1. The Commissioner's evaluation decisions were the culmination of an elaborate set of procedures mandated by the ADA.

1. I considered those procedures at some length in Lechleitner v Lhere Artepe Aboriginal Corporation & Ors [2017] NTCAT 78 [footnotes omitted]:

1. Part 6 of the [ADA], comprising sections 60 to 105, deals with the resolution of complaints about conduct prohibited by the Act.
2. Division 1 of Part 6 identifies who may make a complaint about prohibited conduct and how such a complaint is to be made (including requirements as to the form of complaint and the time within which it is to be made).
3. [The Commissioner] is required by section 66 to accept or decline a complaint within 60 days of being made. The decision whether to accept or decline a complaint must follow an assessment by [the Commissioner]. Section 66 does not identify the criteria according to which a complaint is to be accepted or declined; however, section 67 makes it clear that [the Commissioner] may at any time decline a complaint reasonably believed to be frivolous or vexatious; trivial; misconceived or lacking in substance; or one which fails to disclose any prohibited conduct.
4. The assessment contemplated by Division 1 does not involve detailed scrutiny or investigation of a complaint; it is instead principally directed to filtering out complaints that are obviously unmeritorious. Nevertheless, the consequences for a complainant whose complaint is declined at this early stage are serious - by section 66D 'the complaint lapses and the complainant cannot make another complaint in relation to the same conduct'.
5. Division 3 of Part 6 of the [ADA] establishes a process for the conciliation of complaints. Although section 78 gives [the Commissioner] discretion to conduct a conciliation at any time following the making of a complaint, in the usual course it will be complaints that have been accepted under Division 1 that proceed to conciliation. [The Commissioner] has power to direct a person to take part in a conciliation. Failure by a complainant to comply with such a direction can lead to an order dismissing the complaint.
6. By section 81(3) if conciliation does not lead to the resolution of a complaint, the complainant may request [the Commissioner] to 'evaluate' the complaint. A request for evaluation must be made within 21 days of notice from [the Commissioner] that the conciliation has ceased. Subject to [the Commissioner's] discretion to extend the 21 day period, failure to request an evaluation causes the complaint to lapse.
7. Evaluations are conducted under Division 4 of Part 6 of the [ADA].
8. Section 4 of the [ADA] defines 'evaluate' as follows:

evaluate, in relation to a complaint, means to decide whether the complaint has a reasonable prospect of success at a hearing by the Tribunal.

1. By section 83 [the Commissioner] must evaluate a complaint if requested to do so under section 81(3). [The Commissioner] has broad discretion as to the manner in which the evaluation is to be conducted (section 81(2)) and is also given extensive powers, backed up by criminal sanctions, to obtain evidence - see section 84 (documents) and section 85 (witnesses).
2. Division 4A of Part 6 of the [ADA] sets out the course a complaint may take once it has been evaluated under Division 4.
3. By section 86... a complaint evaluated by [the Commissioner] as having a reasonable prospect of success before NTCAT may be referred to NTCAT.
4. Alternatively, if the Commissioner decides not to refer a complaint to NTCAT, the complainant may apply to have the complaint heard by NTCAT. According to section 86(4), the complainant is required to make such an application within 21 days after receiving written notice of the Commissioner's decision. Failure to make the application within the 21 days is dealt with by section 87...
5. In cases where a complaint is referred to NTCAT under section 86(1) of the [ADA], section 87A(1) requires [the Commissioner] to provide a report to NTCAT within 60 days. The report is to include all information relating to the complaint that the Commissioner reasonably believes will be relevant for the hearing. In cases where the complainant has applied to NTCAT under section 86(4), NTCAT may order the Commissioner to provide such a report (section 87A(2)).
6. Section 88 of the [ADA] sets out NTCAT's powers after hearing a complaint.
7. From the above analysis it should be apparent that Part 6 of the [ADA] sets out the path a complaint of prohibited conduct is intended to follow prior to reaching NTCAT - from assessment, to conciliation, to evaluation and, finally, to a decision under section 86(1). Along that path there are several points at which the complaint process may come to an end, often in circumstances where the Anti-Discrimination Act makes it clear that no further action in relation to the complaint may be taken (because it 'lapses').
8. The plain intention of the [ADA] is that complaints that reach NTCAT will have received extensive attention and consideration by [the Commissioner] (including via delegates of the Commissioner). In the usual course, such a complaint will have been the subject of attempted resolution by way of conciliation followed by extensive investigation for the purpose of a considered assessment of the prospects the complaint would succeed at an NTCAT hearing.
9. It is also plain, in my view, that the decision of [the Commissioner] whether or not to refer a complaint to NTCAT represents the point at which the Commissioner's role in the complaint process undergoes a fundamental change. Apart from the provision of a report under section 87A (the requirement for which does not appear to me to entail any obligation on the part of the Commissioner to undertake any further investigation in relation to a complaint), [the Commissioner] no longer has an active role; the further consideration of the complaint, and its ultimate resolution, becomes a matter for NTCAT.
10. In a related vein, in cases where a complaint is neither the subject of a referral under section 86(1) or an application under section 86(4), the complaint lapses. There is nothing in Part 6 of the Anti-Discrimination Act to suggest that the Anti-Discrimination Commissioner has any ongoing role in relation to a complaint that has lapsed in this way or that there is any basis upon which such a complaint may be revived.

1. Sections 86 and 87 of the ADA (which I have not reproduced in the extract above) are as follows:
   1. Hearing by Tribunal

(1) After evaluating a complaint under section 83, the Commissioner may refer the complaint to the Tribunal if the Commissioner believes the complaint has a reasonable prospect of success at a hearing by the Tribunal.

(2) The Commissioner must, within 28 days of deciding whether to refer the complaint under subsection (1), give the complainant and respondent to the complaint written notice of:

(a) the decision; and

(b) reasons for the decision; and

(c) if the Commissioner decides not to refer the complaint - the fact that the complainant may apply under subsection (4) to have the complaint heard by the Tribunal.

(3) If the Commissioner refers the complaint to the Tribunal, the

Commissioner must determine the parties to the complaint.

(4) If the Commissioner decides not to refer the complaint, the complainant may, within 21 days after receiving the written notice, apply to have the complaint heard by the Tribunal.

1. Complaint not referred - similar complaints prohibited

(1) This section applies if:

(a) the Commissioner decides not to refer a complaint to the Tribunal; and

(b) the complainant has not applied to have the complaint heard by the Tribunal within the time allowed by section 86(4).

(2) The complaint lapses and the complainant may not make a further complaint in relation to the same conduct.

1. The decision in Lechleitner was mainly concerned with what, if any, ongoing role the Commissioner had in relation to a complaint once an evaluation decision had been made under section 86; however, the analysis in that decision is also relevant to understanding the consequences for a complainant of the Commissioner's decision whether or not to refer a complaint to NTCAT.

1. Importantly, unless and until the Commissioner makes an evaluation decision in relation to a complaint of discrimination under the ADA, there is no way in which such a complaint may come before NTCAT.

1. NTCAT's jurisdiction in relation to a discrimination complaint depends upon either a referral by the Commissioner (of a complaint that is assessed as having a reasonable prospect of success) or a self-referral by the complainant (of a complaint that the Commissioner has not assessed as having a reasonable prospect of success).

1. If the Commissioner decides to refer a complaint, NTCAT's jurisdiction in relation to that complaint is established by the fact of the referral - there is nothing more the complainant needs to do.

1. If, on the other hand, the Commissioner decides not to refer a complaint, NTCAT will only obtain jurisdiction if the complainant applies to have NTCAT hear the complaint.

1. The key issue in the present proceeding is whether, in the case of a non-referred complaint, the complainant must apply to have NTCAT hear the complaint within the 21 period in section 86(4) of the ADA.

1. On its face, section 87(2) of the ADA seems clearly to have the effect that compliance with the 21 day period is imperative. Consistently with the heading for the section, which refers to 'similar complaints' being 'prohibited' in cases of non-referral, section 87(2) provides that a failure to apply to NTCAT within the 21 day period specified in section 86(4) causes a non-referred complaint to 'lapse' and precludes any further complaint about the conduct that led to the complaint.

1. 'Lapse' is not defined in the ADA (or in the Interpretation Act 1978), but, as the Commissioner points out in submissions, the Macquarie Dictionary defines the term as meaning "the termination of a right or privilege through neglect to exercise it or through failure of some contingency."

1. A conclusion that compliance with the 21 day timeframe is essential is wholly consistent with section 86(4) of the ADA. Section 86(4) is the sole pathway by which NTCAT's jurisdiction in relation to a non-referred complaint can be invoked. The section permits ('may') a complainant to do so within 21 days, but not otherwise.

1. Such a conclusion is also consistent with the broader scheme of the ADA. Although a 'hard and fast' 21 day time limit for applying to NTCAT regarding a non-referred complaint may seem strict, it must be remembered that once a complaint is the subject of an evaluation decision it has been through the extensive procedures summarised in Lechleitner. In this respect, it is fundamentally different from a complaint that is being aired for the first time. Moreover, a complaint that the Commissioner decides not to refer to NTCAT has, necessarily, been assessed (following investigation and evaluation by officers who may be taken to have intimate familiarity with the ADA) as not having 'a reasonable prospect of success'. Viewed in that light, it is unsurprising that the ADA would provide a tightly constrained opportunity for a complainant to take the matter any further.

The Limitation Act does not assist Mr Haque

1. By section 44 of the Limitation Act 1981 (as relevant):
   1. Extension of periods

(1) Subject to this section, where this or any other Act, or an instrument of a legislative or administrative character prescribes or limits the time for:

(a) instituting an action;

(b) doing an act, or taking a step in an action; or

(c) doing an act or taking a step with a view to instituting an action,

a court may extend the time so prescribed or limited to such an extent, and upon such terms, if any, as it thinks fit.

(2) A court may exercise the powers conferred by this section in respect of an action that it:

(a) has jurisdiction to entertain; or

(b) would, if the action were not out of time, have jurisdiction to entertain.

(4) Where an extension of time is sought under this section in respect of the commencement of an action, the action may be instituted in the normal manner, but the process by which it is instituted must be endorsed with a statement to the effect that the plaintiff seeks an extension of time pursuant to this section.

(5) Proceedings under this section may be determined by the court at any time before or after the close of pleadings.

(a) derogate from any other provision under which a court may extend or abridge time prescribed or limited by an Act or an instrument of a legislative or administrative character; or

(b) affect a rule of law or equity under which a limitation period affecting a right to bring an action may be extended or within which an action may be brought notwithstanding the expiration of the limitation period.

1. It is well established that the power in section 44 of the LA to grant an extension of time has no application to substantive, as opposed to procedural, time limits. In other words, if compliance with a time limit is properly seen as being part and parcel of the existence of a cause of action, then provisions such as section 44 do not permit a court to extend such a time limit.

1. For the reasons above, it is clear in my view that compliance with the 21 day time limit in section 86(4) ADA is an essential component of a complainant's right to invoke NTCAT's jurisdiction in respect of a complaint that the Commissioner has decided not to refer to NTCAT. Section 86(4) both creates that right and limits the circumstances in which it may be exercised. If the 21 day period in section 86(4) is not complied with, then section 87 makes it clear that the non-referred complaint lapses - there is no longer a complaint that could be the subject of an NTCAT hearing.

1. The 21 day period in section 86(4) is therefore not a time limit of the type referred to in section 44(1) of the LA. It is instead a time limit of the type considered by the Supreme Court in Mamouzellos v Vatskalis & Ors [2018] NTSC 57 (per Southwood J at [38]-[43] referring to Rudolphy v Lightfoot [1999] HCA 61; (1999) 197 CLR 500) namely 'a condition which is of the essence of a new right'.

1. That conclusion makes it unnecessary to consider the question (raised in the parties' submissions) whether, in any event, NTCAT is relevantly a 'court' that could grant an extension of time under section 44(4) of the LA.

1. It remains to deal briefly with some other provisions that do not assist Mr Haque.

1. Section 68 of the NTCATA provides the tribunal with a power to extend certain time limits. It provides:
   1. Relief from time limits

(1) If this Act or the relevant Act imposes a time limit for doing something in relation to a proceeding, the Tribunal may extend or shorten the time limit, if permitted to do so by the rules.

(2) The Tribunal may do so even if the time for complying has expired.

1. That section does not permit NTCAT to extend the 21 day period in section 86(4) of the ADA, or to undo the consequences of non-compliance specified in section 87. As Southwood J noted in Mamouzellos:

[45] ... s 68 of the Northern Territory Civil and Administrative Tribunal Act is not concerned with time limits which specify the time in which an application to the Tribunal may be initiated or made. The words, "for doing something in relation to a proceeding", contemplate that a proceeding has already been instituted and is on foot. The definition of 'proceeding' in s 3 of the Act states that, "proceeding means the hearing of a matter by the Tribunal". Section 94 of the Act deals with the commencement of proceedings. Subsection 94(3) states that if the application is for a review proceeding, the person must file the application with the Registrar within 28 days after the relevant date. Subsection 94(6) is the only provision in the Act which grants the Tribunal a power to extend time for making an application and the power to extend time granted by that section is confined to making an application for a review proceeding...

1. Although the definition of 'proceeding' referred to in Mamouzellos is no longer part of the NTCATA, this has no bearing on the authority of the decision for present purposes. In any case, for the reasons above, the 21 day period in section 86(4) of the ADA is not properly seen as 'a time limit for doing something in relation to a proceeding' - it is something that determines (and confines) the circumstances in which a proceeding may come into existence. To put the matter another way, once the 21 day period in section 86(4) expired without Mr Haque self-referring his complaint against MSA, there could be no 'proceeding' for the purposes of the NTCATA.

1. For related reasons, Mr Haque is not assisted by provisions of the ADA and NTCATA that permit NTCAT to add parties to a proceeding.

Despite section 86(3) and without limiting section 128 of the Northern Territory Civil and Administrative Tribunal Act 2014, the Tribunal may add, substitute or remove a party to a complaint referred to it.

1. By section 128 of the NTCATA:
   1. Person may be joined as party

(1) The Tribunal may order that a person be joined as a party to a proceeding if the Tribunal considers that:

(a) the person should be bound by, or have the benefit of, a decision of the Tribunal in the proceeding; or

(b) the person's interests are affected by the proceeding; or

(c) it is desirable for any other reason for the person to be a party.

(2) The Tribunal may make an order under this section:

(a) on the application of any person or on its own initiative; and

(b) without the person whom it is proposed to join being heard on the matter.

1. The power in section 87B of the ADA is confined to cases involving complaints referred to NTCAT. If MSA were added as party under section 87B it would not alter the fact that the only proceeding before NTCAT is the proceeding arising from the referred complaint against the Northern Territory.

1. The power in section 128 of the NTCATA is more broadly expressed than the power in section 87B of the ADA; however, it does not alter the fact that Mr Haque may only obtain a remedy (for example compensation or an apology) for his discrimination complaint against MSA by pursuing that complaint in NTCAT. In other words, an order joining MSA as a party to proceeding 2024-3890-CT would and could not have the effect of reviving Mr Haque's complaint against MSA. Although NTCAT clearly has a broad discretion under section 128 (particularly in light of section 128(1)(c)) it would an exceptional step for the tribunal to add a party to a proceeding (with all the expense and inconvenience that entails) in circumstances where the outcome of the proceeding can have no bearing on the party's legal interests (which is the case here).

1. As I have already noted, although Mr Haque's actual application is for MSA to be added as a party to proceeding 2024-3890-CT, it is clear that his aim in making that application is to pursue his complaint against MSA.

1. I have concluded however that Mr Haque's complaint against MSA has lapsed and there are no available means by which it may be revived.

1. In my view, the fact his complaint against MSA has lapsed - with the consequence that he no longer can obtain a remedy from MSA for the discrimination he alleged against it - means that there would be no point adding MSA as a party to proceeding 2024-3890-CT.

1. I will therefore make an order dismissing the application to add MSA as a party to proceeding 2024-3890-CT.

1. (I should add that that order will be made on the basis of my assumption that Mr

Haque's purpose in making the application was obtain a remedy against MSA. Strictly speaking, it would remain open to him to make a further application on the basis that there is some other good reason why MSA should be made a party to the complaint against the Northern Territory - however, as I have already observed, such an order would only be made in exceptional circumstances, and none presently seem apparent. )

1. I will also order that proceeding 2024-3890-CT again be listed for hearing.

1. In that regard, I note that Mr Haque's email to NTCAT dated 19 February 2025 (but not his subsequently filed ordinary application) also included a request to have two individuals at the hearing. I am uncertain what, if any, steps have been taken in respect of that request. It would seem to me to be something that could be pursued by means of witness summonses. I will include with my orders a note requesting the NTCAT Registry to make further contact with Mr Haque regarding his request.

1. I conclude by noting that Mr Haque may feel that this outcome is harsh. His email to the Commissioner dated 20 December 2023 made it clear that he was not satisfied with the Commissioner's decision not to refer his complaint against MSA to NTCAT. Equally, however, the Commissioner's communications with Mr Haque on and after 17 December 2024 made it clear that it was necessary for him to 'self-refer' his complaint against MSA and to do so within 21 days. In circumstances where the significant legal consequences of non-compliance with the 21 day time limit were not then clearly understood, it would be unfair to criticise the Commissioner's office for not drawing those consequences more explicitly to Mr Haque's attention. Now that the matter has been decided, I assume that the Commissioner's advice to complainants regarding non-referred complaints will be reviewed.

1. The application to add ML Global Pty Ltd trading as Millennium Security and Alarms Services as a party to proceeding 2024-3890-CT is dismissed.

1. Proceeding 2024-3890-CT is to be re-listed for a one day hearing on a date to be fixed in consultation with the parties.

1. The Registry is requested to contact the applicant regarding his request in an email to NTCAT dated 19 February 2025 for two persons (named in the email) to attend at the hearing (see paragraph 61 of reasons for decision dated 26 June 2025).