R v Anti-Discrimination Commissioner; Ex parte McDermott (No 2)
[2000] TASSC 180
•18 December 2000
[2000] TASSC 180
CITATION: R v Anti-Discrimination Commissioner; Ex parte McDermott (No 2) [2000] TASSC 180
PARTIES: R
v
ANTI-DISCRIMINATION COMMISSIONER
McDERMOTT, George Albert;
McDERMOTT, Ronald Arthur; Ex parte (No 2)
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: M116/2000
DELIVERED ON: 18 December 2000
DELIVERED AT: Hobart
HEARING DATE: 6 October, 29 November 2000
JUDGMENT OF: Cox CJ
CATCHWORDS:
Administrative Law - Judicial review at common law - Remedies - Declarations - Excess or want of jurisdiction - Whether carrying out terms of will amounts to "provision of services" relating to disposing of an interest in land.
Anti-Discrimination Act1998 (Tas), ss3, 22, 64(1).
I W v City of Perth (1996 - 1997) 191 CLR 1, distinguished.
Aust Dig Administrative Law [76]
Procedure - Miscellaneous procedural matters - Declarations - Jurisdiction - Principles applicable to the granting of declaratory relief - Exercise of discretion.
Ainsworth v Criminal Justice Commission (1991 - 1992) 175 CLR 564, followed.
Aust Dig Procedure [743]
REPRESENTATION:
Counsel:
Prosecutors: A C R Spence
Respondent: In person
Solicitors:
Prosecutors: Page Seager
Respondent: In person
Judgment Number: [2000] TASSC 180
Number of paragraphs: 16
Serial No 180/2000
File No M116/2000
THE QUEEN v ANTI-DISCRIMINATION COMMISSIONER;
EX PARTE GEORGE ALBERT McDERMOTT and
RONALD ARTHUR McDERMOTT (NO 2)
REASONS FOR JUDGMENT COX CJ
18 December 2000
On 18 August 2000, I held that the Anti-Discrimination Commissioner ("the Commissioner") did not have jurisdiction to accept and further investigate a complaint in respect of the failure or refusal of the prosecutors to dispose of land specifically devised by the will of their father, Albert Leslie McDermott, otherwise than to the devisees therein named. The factual background and some of the relevant provisions of the Anti-Discrimination Act 1998 ("the Act") are set out in my reasons for judgment of that date published as [2000] TASSC 113. I held, at par9 thereof:
"For there to be discrimination to which the Act applies, there must be discrimination not only in relation to a service but also in relation to the provision of a service. The carrying out of a duty imposed on the prosecutors as executors of the testator's will, still less the mere retention by them of the interests specifically devised to them by the will or a refusal by them to give their sisters an interest in some part of it which is not required by the will, cannot be said to be a matter relating to the provision of a service. Nor, in my view, can it be said that what has happened to the complainants (which arguably amounts to discrimination) occurred while they were engaged in or undertaking any activity in connection with the provision of services."
The Commissioner sought the opportunity of submitting argument in respect of this holding, claiming that no such opportunity had been provided at the hearing of the matter and relied upon Autodesk Inc v Dyason (No 2) (1992 - 1993) 176 CLR 300. Whether or not the circumstances oblige me to do so, I have given the parties the opportunity to address argument on it.
The Commissioner argues that the jurisdiction to embark upon the enquiry comes from the fact that there is a complaint of discrimination against the complainants who were, within the meaning of the Act, s22:
"… engaged in, or undertaking any, activity in connection with …
(c) provision of … services."
By virtue of the Act, s3:
"'services' includes services ¾
…
(g) relating to selling, buying, leasing, assigning or disposing of an interest in land;"
The Commissioner contends that the prosecutors, as executors of the will, are providing a service relating to disposing of an interest in land and that the alleged discrimination:
"… lies not in refusing to consider whether or not to dispose of property under the will, but in:
·providing the service (of disposing of property under the will) in a manner said by the claimants to be discriminatory;
·providing the service (of disposing of property under the will) so as to effect a discriminatory distribution;
·providing the service (of disposing of property under the will) so that (as they contend) the testator's intention is frustrated by their literal application of the terms of the will, the literal application being discriminatory or operating discriminatorily;
·providing the service (of disposing of property under the will) on the basis of considerations of the executors that are discriminatory;
·providing the service (of disposing of property under the will) as an outcome of a determination by the executors to apply the provisions of the will in a particular way, namely in a way that is discriminatory;
·providing the service (of disposing of property under the will) in accordance with deliberations by the executors that are in their content and application discriminatory."
A corner stone of the argument is that in carrying out their executorial duties, the prosecutors are providing a service relating to disposing of an interest in land. The term "services" is very wide. It does not, however, seem to me to be an appropriate expression to describe the functions carried out by executors. The general rule is that an executor has a duty to act gratuitously in carrying out the terms of the will and that an executor is not entitled to compensation for personal trouble and loss of time (Brocksopp v Barnes (1820) 5 Madd 90; 56 ER 829). The power of the court to award a commission or percentage to executors or administrators out of the assets of an estate "for their pains and trouble therein" was, however, expressly given in the Charter of Justice. This has been replicated in the Administration and Probate Act 1935, s64. The Commissioner argues that, because executors may appoint the Public Trustee to act in their place (Public Trustee Act 1930, s15) and the Public Trustee is empowered (ibid, s11) to charge a fee for "work done or services, goods or information supplied by it", this supports the conclusion that executors undertake a service and are engaged in the provision of services. However, the Public Trustee provides many services in addition to the performance of executorial duties, so the inclusion of the word "services" in s11 does not advance the argument.
It is also contended that the Equal Opportunity Act 1984 (WA) accepts that the disposal of an interest in land by will or by way of gift falls within the meaning of services relating to the disposal of an estate or interest in land because that Act "specifically excludes this from the definition" and that the decision of the Tasmanian Parliament not to provide such an exclusion adds weight to the argument. I do not accept this submission. The Western Australian Act deliberately confined the application of anti-discrimination legislation to particular fields and particular activities within those fields. In the Part dealing with discrimination on the ground of sex, s20 deals with discrimination in respect of refusing to provide, or providing on discriminatory conditions or in a discriminatory manner, goods or services. "Services" are defined as including:
"(a)services relating to banking, insurance and the provision of grants, loans, credit or finance;
(b)services relating to entertainment, recreation or refreshment;
(c)services relating to transport or travel;
(d)services of the kind provided by members of any profession or trade; and
(e)services of the kind provided by a government, a government or public authority or a local government body."
It is to be noted that the definition makes no mention of services relating to disposing of an interest in land. The Western Australian Act, s21A, deals with discrimination in respect of disposing of an interest in land by providing, in subs(1):
"(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the sex, marital status or pregnancy of the other person ¾
(a)by refusing or failing to dispose of an estate or interest in land to the other person; or
(b)in the terms or conditions on which an estate or interest in land is offered to the other person."
That is a specific statutory enactment relating not to services but to the actual disposing of an interest in land and it is to this activity that the exception, in subs(2), applies. The latter subsection provides:
"(2) Without limiting the generality of section 70 (1), this section does not apply in relation to a disposal of an estate or interest in land by will or by way of gift."
(Section 70(1) relates to charitable gifts to certain classes of people, which gifts are exempted from the provisions of the Act.) I see no basis for concluding that disposing of an interest in land under a will is by implication accepted by the Western Australian Act as involving the provision of any service.
In I W v City of Perth (1996 - 1997) 191 CLR 1, the High Court was concerned with provisions in respect of discrimination on the ground of impairment contained in a separate Part of the Western Australian Act, contrary to s66K thereof. It contained similar prohibitions to those in s20 in respect of goods and services and involved a consideration of the extended definition of services under par(e) quoted above, namely "services of the kind provided by a government, a government or public authority or a local government body." In that context, Brennan CJ and McHugh J said at 11:
"The term 'services' has a wide meaning. The Macquarie Dictionary relevantly defines it to include 'an act of helpful activity'; 'the providing or a provider of some accommodation required by the public, as messengers, telegraphs, telephones, or conveyance'; 'the organised system of apparatus, appliances, employees, etc., for supplying some accommodation required by the public'; 'the supplying or the supplier of water, gas, or the like to the public'; and 'the duty or work of public servants'. But wide as the definition is, in our opinion it is not capable of including a refusal to exercise the statutory discretion provided for by the Town Planning and Development Act 1928 (WA) and Clause 40 of the City of Perth City Planning Scheme to approve the use of premises for use other than as a shop."
They went on to hold that the Council did not provide a service of giving planning approvals, as that term is not capable of including a refusal to exercise a statutory discretion, and that in refusing to grant a planning approval, it had not refused to provide a service within the meaning of s66K. At 41, Gummow J said:
"The term 'service' and its variants are of wide and varied meaning. One speaks of the duties or work of a public servant, being a person serving the state or the community in a particular capacity. Service may also be rendered to an individual by conduct tending to the welfare or advantage of that person.
Section 4(1) provides an inclusive, not exclusive, definition of services."
(His Honour then set out the definition of services I have already cited.)
"In the present case, the Council, in a sense, was serving the community in the discharge of its functions under the town planning legislation, whilst at the same time conferring a personal benefit or advantage upon successful applicants for planning permission."
At pages 41 - 42, he cited from the judgment of L'Heureux-Dubé J in the Canadian case of Gould v Yukon Order of Pioneers [1996] 1 SCR 571 at 639; (1996) 133 DLR (4th) 449 at 498 where the Supreme Court of Canada construed legislation which prohibited discrimination "when offering or providing services, goods or facilities to the public", and where her Ladyship said:
"Dictionary entries, while far from conclusive, may be of some assistance in this regard: the various commonly understood meanings for the words chosen by the legislature can be a starting point for the interpretative analysis. For example, the Concise Oxford Dictionary (8th ed 1990) defines a 'service' to include assistance or a benefit given to someone, or the act of helping or doing work for another or for a community. Le Nouveau Petit Robert (1993) provides a slightly different definition for 'service', which encompasses economic activities, other than the supply of tangible property, as well as functions having a 'common or public' utility. These definitions suggest that the expression 'providing services' has a broad meaning which encompasses activities in which a benefit other than a good is conferred on, or effort expended on behalf of another person or a community."
Gummow J held that the council provided services in dealing with applications for approval, but was not in breach of s66K because it had not refused to provide the services. Dawson and Gaudron JJ held that the relevant service for the purposes of that section was the exercise of the discretion whether to grant or withhold planning approval. With respect, the case provides little assistance in determining whether the performance by executors of their duties under a will involves the provision of services in general and the provision of services relating to disposing of an interest in land in particular. I W v The City of Perth (supra) focuses attention upon what functions or duties of government bodies amounted to "services of the kind provided by" such bodies. The English cases cited therein are also concerned with a similar problem (eg, Savjani v Inland Revenue Commissioners [1981] QB 458; R v Entry Clearance Officer; ex parte Amin [1983] 2 AC 818; Farah v Commissioner of Police of the Metropolis [1998] QB 65).
I maintain my view that in expressing the intention of perfecting the specific devise under the will to those named therein and in carrying out that intention, the prosecutors cannot be said to be treating the complainant sisters on the basis of their gender less favourably than a person without that characteristic in connection with provision of services relating to disposing of an interest in land. I also maintain my view that the complainants, in seeking to persuade the prosecutors to act otherwise than in accordance with the will, cannot be said to be engaged in or undertaking any activity in connection with the provision of services relating to disposing of an interest in land. The Commissioner argued that in the present proceedings, the complainants are beneficiaries of the services rendered by their brothers, the prosecutors, and are receiving services which are being provided to them. Hence they are engaged in an activity in connection with the provision to them of services. In written argument it was put:
"In other words, the sisters Lazenby contend that they come within the term of section 22(c) in that:
· in putting into effect the terms of the will, the executors are disposing of the land;
· in disposing of the land, the executors are 'doing' a service, or providing a service or engaging in the provision of services, or a service;
· the sisters Lazenby are engaging in, or undertaking any, activity in connection with the provision of services - namely, engaging in activity relating to the disposal of the land by the executors, including:
< their telephone calls and discussions with the executors, or one of them; and/or
< their requests to the executors that the terms of the will be applied in the way they say their father intended; and/or
< their requests that the brothers McDermott interpret the terms of the will in the way the sisters Lazenby say their father intended; and/or
< their requests that when the brothers dispose of the land the subject of the will, they do so in such a way as to ensure that:
· the terms of the will are applied in the way they say their father intended; and/or
· the executors, the brothers McDermott, interpret the terms of the will in the way the sisters Lazenby say their father intended; and/or
· that when the executors, the brothers McDermott, dispose of the land the subject of the will, they do so in such a way as to ensure equal distribution of the assets in the way they say their father intended."
If I am wrong in holding that the performance of executorial duties is not the provision of services, nevertheless the complainants are not beneficiaries of services relating to the disposal of land, but only of services relating to the payment of their legacies. Under the will, they are entitled to be paid £200 each, the payment being admittedly a charge on the land; but they have no entitlement to the disposal of any interest in the land provided the legacy is met. In my opinion, they are no more engaged in an activity in connection with the provision of services relating to the disposal of the land than a stranger, unmentioned in the will, who claims an interest in the land.
A second argument advanced was that as the Act, s64(1), confers on the Commissioner a discretionary power as opposed to imposing an obligation to reject a claim for investigation in stipulated circumstances, the Court has no power to over-ride that discretion, even if it forms the view that the services said to be provided by the prosecutors are not services within the meaning of the Act and that the complainants are not, in their dealings with the prosecutors as executors, engaged in or undertaking any activity in connection with the provision of services.
Section 64(1) provides:
"64 (1) The Commissioner may reject any complaint if ¾
(a) in the opinion of the Commissioner, it is trivial, vexatious, misconceived or lacking in substance; or
(b) the complaint does not relate to discrimination or prohibited conduct; or
(c) the complainant has commenced proceedings in a commission, court or tribunal in relation to the same events, and that commission, court or tribunal may order remedies similar to those available under this Act; or
(d) a person other than the complainant has commenced proceedings in a commission, court or tribunal in relation to the same subject matter of the complaint and the Commissioner is satisfied that the subject matter may be adequately dealt with by that commission, court or tribunal; or
(e) in the opinion of the Commissioner, there is a more appropriate remedy that is reasonably available; or
(f) the subject matter of the complaint has already been adequately dealt with by the Commissioner, a State authority or a Commonwealth statutory authority; or
(g) in the opinion of the Commissioner, the subject matter of the complaint may be more effectively or conveniently dealt with by a State authority or a Commonwealth statutory authority."
Section 71(1) provides:
"71 (1) The Commissioner or an authorised person, on the completion of an investigation of a complaint, is to determine that the complaint ¾
(a) is dismissed, on any ground referred to in section 64(1)(a), (b), (c), (d) or (f); or
(b) is to proceed to conciliation; or
(c) is to proceed to an inquiry."
The Commissioner points to the use of the word "may" in s64 in respect of rejection of complaints, compared with the words "is to" in s71 in respect of the dismissal of complaints. I accept that the word "may" in s64 grants the Commissioner a discretion at least in respect of the circumstances set out in pars(c) and (d) where it is obvious that clear discretionary choices are open and there is no reason to suppose that merely because the complainant has commenced proceedings in a commission, court or tribunal which may provide the same remedies as those under the Act or otherwise adequately deal with the complaint, the Commissioner must reject the complaint and force the complainant to continue those other proceedings to the exclusion of a complaint under the Act. Arguably the circumstances in pars(e), (f) and (g) are such as to grant the Commissioner a discretion also. However, in respect of par(a), if the Commissioner does hold the relevant opinion, and in respect of par(b) the complaint clearly does not relate to discrimination or prohibited conduct, the Commissioner, though perhaps vested nominally with a discretion, would, in my view, have no option but to reject the complaint. As Windeyer J said in Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1970 - 1971) 127 CLR 106 at 134:
"While Parliament uses the English language the word 'may' in a statute means may. Used of a person having an official position, it is a word of permission, an authority to do something which otherwise he could not lawfully do. If the scope of the permission be not circumscribed by context or circumstances it enables the doing, or abstaining from doing, at discretion, of the thing so authorized. But the discretion must be exercised bona fide, having regard to the policy and purpose of the statute conferring the authority and the duties of the officer to whom it was given : it may not be exercised for the promotion of some end foreign to that policy and purpose or those duties."
Though expressed in permissive form, the power to reject a complaint ought to be exercised where the conditions referred to in pars(a) or (b) are met. This is consistent with the dictum of Earl Cairns LC in Julius v Bishop of Oxford (1880) 5 App Cas 214 at 225 where he said:
"… where a power is deposited with a public officer for the purpose of being used for the benefit of persons who are specifically pointed out, and with regard to whom a definition is supplied by the Legislature of the conditions upon which they are entitled to call for its exercise, that power ought to be exercised, and the Court will require it to be exercised."
That was a case where mandamus was sought to compel a bishop to whom statute gave the power where any Clerk in Holy Orders concerning whom there existed scandal or evil report of offending against ecclesiastical law, on the application of any party complaining thereof or of his own motion, to issue a commission to enquire into the charge. The House of Lords held that the bishop had a discretion and was not compelled to issue the commission. The Lord Chancellor noted that the complainant could be any person, and was not specifically pointed out in the section giving the power and further, that no conditions were to be complied with before the bishop could be called upon to take the proceedings. In the present case, the person who would benefit by the exercise of the power is the respondent to the complaint and the condition of its exercise is that the complaint is, in the opinion of the Commissioner, trivial, vexatious, misconceived or lacking in substance or it does not relate to discrimination, the very subject matter of the prohibition of the Act and of the provisions thereof dealing with enquiries into such discrimination. In these circumstances, the power should be interpreted as one which the Parliament required should be exercised.
Assuming that there is, nevertheless, a discretion not to reject the complaint in circumstances demonstrating that the complaint relates to an area of activity outside that to which the Act is directed, is the Court precluded from declaring the Commissioner to be acting in excess of jurisdiction and from giving such remedy as is appropriate? The Commissioner relies on Julius v Bishop of Oxford (supra) for the proposition that where there is a discretion and not an obligation, the Court will not interfere with its exercise or non-exercise and will not enquire into whether or not it has been well exercised. The consequence, it is argued, is that the Court is precluded from making a ruling of lack of jurisdiction or of giving relief in respect thereof because that would gainsay the existence of the discretion. I do not accept that this is so. If this Court finds that the Commissioner has no jurisdiction to entertain a complaint into a particular area, that officer can have no discretion to decline to reject it, still less to continue to process it with the possible result that it is referred to conciliation or referred to the Tribunal. The exercise of any discretion given by s64(1) depends upon the Commissioner having jurisdiction in respect of the area of enquiry in the first place. The provision in respect of such a discretion (if indeed it is a discretion) cannot give the Commissioner jurisdiction in areas not covered by the Act.
In these circumstances, I adhere to the view I have earlier announced that the Commissioner, by proceeding further with this complaint, is acting in excess of jurisdiction. The question now is, what remedy, if any, should be given?
Although the prosecutors originally sought an order in lieu of a writ of prohibition from acting in excess of jurisdiction, they do not persist with that request, but instead seek a declaration pursuant to the Rules of the Supreme Court, r627(1)(b), and an injunction in terms of the original application for prohibition. Although they do not concede that an order in lieu of prohibition is not an appropriate one in the present circumstances, I retain the doubts I expressed in my earlier decision as to whether it would be appropriate. Nevertheless, the absence of a remedy by way of prerogative writ does not preclude the Court from giving declaratory relief. In Sankey v Whitlam (1978) 142 CLR 1, Gibbs ACJ (as he then was) referred to the decision of Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 where prohibition against a magistrate conducting committal proceedings was refused and said, at 22:
"However I am, with respect, unable to agree that it is involved in this decision that the Supreme Court has no power to make a declaration which will affect the conduct of committal proceedings. The two sorts of relief are governed by different principles, and if the decision of a magistrate is immune from review by means of the prerogative writs it does not follow that a declaration cannot be made in relation to the subject matter of the proceedings - so much is recognized in the judgment of Walsh J in Forster v Jododex Aust Pty Ltd (1972) 127 CLR, at p 428."
(See also Banibi Pty Ltd v Aboriginal Land Commissioner (1987) 76 ALR 655.)
In Ainsworth v Criminal Justice Commission (1991 - 1992) 175 CLR 564 at 581 - 582, Mason CJ, Dawson, Toohey and Gaudron JJ said:
"It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which '(i)t is neither possible nor desirable to fetter ... by laying down rules as to the manner of its exercise.' (Forster v Jododex Aust Pty Ltd (1972), 127 CLR 421 per Gibbs J at p 437.) However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions (see In re Judiciary and Navigation Acts (1921) 29 CLR 257). The person seeking relief must have 'a real interest' (Forster (1972) 127 CLR, per Gibbs J at p 437; Russian Commercial and Industrial Bank v British Bank for Foreign Trade, Ltd (1921) 2 AC 438, per Lord Dunedin at p 448) and relief will not be granted if the question 'is purely hypothetical', if relief is 'claimed in relation to circumstances that (have) not occurred and might never happen' (University of New South Wales v Moorhouse (1975) 133 CLR 1, per Gibbs J at p 10) or if 'the Court's declaration will produce no foreseeable consequences for the parties' (Gardner v Dairy Industry Authority (NSW) (1977), 52 ALJR 180, at p 188, per Mason J; see also p 189, per Aickin J; 18 ALR 55, at pp 69, 71 respectively)."
In the present case, the prosecutors, in my view, have a real interest in seeking relief. Although the acceptance of the complaint has not resulted in the Commissioner making orders restraining them from effecting the disposal of the land and any assets representing those parts of it already sold, they have stood in jeopardy of adverse orders and processes from the moment the complaint was accepted. In my earlier decision (supra) at par11, I set out the powers and processes which such an acceptance can entail. I said:
"When a complaint is made, the Commissioner is required to determine whether to accept or reject it within 42 days after its receipt (s64(2)). If it is accepted, the Commissioner may investigate it in a manner appropriate to the circumstances (s69(1)). On completion of the investigation, the Commissioner is to determine that it be dismissed, is to proceed to conciliation or is to proceed to an enquiry before the Tribunal (s71(1)). The Commissioner has power to direct a respondent to a complaint to take part in a conciliation conference on pain of fine (s75). In the event that the Commissioner exercises his or her power to refer a complaint to the Tribunal, the complaint is to be referred within six months after the respondent is first notified (under s67) by the Commissioner of the acceptance of the complaint, or within such further time agreed with the complainant (s78). If the matter proceeds to an enquiry, the Tribunal has power to require any person to attend a directions hearing and to produce specified information and documents, again on pain of fine (s80). A person may be represented by another only with the permission of the Tribunal (s85(2)) and although the Tribunal has power to order otherwise (s95(2)), s95(1) provides that subject thereto, each party to an enquiry is to pay his or her own costs. The powers of the Tribunal, if it finds that a complaint is substantiated, are very wide (s89(1)) and include power to order payment by the respondent to the complainant of an amount determined by the Tribunal as compensation for any loss or injury suffered and caused by the respondent's discrimination (par(d)) and 'any other order it thinks appropriate' (par(h)). If the Commissioner wrongly forms the view that the respondent's conduct amounts to discrimination to which the Act applies, there is potential for them to suffer a significant amount of stress, inconvenience, expense, delay and adverse orders before the position can ultimately be rectified by the appeal processes allowed for in the Act."
Furthermore, the Act, s98, contains very broad powers in respect of interim orders. It provides:
"98 (1) The Tribunal, Commissioner or an authorised person, at any stage of an inquiry, investigation or a conciliation of a complaint, may make an interim order pending the completion of that inquiry, investigation or conciliation.
(2) An interim order may also be made on the application of the complainant or the respondent.
(3) An interim order prohibits a person from doing an act that may prejudice -
(a) the investigation of the complaint; or
(b) the conciliation of the complaint; or
(c) any inquiry or any order the Tribunal may make on completion of an inquiry.
(4) A person must not fail to comply with an interim order."
It is certainly arguable that the prosecutors might be prevented from alienating the land and disposing of any personal property to which they are entitled under the will. Once a complaint has been accepted, the prosecutors, in my opinion, have a real interest in promptly bringing to an end an investigation having these potential consequences where it is shown that the Commissioner has no jurisdiction to embark upon it.
The question is not hypothetical. The issue of jurisdiction is fundamental to the exercise of the Commissioner's powers which have a direct impact upon the prosecutors' rights and obligations. Nor can it be said that the relief is claimed in relation to circumstances that have not occurred and might never happen. The complaint has been accepted and the Commissioner, claiming to have jurisdiction, is proceeding with it. True the Commissioner may reject it after further investigation and the Tribunal, if the matter is referred to it by the Commissioner or the complainants (see the Act, s71(3)), may make orders having the effect of dismissing it. Likewise, the Commissioner may choose not to refer it to conciliation. Nevertheless, the process by which such orders or directions which could adversely affect the prosecutors has been put in train and the Commissioner's stance is clearly to proceed further with it. An injunction has been sought by the prosecutors because the Commissioner has advised them by letter that the complainants have agreed to extend the six month time for referral in accordance with the Act, s78(2), although on the evidence before me for a period of four months expiring on 13 November last. I am unaware at the moment if this period has been extended further, but the Commissioner, when acknowledging on 6 October 2000 the sending of that letter, asserted a statutory obligation to seek extensions where the Court has not yet made any declaration or order preventing the investigation from proceeding.
In the circumstances, I consider that the Court has power to make the declaration sought and that in the exercise of my discretion, it ought to be made. In the light of the Commissioner's stance, it seems appropriate also to grant the injunction. Accordingly, there will be a declaration that the Commissioner had no jurisdiction to accept the complaints file Nod 00175 and 00175/AB respectively by Lola Ivy Lazenby and Narie Jean Lazenby against George Albert McDermott and Ronald Arthur McDermott pursuant to the Anti-Discrimination Act 1998 and an injunction will issue to restrain the Commissioner from conducting or authorising the further investigation and determination of such complaints or their referral to conciliation and from referring or authorising the referral of those complaints to the Anti-Discrimination Tribunal.
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