Kentish Council v Wood - [2011] TASFC 3

[2011] TASFC 3

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Kentish Council v Wood [2011] TASFC 3

PARTIES:  KENTISH COUNCIL
  v
  WOOD, H M
  BARTLETT, M
  BRETT, M
  TAYLOR, Sandra

FILE NO/S: 864/2010
JUDGMENT

APPEALED FROM: Kentish Council v Wood [2010] TASSC 43

DELIVERED ON:  17 August 2011
DELIVERED AT:  Hobart
HEARING DATE:  2 March 2011
JUDGMENT OF:  Evans, Blow and Porter JJ

CATCHWORDS:

Administrative Law – Judicial review – Reviewable decisions and conduct – Decisions to which judicial review legislation applies – Decisions of an administrative character – Decision of Anti-Discrimination Tribunal after an inquiry – Finding of discrimination and order for payment of compensation.

Judicial Review Act 2001 (Tas), s4(1).
Aust Dig Administrative Law [1008]

REPRESENTATION:

Counsel:
             Appellant:  S B McElwaine
             Respondent Taylor:  G Casement
Solicitors:
             Appellant:  Shaun McElwaine & Associates
             Respondent Taylor:  Warren Graham & Murphy

Judgment Number: [2011] TASFC 3
Number of paragraphs: 23

Serial No 3/2011
File No 864/2010

KENTISH COUNCIL v
H M WOOD, M BARTLETT, M BRETT, and SANDRA TAYLOR

REASONS FOR JUDGMENT FULL COURT

EVANS J
BLOW J
PORTER J
17 August 2011

Order of the Court

Appeal dismissed.

Serial No 3/2011
File No 864/2010

KENTISH COUNCIL v
H M WOOD, M BARTLETT, M BRETT, and SANDRA TAYLOR

REASONS FOR JUDGMENT FULL COURT

EVANS J
17 August 2011

I agree with the reasons of a Blow J and would also dismiss the appeal
File No 864/2010

KENTISH COUNCIL v
H M WOOD, M BARTLETT, M BRETT, and SANDRA TAYLOR

REASONS FOR JUDGMENT FULL COURT

BLOW J
17 August 2011

During 2005 one of the respondents to this appeal, Sandra Taylor, made a complaint under the Anti-Discrimination Act 1998 ("the AD Act"), s60, alleging discrimination on the part of the appellant, the Kentish Council ("the council"). She was confined to a wheelchair. She alleged that discrimination by the council prevented her from having wheelchair access to various places in Sheffield. Pursuant to the AD Act, s78, the Anti-Discrimination Commissioner referred the complaint to the Anti-Discrimination Tribunal for an inquiry. The tribunal held an inquiry, found that the complaint was substantiated, and ordered the council to pay Mrs Taylor $10,000 by way of compensation. The council was aggrieved by the tribunal's decision. The AD Act, s100(1), permits a person to appeal to the Supreme Court against such a compensation order. The council did not appeal under that section, but instead made an application for the review of the tribunal's decision under the Judicial Review Act 2000 ("the JR Act"). On the hearing of that application, Tennent J held that the JR Act did not permit an application to be made for the review of such a decision: Kentish Council v Wood [2010] TASSC 43. This is an appeal by the council from her Honour's decision. The council contends that it was entitled to make an application under the JR Act.

The council has joined as respondents to this appeal the three individuals who constituted the tribunal for…

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] TASFC 3
Decision Date: 17 August 2011

CaseChat Overview and Summary

The Supreme Court of Tasmania, Court of Appeal, heard an appeal concerning a decision made by the Anti-Discrimination Tribunal. The appellant, Kentish Council, sought judicial review of the Tribunal's determination, which had found the Council liable for discrimination and ordered it to pay compensation to the respondent, Ms. Wood.

The central legal issue before the Court of Appeal was whether the decision of the Anti-Discrimination Tribunal, specifically its finding of discrimination and the subsequent order for compensation, constituted a "decision of an administrative character" for the purposes of judicial review under the relevant administrative law legislation.

The Court of Appeal reasoned that the Tribunal's function in hearing and determining a complaint of discrimination, and in making orders for compensation, was administrative in nature. The Court applied the principle that decisions made by tribunals exercising statutory powers to resolve disputes and grant remedies are generally considered administrative. The Court found that the Tribunal's decision was not of a judicial character, as it did not involve the determination of a legal right in the same way a court would, but rather the exercise of a statutory power to address a complaint of discrimination.

The appeal was dismissed, upholding the Tribunal's decision as a reviewable administrative decision.

Orders

Orders of the court

Appeal dismissed

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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