QT v State of New South Wales

[2010] NSWADT 68

CITATION:	QT v State of New South Wales [2010] NSWADT 68
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT QT RESPONDENT State of New South Wales
FILE NUMBER:	091079
HEARING DATES:	27 October 2009
SUBMISSIONS CLOSED:	20 November 2009
DATE OF DECISION:	12 March 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Parties, identity of respondent, liability of the Crown, judicial immunity
LEGISLATION CITED:	Anti-Discrimination Act 1977 Coroners Act 1980 Judicial Officers Act 1986
CASES CITED:	Re East ; ex part Nguyen Nguyen [1998] HCA 73; (1998) 196 CLR 354 Paramasivam v O’Shane [2005] FMCA 1686 Yeldham v Rajski (1989) 18 NSWLR 48 Rajski v Powell (1987) 11 NSWLR 522 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374
REPRESENTATION:	APPLICANT I Chatterjee, solicitor RESPONDENT P Ginters, counsel
ORDERS:	Leave for the complaint to be the subject of proceedings before the Tribunal is refused.

REASONS FOR DECISION

Introduction

1 QT complained that the ‘Office of the State Coroner’ discriminated against him by directing that the body of his deceased partner undergo a post mortem examination. The State Coroner, Deputy Chief Magistrate Jerram (the Coroner), directed Dr Duflou of the Department of Forensic Medicine (DOFM) to perform the examination to assist in the investigation of the manner and cause of his death. QT’s partner had been infected with the Human Immunodeficiency Virus (HIV). For occupational health and safety reasons DOFM has a policy of not reconstructing HIV affected bodies following post mortem examination. QT alleged that the ‘Office of the State Coroner’ knew that by directing the DOFM to undertake the post mortem examination, the deceased’s body would not be reconstructed after that examination. QT said that as a result of the direction to the DOFM he lost the opportunity to view his partner’s body and pay his last respects.

2 The legal basis for the complaint of discrimination was that the ‘Office of the State Coroner’ refused to provide QT with a service, or provided that service on unfavourable terms, on the ground of the HIV positive status of his partner: Anti-Discrimination Act 1977, s 49M. Discrimination on the ground of disability includes treatment on the ground of the disability of a relative or associate of the aggrieved person: s 49B. The President of the Anti-Discrimination Board declined the complaint as not disclosing a contravention of the AD Act because the Coroner is a judicial officer and is immune from suit by virtue of the doctrine of judicial immunity. When a complaint is declined by the President, the applicant needs to obtain the Tribunal’s permission (or leave) before the complaint can ‘be the subject of proceedings before the Tribunal’: AD Act, s 96.

Identity of respondent

3 Office of the State Coroner? The President of the Anti-Discrimination Board referred the complaint to the Tribunal naming ‘NSW Coroners Office’ as the respondent. After the hearing, the Tribunal wrote to the applicant’s lawyers requesting clarification as to the identity of the respondent. Their response was that the ‘Office of the State Coroner’ is the respondent and that that office is a ‘statutory authority created and empowered under the NSW Coroners Act.’ Their response went on to say:

We assert that a particular coroner may attract liability under the Act in aiding and abetting the Office of the State Coroner acting in a discriminatory fashion. Where the coroner is a Magistrate, such coroner, if held to be acting as such a judicial officer, may claim some immunity based on her magisterial office. The Office of the State Coroner, as the service provider, does not of itself attract such immunity.

4 We note that the Coroners Act 1980 was in force at the time of the alleged events. There is no provision in that Act which creates a statutory authority by the name of the ‘Office of the State Coroner’. The Coroners Act authorised the Governor to appoint Magistrates to hold office as the State Coroner or a Deputy State Coroner for a period of up to 5 years: Coroners Act 1980, s 4A. We agree with the conclusion of the Crown Solicitor’s Office, representing the respondent, that the reference to ‘office’ in that Act is a reference to the positions of State Coroner and Deputy State Coroner. As the ‘Office of State Coroner’ has no separate legal personality, that entity cannot be a respondent to a complaint of a breach of s 49M of the AD Act.

5 State of New South Wales? The applicant’s lawyers submitted, in the alternative, that:

If the Crown is correct that the office of the State Coroner is not a legal entity, then liability for the alleged discrimination lies with the State of NSW, who appears representing the Coroner.

Again we make the point that any judicial immunity that may flow from the Coroner’s judicial office (which we contest) operates only to absolve her Honour as an individual, but provides no protection to either the Office of the State Coroner, or the State of New South Wales, whichever may be found to be the relevant body.

6 At the hearing on 27 October 2009, Mr Ginters, who was briefed by the Crown Solicitor’s Office, said that he was appearing on behalf of the State of NSW. However, it is not correct to say that the State of New South Wales was ‘representing’ the Coroner. If Mr Ginters was appearing on behalf of the State of NSW that can only have been because he regarded the Crown in right of New South Wales as a party to the proceedings. The Crown was never formally joined as a party. We do not interpret the fact that Mr Ginters appeared on behalf of the State of NSW as an admission that the conduct complained of was conduct for which the Crown could be liable. The applicant made no submissions as to the basis on which the Crown could be liable under the AD Act for the conduct of the Coroner. Although s 5 of the AD Act binds the Crown in right of NSW, the Coroner must be a magistrate and is therefore a judicial officer within the meaning of that term in the Judicial Officers Act 1986, s 3. When performing her role as Coroner, Deputy Chief Magistrate Jerram does so as a judicial officer, not as part of the executive government. It is fundamental to our constitutional arrangements that although judges, including magistrates, enjoy an office under the Crown, they are independent of the executive government: Rajski v Powell (1987) 11 NSWLR 522 at 530.

7 The Coroner? Deputy Chief Magistrate Jerram was not a party to the proceedings. The applicant did not complain about anything done by a person other than the Coroner: Paramasivam v O’Shane & Ors [2005] FMCA 1686 at [48].

Conclusion

8 Leave for the complaint to proceed is refused because the applicant has not identified a respondent who could be liable under the AD Act for the conduct about which he complains. The Office of the State Coroner has no separate legal personality and cannot be a respondent to a complaint of a breach of s 49M of the AD Act. There is no basis on which the Crown in right of New South Wales could be liable for the conduct of a judicial officer when performing that role. Finally, the person who engaged in the conduct, Deputy Chief Magistrate Jerram, was never identified as a party. Although leave is refused, I will address the submissions in relation judicial immunity. Those submissions would have been relevant had the Coroner been a respondent.

Judicial immunity

9 Source of judicial immunity. Sections 44A of the Judicial Officers Act acknowledges the existence of the common law doctrine of judicial immunity for judges of the Supreme Court and extends that immunity to Supreme Court Judges performing ministerial functions. Section 44B affords the same immunities to judicial officers including magistrates:

44A Immunity of Supreme Court Judges
The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge .

44B Immunity of certain judicial officers
(1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
(2) This section does not apply to a Judge of the Supreme Court or to a Judge having the same status as a Judge of the Supreme Court.

10 The Coroner, being a magistrate, is a judicial officer: Judicial Officers Act, s 3; Coroners Act, s 4A(2).

11 Section 48(1)(a) of the Coroners Act 1980 is the provision under which the Coroner exercised power in this case. That provision states that:

48 Post mortem or other examination may be ordered by coroner

(1) A coroner may, either before commencing or after commencing and before completing an inquest concerning the death of a person, by order in writing, direct:
(a) any medical practitioner to perform a post mortem examination of the remains of that person, and

. . .

12 If directions made by the Coroner under s 48 of the Coroners Act are protected by the doctrine of judicial immunity as set out in s 44B of the Judicial Officers Act, then when the Coroner makes such a direction she will not be liable under the AD Act for doing so: Re East & Ors; Ex parte Nguyen [1998] HCA 73 at [29] to [30]; (1998) 196 CLR 354 at 365 per Gleeson CJ, Guadron, McHugh, Gummow, Hayne and Callinan JJ. The reasons the applicant’s lawyers put forward in support of their submission that the conduct of the Coroner in this case is not protected by s 44B were that:

a) the Coroner is appointed for a fixed term of 5 years;

b) the words ‘as such a judge’ in s 44A of the Judicial Officers Act extends the immunity enjoyed by a Supreme Court judge, only to ministerial duties performed by a judge which are closely connected to the judge’s judicial functions. Similarly, ministerial duties performed by a magistrate must be closely connected with the magistrate’s judicial functions;

c) when taking action under s 48(1)(a) of the Coroners Act , the Coroner is not exercising a judicial or a ministerial function;

13 Fixed term appointment. The Coroner is appointed to hold office for up to 5 years: Coroners Act, s 4A(5). The applicant’s lawyers submitted that consequently, the Coroner’s office does not require the same level of judicial independence as that of a magistrate performing a judicial role and the Coroner is not protected by judicial immunity when exercising that role. That submission is not correct because appointing a magistrate as the Coroner for 5 years does not affect the degree of judicial independence the Coroner enjoys. The Coroner has tenure as a magistrate even though her appointment as a Coroner is for a defined period. In addition, there is nothing in s 44B which distinguishes between magistrates performing duties as a judicial officer when their appointment to a particular office is for a fixed term, compared with magistrates performing duties as a judicial officer in any other context.

14 Significance of the words ‘as such a judge’. The applicant’s lawyers primary argument was that the words ‘as such a judge’ at the end of s 44A extends the immunity enjoyed by a Supreme Court Judge, only to ministerial duties performed by a judge which are closely connected to the judge’s judicial functions. Similarly, there needs to be a close connection between ministerial functions performed by a magistrate and the magistrate’s judicial functions for the ministerial functions to be protected. This conclusion was said to accord with the common law position set out in Yeldham v Rajski (1989) 18 NSWLR 48. In that case the Court of Appeal had to determine whether a judge of the Supreme Court was immune from prosecution for contempt of court. After the trial, the judge had refused leave to prosecute a witness for perjury. That refusal was made pursuant to s 341 of the Crimes Act 1900. The Court held, a p 62, that ‘. . .the post trial functions under s 341 are so intimately connected with the trial functions as to attract the same immunity that protects the judges in respect of judicial acts during the trial.’

15 Conclusion. When Yeldham v Rajski was decided, s 44A and s 44B of the Judicial Officers Act had not been enacted. Those provisions came into effect on 7 July 2003: Justices Legislation Repeal and Amendment Act 2001, Sch 2. The decision in Yeldham v Rajski reflects the common law position at the time. It does not determine how s 44A or s 44B is to be interpreted. The plain meaning of the words ‘as such a judge’ at the end of s 44A is that in order to be protected by the doctrine of judicial immunity when performing ministerial duties, a judge has to be performing those duties in his or her capacity or role as a judge. There is nothing in the wording of s 44A to support the applicant’s contention that the ministerial duties themselves have to be “intimately connected” with the judge’s judicial functions. Section 44B extends to judicial officers, other than judges of the Supreme Court, the same judicial immunity enjoyed by those judges.

16 Meaning of ministerial duties. Alternatively, the applicant’s lawyers submitted that the nomination of a particular doctor under s 48 of the Coroners Act is an administrative decision and does not fall within the definition of a ministerial duty. The applicant’s argument in this case was that all the powers exercised by the Coroner are ‘executive’ or ministerial in nature, not judicial.

17 Section 4D of the Coroners Act identifies the functions of the coroners.

4D Functions of the State Coroner
The functions of the State Coroner are:
(a) to oversee and co-ordinate coronial services in New South Wales, and
(b) to ensure that all deaths, suspected deaths, fires and explosions concerning which a coroner has jurisdiction to hold an inquest or inquiry are properly investigated, and
(c) to ensure that an inquest or inquiry is held whenever it is required by this Act to be held or it is, in the State Coroner’s opinion, desirable that it be held, and
(d) to issue guidelines to coroners to assist them in the exercise or performance of their functions, and
(e) to exercise such other functions as are conferred or imposed on the State Coroner by or under this or any other Act.

18 It was argued that the coroner exercises administrative power because the coroner cannot exercise power that affects the rights of any person. The power under s 48(1) of the Coroners Act is necessary in order that the Coroner may “properly investigate” a death: Coroners Act, s 4D(b). The information obtained following such a direction assists the Coroner in the investigation into the circumstances of the death.

19 Conclusion. Contrary to the submission put by the applicant’s lawyers, regardless of which particular function a coroner is undertaking pursuant to the Coroners Act, he or she is acting as a judicial officer: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 11A; Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374. Even assuming that the performance of the statutory power pursuant to s 48(1)(a) of the Coroners Act is a ministerial duty, it is still done in the performance of the Coroner’s duties as a judicial officer and is consequently protected by s 44B. There is nothing in the AD Act which suggests that it was parliament’s intention to override that duty: Re East ; ex part Nguyen (1988) 196 CLR 354 at [29] – [30].

Leave for the complaint to be the subject of proceedings before the Tribunal is refused.