Mazukov v Anti-Discrimination Tribunal

[2004] TASSC 68

[2004] TASSC 68

CITATION:            Mazukov v Anti-Discrimination Tribunal [2004] TASSC 68

PARTIES:  MAZUKOV, Ivan
  v

ANTI-DISCRIMINATION TRIBUNAL

MAZUKOV, Ivan

v

ANTI-DISCRIMINATION TRIBUNAL

MAZUKOV, Ivan

v
  ANTI-DISCRIMINATION TRIBUNAL

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 79/2003

LCA 28/2004
LCA 29/2004

DELIVERED ON:  2 July 2004
DELIVERED AT:  Hobart
HEARING DATES:  28 June 2004
JUDGMENT OF:  Underwood J

CATCHWORDS:

Administrative Law – Judicial review legislation – Jurisdiction and generally – "Decision" within the Act's application – Decision of Anti-Discrimination Tribunal.

Judicial Review Act2000 (Tas), s4(1).

Von Stalheim v Anti-Discrimination Tribunal (2003) 11 Tas R 309, followed.

Aust Dig Administrative Law [11]

REPRESENTATION:

Counsel:
           Appellant:  Self-represented
           Respondent:  L Wilkins
Solicitors:
           Appellant:  Self-represented
           Respondent:  Director of Public Prosecutions

Judgment Number:  [2004] TASSC 68
Number of Paragraphs:  16

Serial No 68/2004
File Nos LCA 79/2003

LCA 28/2004
LCA 29/2004

IVAN MAZUKOV v ANTI-DISCRIMINATION TRIBUNAL
IVAN MAZUKOV v ANTI-DISCRIMINATION TRIBUNAL
IVAN MAZUKOV v ANTI-DISCRIMINATION TRIBUNAL

REASONS FOR JUDGMENT  UNDERWOOD J
(DELIVERED ORALLY)  2 July 2004

1. The appellant has lodged three notices of appeal against decisions of the Anti-Discrimination Tribunal.

1. The Anti-Discrimination Act 1998 ("the Act"), s100, confers specified rights of appeal. The Act directs that an appeal must be instituted within 28 days and is to be heard and determined in accordance with the Supreme Court Rules 2000. The relevant Rules are rr701 – 711 inclusive.

1. The first appeal (LCA 79/2003) relates to a decision handed down on 28 July 2003.  The notice of appeal is dated 14 August 2003.  Thus, it is filed within the time prescribed.  The Supreme Court Rules, r707, requires the notice to be served upon the Chair of the Tribunal and any person who appeared in the Tribunal. Whether than was done or not, I do not know. Rule 705(1) requires the appellant to state the grounds of any appeal. The appellant's notice of appeal states no grounds. It provides that he cannot specify grounds, as he needs to travel for the reasons that are given in the notice.

1. In this matter, the Tribunal reviewed four decisions of the Anti-Discrimination Commissioner to reject complaints made by the appellant. The power of the Commissioner to reject a complaint is conferred by the Act, s64. Section 65 confers a right to have a rejection reviewed by the Tribunal. Section 72 provides that if the Tribunal is of the opinion that the Commissioner was right to reject the complaint, it lapses. The Tribunal was of that opinion with respect to all four complaints.

1. The Act, s100 confers rights to appeal to this Court in the following terms:

"100 ¾ (1)  A person may appeal to the Supreme Court on a question of law or fact against an order made under section 89(1) or (2) or section 95 within 28 days after the order was made.

(2)      A person may appeal to the Supreme Court against a dismissal under section 99 within 28 days after the dismissal was made.

(3)      A person may appeal to the Supreme Court against a determination on a question of law under section 86(4) within 28 days after the determination was made."

1. None of the orders in this appeal was made pursuant to any of the sections of the Act referred to in s100.

1. The second appeal (LCA 28/2004), also relates to a Tribunal decision that the decision of the Commissioner to reject a complaint was correct. The notice of appeal was lodged four days outside the time permitted by the Act, s100.

1. The third appeal (LCA 29/2004), relates to a review by the Tribunal of a decision by the Commissioner to dismiss a complaint. The Commissioner's power to dismiss a complaint is conferred by the Act, s71. The Tribunal had jurisdiction to review the Commissioner's decision by virtue of the Act, s72. The Tribunal concluded that the Commissioner's decision was correct and accordingly, the complaint lapsed. The decision was handed down on 3 March 2004, but the appeal not lodged until 3 May 2004.

1. In these circumstances, I ordered that there be preliminary argument on the issue of the Court's jurisdiction to entertain any of these three appeals.  The appellant, who appeared in person, made submissions.  Included amongst them was the submission that this Court has jurisdiction by virtue of the provisions of the Judicial Review Act 2000.

1. The Judicial Review Act confers jurisdiction on this Court by s17(1), which provides:

"A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."

1. Section 4(1) defines "decision to which this Act applies", to mean:

"a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)."

1. Blow J considered the meaning of this expression in Von Stalheim v Anti-Discrimination Tribunal (2003) 11 Tas R 309. That case concerned a decision of the Tribunal that the Commissioner was correct when she rejected a complaint, as was the case in two of the three present appeals. Blow J said at 314:

"The proceedings before the Tribunal were not proceedings inter partes. They did not involve the review of a decision that directly affected the prospective employer. Under the Anti-Discrimination Act, s16(1), the power to reject a complaint can be exercised by the Commissioner on grounds that have nothing to do with lack of merit, including the availability of similar remedies in a commission, court or tribunal in which proceedings have been commenced; satisfaction that the subject matter of a complaint may be adequately dealt with by such a body; the existence of a more appropriate remedy that is reasonably available; the complaint having already been dealt with by another authority; or an opinion that the complaint may be more effectively or conveniently dealt with by another authority.

A decision by the Commissioner to reject a complaint is no more than a decision not to conduct an investigation. It is an excellent example of a decision of an administrative character. In light of the factors that I have referred to, I see no reason to regard any differently a decision by the Tribunal that it is satisfied that the Commissioner made a correct decision in rejecting a complaint. I therefore reject the submission that the Court lacks jurisdiction. I hold that the Court has jurisdiction to review the respondent's decision pursuant to the Judicial Review Act, s17(1)."

1. The reasoning in that case applies with equal force to a decision of the Tribunal that the Commissioner's decision to dismiss a complaint was correct.  I see no reason not to follow Von Stalheim v Anti-Discrimination Tribunal.  It follows that this Court has jurisdiction to review the decisions of the Tribunal.  The question of whether it has been invoked is somewhat difficult.  The Judicial Review Act, s23(1)(a), provides that an application for a review must be made within 28 days of the "relevant day". Subsection (4) defines the meaning of "relevant day". The material before me does not enable me to determine when the relevant day was with respect to any of the three appeals. Further, it is noted that subs(1)(b) confers on the Court a power to extend the time for appealing.

1. The title of the three appeals refers to the Anti-Discrimination Act and thus it would appear that the appellant is seeking to invoke the jurisdiction of the Court under that Act.  However, as he is a self-represented litigant, the form of the documentation should carry little weight.  The grounds set out in the notices of appeal do not conform to the provisions of the Judicial Review Act, s17, but are, I suppose, capable of amendment if the Court has jurisdiction.

1. I conclude that the Judicial Review Act does apply to these decisions of the Tribunal. I am unable to determine at this stage whether the notices were lodged within the time prescribed by the Act. Accordingly, the appropriate course is to adjourn the further hearing of all three appeals into the Civil List for hearing.

1. Before I part with this matter, I would like to observe that it seems surprising that the Parliament intended this result.  The Anti-Discrimination Act 1998 sets up a Commissioner to receive and accept or reject complaints of discrimination. If a complaint is rejected, the Act provides a mechanism for the review of that decision by the Tribunal. If a complaint is accepted, investigated, but dismissed, the Act confers a like review mechanism. By not exempting these decisions from the provisions of the Judicial Review Act, the Parliament has opened the way to another tier of appeals in discrimination matters that could include not only appeals to a single judge of this Court, but also appeals to the Full Court, and even applications for special leave to appeal to the High Court of Australia.  The Schedule to the Judicial Review Act contains a list of statutes, decisions pursuant to which are exempted from the operation of that Act, but the Anti-Discrimination Act is not included.