Tasmanian Health Service v Anti-Discrimination Tribunal - [2022] TASSC 2

[2022] TASSC 2

COURT: SUPREME COURT OF TASMANIA

CITATION: Tasmanian Health Service v Anti-Discrimination Tribunal [2022] TASSC 2

PARTIES:  TASMANAN HEALTH SERVICE
  v
  ANTI-DISCRIMINATION TRIBUNAL

FILE NO:  2150/2021
DELIVERED ON:  3 February 2022
DELIVERED AT:  Hobart
HEARING DATE:  31 January 2021
JUDGMENT OF:  Estcourt J

CATCHWORDS:

Administrative Law – Judicial review – Reviewable decisions and conduct – Review of particular decisions – Anti-Discrimination Tribunal review of Commissioner's decision not to consider out of time complaints – No Tribunal jurisdiction to review Commissioner's decision where complaints not considered – Appeal allowed – Tribunal decision quashed.
Anti-Discrimination Act 1998 (Tas), ss 63, 64(1), 65(2) and 72.
Bullard v Anti-Discrimination Tribunal [2020] TASSC 15, 31 Tas R 282, considered.
Aust Dig Administrative Law [1021]

REPRESENTATION:

Counsel:
           Applicant:  P Turner SC and N Winton
           Respondent:  No appearance
Solicitors:
           Applicant:  Solicitor-General

Judgment Number: [2022] TASSC 2

Number of paragraphs: 22

Serial No 2/2022
File No 2150/2021

TASMANIA HEALTH SERVICE v ANTI-DISCRIMINATION TRIBUNAL

REASONS FOR JUDGMENT ESTCOURT J

3 February 2022

The application

As posited by counsel for the applicant, Mr Turner SC and Ms Winton, in the applicant's written submissions, this application for an order of review under the Judicial Review Act 2000 (the JR Act), raises two questions of law relating to whether the Anti-Discrimination Tribunal (the Tribunal) acted in excess of its jurisdiction when making a decision on 12 August 2021 in Dr Marcus Gurgius v Tasmanian Health Service & Ors [2021] TASADT (sic). By that decision the Tribunal referred "out of time" complaints that had not been accepted by the Anti-Discrimination Commissioner (the Commissioner) back to the Commissioner for investigation.
The first question is said to be whether the Tribunal had jurisdiction to review the decision of the Commissioner to reject out of time complaints under s 64(1) of the Anti-Discrimination Act 1998 (the AD Act), in circumstances where the Commissioner had not accepted those out of time complaints under s 63(2) of that Act.
The second question is said to be whether the Tribunal acted in excess of its jurisdiction by failing to give notice to the applicant of its review of the Commissioner's decision and a reasonable opportunity to be heard.

The background

The following background is set out in the applicant's written submissions:
"4 On 4 November 2020 Dr Marcus Gurgius (the complainant) lodged a complaint with the Commissioner. It contained numerous allegations. Some of those allegations related to matters that occurred outside the 12 month time limit appearing in s 63(1) of the Act, including that:
(a) on 19 August 2019, Dr Kaur told the complainant to cancel his patients and attend a third-year medical student's lecture; and
(b) on 21 October 2019, Dr Frances referred to the complainant as 'crazy'
(collectively, the Bullying Allegations).
Other allegations were made concerning matters that were within the 12 months. Those allegations related to the manner in which the applicant investigated the complainant's grievance over the Bullying Allegations and associated matters.

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.

Continue reading Tasmanian Health Service v Anti-Discrimination Tribunal

Details

AGLC: Tasmanian Health Service v Anti-Discrimination Tribunal [2022] TASSC 2
Case: [2022] TASSC 2
Decision Date: 3 February 2022

CaseChat Overview and Summary

The Tasmanian Health Service challenged a decision of the Anti-Discrimination Tribunal, which had declined to review a decision by the Commissioner of the Tasmanian Anti-Discrimination Commission not to consider certain out-of-time complaints. The court was tasked with determining whether the Tribunal had the jurisdiction to review the Commissioner's decision, and if not, whether the Tribunal's decision could be quashed on the grounds of jurisdictional error.

The central legal issue before the court was whether the Anti-Discrimination Tribunal had the authority to review a decision by the Commissioner not to consider certain complaints as out of time. The court needed to interpret the relevant legislative provisions and determine whether the Tribunal could exercise its powers in such circumstances. The court was also required to consider whether the Tribunal's decision was a reviewable decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth).

In its decision, the court found that the Anti-Discrimination Tribunal did not have the jurisdiction to review the Commissioner's decision not to consider the out-of-time complaints. The court held that the Tribunal's powers were limited to reviewing decisions made by the Commissioner in the exercise of specific functions, and did not extend to reviewing decisions not to exercise those functions. The court further found that the Tribunal's decision to decline review was a reviewable decision, and that the Tribunal had erred in concluding that it had jurisdiction. Consequently, the court allowed the appeal and quashed the Tribunal's decision.

Orders