Pegg v Anti-Discrimination Commissioner
[2025] TASSC 51
•14 October 2025
[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."
5 In a document entitled "further and better grounds" the applicant, amongst other things, argues that having heard nothing from Equal Opportunity Tasmania until after the 42 days provided in the Act had expired, and then having explained his own delay in lodging his complaint for a period of three years, it was unreasonable for him not to have been given an opportunity to explain, what will be seen was regarded as a determinative delay, a period of seven weeks between March and May 2024.
6 The applicant states that he "could have readily supplied the additional information", had he "been afforded an opportunity", but that opportunity was denied to him.
7 As to the asserted improper exercise of power, the applicant contends that the Commissioner failed to take a relevant consideration into account, exercised her power according to a rule, without regard to the merits of the particular case, and exercised her power "capriciously".
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8 I should say at once that in my view no question arises on the material before me as to a failure to take account of a relevant consideration as that term is understood in law, and no question arises as to eschewing the merits of the applicant's complaint in favour of a rule, as apprehend the relevant principles. As I understand the applicant's case from exchanges with him during oral argument, the real issues are whether there was a material breach of the rules of natural justice and/or whether the Commissioner's decision was tainted by Wednesbury unreasonableness.
The background
9 The following history is gratefully adopted from the written contentions of counsel for the intervener, the Attorney-General, Ms Winton, with which no relevant issue was taken by the applicant:
"6
The factual basis for the Applicant's complaint is set out in the Commissioner's Decision at Court Book (CB) 13. Relevantly, the Applicant alleges that the Principal of his son's school preferred information about the Applicant provided by the Applicant's ex-wife, Ms Donohue, to information provided by the Applicant. The Applicant alleges that Ms Donohue 'word[ed] up' staff at my son's school about me,' which the Principal then 'used to brief his superiors' at the Department for Children, Education and Young People (DECYP). The Applicant contends the 'less favourable treatment that I am alleging relates to [the Principal] selecting or preferring Ms Donohue's accounts over mine.'
7 The Principal's alleged conduct occurred 'in or about June 2020.' 8
The Applicant discovered the alleged conduct in 2023 when he gained access to the emails contained at CB 71 – 86 (the Emails) during the course of Family Court proceedings. The Emails came to light when Ms Donohue subpoenaed documents from DECYP in 2022. The Applicant obtained access to them in October of 2023: CB 23. It is the content of the Emails that comprises the alleged unlawful conduct.
9
Between October 2023 and April 2024 the Applicant took no action with respect to the Emails.
10
On 9 April 2024 Mr Pegg sent a defamation 'concerns notice' for the purposes of s 14(2) of the Defamation Act 2005, to the Secretary of the Department of Premier and Cabinet (DPAC) with respect to the Emails. That concerns notice was supplemented with further particulars by way of a letter from the Applicant to the Premier on 12 April 2024, wherein the Applicant wrote:
Defamation
Recently I've discovered why my efforts to improve my son's situation at the school have been unsuccessful. Since 2020, Michael Park the Principal has been 'briefing' his superiors about me, so that each time I complained about Oscar being assaulted or bullied he 'briefed' Anne Douglas and others at Learning Services, to suggest I was a disturbed person, a domestic abuser, and a homeless person.
…
It is awkward and embarrassing, but the 'information' provided to Mr Park about me was supplied by Ms Lisa Donohoe, who is my ex-wife and also an officer of the Department of Education. Ms Donohoe and I have a current family matter relating to Oscar in the Federal Court, and she started 'briefing' Mr Park on our 'family circumstances' around 2019 or 2020, apparently to ensure I received less favourable treatment in connection with my son's schooling. She was also motivated to damage my credibility, so her interests and those of Mr Park joined, at least from 2020 onwards. That had a devastating impact on Oscar and on me.
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11 On 6 May 2024, the Secretary of DECYP issued a 'further particulars notice' to the Applicant for the purposes of s 14A(3) of the Defamation Act taking issue with the Applicant's defamation claim.
12 On 7 May 2024, after receiving the Secretary's response to his defamation action, the Applicant lodged his complaint with the Commissioner.
13 The complaint was lodged seven months after the Applicant became aware of the subject Emails. There is no material difference between the substance of the Applicant's defamation action and his discrimination complaint. The subject of the complaint, namely the Emails in which Mr Park allegedly shared 'briefing' material with his superiors derived from information obtained from Ms Donohue, is identical to subject of the defamation action.
14 The Anti-Discrimination Commissioner's complaint form has a field directed to s 63 of the Act, which asks whether the matter happened more than 12 months ago. The form provides a box in which the complainant can describe 'why you waited until now to make your complaint (the First Opportunity).
15 On 19 June 2024 Ms Struwe, an Investigation and Conciliation Officer at Equal Opportunity Tasmania (EOT), emailed the Applicant to afford him an opportunity to be heard in relation to the Commissioner's exercise of discretion under s 63 (the Second Opportunity). Ms Struwe noted that the discrimination occurred in 2020, set out s 63, provided the following explanation of the factors that the Commissioner is legally required to consider, and requested the applicant to make submissions addressing those factors (emphasis added):
In deciding whether to exercise the discretion under section 63(2) of the Act, in R v S [2005] TASADT 1 at [31] – [33] the Anti-Discrimination Tribunal of Tasmania (as it then was) set out the relevant factors that the Commissioner must consider, with reference to relevant cases:
• The entire period, from the date of the alleged events to the date of lodging the complaint is to be explained, not just the period extending from the expiration of the 12-month date (Ramadan v Legal Holdings [2001] NSWCA 41) and there must be a satisfactory explanation for the delay (Buderim Ginger Limited v Booth [2002] QCA 177). • Whether the delay was attributable to the acts or omissions of the complainant or his or her legal representatives, the respondent, or both (Buderim Ginger Limited v Booth [2002] QCA 177). • The length of the delay (Buderim Ginger Limited v Booth [2002] QCA 177). • Whether it would cause prejudice to the respondent (Buderim Ginger Limited v Booth [2002] QCA 177). Having to defend a matter long after the circumstances which gave rise to it have passed can be oppressive to a defendant (R v S [2005] TASADT 1). • Once prejudice to the respondent is established, the limitation period should only be overridden in exceptional circumstances (R v S [2005] TASADT 1). • The complainant bears the onus to make out a case for extension of time (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541). • The merits of the complaint should not be used as a basis for an out of time decision (McAulliffe v Puplick and Anor (1996) EOC 92-800; Buderim Ginger Limited v Booth [2002] QCA 177). It is also important to note that in R v S [2005] TASADT 1 at [52], the Anti- Discrimination Tribunal (as it then was) took the view that the time limitation in the Act has a specific purpose and should only be extended where it is reasonable to do
4 No 51/2025
so. A limitation period is the general rule; an extension provision is the exception to
the rule (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541).Your complaint relates to alleged discrimination that occurred outside of the 12 month limit.
Please provide your response to the following questions:
(1) the date you received the documents as per your RTI request/application. (2)
the reason(s) for the delay in lodging your complaint from the time you discovered the alleged discrimination (ie when you received the RTI documents) and the date you lodged your complaint on 7 May 2024.
(3)
What prejudice do you say you will be subject to if the Commissioner does not exercise her discretion under section 63(2) to accept your complaint out of time.
If you would provide your response within 7 days or in any event Wednesday 26 June
2024, that would be appreciated.Please make contact with me by reply to this email if you have any questions about my requests. I will be out of the office from 11.00 am today until Tuesday 25 June 2024, however I will be monitoring my email.
16 The Applicant replied to Ms Struwe on the same day, 19 June 2024, which coincided with his son's last day at school. The Applicant did not respond to the substance of Ms Struwe's queries going to delay. Instead he explained that 'but it wasn't until my ex-wife subpoenaed documents in 2022 (as part of our Family Court matter) that I got access to the documents I supplied to you, with my complaint … as a result of all of this, I didn't become aware of the discriminatory material until October 2023.' The explanation was entirely unresponsive to the substance of Ms Struwe's request.
17 By email dated 26 June 204 Ms Struwe provided the Applicant with a third opportunity to explain his delay (the Third Opportunity). She noted that he 'didn't become aware of the discrimination until October 2023' and requested 'your reasons as to why it took from October 2023 until May 2024 to lodge [his] complaint.'
18 On 26 June 2024 the Applicant replied as follows:
Yes during the relevant time period I was entirely occupied with trial preparations, and the trial itself, in our family law matter.
As I tried to meet the first trial date in December, my RSI returned & I was totally incapacitated.
That was partly because Hobart Registry of FCFCOA refused to provide a reasonable adjustment (I complained to Commonwealth Human Rights Commission in November, no response from them so far. I guess business is booming .. . )
Then we got a new trial date of March, and I had to prepare for that. Trial concluded on 14 March.
So I literally did complain at my first available opportunity.
19 On 28 June 2024 the Commissioner made the Decision which was communicated to the Applicant on 4 July 2024. Whilst the Commissioner determined that the Applicant 'provided a satisfactory explanation for the period between June 2020 and October 2023,' she decided:
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Notwithstanding my determination above, I am not satisfied that Mr Pegg has provided adequate reasons for the delay in lodging his complaint from March 2024 until May 2024.
He has not provided me information as to why once his Family court matter was finalised why it took almost 2 months to lodge the complaint. Mr Pegg is aware of the complaint process in my office, and I am aware that he sought information in 2021, regarding his concerns with the Department of Education (as it was then) and Goulbourn Street Primary.
I have been made aware that he was advised of the 12 month limitation period when he sought information from my office."
10 As to that last point made by the Commissioner, the intervener notes that, quite apart from being advised of the time limit by Equal Opportunity Tasmania in 2021, the applicant "evidenced his awareness of the 12 month limitation period in his letter to the Secretary of DECYP of 16 February 2024. In that letter he wrote that the "Anti-Discrimination Act requires that complaints be lodged within 12 months, but that of course requires an awareness that a breach has occurred...".
The applicant's argument
11 The applicant's written contentions were, relevantly, as follows:
"2
On 7 May 2024, I complained to the Commissioner about the bullying to which my son was subjected at his primary school, and in particular the less favourable treatment I received from the school principal, other school staff and staff of the Tasmanian Department of Education, when I tried to get the bullying stopped.
3
The Commissioner wrote to me on 4 July 2024, to advise she had not accepted my complaint . In her Reasons for Decision document dated 28 June 2024, the Commissioner noted that her decision was due on 18 June 2024, and acknowledged she was making it outside the 42 day period required by the Act
4
My Originating Application for judicial review of the Commissioner's decision dated 19 August 2024 appears as Item 1 in the Court Book, see page 2.
5
Ms Struwe from the Office of the Anti-Discrimination Commissioner first made contact with me about my complaint on 19 June 2024, which was outside the 42 days. The 42 days expired on 18 June 2024.
6
To assist in explaining why my complaint was three years out-of-time, I supplied additional information via email to Ms Struwe on 19 June 2024, but concluded that:
I do hope this answers your queries.
but please do get back to me, if you need further information.
my time is quite tight today, as dear son has now been bullied out of his school (gaslighting, daily shouting and regular selective punishments from his class teacher).
and I need to go in, to support him on what looks likely to be his last
day.
7 Ms Struwe followed up with me via email on 26 June 2024. She requested additional information 'To full (sic) comply with time limit requirement of the Act', and I immediately supplied additional information .
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8 The effect of the information I supplied on 26 June 2024 was that the 'period of delay' in lodging my application that I needed to account for to allow the Commissioner to exercise her discretion under Section 63 was no longer three years, as it had been prior to my email exchanges with Ms Struwe. Rather, the 'period of delay' that I needed to account for was now a period of seven weeks, specifically the period 14 March 2024 to 7 May 2024.
9 I could readily have accounted for this 'missing period' of seven weeks, but neither Ms Struwe nor the Commissioner provided me with an opportunity to do so. In all the circumstances, prior to making the decision not to allow my out-of-time complaint, it was fair and reasonable for Ms Struwe or the Commissioner to provide me with a further opportunity to be heard, specifically to explain the 'missing' seven weeks.
10 The Commissioner's decision not to accept my complaint represents a breach of the rules of natural justice, allowing the Court to make an order of review, pursuant to Section 17(2)a) of the Judicial Review Act 2000 (Ground 1 of my Application)
11 The Judicial Review Act 2000, Section 17(2) provides that a person may apply to the Court for an order of review, on the basis:
(a) that a breach of the rules of natural justice happened relating to the making of the decision;
Since the Act does not define 'the rules of natural justice', it is necessary to look to common law, where the expression 'natural justice' can be used interchangeably with the expression procedural fairness. It is well accepted that there is no fixed content to the duty to afford procedural fairness. The fairness of the procedure depends on the nature of the matters in issue, and what would be a reasonable opportunity for parties to present their cases in the relevant circumstances. The High Court has provided the following authorities:
A) 'the expression "procedural fairness" conveys the notion of a flexible obligation to adapt fair procedures which are appropriate and adapted to the circumstances of the particular case.' (Mason J in Kioa v West (1985) 159 CLR 550, 585).
B) the content of the requirement of procedural fairness may be affected by what is said or done during the decision-making process (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam HCA 6 (2003) 214 CLR 1, per Gleeson, CJ)
12 The Hearing Rule is a key component of procedural fairness. It requires that the decision-maker give to a person whose interests may be adversely affected by a decision an opportunity to present his or her case. So, for example, if a decision-maker informs a person affected that he or she will hear further argument upon a certain point, and then delivers a decision without doing so, it may be easy to demonstrate that unfairness is involved. (Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam HCA 6 (2003) 214 CLR 1 at 12-13)
13 The approach of Ms Struwe and the Commissioner also gives rise to a review under Section 17(2)e of the Judicial Review Act 2000 – on the basis that it was an improper exercise of power. For the purposes of Sections 17 and 18 of the Act, the phrase 'Improper exercise of power' is further defined in Section 20f), which provides:
(f)
an exercise of a discretionary power in accordance with a rule without regard to the merits of the particular case; (Ground 2 of my Application)
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14 Even if the Commissioner's rule would ordinarily have meant the whole period of three years must be accounted for, before she would exercise her discretion under Section 63, in my case and because of the considerable pressure I was under which I had detailed on 19 June, it was not reasonable in all the circumstances for the Commissioner to apply that rule to me. Rather, I had 'successfully' accounted for all but seven weeks out of a three year period. With the result that, the only reasonable outcome was that the Commissioner exercise her discretion, and accept my complaint out-of-time." (My emphasis)
The intervener's argument
| 12 | The intervener's response to the applicant's contentions was as follows: "Contention 1 – the Applicant was afforded procedural fairness | |||
|
… in the past, it was customary to refer to the duty to observe common law requirements of fairness as a duty 'to act judicially'. … Later, the duty came to be referred to as a duty to observe the requirements of 'natural justice'. Later again, it became common to speak of 'procedural fairness'.
23 Whether termed 'natural justice' or 'procedural fairness,' there are two aspects to the rule: the fair hearing rule and the rule against bias. The obligation to afford natural justice or procedural fairness arises where the exercise of power is likely to affect a person's interests.
24 The requirements of the fair hearing rule are flexible and will be determined by what is fair in all the circumstances of a particular case. That flexibility was emphasised by Tucker LJ in a passage that has been approved by the High Court:
[t]he requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth. Accordingly, I do not derive much assistance from the definitions of natural justice which have been from time to time used, but, whatever standard is adopted, one essential is that the person concerned should have a reasonable opportunity of presenting his case.
25 The relevant statutory framework behind a decision is critical to understanding what natural justice requires. Justice Kitto characterised this as the 'necessity of allowing full effect in every case to the particular statutory framework within which the proceeding takes place.' His Honour explained that the framework included:
… express and implied provisions of the relevant Act and the inferences of legislative intention to be drawn from the circumstances to which the Act was directed and from its subject-matter.
26 From this it follows that the construction of the Act's relevant provisions provide the basis for determining what natural justice requires. The prima facie position is that a complaint made outside of the 12-month time limitation in s 63(1) of the Act is incompetent unless and until the
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Commissioner exercises her discretion to accept the complaint if satisfied that it is reasonable to do so.
27 In Bullard v Anti-Discrimination Tribunal (Bullard) Geason J held at [38] that 'a complaint that is not accepted under s 63 of the Act, is incapable of rejection; s 64 is not engaged when a complaint is not accepted under s 63.' That is, acceptance by the Commissioner of an out of time complaint under s 63 is a 'gate' through which an out of time complaint must pass before it is 'capable of rejection' under s 64.
28 In Tasmanian Health Service v Anti-Discrimination Tribunal (THS) Estcourt J followed Geason J's approach, holding that 'acceptance by the Commissioner of an out of time complaint under s 63(2) of the AD Act is the gate, or jurisdictional fact, that enlivens the Commissioner's power to reject a complaint under s 64(1).'
29 The Decision reflects this jurisdictional issue. The Decision does not purport to be a rejection under s 64(1), which would give rise to merits review in the Tribunal. The relevant 'decision' for the purposes of s 17(1) of the Judicial Review Act 2000 (the JRA) is the decision not to accept a complaint made after the 12-month time limitation has expired under s 63(2). The Applicant here seeks an order setting aside that decision: CB 2. Were that order to issue, the Applicant's complaint would remain incapable of acceptance or rejection under s 64. The Commissioner would still need to make a decision whether it is reasonable for her to accept the complaint out of time under s 63(2).
30 The learned authors Creyke, Groves and McMillan describe the hearing rule as follows:
Before an administrative decision that adversely affects an individual's right, interest or legitimate expectation is made, the decision-maker must give the person prior notice that a decision may be made, provide them with the information (particularly prejudicial information) on which the decision may be based, and advise them of the person's right to make a submission in reply.
31 That is precisely what the Second Opportunity did.
32 The Applicant's contention that the dates that he needed to account for changed between the Second Opportunity and Third Opportunity cannot be sustained. The dates did not change. Ms Struwe's email of 19 June 2024 clearly requested reasons for the delay up to the date upon which the Applicant lodged his complaint, 7 May 2024. The email of 26 June 2024 requested the same thing. The Applicant simply failed to address the relevant period despite being given the opportunity to do so. He also failed to identify any prejudice he would suffer should the Commissioner not accept his out of time complaint.
33 The Applicant asserts that 'it was reasonable for Ms Struwe to seek further information from me, regarding the 'missing' dates.' Ms Struwe did seek further information regarding the 'missing' dates, by her email of 26 June 2024. The Applicant simply failed to make use of the opportunity.
34 The Applicant complains that he did not hear from EOT until after the 42 days provided for by s 64(2) of the Act. That would only be relevant to the hearing rule if he were denied the opportunity to be heard as a result of that delay. He was not, and indeed was afforded 7 days in which to respond.
35 The Applicant states that 19 June 2024 was a difficult day for his family. That may have been so, but he was not obliged to respond that day. It was open to him to wait until the impact of the events of 19 June 2024 had passed before providing Ms Struwe with a reply.
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36 The Applicant effectively contends that he is entitled to a fourth opportunity to supply the additional information. This was the Applicant's out of time complaint. He was provided with two express opportunities to provide an explanation but failed to do so. It was incumbent upon him to provide a meaningful response to enable the Commissioner to exercise her discretion in his favour.
37 The Applicant was clearly afforded ample opportunity to be heard. He did not make effective use of those opportunities.
38 In any event, even if the Applicant had been given further procedural fairness, he could not have supplied satisfactory 'additional information' for the reasons dealt with in Contention 2 below. He was occupied pursuing his defamation complaint against DECYP in the period between 14 March 2024 – 7 May 2024.
Contention 2 – Any purported breach of procedural fairness was not material
39 The Attorney-General's primary contention is that there was no error of procedural fairness. But even if there was, it could not have been material.
40 In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs the plurality of the High Court distilled the principles in relation to whether a failure to observe the conditions of a conferral of decision-making authority, such as the obligation to afford procedural fairness, is 'jurisdictional,' or one that 'voids' the statutory decision. Their Honours wrote at [7]:
In most cases, however, an error will only be jurisdictional if the error was material to the decision that was made in fact, in the sense that there is a realistic possibility that the decision that was made in fact could have been different if the error had not occurred. That is because it is now accepted that a statute which contains an express or implied condition to be observed in a decision making process is ordinarily to be interpreted as incorporating such a 'threshold of materiality' in the event of non compliance.
41 As the Commissioner decided it was not reasonable for her to accept the Applicant's complaint under s 63(2), she did not hear the respondent DECYP as to prejudice: CB 16. For the same reason, the Commissioner did not consider whether the complaint was capable of acceptance under s 64, that is, whether it disclosed a possible breach of the Act: CB 16.
42 In Abblitt v The Anti-Discrimination Commissioner (Abblitt) Pearce J accepted that a respondent to an out of time complaint is entitled to be heard by the Commissioner prior to acceptance under s 63(2). The matter was put beyond doubt by Chief Justice Blow in State of Tasmania v Anti- Discrimination Commissioner where His Honour held at [31] – [32] that the 'Commissioner has a common law duty of procedural fairness [to the respondent] that must be observed whenever it is necessary to decide whether it is reasonable to accept a complaint to which s 63 applies.'
43 The Commissioner is obliged to afford DECYP procedural fairness. In the period between 14 March 2024 – 7 May 20204 the Applicant was prosecuting a 'defamation suit against the Tasmanian Government.' That is, he was pursuing his defamation claim in preference to his claim of discrimination.
44 When afforded an opportunity, DECYP will raise the matter of his defamation claim and make submissions as to the prejudice that an extension of the time limit would cause it. Those submissions are likely to undermine
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and challenge the previously untested representations the Applicant has made
to the Commissioner.45 An inference may be drawn from the evidence contained within the affidavit of Alison Jane Scandrett that, on the balance of probabilities, there is no realistic possibility that a different decision could have been made if the Applicant were afforded another opportunity to be heard.
46 In MZAPC v Minister for Immigration and Border Protection Keifel CJ, Gagler, Keane and Gleason JJ explained at [39] (footnotes omitted, emphasis added):
Bearing the overall onus of proving jurisdictional error, the plaintiff in an application for judicial review must bear the onus of proving on the balance of probabilities all the historical facts necessary to sustain the requisite reasonable conjecture. The burden of the plaintiff is not to prove on the balance of probabilities that a different decision would have been made had there been compliance with the condition that was breached. But the burden of the plaintiff is to prove on the balance of probabilities the historical facts necessary to enable the court to be satisfied of the realistic possibility that a different decision could have been made had there been compliance with that condition.
47 The Applicant has objected to the admission of Ms Scandrett' s affidavit into evidence on the ground of relevance at [16]. The evidence is relevant to the question of materiality. The burden is on the Applicant to satisfy this Court that there is, on the balance of probabilities, a realistic possibility that setting aside the Commissioner's decision on the ground of natural justice could lead to a different decision being made. It is open to the Attorney-General to lead evidence to disprove the Applicant's counterfactual.
48 Not only is it improbable that an additional opportunity to be heard would assist the Applicant through the 'gate' of s 63, it is also improbable that preferring the account of one spouse over another, both of whom are parents of a child attending a school, amounts discrimination or prohibited conduct within the meaning of Part 4 of the Act on the prescribed grounds of 'marital status,' 'parental status' or 'family responsibilities.' There is no nexus between the Applicant's prescribed attributes and the conduct complained of, given that both parents possess the same prescribed attributes.) (My emphasis.)
Contention 3 - the Commissioner's exercise of discretionary power was proper
49 The Applicant has led no evidence to support his contention that there was an improper exercise of power for the purposes of s 17(2)(e) of the JRA.
50 In his further and better grounds (CB 4) the Applicant alleges that 'apparently Ms Struwe had placed the Commissioner under considerable time pressure to make the decision.' There is no evidence before the Court to substantiate that assertion. Rather, the evidence demonstrates the opposite. Though the Commissioner was outside the 42 days provided for by s 64(2), the Commissioner provided the Applicant with two opportunities to be heard.
51 As to the impact of exceeding the 42 day time limit, Ms Struwe relied upon the decision Tribunal Member Brett, as His Honour then was, in the unreported decision Mr K von Stalhein vs Deloitte Touche & Tohmatsu. Member Brett determined at [12] 'that the failure of the Commissioner to make the decision within 42 days, does not render that decision invalid.' The Intervener respectfully relies upon Member Brett's reasoning, which is consistent with the High Court's reasoning in Project Blue Sky v ABA.
52 Insofar as the Applicant relies upon the pressure he was under on 19 June 2024 at [14] of his submissions, the Intervener repeats his submissions that
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the Applicant could have waited until that pressure had passed to reply and, in any event, the Applicant was given a further opportunity explain his delay up to 7 May 2024."
Discussion
13 In my view, the Commissioner ought to have afforded the applicant the opportunity to explain the reason for his delay for the seven-week period between March and May 2024. When confronted with a request for an explanation of the reasons for the delay in lodging a complaint for a period of some three years, it is to my mind, understandable that a lay person might perceive that an explanation in broad general terms was sufficient. That appears to me, by way of inference from the tenor of the applicant's response to the Commissioner of 26 June 2024, to be exactly what he apprehended.
14 I also note that the Commissioner appears to have been wholly satisfied as to the very long delay, by a broad and general explanation, namely the applicant's response of 26 June 2024 that during the relevant time period he "was entirely occupied with trial preparations, and the trial itself, in our family law matter".
15 It is trite that the content of natural justice varies according to the circumstances of the case. In Clarence City Council v South Hobart Investment Pty Ltd [2007] TASSC 16, Underwood CJ, (with whom Slicer and Blow JJ agreed) said at [27]:
"27 The content of natural justice varies from case to case. In Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, the High Court expressed agreement at 552 – 553 with this observation of Tucker LJ in Russell v Duke of Norfolk [1949] 1 All ER 109 at 118:
'The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject matter that is being dealt with, and so forth.'
The High Court said at 553:
'It is plain that when it is necessary to consider a question of fairness in relation to a tribunal the whole of the circumstances in the field of the inquiry are of importance. The nature of the jurisdiction exercised and the statutory provisions governing its exercise are amongst those circumstances.'"
16 In this case it seems to me that the real issue was one of fact and degree, a proposition with which Ms Winton appeared to agree in exchanges during her oral submissions.
17 Having gone to great lengths to set out for the applicant what matters were required to be addressed by way of explanation for the whole period of the delay, and having decided that a period of years was explained by a broad and general statement that for some three years the applicant had been "entirely occupied" with trial preparations, and the trial itself, in a family law case, was it reasonable for the Commissioner to simply settle on a fraction of the whole as unexplained and decline to accept the complaint? In my view, it was not.
18 Having decided that the period of some seven weeks remained in her mind dispositive of the exercise of her discretion as at 28 June 2024, a mere two days after her receipt of the applicant's explanation, the Commissioner, in my view, ought reasonably to have asked the applicant for an explanation for the period that vexed her.
19 The question of reasonableness can be interrogated by asking whether an unexplained delay of a week would have brought about the same result? In my view it ought not, but on the apparent logic in this case it might have done. And would a delay of eight weeks have called for an opportunity
12 No 51/2025
for a further explanation to be given? In my view it should, but again on the apparent logic in this case it may not. In this sense I accept the applicant's submission that the exercise of the discretion appears capricious.
20 In my view, having considered a delay of three years as explained by a broad, general and frankly, unconvincing explanation, the period of seven weeks was, by comparison, relatively inconsequential and would have required the appearance of some special characteristic, such as nonchalance or wilful disregard of obligation, to have warranted an adverse exercise of power.
21 As to the question of the materiality of an error of law comprised by the failure to afford natural justice, I am not well placed to decide the counterfactual. Some attempt was made to say what might have been said if the Commissioner had asked for a further explanation, but the content of the applicant's further explanation would have depended very much on the question posed by the Commissioner and the nature and extent of the detail required by her. It still does. This may be a pyrrhic victory for the applicant.
22 As to the submission there is no nexus between the applicant's "prescribed attributes and the conduct complained of, given that both parents possess the same prescribed attributes" (see paragraph 48 of the intervener's submissions set out at [12] above, I am not well placed to make a decision refusing an order of review on the material I have before me in evidence. It remains however a key consideration for the Commissioner. As I have already noted, the applicant's success in this application may be short lived.
23 If the denial of natural justice was not a material error, I am nonetheless of the view that the exercise of discretion in this case was capricious and as such constituted Wednesbury unreasonableness.
24 In reaching my decision I have found it unnecessary to have regard to any of the evidentiary material I received under objection.
Disposition
25 The application is allowed, and I make an order setting aside the Commissioner's decision, with effect from today and referring the matter to which the decision relates to the Commissioner for further consideration taking my decision into account.
26 I will hear the parties as to the precise terms of the order.
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