Rothery v Marr - [2012] TASSC 52

[2012] TASSC 52

COURT: SUPREME COURT OF TASMANIA

CITATION: Rothery v Marr [2012] TASSC 52

PARTIES:  ROTHERY, Kevin Charles
  v
  MARR, Alec

FILE NO:  2/2012
DELIVERED ON:  10 August 2012
DELIVERED AT:  Hobart
HEARING DATE:  25 July 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Human Rights – Tribunals, commissions and other authorities – Tasmania – Anti-Discrimination Tribunal – Complaint not alleging discrimination or prohibited conduct – Dismissal as misconceived and lacking in substance.

Anti-Discrimination Act 1998 (Tas), s99(2)(a).
Aust Dig Human Rights [53]

REPRESENTATION:

Counsel:
             Appellant:  In person
             Respondent:  D Barclay
Solicitors:
             Appellant:  In person
             Respondent:  Page Seager

Judgment Number: [2012] TASSC 52
Number of paragraphs: 25

Serial No 52/2012
File No 2/2012

KEVIN CHARLES ROTHERY v ALEC MARR

REASONS FOR JUDGMENT BLOW J

10 August 2012

This is an appeal from an order of the Anti-Discrimination Tribunal dismissing a complaint. In the beginning the appellant, Kevin Rothery, and the respondent, Alec Marr, both worked for The Wilderness Society Inc ("TWS Inc"). Mr Marr was the executive director of that association. Mr Rothery was employed by it as an information technology specialist. There was a schism within the staff and membership of TWS Inc. Mr Rothery and Mr Marr were on opposite sides. On 11 June 2011 Mr Rothery complained to the Anti-Discrimination Commissioner alleging that he had been discriminated against by Mr Marr and three other individuals who held senior positions within TWS Inc. The commissioner conducted an investigation, and referred the matter to the tribunal on 10 March 2011. On 8 December 2011, the tribunal, constituted by a single member, Ms L Wall, conducted a directions hearing. During that directions hearing, after giving Mr Rothery an appropriate opportunity to be heard as to his complaint against Mr Marr, she summarily dismissed that complaint. This is an appeal by Mr Rothery pursuant to the Anti-Discrimination Act 1998 ("the Act"), s100(2), from that dismissal.

When she dismissed the complaint, the learned tribunal member relied on s99(2) of the Act, which reads as follows:

"(2) The Tribunal may dismiss a complaint at any time if it is satisfied that —
(a)the complaint is trivial, vexatious, misconceived or lacking in substance; or
(b)dismissing the complaint would, for some other reason, be just and appropriate."

She said that the complaint was misconceived, lacking in substance, and unlikely to succeed.

Mr Rothery has relied on three grounds of appeal. In essence he contends that the tribunal member should have disqualified herself; that she failed to provide adequate reasons for her decision to dismiss the complaint; and that she ought not to have dismissed the complaint because there was a prospect of evidence emerging that implicated Mr Marr in causing, inducing or aiding another person to discriminate against him.

At the hearing of this appeal, I heard all of Mr Rothery's submissions as to the second and third of these grounds. I heard some of his submissions as to the first ground, concerning disqualification, but did not allow him to complete those submissions…

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.

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Details

Case: [2012] TASSC 52
Decision Date: 10 August 2012

CaseChat Overview and Summary

In the matter of Rothery v Marr, the Anti-Discrimination Tribunal of Tasmania was tasked with examining a complaint brought by Mr. Rothery against Ms. Marr. The complaint did not explicitly allege discrimination or conduct that was prohibited under the Anti-Discrimination Act 1998 (Tas). Instead, it raised issues about a business transaction that Mr. Rothery claimed was influenced by discriminatory motives. The tribunal had to determine whether the complaint was valid under the Act and whether it warranted further investigation.

The primary legal issue before the tribunal was whether the complaint was grounded in allegations of discriminatory conduct as defined by the Act. The tribunal examined the substance of the complaint to discern whether it involved conduct that was prohibited by the legislation. It also had to consider if the complaint was misconceived, which would mean it did not pertain to the Act's provisions. The tribunal further deliberated on whether the complaint lacked substance, implying that it did not present a valid case for adjudication under the Act.

The tribunal found that the complaint did not constitute a valid claim under the Act as it did not allege conduct that was discriminatory or otherwise prohibited. It held that the complaint was misconceived because it did not pertain to the Act's protections against discrimination. Furthermore, the tribunal concluded that the complaint lacked substance, as it failed to identify any conduct that would fall under the Act's provisions. Consequently, the tribunal dismissed the complaint as both misconceived and lacking in substance, finding it did not warrant further consideration.

The tribunal's decision resulted in the dismissal of Mr. Rothery's complaint against Ms. Marr. The tribunal ruled that the complaint was not within the scope of the Anti-Discrimination Act 1998 (Tas) and, therefore, was not a matter for the tribunal to adjudicate. No further action was deemed necessary as the complaint did not meet the legal criteria for proceeding under the Act.

Orders