Pursuant to s 131(2) of the Tasmanian Civil and Administrative Tribunal Act 2020 the proceedings on the complainant's complaint are to be transferred to the Magistrates Court of Tasmania.

Anti-Discrimination Act 1998, ss 14, 16K, 17, 22, 64, 67, 104.

Tasmanian Civil and Administrative Tribunal Act 2020, s 131.

Elizabeth Bertenshaw v Bruce Warner [2020] TASADT 4;

Australasian Temperance and General Mutual Life Assurance Society Limited v Howe [1922] HCA 50; (1992) 31 CLR 290;

R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323;

Shuttleworth and Pearson [2018] WASAT 112; 96 SR(WA) 377.

Amended pursuant to Section 119 of the Tasmanian Civil and Administrative Tribunal Act 2020

Decision amended to correct an error in the name of the respondent.

1. On 28 January 2024, the complainant made a complaint to the Anti-Discrimination Commissioner (the ADC) alleging various breaches of the Anti-Discrimination Act 1998 (the ADA).
2. In an assessment decision of 11 April 2024 delivered to the parties on 18 April 2024, the ADC accepted part of the complaint, did not accept part of the complaint, and rejected part of the complaint.
3. The ADC accepted for investigation the complainant's complaint of direct discrimination (s 14 of the ADA), on the basis of disability (s 16K of the ADA), in connection with employment (s 22(i)(a) of the ADA).
4. The ADC also accepted the complaint of offensive, humiliating, intimidating, insulting or ridiculing conduct (s 17(1) of the ADA), on the basis of disability (s16K of the ADA), in connection with employment (s 22(i)(a) of the ADA).
5. The ADC also accepted for investigation allegations of a breach of s 104 of the ADA.
6. The part of the complaint the ADC did not accept were those matters occurring more than twelve months preceding the date of the complainant's complaint of 28 January 2024.
7. The ADC also rejected the complainant's complaints against Ms Wessel and Mr Sheppard pursuant to s 64(1)(a) of the ADA on the basis that the complaints against them were lacking in substance.
8. The ADC decided it would also not investigate the complainant's complaints of victimisation.
9. Being not able to resolve the complainant's complaint within six months of the respondent being notified of the complaint pursuant to s 67 of the ADA, the ADC referred the complainant's complaint to the Tribunal for Inquiry on either 18 October 2024 or 25 October 2024.

1. During case conferences in the Tribunal in the November 2025 period, it became apparent to the senior case officers that the complainant was residing in New South Wales and that, as a consequence, a potential jurisdiction issue had arisen which required clarification.
2. This matter was referred to me and during a directions conference on 15 December 2025, directions were given in relation to the issue of Federal jurisdiction.
3. By 17 February 2026, the complainant and the respondent had provided their submissions in relation to this Federal jurisdiction issue and with the agreement of the parties, on 2 March 2026 it was resolved that I could determine this Federal jurisdiction issue on the material then before the Tribunal.
4. For the reasons which follow, as there is some doubt as to whether the Tribunal has jurisdiction to determine this inquiry because it may involve the exercise of Federal jurisdiction, I order that the proceedings of the complainant's inquiry be transferred to the Magistrates Court pursuant to s 131 of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT Act).

1. On the material before me, it is unclear whether the complainant's complaint was referred to the Tribunal on 18 October 2024 or on 25 October 2024.
2. It is however clear on the evidence provided by the complainant and accepted by the respondent that on 2 October 2025, the complainant left Tasmania and on 9 October 2025 had vacated his Launceston tenancy.
3. The complainant's living situation from times thereafter and currently has been split between Eumundi (Queensland), Dysart (Queensland) advisedly for FIFO work, and Hawsley Park (New South Wales) and Caves Beach (New South Wales) for residency with his partner.
4. The complainant has indicated he is willing to return to Tasmania and sub-let a room in Launceston if required to remain a Tasmanian resident throughout the full duration of his legal process. He further stated it would likely be unsafe for him to spend any significant amount of time in this location.
5. On the evidence, the complainant has indicated that his relocation to mainland Australia was undertaken as a protective and medically necessary step, not as a choice. Alternative residential relocation within Tasmania was considered but rejected on medical, practical and safety grounds.
6. At the date of the conclusion of the provision of written submissions on 17 February 2026, there was no evidence other than that indicating that the complainant's living arrangements had not altered from those indicated previously in this decision.

1. Both the complainant and the respondent assert that the time for the Tribunal's determination of jurisdiction is the date of the ADC's referral of the inquiry to the Tribunal, this being either 18 or 25 October 2024.
2. I am satisfied that this is a correct statement of the law - see for example the decision of Chairperson of the Workers Rehabilitation and Compensation Tribunal as she then was, Ms A Clues in Elizabeth Bertenshaw v Bruce Warner [2020] TASADT 4.
3. The evidence is clear however that in October 2025 the complainant left Tasmania and remains residing outside of Tasmania.
4. The issue for determination by the Tribunal therefore is whether by virtue of the complainant's residence being outside Tasmania from October 2025 clearly during the currency of the proceedings in the Tribunal, and clearly prior to their determination in the Tribunal, whether this amounts to the Tribunal being required to determine matters of Federal jurisdiction in accordance with the principles enunciated in Burns v Corbett [2018] HCA 15.
5. The first question for determination is whether the complainant is now a "resident" of the other state. On this issue, see Australasian Temperance and General Mutual Life Assurance Society Limited v Howe [1922] HCA 50; (1922) 31 CLR 290 at [324]:

A natural person is a "resident of a State," in the sense required by sec. 75(VI) [of the Australian Constitution] if by reason of his residential connection with that State he can be properly said to be identified with it as contrasted with all other States.

6. See also R v Oregan; Ex parte Oregan [1957] HCA 18; (1957) 97 CLR 323.
7. On all of the evidence there is currently a complete diversity of the parties.
8. Having considered the authorities on these issues, the weight of authority currently appears to support the view that where complete diversity on each side is enlivened before final determination of the proceedings, the jurisdiction of the Tribunal is lost - see Shuttleworth and Pearson [2018] WASAT 112; 96 SR(WA) 377 at [42].

1. Prior to the enactment of the Tasmanian Civil and Administrative Tribunal Act 2020 (the TASCAT), if the Tribunal was satisfied it did not have jurisdiction to deal with a matter such as this, the only alternative would have been the dismissal of the complaint for want of jurisdiction.
2. However, with the commencement of the TASCAT Act, s 131 was enacted which states:

131. Transfer to Magistrates Court of applications involving federal jurisdiction > > (1) If a person has standing to make an application to the Tribunal in the exercise of its original jurisdiction under section 72 or its review jurisdiction under section 74, the application may, if the Tribunal orders under subsection (2) that proceedings on the application are to be transferred to the Magistrates Court, be determined by the Magistrates Court in accordance with this Part instead of the Tribunal. > > (2) If, following an application made to the Tribunal in the manner and form required under this Act for the kind of application concerned, the Tribunal considers that -

(a) it does not have, or there is some doubt as to whether it has, jurisdiction to determine the application because its determination may involve the exercise of federal jurisdiction; and

(b) the Tribunal would otherwise have had jurisdiction enabling it to determine the application -

the Tribunal may order that proceedings on the application be transferred to the Magistrates Court.

(3) Proceedings transferred to the Magistrates Court under subsection (2) are transferred proceedings.

(4) If proceedings are transferred to the Magistrates Court under this Part -

(a) the application made to the Tribunal will be taken to be duly made as an application to the Court; and

(b) the proceedings may be continued and completed as if steps taken in the proceedings prior to the transfer had been taken in the Court.

(5) The fee payable in respect of the application is the prescribed fee (if any) payable to the Tribunal under this Act.

(6) A party to the transferred proceedings is not required to pay any fees in relation to the transfer of the proceedings to the Magistrates Court unless the Court determines that additional fees are payable under the Magistrates Court (Civil Division) Act 1992 because of a substantial alteration in the nature of the claims in the proceedings.

(7) An order made by the Tribunal under subsection (2) may not be the subject of review or appeal under Part 10.

(8) The Magistrates Court may remit transferred proceedings to the Tribunal for determination if the Court is satisfied that the Tribunal has jurisdiction to determine the matter.

(9) If the Magistrates Court remits transferred proceedings to the Tribunal, the Court may make the orders, if any, that it considers appropriate to facilitate the determination of the proceedings by the Tribunal.

(10) The Tribunal must determine transferred proceedings that are remitted to it in accordance with any orders made by the Magistrates Court and must determine such proceedings in accordance with any such order.

1. Section 131(2)(a) is of particular relevance to this decision.
2. Although the respondent affirmatively states that there is no doubt the Tribunal has jurisdiction as a consequence of the complainant being a resident of Tasmania and the respondent being the State of Tasmania at the date of the referral of the inquiry to the Tribunal on 18 or 25 October 2024, there remains some doubt as to whether the Tribunal has jurisdiction to determine this matter because the determination may involve the exercise of Federal jurisdiction. The Tribunal has not finally determined this matter, and on all of the evidence the complainant is currently not a resident of Tasmania.
3. As there does not appear to be a superior court determination on this issue, as I am in some doubt as to whether the Tribunal does have jurisdiction to determine this matter which may involve the exercise of Federal jurisdiction, I order pursuant to s 131(2) that the proceedings on the inquiry be transferred to the Magistrates Court.
4. In my view, transferring this matter to a court of competent jurisdiction represents a more prudent approach. In the absence of clear superior court authority supporting any contrary view, the likely prejudice to the parties by the Tribunal wrongly asserting doubtful jurisdiction will be considerably greater than the inconvenience of transferring that proceeding to a court of competent jurisdiction.

1. Pursuant to s 131(2) of the TASCAT Act the proceedings on this inquiry are transferred to the Magistrates Court.