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.

Respondents to complaint: Director of Public Prosecutions

Judgment Number: [2012] TASSC 73

GAYE MARGUERITE SANSOM v ANTI-DISCRIMINATION TRIBUNAL

1 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.

2 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.

3 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.

4 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 order that the tribunal's decision be set aside.
• An order that the matter be remitted to the tribunal.

5 A notice has been filed on behalf of the tribunal submitting to any order that the Court or a judge may make in these proceedings, in accordance with the Supreme Court Rules 2000, r777G. The tribunal was therefore not represented at the hearing before me. In the proceedings before the tribunal, the respondents to the complaint were the Department of Health and Human Services and the Chief Executive Officer of the Royal Hobart Hospital, Michael Pervan. They were represented by counsel at the hearing before me. Their counsel, Mr Turner, indicated that they would not oppose an extension of time if the Court had jurisdiction. However he submitted that the Court did not have jurisdiction because the tribunal's decision was not "a decision of an administrative character" for the purposes of the JR Act.

6 Section 17(1) of the JR Act reads as follows:

"(1) A person who is aggrieved by a decision to which this Act applies may apply to the Court for an order of review relating to the decision."

7 In s4(1) of that Act, the following definition appears:

"decision to which this Act applies means a decision of an administrative character made, proposed to be made, or required to be made, under an enactment (whether or not in the exercise of a discretion)".

Was the tribunal's decision "a decision of an administrative character"?

8 A similar question was considered by the Full Court in Kentish Council v Wood [2011] TASFC 3. That case concerned a complaint under the AD Act by a woman who was confined to a wheelchair. She alleged that the Kentish Council had discriminated against her in contravention of the AD Act. Her complaint was referred to the tribunal for inquiry. The tribunal found that the complaint was substantiated and ordered that the Kentish Council pay $10,000 to the complainant by way of compensation. The Full Court held that the decision that the complaint was substantiated and the decision to order the payment of compensation were not decisions of an administrative character.

9 Mr Turner relied on that case, and submitted that this case was not distinguishable from it. The applicant argued that it was distinguishable on various bases. Her contentions, and my comments relating to them, are as follows:

• The applicant sought to distinguish Kentish Council on the basis that that case concerned a decision by the tribunal in a complainant's favour, whereas this case does not. However the outcome of a case is not relevant to the determination of the nature of a decision made in the exercise of a statutory power. A decision cannot be administrative if it goes one way, but not administrative if it goes the other way.
• The applicant argued to the effect that, unlike the complainant in Kentish Council, her objective was not to seek an award of compensation. She acknowledged that, in her complaint form, she had proposed a payment of compensation to cover Mr Zorzi's funeral expenses and a trip to take his ashes to Italy. However she made it clear that her only substantial objective was to obtain a determination from the tribunal that prohibited discrimination had occurred against her and Mr Zorzi. It is important to recognise that, when the tribunal decides that a complaint has been substantiated and decides to award compensation, it makes two separate decisions: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Kentish Council at pars[16], [17]. It follows that, even if the applicant had said nothing about compensation in her complaint form, the decision or principal decision that she wanted the tribunal to make, finding her complaint substantiated, would have been a decision that could not be regarded as a decision of an administrative character in the light of the Full Court's decision in Kentish Council.
• The applicant argued to the effect that, whilst the Full Court held that the tribunal's decisions in Kentish Council were "essentially judicial in nature", the tribunal in this case had not acted judicially. She argued that the tribunal had not investigated all the material put before it, had not accurately represented the facts or arguments in its decision, had ignored parts of her complaint, and had denied her a fair hearing. However, in order to determine whether a dismissal under s99(2) is a decision of an administrative character, it is necessary to consider the nature of the power the tribunal exercised, not whether its exercise was affected by improprieties.
• The applicant pointed out that, in Kentish Council, the tribunal had conducted a defended hearing at which it received evidence and argument, whereas her complaint had been dismissed without the calling of witnesses, the tendering of documentary evidence, cross-examination, and so forth. However it is necessary to focus on the nature of the decision made by the tribunal.

10 In order to determine whether a decision to dismiss a complaint under s99(2) is a decision of an administrative character, it is necessary to consider the scheme of the AD Act and the context of s99(2). The relevant provisions of the AD Act can be summarised as follows:

• Section 16 prohibits discrimination by one person against another on any of various grounds that are listed in the section. Those grounds include age, gender, marital status, relationship status, disability, and association with a person who has any such attributes: s16(b), (e), (f), (fa), (k), and (s).
• Sections 17 - 21 prohibit other forms of conduct including, amongst others, sexual harassment, victimisation, and inciting hatred: ss17(2), 18(1), and 19 respectively.
• Section 60(1) permits complaints to be made to the Commissioner about discrimination or prohibited conduct in certain circumstances. Under s60(1)(a), a complaint may be made by a person against whom alleged discrimination was directed. Under s60(1)(f), a complaint may be made by another person on behalf of the person against whom alleged discrimination was directed.
• Under s64(1), the Commissioner may reject a complaint if it is trivial, vexatious, misconceived, or lacking in substance, or if it does not relate to discrimination or prohibited conduct, or, in certain situations, if other remedies are or have been available.
• Under s69(1), the Commissioner may investigate a complaint.
• Under s71(1), on the completion of an investigation, the Commissioner must either dismiss the complaint, refer it for conciliation, or refer it to the tribunal for an inquiry.
• When the tribunal holds an inquiry, it may, amongst other things, amend a complaint, permit a person to be represented or accompanied, require a person to attend a preliminary hearing, make an order as to security for costs, take evidence on oath or affirmation, require any person to appear before it to give evidence, and make an order for costs: ss84(1), 85(2), 86(2), 86A(1), 87(1), 87(2), 99A. It is required to observe the rules of natural justice: s87(4)(a). However the tribunal is required to conduct the inquiry with as little formality and as expeditiously as the requirements of the Act and a proper consideration of the matters before it permit, is not bound by the rules of evidence, and may inform itself on any matter as it thinks fit: ss86(1), 87(4).
• There is no express requirement that the tribunal is to decide whether a complaint is substantiated or unsubstantiated.
• Under s89(1), if the tribunal finds after an inquiry that a complaint is substantiated, it may make various types of orders including, amongst others, an injunction under s89(1)(a), an order for re-employment under s89(1)(c), a compensation order under s89(1)(d), an order for the payment of a fine under s89(1)(e), or an order under s89(1)(g) that it is inappropriate for any further action to be taken in the matter.
• If the tribunal finds after an inquiry that a complaint is unsubstantiated, it may dismiss the complaint: s99(1).
• The tribunal may dismiss a complaint at any time if it is satisfied that it is trivial, vexatious, misconceived or lacking in substance, or that dismissal would for some other reason be just and appropriate: s99(2).
• The tribunal has no powers to compel the enforcement of its orders but, under s90, a certified copy of an order made by it may be filed in the Supreme Court and may then be enforced as if it were an order of the Supreme Court.
  • Apart from its role in conducting inquiries, the tribunal has a second role - that of reviewing decisions of the Commissioner relating to exemptions, withdrawals, rejections and dismissals of complaints: ss13(b), 59, 65(2), 68, 71(3), 72.

1"> 11 The Full Court held in Kentish Council that a decision that a complaint was substantiated was not a decision of an administrative character. It was considered significant that such a decision involved a determination about an alleged breach of the law: par[20]. In this case, the tribunal in substance decided to dismiss the complaint because it could not possibly succeed. It made a determination to the effect that the applicant's allegations, if substantiated, would fall short of establishing any contravention of s16.

12 Similar decisions are made by courts in various contexts. In the context of a summary prosecution, a magistrate may dismiss a charge at the close of the prosecution case if satisfied that the evidence, taken at its highest, would not warrant a finding that the charge was proven: May v O'Sullivan [1955] HCA 38; (1955) 92 CLR 654; Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433. Similarly, in the context of a criminal trial, at the close of the Crown case a judge may determine that there is no case to answer, and direct the jury to acquit. In civil courts, if a case cannot possibly succeed, the statement of claim can be struck out and judgment entered for the defendant without a trial: Supreme Court Rules, r259; General Steel Industries Inc v Commissioner for Railways [1964] HCA 69; (1964) 112 CLR 125. Also, rules exist whereby, when a plaintiff's action cannot possibly succeed, summary judgment may be entered for the defendant without the case proceeding to trial: Supreme Court Rules, r367.

13 In exercising its power to dismiss the applicant's complaint under s99(2), the tribunal made a determination to the effect that her allegations of contraventions of s16 could not be substantiated. In my view its decision was essentially of a judicial character. It was akin to a decision to strike out a civil action on the basis that it could not possibly succeed, and to a decision to give summary judgment for a defendant in a civil action. The Full Court made it clear in Kentish Council that a decision that a complaint was substantiated was not a decision of an administrative character. I think it must follow that a decision, following an inquiry, that a complaint is not substantiated must not be a decision of an administrative character either. I think it must also follow that a decision, without the completion of an inquiry, that a complaint cannot be substantiated is likewise not a decision of an administrative character.

14 As the tribunal's decision to dismiss the complaint was not a decision of an administrative character, it was not a decision to which the JR Act applies. There is therefore no power for this Court to undertake the judicial review of that decision, or even to grant an extension of time. For these reasons, the originating application is dismissed.