction for this purpose if he or she is
exercising a jurisdiction which the court of which he or she is a member possesses. That is made clear by the decision of the New Zealand Court of Appeal in Nakhla v McCarthy [1978] 1 NZLR 291 . Woodhouse J, speaking for the Court, said (at 301):

"... we are in no doubt that when the principle of judicial immunity is discussed in the cases in relation to acts done within the jurisdiction of the judge that word must be regarded as referable to the broad and general authority conferred upon his court and upon himself to hear and to determine issues. ... 'Authority to decide' is the test, not the mode of decision nor the manner in which the powers ... have been exercised or not exercised."

And at [37]:

Yeldham

Crimes Act

And at [43]:

Gallo v Dawson

Yeldham

The officer must therefore be performing a function of the Court.

Can Judicial Immunity be Applied to a Tribunal?

40 In Re East and Ors; Ex Parte Nguyen [1998] 196 CLR 354, an application was considered where, after sentence, the appellant contended he had been racially discriminated against by the Magistrate/Judge who dealt with his matter. He asserted on sentencing he had the need for an interpreter. The High Court held (at 365) there was nothing in the Racial Discrimination Act 1995 (Cth) to suggest it was the intention of the Parliament to override the "immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity".

41 It has been necessary to decide whether a particular Tribunal is a Court for certain purposes in a number of cases. The Equal Opportunity Tribunal (NSW) was held to be a "court" for the purpose of the application for the Suitor's Fund (see Australian Estate Commission v Dao (No. 2) (1986) 6 NSWLR 497). In Brian Rochford Ltd (Administrator Appointed) v Textile Clothing & Footwear Union of NSW (1998) 85 IR 332 Austin J held (at 344):

. . . the determination of whether a particular tribunal is or is not a "court" is governed by the purpose for which the question is asked.

And (at 345):

Shell Co of Australia Ltd v Federal Commissioner of Taxation

Rola Co (Australia) Pty Ltd v Commonwealth

Attorney-General v British Broadcasting Corporation

42 In Budd v State of New South Wales [2007] NSWADT 112 (25 May 2007), Layton R - Judicial Member; Lowe A - Non Judicial Member; and Hiffernan N - Non Judicial Member considered decisions considering whether a Tribunal is a Court for the purpose of immunity for acts done were conveniently summarised as follows (at [30]):

Bradley -v- State of New South Wales

Wentworth v Wentworth and Others

Scanlon v Director-General, Department of the Arts, Sport and Recreation

Murphy, Daniel v Family Court of Australia

43 In the application of the reasoning of the High Court in Nguyen, it is necessary therefore to determine if the relevant legislative provision intended (not as Austin J determined in Rochford whether the legislation had a beneficial purpose) to displace the immunity from suit held by Judicial Officers in the performance of their function. If a Judicial Officer is performing a function within jurisdiction and there is no evidence it was the intention of the legislature to displace judicial immunity he/she is protected from suit.

44 In Scanlon v Director-General, Department of the Arts, Sport and Recreation [2007] 70 NSWLR 1, there was consideration of the question as to whether the Principal Registrar of the Licensing Court of New South Wales, also appointed under the Public Sector Employment and Management Act 2002, held immunity from suit. The Court of Appeal, in relation to that immunity, reasoned at [76]:

[76] … In essence:

(a) As Principal Registrar, the appellant by virtue of s 44C of the Judicial Officers Act is to have the same protection and immunity as a judge of the Supreme Court in the performance of his judicial functions.

(b) Upon the assumption that "protection" and "immunity" in s 44C are not co-extensive, one of the protections afforded such a judge is provided by Pt 6 of the Judicial Officers Act which sets up an investigatory process with a number of checks and balances designed to protect the judicial officer the subject of the relevant complaint; summary removal of the appellant pursuant to the exercise of the Crown Prerogative would place him in a less favourable position than a judge of the Supreme Court as, not being a "judicial officer" as defined, he would not have the protection of those checks and balances.

(c) It has never been the case that a judicial officer and, certainly, a judicial officer of a superior court, should have immunity from being removed from office for misbehaviour or misconduct; there is therefore no reason why a registrar or Principal Registrar should not be similarly liable to removal from office for proven misconduct;

(d) In order to provide the appellant with the same "protection" as a judge of the Supreme Court given that the Judicial Officers Act has no application to him, resort must be had to the provisions of Pt 2.7 of the Public Sector Employment and Management Act which, like Pt 6 of the Judicial Officers Act , provides in Div 2 of Pt 2.7 a process of investigation in dealing with allegations of misconduct against a person appointed under and subject to its provisions which provides equivalent protection to those afforded a judge of the Supreme Court under the Judicial Officers Act

(e) Subject to further consideration of the third argument of the appellant (referred to at 22 [75] supra), it follows that the appellant's immunity under s 44C of the Judicial Officers Act does not extend to exempting him from the provisions of Pt 2.7 of the Public Sector Employment and Management Act when exercising the jurisdiction of the Licensing Court.
(f) Alternatively, s 44C does not extend to providing any level of "protection" to registrars from disciplinary proceedings to which they are otherwise subject under the regime enacted by the Public Sector Employment and Management Act . This section does not so provide expressly and should not be construed to do so impliedly. Registrars are therefore subject to one regime while judicial officers (as defined) are subject to a different regime.

And further at [87]:

45 A Registrar, while not a judicial officer, if vested with a judicial function is therefore entitled to an immunity from suit. Registrars are generally employed in New South Wales under the Public Sector Employment and Management Act 2002. Under s 27 of the Administrative Decisions Tribunal Act 1997, a Registrar of the Tribunal, for the purposes of the Act, is employed under Chapter 1A of the Public Sector Employment and Management Act 2002. On the authority of Scanlon, if the act of a Registrar is not an act under jurisdiction then he/she is liable to the disciplinary regime within the public service as defined under the Public Sector Employment and Management Act 2002. However, if the Registrar is performing a function under jurisdiction, he/she is protected from suit by judicial immunity.

46 The respondent contends the Registrar of the Administrative Decisions Tribunal was acting, by delegation, on behalf of the President and performing a statutory act of the President who is protected by judicial immunity. The delegation allows, in the performance of the statutory act on behalf of the President, the delegated officer holds the same immunity as the President holds from suit.

47 Section 3(1) of the Judicial Officers Act 1986 provides:

Further, under s 44B of the Judicial Officers Act, a judicial officer is given a grant of judicial indemnity. Section 44B states:

48 The President of the Administrative Decisions Tribunal is therefore, under the Judicial Officers Act 1986, given the status of a judicial officer (s 3(9) and under s 44B of the Judicial Officers Act) and is given a statutory grant of judicial immunity. He/she, therefore, has judicial immunity in the performance of his/her duties within jurisdiction.

49 Under s 25 of the Administrative Decisions Tribunal Act 1997, the functions of the President of the Tribunal are:

50 Schedule 3, cl 13(b) of the Administrative Decisions Tribunal Act 1997 is relevant and states:

delegate to the Registrar

any of the functions of the President

51 Rule 45(a) of the Administrative Decisions Tribunal Rules 1998 reflects this legislative power to delegate and provides the President may delegate to the Registrar the function of the President under s 25(3), that is, the function of the President to determine the places and times for sittings of the Tribunal. Section 49(6) of the Interpretation Act 1987 states:

A delegated function that is duly exercised by a delegate shall be taken to have been exercised by the delegator.

Functions of the Registrar performed under delegation are therefore functions of the President.

52 Further, under s 44C of the Judicial Officers Act 1986, an officer performing the duties of a judicial officer carries the same immunity.

44C Immunity of officers performing duties of judicial officers
A registrar, an associate Judge of the Supreme Court, an assessor of the Land and Environment Court, a Commissioner of the Compensation Court, an authorised justice, an authorised officer (within the meaning of the Criminal Procedure Act 1986 ) or any other officer of a court has, when performing the duties of a judicial officer (including ministerial duties), the same protection and immunity as the judicial officer has in the performance of those duties.

53 Accordingly, if the Registrar of the Administrative Decisions Tribunal was performing a function of the President within jurisdiction he/she is protected by judicial immunity. It is of note, as held in Wentworth, that "ministerial" duties can mean administrative duties.

54 Section 28 of the Administrative Decisions Tribunal Act 1997 states:

55 I am, therefore, satisfied the Registrar under s 28(1) is empowered to perform the statutory functions of the President and one of those functions was setting the time and place of sittings (s 25(3)). I am further satisfied, under s 28, the Registrar has a statutory obligation to assist the President in setting the time and place of sittings. The Registrar in so doing was performing a Presidential function under delegation, which function therefore is performed by the delegator (read "President") and therefore carries judicial immunity.

Was the act of listing by the Registrar a Ministerial act?

56 I now consider the act of the Registrar. The first issue is what was the nature of the act. In Towie v the State of Victoria(2008) 19 VR 640, Kyrou J (at [63]) referred to the proposition that because Registry staff are employees, and not independent judicial officers, a cause of action could be open against their employer, the State of Victoria, under s 102 of the Equal Opportunity Act 1995 for acts that were discriminatory.

57 The respondent in the matter before me rightly brought this case to the attention of the Tribunal. The respondent submitted this matter should be distinguished from the decision in Towie as there the Supreme Court of Victoria was concerned with a purely administrative decision (the refusal to allow the deaf appellant hearing equipment to follow a forthcoming legal procedure). The action was taken against the Department who employed that person who allegedly committed a discriminatory act.

Conclusion as to the Registrar's Immunity from Suit

58 I accept the circumstance I am considering can be distinguished from Towie. Here, the Registrar was not acting as an employee performing an administrative function for the Tribunal but as the President of the Tribunal under delegated authority, which act becomes the act of the delegator (read "the President of the Tribunal") who is protected by judicial immunity. However, even if it was an administrative/ministerial act, the particular act of the Registrar was still protected by the immunity as it was an act performed by delegation which, under the legislation, was a function of the President and therefore within the jurisdiction of the Tribunal as clearly stated in the statute.

59 While the act of listing may be in some circumstances an administrative act, in the special circumstance here the legislation makes it a function of the President. This may be unusual, however, as a result, the legislation gave this ministerial act judicial immunity.

The Anti-Discrimination Act/Employer Obligation

60 A number of other issues were raised by the applicant. While they will not affect the determination I have made, I will address those issues.

61 Under s 53 of the Anti-Discrimination Act an employer may be rendered liable for the actions of its employees. Under s 53(1) the employee and the employer are "jointly and separately subject to that liability". However, while the act of the employee enjoys the protection of judicial immunity, there can be no joint liability by the Department for the purposes of s 53(2) of the Anti-Discrimination Act. I do not accept that a provision which makes an employer jointly and severally liable for the act of an employee is a provision which displaces the common law principle of judicial immunity. The Administrative Decisions Tribunal Act 1997 does not demonstrate it was the intention of the Parliament to displace the principle (see East and Ors: Ex Parte Nguyen at [41]).

The Merits

62 Given the decision by the Registrar in the particular circumstance before me attracts the protection of judicial immunity, the merits of the case therefore will not be given consideration. While on the evidence before me it is difficult to determine why the Registrar would have listed the matter on a day when the Tribunal had the knowledge it was, because of her age and disability, difficult for Mrs Johnston to attend or even to take a telephone communication, the fact is, she was entitled to be there when the matter was listed to give instruction.

63 Further, it appears, without all the documentation before me, but on information provided from the bar table and agreed between the parties, the initial complaint re a Review under s 53 of the Freedom of Information Act 1989 has come to a final conclusion within the Tribunal's procedures. The act of the Registrar did not deny the applicant the right for her initial complaint to be heard. In such a circumstance the applicant may have no prospect of success even if the merit claim was fully heard, as the act of the Registrar did not deny her a right to have the relevant complaint heard (see Budd v State of New South Wales (Attorney General’s Department) [2009] NSWADT 215).

64 It is necessary to comment the Registrar, it has been asserted, misconducted herself. However, and I do not accept that has been established, even if it were so, the Registrar would still be protected under the principle of judicial immunity. No action could therefore be taken against her under the Public Sector Employment and Management Act 2002.

65 It is also not necessary to determine the question as to whether the Administrative Decisions Tribunal is providing "service". The meaning of "service" was given consideration in Budd v State of New South Wales [2007] NSWADT 112 (25 May 2007) and it was held a Magistrate in a Local Court was not providing a service at [19]-[20]:

IW v City of Perth

IW v Perth

‘[B]eneficial and remedial legislation …is to be given a liberal construction. It is to be given "a fair, large and liberal" interpretation rather than one which is "literal or technical". Nevertheless, the task remains one of statutory construction...a court or tribunal is not at liberty to give [such legislation] a construction that is unreasonable or unnatural. But subject to that proviso, if the term "service", read in the context of the Act and its object, is capable of applying to an activity, a court or tribunal, exercising jurisdiction under the Act, should hold that that activity is a "service" for the purpose of the Act….

[W]hen ambiguities arise, [Courts and tribunals] should not hesitate to give the legislation a construction and application that promotes its objects. Because of the restricted terms of a particular statute, however, even a purposive and beneficial construction of its provisions will not always be capable of applying to acts that most people would regard as discriminatory.

Thus, when a council is called on as a deliberative body to exercise a statutory power or to execute a statutory duty, it may be acting directly as an arm of government rather than as a provider of services and its actions will be outside the scope of the Act… Similarly, when a council is required to act in a quasi-judicial role in exercising a statutory power or duty, it may be inappropriate to characterise the process as the provision of a service for the purpose of the Act even in cases where the product of the process is the provision of a benefit to an individual…

process

Waters v Public Transport Corporation

‘Anti-discrimination legislation should be liberally construed but not as though it were the only, or even the principal, means by which the disadvantages of the disabled or of other minority groups are to be alleviated.’

66 Whether the Administrative Decisions Tribunal provides a "service" is an issue not necessary to determine given my reasons as stated above. Further, I have been taken to no authorities on the issue and the question that remains open before me is: Is the Administrative Decisions Tribunal acting as an arm of government (administering government policy) or is it providing a service?

The Appropriate Question for Leave

67 This is not a matter where on the question of "leave" the appropriate test is what is "just and fair". Rather, the question I have had to consider is whether, in the public interest, it is necessary to consider an issue as to jurisdiction. Such an issue should be considered at the earliest possible time in the proceedings. A preliminary legal issue was raised which, if upheld, would act as a bar to suit. It was necessary, therefore, to consider the issue in determining whether leave should be granted.

Findings

68 I therefore find the principle of judicial immunity protected the act of the Registrar performed on delegation from the President and in the performance of a function within the Tribunal's jurisdiction and that immunity applies to the Attorney General's Department (read "the Tribunal") who is protected from suit in such a circumstance.

69 The complaint is dismissed.

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Citations

Johnston v State of New South Wales [2009] NSWADT 314

Cases Citing This Decision

0

Cases Cited

15

Statutory Material Cited

8

Budd v State of New South Wales (Attorney General's Department) [2007] NSWADT 112

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Mahenthirarasa v State Rail Authority of New South Wales (No 2) [2008] NSWCA 201

CITATION:	Johnston v State of New South Wales [2009] NSWADT 314
DIVISION:	Equal Opportunity Division
PARTIES:	Applicant: Shirley Johnston Respondent: State of New South Wales (Attorney General's Department)
FILE NUMBER:	091091
HEARING DATES:	9 September 2009
SUBMISSIONS CLOSED:	25 November 2009
DATE OF DECISION:	16 December 2009
BEFORE:	Kavanagh J
CATCHWORDS:	Application for leave to appeal - s96 of Anti-Discrimination Act 1977 - age and disability complaint - consideration of complaint requires original decision - consideration of leave necessary for appeal - respondent raises protection from suit under principle of judicial immunity - in public interest to hear issue at earliest stage of litigation - principles of judicial immunity - act within powers of President of Tribunal - Registrar acts on delegation of President's power - Registrar acts within jurisdiction so is protected - effect of s44B&C of Judicial Officers Act 1986 - act of Registrar has statutory protection from suit even if administrative (ministerial) act - Registrar of Tribunal/Department indemnified from suit - leave refused
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Equal Opportunity Act 1995 (Vic) Freedom of Information Act 1989 Interpretation Act 1987 Judicial Officers Act 1986 Public Sector Employment and Management Act 2002 Racial Discrimination Act 1995 (Cth)
CASES CITED:	Brian Rochford Ltd (Administrator Appointed) v Textile Clothing & Footwear Union of NSW (1998) 85 IR 332 Budd v State of New South Wales [2007] NSWADT 112 Budd v State of New South Wales (Attorney General’s Department) [2009] NSWADT 215 Ekermawi v Administrative Decisions Tribunal of New South Wales and Ors [2009] NSWSC 143 Mahenthirarasa v State Rail Authority Of New South Wales (No 2) [2008] NSWCA 201 Re East and Ors; Ex Parte Nguyen [1998] 196 CLR 354 Scanlon v Director-General, Department of the Arts, Sport and Recreation [2007] 70 NSWLR 1 Singleton v The King (2005) 227 CLR 166 Towie v the State of Victoria (2008) 19 VR 640 Wentworth v Wentworth and Ors (2001) 52 NSWLR 602
REPRESENTATION:	Applicant Representative: Mr Phillip Johnston, Agent Respondent Representative: Mr J. Cahill, Crown Solicitor's Office
ORDERS:	The application by Mrs Johnston for leave of the Tribunal to proceed with a complaint under s92(1) of the Act is refused and the complaint is dismissed.