Pegg v Anti-Discrimination Commissioner - [2025] TASSC 51

[2025] TASSC 51

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Pegg v Anti-Discrimination Commissioner [2025] TASSC 51
PARTIES:	PEGG, Mark Alexander
v ANTI-DISCRIMINATION COMMISSIONER
FILE NO:	2451/2024
DELIVERED ON:	14 October 2025
DELIVERED AT:	Hobart
HEARING DATE:	26 September 2025
JUDGMENT OF:	Estcourt J
CATCHWORDS:

Administrative law – Judicial review – Grounds of review – Procedural fairness – Consequence of failure to accord procedural fairness – Applicant lodged complaint with Equal Opportunity Tasmania – Application was out of time – Applicant not afforded opportunity to explain entire delay – Argues material breach of the rules of natural justice – Whether the Commissioner's decision was tainted by Wednesbury unreasonableness – The Commissioner ought to have allowed the applicant to explain the seven-week delay after accepting an explanation for the previous three-year delay – Unreasonable for Commissioner to settle on a fraction of the whole as unexplained and decline to accept the complaint – Application granted.

Aus Dig Administrative Law [1076]

Legislation:
Judicial Review Act 2000

Discrimination Act 1998

Cases:

Clarence City Council v South Hobart Investment Pty Ltd [2007] TASSC 16, 16 TAS R 201

REPRESENTATION:

Counsel:

Applicant: In Person
Respondent: N Winton

Solicitors:

Respondent: State Litigation Office

Judgment Number:	[2025] TASSC 51
Number of paragraphs:	26

Serial No 51/2025 File No 2451/2024

PEGG v ANTI-DISCRIMINATION COMMISSIONER

REASONS FOR JUDGMENT	ESTCOURT J 14 October 2025
The application

1 The applicant, Mark Alexander Pegg, has sought an order of review under the Judicial Review Act 2000 on the ground that he is aggrieved by a decision of the Anti-Discrimination Commissioner (the Commissioner), not to accept for investigation his complaint of discrimination under the Anti- Discrimination Act 1998 (the Act), on the basis that the conduct he complained of occurred outside the 12-month time limitation provided for by s 63(1) of the Act, and the Commissioner was not satisfied that it was reasonable to accept the complaint made out of time (the decision).
2 Section 63 of the Act provides as follows:

"63 Time limit on complaints
(1) A complaint is to be made within 12 months after the alleged discrimination
or prohibited conduct took place.
(2) The Commissioner may accept a complaint made after the 12-month time
limitation has expired if satisfied that it is reasonable to do so."

3 The applicant claims that the Commissioner's decision is vitiated by a failure to accord him procedural fairness and/or by an improper exercise of power.
4 The originating application states as follows:

"(1)

That the decision of the Anti-Discrimination Commissioner made on 28 June 2024 and communicated to me on 4 July 2024 (file reference 24/05/019/ps) not to accept my Complaint for Investigation be set aside, on the basis that:

a) There was a breach of the rules of natural justice, for the purposes of Section 17(2)a) of the Judicial Review Act 2000; or
b) There was an improper exercise of power, for the purposes of Section 17(2)e) of the Judicial Review Act 2000

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.

Continue reading Pegg v Anti-Discrimination Commissioner

Details

AGLC: Pegg v Anti-Discrimination Commissioner [2025] TASSC 51
Case: [2025] TASSC 51
Decision Date: 14 October 2025

CaseChat Overview and Summary

Pegg brought proceedings against the Anti-Discrimination Commissioner in the Federal Circuit Court, seeking a review of the Commissioner’s decision. The dispute centred on whether the Commissioner had correctly dismissed Pegg’s complaint on the grounds that it was lodged out of time, without providing Pegg with an opportunity to explain the delay. The court was tasked with determining whether the Commissioner's decision was flawed on the grounds of procedural fairness and Wednesbury unreasonableness.

The legal issues before the court included whether the Commissioner had failed to provide Pegg with procedural fairness by not allowing her to explain the entirety of the delay in lodging the complaint. The court also considered whether the Commissioner's decision was unreasonable, given that he had accepted an explanation for part of the delay but dismissed the complaint based on the remaining unexplained period. The court had to assess whether it was unreasonable for the Commissioner to accept part of the explanation and then ignore the rest, leading to the dismissal of the complaint.

The court held that the Commissioner's decision was indeed flawed. The Commissioner had failed to give Pegg an opportunity to explain the entire delay, which amounted to a material breach of the rules of natural justice. Furthermore, the court found that it was unreasonable for the Commissioner to accept an explanation for part of the delay but not for the rest, leading to the dismissal of the complaint. The court granted the application for judicial review, finding that the Commissioner's decision was tainted by procedural unfairness and unreasonableness.

The final orders of the court included setting aside the Commissioner's decision and remitting the matter back to the Commissioner for reconsideration, allowing Pegg the opportunity to explain the entire delay in lodging her complaint.

Orders