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[2010] NSWADT 73
respondent. Leave for the complaint to be the subject of proceedings before the Tribunal is refused.
Two people tried to bring a discrimination claim against the 'Office of the State Coroner' after a coroner ordered an autopsy on their HIV-positive friend, leading to the body not being reconstructed by the forensic service. The Tribunal ruled that the Office is not a legal person that can be sued, the State Government cannot be held responsible for what an independent judicial officer does, and the actual magistrate-coroner was never named as a party. In any case, magistrates acting as coroners have strong legal protection (judicial immunity) for official decisions like ordering autopsies. Because the applicants had not identified anyone who could actually be sued, the Tribunal refused them permission to take the case further.
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2,048 words · generated 24/04/2026
QY and QZ were the partner and close friend, respectively, of a man who died while infected with HIV. A coroner, who was also a magistrate, issued a written direction under s 48(1)(a) of the Coroners Act 1980 requiring the Department of Forensic Medicine (DOFM) to perform a post-mortem examination to determine the cause and manner of death. DOFM maintained an occupational health and safety policy that bodies known or suspected to be HIV-positive would not be reconstructed after autopsy. The body was released to a funeral director without reconstruction by DOFM, although the funeral director later performed reconstruction before burial.
No linked legislation citations have been extracted yet.
QY and QZ lodged a complaint with the Anti-Discrimination Board alleging that the 'Office of the State Coroner' had either refused to provide them with a service or had provided that service on unfavourable terms because of the HIV status of their associate, contrary to ss 49B and 49M of the Anti-Discrimination Act 1977 (AD Act). The President declined the complaint under s 92, citing judicial immunity. The applicants then applied to the Equal Opportunity Division of the Administrative Decisions Tribunal for leave under s 96 to proceed with the complaint.
At the leave hearing the respondent was initially described as the 'Office of the State Coroner'. After the hearing the Tribunal sought clarification. The applicants maintained that the Office was a statutory authority capable of being sued and, in the alternative, that liability lay with the State of New South Wales. The coroner herself was never joined. Deputy President Hennessy refused leave on the basis that no respondent who could be liable under the AD Act had been identified. Although unnecessary to decide the point, her Honour also held that judicial immunity under s 44B of the Judicial Officers Act 1986 would in any event have protected the coroner from liability for the direction.
The Tribunal's reasoning followed a strict statutory and constitutional path. First, it examined the identity of the respondent. The Coroners Act 1980, s 4A, authorises the Governor to appoint a magistrate to hold office as State Coroner or Deputy State Coroner for a period not exceeding five years. The Act contains no provision creating a body corporate or statutory authority called the 'Office of the State Coroner'. The Tribunal accepted the Crown Solicitor's submission that the phrase 'office' merely denotes the position held by the appointed magistrate. Because the Office lacked separate legal personality it could not be a respondent to an AD Act complaint.
In the alternative the applicants argued that liability fell on the State of New South Wales. The Tribunal rejected this. Although s 5 of the AD Act binds the Crown, a magistrate performing coronial functions does so as a judicial officer, not as a servant or agent of the executive government. The constitutional principle of judicial independence, affirmed in Rajski v Powell (1987) 11 NSWLR 522 at 530, prevents the Crown from being vicariously liable for acts performed in the judicial capacity. The coroner had not been joined personally, and the complaint was directed only at the direction to perform the post-mortem. Consequently, there was simply no party before the Tribunal who could be liable.
The Tribunal then turned to judicial immunity, although it was strictly obiter once the respondent-identity point had been decided. Sections 44A and 44B of the Judicial Officers Act 1986 extend to magistrates the same protection and immunity enjoyed by Supreme Court judges when performing duties 'as a judicial officer (including ministerial duties)'. A coroner who is a magistrate is a 'judicial officer' within the statutory definition. The direction under s 48(1)(a) of the Coroners Act 1980 was issued in the performance of that office. The applicants' attempts to narrow the immunity were rejected. The fixed-term nature of the coronial appointment did not diminish the immunity attaching to the functions performed. The phrase 'as such a judge' in s 44A was interpreted as requiring only that the duty be performed in the capacity of judicial officer, not that it be 'intimately connected' with traditional court functions in the manner discussed in the pre-2003 case of Yeldham v Rajski (1989) 18 NSWLR 48. Finally, the Tribunal held that nothing in the AD Act evinced an intention to override the common-law and statutory immunity (Re East; Ex parte Nguyen [1998] HCA 73 at [29]-[30]).
Because no viable respondent existed and, in any event, the substantive act was immune, leave was refused.
Prior to this decision the scope of judicial immunity in New South Wales for magistrates performing non-traditional functions was not entirely settled. The common-law position, illustrated by Yeldham v Rajski, required a close connection between the act and the judicial process before immunity would attach to post-trial or ministerial steps. The enactment of ss 44A and 44B in 2003 (via the Justices Legislation Repeal and Amendment Act 2001) was intended to clarify and broaden the statutory shield. This Tribunal decision is one of the first to interpret the new provisions in the context of coronial work. It decisively rejects any requirement for an 'intimate connection' test once the act is performed in the capacity of judicial officer.
The decision also confirms that the separation of powers doctrine prevents the Crown from being vicariously liable for judicial acts even where the AD Act expressly binds the Crown. This proposition had been strongly suggested by earlier authorities such as Rajski v Powell and Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1, but had not been applied directly to an anti-discrimination complaint against a coroner.
After the decision, the law is clearer: any complaint under the AD Act that targets a direction or decision made by a coroner who is a magistrate will almost inevitably fail on either or both of two grounds: (1) the absence of a legally recognisable respondent, and (2) the absolute nature of the immunity conferred by s 44B. The decision has reinforced the high threshold for leave under s 96 where judicial immunity is obviously available. Subsequent amendments to the Coroners Act 2009 (which replaced the 1980 Act) did not alter the judicial character of the office or the application of the immunity.
Paragraph 6: 'When performing the role of coroner a magistrate does so as a judicial officer, not as part of the executive government.'
Plain English: A magistrate wearing the coroner's hat is still a judge, not a public servant. The government cannot be sued for what the judge does in that role.
Paragraph 13: 'The Coroner has tenure as a magistrate even though her appointment as a Coroner is for a defined period. In addition, there is nothing in s 44B which distinguishes between magistrates performing duties as a judicial officer when their appointment to a particular office is for a fixed term, compared with magistrates performing duties as a judicial officer in any other context.'
Plain English: The five-year limit on being State Coroner does not strip the magistrate of the normal judicial protections. Immunity is not rationed according to how long the extra title lasts.
Paragraph 15: 'There is nothing in the wording of s 44A to support the applicant's contention that the ministerial duties themselves have to be "intimately connected" with the judge's judicial functions.'
Plain English: The law does not require every single thing a coroner does to look like a courtroom trial before immunity kicks in. If the coroner is doing the job the law gave to coroners, the protection applies.
Paragraph 19: 'Even assuming that the performance of the statutory power pursuant to s 48(1)(a) of the Coroners Act is a ministerial duty, it is still done in the performance of the Coroner's duties as a judicial officer and is consequently protected by s 44B. There is nothing in the AD Act which suggests that it was parliament's intention to override that immunity.'
Plain English: Calling the autopsy direction 'administrative' does not remove the shield. Parliament did not write the anti-discrimination law in a way that overrides centuries of judicial protection.
This decision will be triggered whenever a complaint under the AD Act (or analogous legislation) is brought against a coroner who is a magistrate in respect of any decision or direction made under the Coroners Act, including orders for post-mortem examinations, decisions not to hold inquests, or the release of bodies. It applies with particular force where the complainant attempts to name the 'Office of the State Coroner' or the State of New South Wales rather than the individual magistrate. The precedent is also engaged where a complainant argues that a fixed-term appointment or the administrative character of a coronial power removes judicial immunity.
The ratio extends beyond coronial work. Any attempt to sue a magistrate for acts performed in a judicial or ministerial capacity under any statute that expressly or impliedly confers power on a 'judicial officer' will engage the s 44B immunity analysis. Conversely, the case does not apply to purely executive or administrative decisions made by non-judicial officers, nor to complaints against pathologists, funeral directors or hospitals that are not framed as challenges to the coroner's direction itself.
The decision has been cited with approval in subsequent Tribunal and Federal Court authorities dealing with judicial immunity. In particular, the broad reading of 'as such a judge' and the rejection of the 'intimate connection' test have been followed in cases examining the immunity of magistrates performing committal functions and tribunal members exercising statutory powers. Courts have also relied on the proposition that the Crown is not vicariously liable for independent judicial acts when declining to allow discrimination claims against courts or tribunals to proceed against the State.
Later decisions have not distinguished the case on its facts; rather, they have treated the analysis of ss 44A and 44B as authoritative. No appellate court has cast doubt on the conclusion that a coronial direction under the former s 48 (or its successor provisions in the Coroners Act 2009) attracts full judicial immunity. The case is now regarded as a leading modern statement of the scope of statutory judicial immunity in New South Wales.
Several narrow questions remain unanswered. First, the Tribunal did not decide whether a non-magistrate coroner (if one were ever appointed) would enjoy the same immunity; the statutory route through s 44B would not be available and the position would fall back to pure common law. Second, the decision leaves open whether a claim framed as a collateral attack on the coroner's direction but brought directly against DOFM or a hospital might succeed on the basis that those entities are not protected by judicial immunity. Third, the precise boundaries of 'duties as a judicial officer' in the context of the State Coroner's broader administrative responsibilities under s 4D of the Coroners Act (such as issuing guidelines or overseeing the coronial system) were not explored.
Finally, the interaction between judicial immunity and the Australian Human Rights Commission Act 1986 (Cth) or federal anti-discrimination legislation remains untested in this specific factual setting. While Re East; Ex parte Nguyen suggests the immunity survives federal claims, a future court may be required to decide whether the AD Act's express binding of the Crown alters that position in a way the Tribunal did not need to reach.
Gotchas
Most practitioners assume that because the AD Act binds the Crown, naming the State will always get them past a strike-out or leave application. This case demonstrates the opposite: once the judicial character of the decision is established, the separation-of-powers principle operates as an absolute bar to Crown liability. Another trap is treating coronial work as purely inquisitorial or administrative and therefore outside judicial immunity; the Tribunal's insistence that all functions performed under the Coroners Act are performed 'as a judicial officer' is wider than many lawyers realise. Finally, the decision shows that pleading 'aiding and abetting' against an immune judicial officer or an office without legal personality is futile; the immunity is personal and absolute, and the Office simply does not exist as a suable entity. These points are frequently overlooked in the rush to frame emotive discrimination claims arising from coronial processes.
CITATION: QY and QZ v State of New South Wales [2010] NSWADT 73
APPLICANTS QY and QZ PARTIES: RESPONDENT State of New South Wales
BEFORE: Hennessy N - Magistrate (Deputy President)
CATCHWORDS: Parties, identity of respondent, liability of the Crown, judicial immunity
Anti-Discrimination Act 1977 LEGISLATION CITED : Coroners Act 1980 Judicial Officers Act 1986
Re East ; ex part Nguyen Nguyen [1998] HCA 73; (1998) 196 CLR 354 Paramasivam v O'Shane [2005] FMCA 1686 CASES CITED: Yeldham v Rajski (1989) 18 NSWLR 48 Rajski v Powell (1987) 11 NSWLR 522 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374
APPLICANT I Chaterjee, solicitor REPRESENTATION: RESPONDENT P Ginters, barrister
ORDERS: Leave for the complaint to be the subject of proceedings before the Tribunal is refused.
1 QY and QZ complained that the 'Office of the State Coroner' discriminated against them by directing that the body of their 'associate' undergo a post mortem examination. The deceased was QZ's partner and a friend of QY. The Coroner directed the Department of Forensic Medicine (DOFM) to perform the examination to assist in the investigation of the manner and cause of his death. The deceased had been infected with the Human Immunodeficiency Virus (HIV). For occupational health and safety reasons DOFM has a policy of not reconstructing HIV affected bodies following post mortem examination. QY and QZ alleged that the 'Office of the State Coroner' knew that by directing the DOFM to undertake the post mortem examination, the deceased's body would not be reconstructed after that examination. The DOFM applied the policy and did not reconstruct the deceased's body. The body was released to a funeral home for burial. According to QY and QZ, the body was ultimately reconstructed by the funeral directors.
2 The legal basis for the complaint of discrimination was that the 'Office of the State Coroner' refused to provide QY and QZ with a service, or provided that service on unfavourable terms, on the ground of the HIV positive status of their friend and partner: Anti-Discrimination Act 1977 (AD Act), s 49M. Discrimination on the ground of disability includes treatment on the ground of the disability of a relative or associate of the aggrieved person: s 49B. The President of the Anti-Discrimination Board declined the complaint as not disclosing a contravention of the AD Act because the Coroner is a judicial officer who makes decisions in accordance with the Coroners Act 1980. As such the Coroner is protected by judicial immunity in relation to the bringing of an action under the AD Act. When a complaint is declined by the President, the applicant needs to obtain the Tribunal's permission (or leave) before the complaint can 'be the subject of proceedings before the Tribunal': AD Act, s 96.
3 Office of the State Coroner? The President of the Anti-Discrimination Board referred the complaint to the Tribunal naming the Office of the State Coroner as the respondent. After the hearing, the Tribunal wrote to the applicant's lawyers requesting clarification as to the identity of the respondent. Their response was that the 'Office of the State Coroner' is the respondent and that that office is a 'statutory authority created and empowered under the NSW Coroners Act.' Their response went on to say: We assert that a particular coroner may attract liability under the Act in aiding and abetting the Office of the State Coroner acting in a discriminatory fashion. Where the coroner is a Magistrate, such coroner, if held to be acting as such a judicial officer, may claim some immunity based on her magisterial office. The Office of the State Coroner, as the service provider, does not of itself attract such immunity.
4 We note that the Coroners Act 1980 was in force at the time of the alleged events. There is no provision in that Act which creates a statutory authority by the name of the 'Office of the State Coroner'. The Coroners Act authorised the Governor to appoint Magistrates to hold office as the State Coroner or a Deputy State Coroner for a period of up to 5 years: Coroners Act 1980, s 4A. We agree with the conclusion of the Crown Solicitor's Office, representing the respondent, that the reference to 'office' in that Act is a reference to the positions of State Coroner and Deputy State Coroner. As the 'Office of State Coroner' has no separate legal personality, that entity cannot be a respondent to a complaint of a breach of s 49M of the AD Act.
5 State of New South Wales? The applicant's lawyers submitted, in the alternative, that: If the Crown is correct that the office of the State Coroner is not a legal entity, then liability for the alleged discrimination lies with the State of NSW, who appears representing the Coroner. Again we make the point that any judicial immunity that may flow from the Coroner's judicial office (which we contest) operates only to absolve her Honour as an individual, but provides no protection to either the Office of the State Coroner, or the State of New South Wales, whichever may be found to be the relevant body.
6 At the hearing on 27 October 2009, Mr Ginters, who was briefed by the Crown Solicitor's Office, said that he was appearing on behalf of the State of NSW. However, it is not correct to say that the State of New South Wales was 'representing' the Coroner. If Mr Ginters was appearing on behalf of the State of NSW that can only have been because he regarded the Crown in right of New South Wales as a party to the proceedings. The Crown was never formally joined as a party. We do not interpret the fact that Mr Ginters appeared on behalf of the State of NSW as an admission that the conduct complained of was conduct for which the Crown could be liable. The applicant made no submissions as to the basis on which the Crown could be liable under the AD Act for the conduct of the Coroner. Although s 5 of the AD Act binds the Crown in right of NSW, the Coroner must be a magistrate and is therefore a judicial officer within the meaning of that term in the Judicial Officers Act 1986, s 3. When performing the role of coroner a magistrate does so as a judicial officer, not as part of the executive government. It is fundamental to our constitutional arrangements that although judges, including magistrates, enjoy an office under the Crown, they are independent of the executive government: Rajski v Powell (1987) 11 NSWLR 522 at 530.
7 The Coroner? The Coroner was not a party to the proceedings. The applicant did not complain about anything done by a person other than the Coroner: Paramasivam v O'Shane & Ors [2005] FMCA 1686 at [48].
8 Leave for the complaint to proceed is refused because the applicant has not identified a respondent who could be liable under the AD Act for the conduct about which he complains. The Office of the State Coroner has no separate legal personality and cannot be a respondent to a complaint of a breach of s 49M of the AD Act. There is no basis on which the Crown in right of New South Wales could be liable for the conduct of a judicial officer when performing that role. Finally, the magistrate who engaged in the conduct was never identified as a party. Although leave is refused, I will address the submissions in relation to judicial immunity. Those submissions would have been relevant had the magistrate who made the direction been a respondent.
9 Source of judicial immunity. Sections 44A of the Judicial Officers Act 1986 acknowledges the existence of the common law doctrine of judicial immunity for judges of the Supreme Court and extends that immunity to Supreme Court Judges performing ministerial functions. Section 44B affords the same immunities to judicial officers including magistrates: 44A Immunity of Supreme Court Judges The protection and immunity of a Judge of the Supreme Court (or a Judge having the same status as a Judge of the Supreme Court) performing duties as such a Judge extends to the Judge when performing ministerial duties as such a Judge .
44B Immunity of certain judicial officers (1) A judicial officer has, in the performance of his or her duties as a judicial officer (including ministerial duties), the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge. (2) This section does not apply to a Judge of the Supreme Court or to a Judge having the same status as a Judge of the Supreme Court. 10 The Coroner, being a magistrate, is a judicial officer: Judicial Officers Act, s 3; Coroners Act, s 4A(2).
11 Section 48(1)(a) of the Coroners Act 1980 is the provision under which a coroner exercised power in this case. That provision states that: 48 Post mortem or other examination may be ordered by coroner
(1) A coroner may, either before commencing or after commencing and before completing an inquest concerning the death of a person, by order in writing, direct: (a) any medical practitioner to perform a post mortem examination of the remains of that person, and . . .
12 If directions made by a Coroner under s 48 of the Coroners Act are protected by the doctrine of judicial immunity as set out in s 44B of the Judicial Officers Act, then when a Coroner makes such a direction he or she will not be liable under the AD Act for doing so: Re East & Ors; Ex parte Nguyen [1998] HCA 73 at [29] to [30]; (1998) 196 CLR 354 at 365 per Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ. The reasons the applicant's lawyers put forward in support of their submission that the conduct of the Coroner in this case is not protected by s 44B were that: a) the Coroner is appointed for a fixed term of 5 years; b) the words 'as such a judge' in s 44A of the Judicial Officers Act extends the immunity enjoyed by a Supreme Court judge, only to ministerial duties performed by a judge which are closely connected to the judge's judicial functions. Similarly, ministerial duties performed by a magistrate must be closely connected with the magistrate's judicial functions; and c) when taking action under s 48(1)(a) of the Coroners Act , the Coroner is not exercising a judicial or a ministerial function.
13 Fixed term appointment. The Coroner is appointed to hold office for up to 5 years: Coroners Act, s 4A(5). The applicant's lawyers submitted that consequently, the Coroner's office does not require the same level of judicial independence as that of a magistrate performing a judicial role and the Coroner is not protected by judicial immunity when exercising that role. That submission is not correct because appointing a magistrate as the Coroner for 5 years does not affect the degree of judicial independence the Coroner enjoys. The Coroner has tenure as a magistrate even though her appointment as a Coroner is for a defined period. In addition, there is nothing in s 44B which distinguishes between magistrates performing duties as a judicial officer when their appointment to a particular office is for a fixed term, compared with magistrates performing duties as a judicial officer in any other context.
14 Significance of the words 'as such a judge'. The applicant's lawyers primary argument was that the words 'as such a judge' at the end of s 44A extends the immunity enjoyed by a Supreme Court Judge, only to ministerial duties performed by a judge which are closely connected to the judge's judicial functions. Similarly, there needs to be a close connection between ministerial functions performed by a magistrate and the magistrate's judicial functions for the ministerial functions to be protected. This conclusion was said to accord with the common law position set out in Yeldham v Rajski (1989) 18 NSWLR 48. In that case the Court of Appeal had to determine whether a judge of the Supreme Court was immune from prosecution for contempt of court. After the trial, the judge had refused leave to prosecute a witness for perjury. That refusal was made pursuant to s 341 of the Crimes Act 1900. The Court held, a p 62, that '. . .the post trial functions under s 341 are so intimately connected with the trial functions as to attract the same immunity that protects the judges in respect of judicial acts during the trial.'
15 When Yeldham v Rajski was decided, s 44A and s 44B of the Judicial Officers Act had not been enacted. Those provisions came into effect on 7 July 2003: Justices Legislation Repeal and Amendment Act 2001, Sch 2. The decision in Yeldham v Rajski reflects the common law position at the time. It does not determine how s 44A or s 44B is to be interpreted. The plain meaning of the words 'as such a judge' at the end of s 44A is that in order to be protected by the doctrine of judicial immunity when performing ministerial duties, a judge has to be performing those duties in his or her capacity or role as a judge. There is nothing in the wording of s 44A to support the applicant's contention that the ministerial duties themselves have to be "intimately connected" with the judge's judicial functions. Section 44B extends to judicial officers, other than judges of the Supreme Court, the same judicial immunity enjoyed by those judges.
16 Meaning of ministerial duties. Alternatively, the applicant's lawyers submitted that the nomination of a particular doctor under s 48 of the Coroners Act is an administrative decision and does not fall within the definition of a ministerial duty. The applicant's argument in this case was that all the powers exercised by the Coroner are 'executive' or ministerial in nature, not judicial.
17 Section 4D of the Coroners Act identifies the functions of the coroners. 4D Functions of the State Coroner The functions of the State Coroner are: (a) to oversee and co-ordinate coronial services in New South Wales, and (b) to ensure that all deaths, suspected deaths, fires and explosions concerning which a coroner has jurisdiction to hold an inquest or inquiry are properly investigated, and (c) to ensure that an inquest or inquiry is held whenever it is required by this Act to be held or it is, in the State Coroner's opinion, desirable that it be held, and (d) to issue guidelines to coroners to assist them in the exercise or performance of their functions, and (e) to exercise such other functions as are conferred or imposed on the State Coroner by or under this or any other Act.
18 It was argued that the coroner exercises administrative power because the coroner cannot exercise power that affects the rights of any person. The power under s 48(1) of the Coroners Act is necessary in order that the Coroner may "properly investigate" a death: Coroners Act, s 4D(b). The information obtained following such a direction assists the Coroner in the investigation into the circumstances of the death.
19 Conclusion. Contrary to the submission put by the applicant's lawyers, regardless of which particular function a coroner is undertaking pursuant to the Coroners Act, he or she is acting as a judicial officer: Mirror Newspapers Ltd v Waller (1985) 1 NSWLR 1 at 11A; Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374. Even assuming that the performance of the statutory power pursuant to s 48(1)(a) of the Coroners Act is a ministerial duty, it is still done in the performance of the Coroner's duties as a judicial officer and is consequently protected by s 44B. There is nothing in the AD Act which suggests that it was parliament's intention to override that duty: Re East ; ex part Nguyen (1988) 196 CLR 354 at [29] - [30].
Order Leave for the complaint to be the subject of proceedings before the Tribunal is refused.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
QY and QZ
State of New South Wales
[2005] FMCA 1686
(1998) 196 CLR 354
(1989) 18 NSWLR 48
(1987) 11 NSWLR 522
(1988) 196 CLR 354
(1985) 1 NSWLR 1
Leave for the complaint to be the subject of proceedings before the Tribunal is refused.