Sansom v Anti-Discrimination Tribunal - [2012] TASSC 73

[2012] TASSC 73

COURT: SUPREME COURT OF TASMANIA

CITATION: Sansom v Anti-Discrimination Tribunal [2012] TASSC 73

PARTIES:  SANSOM, Gaye Marguerite
  v
  ANTI-DISCRIMINATION TRIBUNAL

FILE NO:  583/2012
DELIVERED ON:  29 October 2012
DELIVERED AT:  Hobart
HEARING DATE:  28 September 2012
JUDGMENT OF:  Blow J

CATCHWORDS:

Administrative Law – Judicial review – Reviewable decisions and conduct – Decisions to which judicial review legislation applies – Decision of an administrative character – Decision of Anti-Discrimination Tribunal to dismiss complaint without completing inquiry – Finding that complaint "does not disclose a reasonable cause of action".

Judicial Review Act 2000 (Tas), s4(1).
Kentish Council v Wood [2011] TASFC 3, followed.
Aust Dig Administrative Law [1008]

REPRESENTATION:

Counsel:
           Applicant:  Self-represented
           Respondent:  Not represented
           Respondents to complaint:          P Turner
Solicitors:
           Applicant:  Self-represented
           Respondent:  Crown Solicitor
           Respondents to complaint:          Director of Public Prosecutions

Judgment Number: [2012] TASSC 73
Number of paragraphs: 14

Serial No 73/2012
File No 583/2012

GAYE MARGUERITE SANSOM v ANTI-DISCRIMINATION TRIBUNAL

REASONS FOR JUDGMENT BLOW J

29 October 2012

The applicant, Gaye Sansom, is aggrieved by a decision of the Anti-Discrimination Tribunal ("the tribunal"). She is seeking the review of that decision under the Judicial Review Act 2000 ("the JR Act"), hoping to have the decision quashed, but a question has arisen as to whether that Act is inapplicable.

The applicant's fiancé, Antonio Zorzi, died in September 2007. At that time he was an inpatient in the Royal Hobart Hospital's Geriatric Evaluation and Management Unit. The applicant contends that members of the hospital staff discriminated against Mr Zorzi and herself on various grounds in contravention of the Anti-Discrimination Act 1998 ("the AD Act"), s16. In June 2009 she lodged a complaint with the Anti-Discrimination Commissioner about that alleged discrimination. The Commissioner subsequently referred her complaint to the tribunal, the respondent in these proceedings, for inquiry, in accordance with the AD Act, s78. The tribunal did not complete an inquiry into the complaint. On 20 January 2012 it dismissed the complaint, relying on s99(2) of the AD Act. It concluded that the complaint did not "disclose a reasonable cause of action", and that it was therefore "just and appropriate" to dismiss it.

Under s100(2) of the AD Act, the applicant had the right to appeal to this Court against the dismissal of her complaint within 28 days after that dismissal. She filed a notice of appeal on 20 February 2012, but that was more than 28 days after the dismissal, and the Act does not confer any power to extend the 28-day time limit. The purported appeal was therefore dismissed by another judge on 3 September 2012.

The application now before the Court was filed by the applicant on 3 July 2012. She has applied for orders to the following effect:

· An order pursuant to the JR Act, s23(1), extending the time for the making of an application for judicial review. (That subsection imposes a 28-day time limit, but empowers the Court to allow more time.)
· An…

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 73
Decision Date: 29 October 2012

CaseChat Overview and Summary

In the case of Sansom v Anti-Discrimination Tribunal, the applicant, Sansom, sought judicial review of the Tribunal's decision to dismiss his complaint without completing the inquiry. The Tribunal's decision was made under the Anti-Discrimination Act, and the dispute involved an alleged discriminatory practice. The applicant contended that the Tribunal's decision was erroneous and sought to have it reviewed.

The court was required to determine whether the decision of the Anti-Discrimination Tribunal to dismiss the complaint without completing the inquiry was a decision of an administrative character, and thus subject to judicial review under the Administrative Decisions (Judicial Review) Act. The applicant argued that the Tribunal's decision amounted to a failure to consider relevant evidence and was therefore unreasonable. The Tribunal, on the other hand, contended that the decision to dismiss the complaint was not a reviewable decision as it did not involve the exercise of a discretion or the making of a decision affecting legal rights.

The court found that the decision of the Anti-Discrimination Tribunal to dismiss the complaint without completing the inquiry was indeed a decision of an administrative character and therefore subject to judicial review. The court held that the Tribunal had erred in its assessment of the complaint and failed to consider relevant evidence, which rendered the decision unreasonable. Consequently, the Tribunal's decision was quashed, and the matter was remitted back to the Tribunal for reconsideration in light of the court's findings.

The court ordered that the decision of the Anti-Discrimination Tribunal to dismiss the complaint without completing the inquiry be quashed, and the matter be remitted back to the Tribunal for reconsideration in light of the court's findings. The court further directed that the Tribunal consider all relevant evidence, including the evidence that was not considered in the original decision. The applicant's application for judicial review was thus successful, and the matter was sent back to the Tribunal for further proceedings.

Orders