Kennedy v Anti-Discrimination Commissioner [2013] NTCA 08


PARTIES:                                         KENNEDY, Robert




                                                            ANTI-DISCRIMINATION COMMISSIONER




                                                            ATTORNEY-GENERAL FOR THE NORTHERN TERRITORY






FILE NO:                                         AP 2 of 2013 (21236373)


DELIVERED:                                   2 September 2013


HEARING DATES:                          2 September 2013


JUDGMENT OF:                              RILEY CJ, SOUTHWOOD and

                                                         HILEY JJ


APPEALED FROM:                          Kelly J





    Appellant:                                    Self-Represented

    Respondent:                                 R Bruxner

    Intervener:                                   M Grant QC (Solicitor-General for the Northern Territory) with R Bruxner



    Appellant:                                    Self-Represented

    Respondent:                                 Solicitor for the Northern Territory


Judgment category classification:   C

Judgment ID Number:                      Ril1310

Number of pages:                            7






Kennedy v Anti-Discrimination Commissioner [2013] NTCA 08

No. AP 2 of 2013 (21236373)





                                                     ROBERT KENNEDY





                                                     ANTI-DISCRIMINATION COMMISSIONER














(Delivered 2 September 2013)




[1]       The appellant has been self represented throughout these proceedings including before this Court.

[2]       By document dated 9 August 2012 the appellant complained to the Northern Territory Anti-Discrimination Commissioner that he had been discriminated against by reason of his age and impairment by the manager of Palmerston Physiotherapy Clinic.

[3]       The particulars of discrimination as provided by the appellant were that he attended the clinic for treatment under an arrangement paid for by the Department of Veterans Affairs. After some weeks of satisfactory treatment he advised the physiotherapist that, for the purposes of legal proceedings, he needed a letter describing the "ailments" from which he suffered, the causes of those "ailments" and the treatment he was receiving in relation to them. On 8 August 2012 he was contacted by the physiotherapist who advised that the letter was available to collect and there would be a charge of $280 for the preparation of the document. The appellant complained that he had not been told of any charge and therefore requested to speak to "someone of authority". He was put through to a manager who informed him that it was a standard charge and payment must be made before the letter would be released. There was further discussion and, it seems, the manager took exception to things said by the appellant. The manager advised the appellant that he should "not ever come back" to the clinic.

[4]       The appellant complained that:

The Manager of Palmerston Physiotherapy Clinic solely of his own spitefulness severed without due cause the only reasons of my (a) age (b) disability of my only reasons for my attendance to Palmerston Physiotherapy Clinic.

[5]        By letter dated 13 September 2012 the delegate of the Anti-Discrimination Commissioner set out the history of the matter and advised the appellant that the complaint was misconceived and/or failed to disclose any prohibited conduct for the purposes of s 67 of the Anti-Discrimination Act. The delegate observed that the reported conversation between the manager and the appellant related to payment of charges for the letter, a matter which was not dependent upon the age of the appellant or any impairment suffered by the appellant. The delegate went on to conclude:

I am unable, in the circumstances as described by you, to accept your allegations of discrimination because of your age or impairment. Although you may believe that it was because of your age/impairment, a mere belief, without any nexus between your age/impairment and your being asked not to come back again, is not sufficient to accept your complaint. It appears that the manager was offended by what you were saying, and your age or impairment did not play any part in his decision to hang up on you or ask you not to come back.

[6]       The appellant appealed to the Local Court and the matter was dealt with in that court on 17 December 2012. In ex tempore reasons the magistrate observed that the complaint was misconceived, lacking in substance and failed to disclose any prohibited conduct. The decision of the delegate was affirmed.

[7]       The appellant then appealed to the Supreme Court and the matter was dealt with in that court on 4 April 2013. The judge noted that the principal ground of appeal was a complaint that the magistrate had failed to accord the appellant natural justice by failing to provide him with the opportunity of any right of reply. Her Honour concluded that there had been a failure to accord procedural fairness.

[8]       Her Honour noted the decision of Barr J in Northern Territory of Australia v Anti-Discrimination Commissioner, Smyth and Ors[1] to the effect that there is no right of appeal to the Local Court from a decision of the Commissioner under s 66 of the Anti-Discrimination Act.

[9]        The judge went on to conclude that the complaint was, in any event, misconceived and there was no demonstrated error in the decision of the Anti-Discrimination Commissioner because the complaint did not disclose any prohibited conduct. Any appeal was therefore doomed to fail.

[10]    The appellant now appeals to this Court. The "grounds" of appeal were said to be contained in various documents filed by him. The contents of the documents are both confused and confusing. Following a case management hearing the appellant confirmed reliance upon two specific grounds of appeal as follows:

(a)     the Supreme Court was in error because the appellant's complaint was one that should have been investigated by the Commissioner but the Commissioner wrongly concluded that the complaint did not fall within the ambit of the Anti-Discrimination Act; and

(b)     contrary to the conclusion of her Honour there is a right of appeal to the Local Court in respect of a determination by the respondent (or delegate) under s 66 of the Act.

The delegate’s decision

[11]    In our view the decision of the delegate that the appellant's complaint was misconceived and/or failed to disclose prohibited conduct was clearly correct.

[12]    The Act provides a range of activities where discrimination is prohibited[2] including, relevant for present purposes, the area of services. Section 19(1) of the Act provides that a person shall not discriminate against another person on the ground of a range of "attributes" including age and impairment. Section 20 of the Act then provides that discrimination takes place if a person treats or proposes to treat another person who has an "attribute" less favourably than a person who does not have such an attribute.

[13]    In order to satisfy the threshold requirement that the complaint is properly conceived, substantial and directed to prohibited conduct it would be necessary for the appellant to demonstrate that the Palmerston Physiotherapy Clinic, or the particular manager, failed or refused to supply physiotherapy services to him or treated him less favourably in connection with the supply of those physiotherapy services because of his age and/or impairment.

[14]    The information provided by the appellant shows that he was receiving physiotherapy treatment which may have been attributable to his age and/or impairment but that the treatment ceased, not because of his age or impairment but, rather, because the manager of the clinic took offence to comments made by the appellant regarding the operation of the clinic arising out of the requirement that a fee be paid in respect of a report. There was no causal nexus between the age of the appellant or any impairment suffered by the appellant and the direction to the appellant to "not ever come back" to the clinic. In the terms of the Act the actions of the manager did not discriminate against the appellant by treating him less favourably than others because of his attributes of age or impairment. There was no basis for considering that the attributes played any part in the manager's direction to the appellant that he was not to return to the clinic.

[15]    Pursuant to s 67 of the Act the Commissioner was required to reject the complaint if the Commissioner reasonably believed that the complaint failed to disclose any prohibited conduct. The delegate correctly determined that the complaint of the appellant did not satisfy the criteria for acceptance. The complaint was misconceived and failed to disclose any prohibited conduct. Right of appeal to the Local Court

[16]    In the course of the written submissions the appellant raised for consideration the decision of the Supreme Court in Northern Territory of Australia v Anti-Discrimination Commissioner, Smyth and Ors[3] (Smyth) in which it was concluded that the decision of the Commissioner to accept a complaint under s 66 of the Act cannot be the subject of an appeal under s 106 of the Act. We have not addressed the question whether the decision is correct because it is unnecessary to do so to resolve these proceedings. In our view there was clearly no error in the decision of the delegate and the matter may be conveniently and completely disposed of on that basis. There was no error on the part of the court below in applying Smyth as the judge was bound by considerations of comity to apply the decision unless her Honour considered it plainly wrong. It is apparent she did not do so.

[17]    The appellant is self represented and the submissions made in relation to a possible challenge to Smyth do not address the relevant issues. The submissions do not identify anything to indicate that the decision in Smyth is attended by any error. If the decision is to be challenged this should preferably occur in circumstances where there is considered argument on both sides.

[18]    The appeal is dismissed.


[1] [2013] NTSC 5

[2] Section 28 of the Anti-Discrimination Act.

[3] [2013] NTSC 5