Kentish Council v Wood - [2010] TASSC 43

[2010] TASSC 43

COURT: SUPREME COURT OF TASMANIA

CITATION: Kentish Council v Wood [2010] TASSC 43

PARTIES:  KENTISH COUNCIL
  v
  WOOD, H M

BARTLETT, M
BRETT, M

FILE NO/S:  1007/2009
DELIVERED ON:  28 September 2010
DELIVERED AT:  Hobart
HEARING DATE:  27, 28 May 2010
JUDGMENT OF:  Tennent J
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 – Whether decision one of an administrative character.

Anti-Discrimination Act 1998 (Tas), ss12, 64(2), 65, 85, 89(1), 100.
Judicial Review Act 2001 (Tas), ss4(1), 12, 17.
Von Stalheim v Anti-Discrimination Tribunal (2003) 11 Tas R 309; Mazukov v Anti-Discrimination Tribunal [2004] TASSC 68; State of Tasmania v Anti-Discrimination Tribunal [2009] TASSC 48; Commonwealth v Anti-Discrimination Tribunal [2008] FCAFC 104, considered.
Aust Dig Administrative Law [1008]

REPRESENTATION:

Counsel:
             Applicant:                   S B McElwaine
             Respondent:              G Casement
Solicitors:
             Applicant:                   Shaun Mc Elwaine & Associates
             Respondent:              Warren Graham & Murphy

Judgment Number: [2010] TASSC 43
Number of paragraphs: 19

Serial No 43/2010
File No 1007/2009

KENTISH COUNCIL v H M WOOD, M BARTLETT, M BRETT

REASONS FOR JUDGMENT TENNENT J

28 September 2010

On 1 September 2005, Mrs Sandra Taylor, then a resident of Sheffield, forwarded a complaint against the Kentish Council ("the Council") to the Anti-Discrimination Commission. She claimed that she had been discriminated against by the Council in various ways. The complaints generally related to access to various places. Mrs Taylor was confined to a wheelchair. Pursuant to the Anti-Discrimination Act 1998 ("the Act"), s64(2), the Anti-Discrimination Commissioner had a period of 42 days from the receipt of the complaint to either accept or reject it. Approximately one month after the complaint was lodged, Mrs Taylor advised the Commission that she had sold her Sheffield home because she could no longer live in Sheffield without the access she had complained about. She moved to live in Victoria. The Commission subsequently accepted the complaint for investigation and commenced an investigation.

Pursuant to the Act, s78, the Commissioner had the power to refer the complaint to a tribunal to conduct an inquiry into it. The tribunal to which any complaint might be referred was a tribunal established pursuant to the Act, s12. The Act did not give the tribunal a name. It has however, since its creation, been known as the Anti-Discrimination Tribunal ("the Tribunal"). Mrs Taylor's complaint was referred to that tribunal in August 2006 for an inquiry. Both the Council and Mrs Taylor were advised of this and were sent a document entitled "Referral Report" signed by the Commissioner. That report indicated that the parties had been unable to resolve their dispute despite attending conciliation.

The matter proceeded to a hearing before the Tribunal, and its members delivered a decision on 3 November 2009. The Tribunal found that the complaint had been made out and ordered the Council to pay the sum of $10,000 by way of compensation…

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.

Keep reading for free

Create a free CaseChat account to read Kentish Council v Wood and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] TASSC 43
Decision Date: 28 September 2010

CaseChat Overview and Summary

Kentish Council was involved in a dispute with Wood, who sought judicial review of a decision made by the Anti-Discrimination Tribunal following an inquiry. The case was heard in the Supreme Court of Victoria. Wood argued that the Tribunal's decision was flawed and sought to have it quashed. The central legal issue was whether the decision of the Anti-Discrimination Tribunal, made after an inquiry, constituted a decision of an administrative character for the purposes of the judicial review legislation.

The court examined the nature of the decision made by the Tribunal. It considered whether the decision was of an administrative character, as required for it to be subject to judicial review. The court noted that the Tribunal's role in conducting an inquiry and making a decision was inherently administrative, as it involved the interpretation and application of legislative provisions. The court held that the decision of the Anti-Discrimination Tribunal, following an inquiry, was indeed of an administrative character and thus subject to judicial review under the applicable legislation.

Having determined that the Tribunal's decision was reviewable, the court then assessed whether it was vitiated by any error of law or procedural impropriety. The court found that there were no such errors and dismissed the application for judicial review. The Tribunal's decision was therefore upheld.

The Supreme Court of Victoria dismissed Wood's application for judicial review and affirmed the decision of the Anti-Discrimination Tribunal.

Orders