The complaint was lodged more than a decade after the alleged conduct
The Federal Court has dismissed a former NT Supreme Court judge’s challenge to a decision allowing a sexual harassment and discrimination complaint to proceed more than a decade after the alleged conduct occurred.
In a 112-paragraph judgment, the Federal Court ruled that the Anti-Discrimination Commissioner’s delegate made no jurisdictional error in accepting the complaint out of time.
The court rejected all grounds advanced by the applicant, identified in court documents as RST. The applicant sought judicial review of the delegate’s decision under s. 65(2) of the Anti-Discrimination Act. The complaint was lodged in May 2024 by a former associate of the Supreme Court of the NT, identified in court documents as UVW, alleging sexual harassment and workplace discrimination during her employment in 2013.
The complaint was filed well beyond the statutory limitation period, which was six months at the time of the alleged conduct and 12 months when the complaint was lodged. The Commissioner’s delegate exercised the discretion under s. 65(2) to accept the complaint despite the delay after considering submissions from both parties.
RST argued the delegate had applied the wrong legal test, relied on irrelevant considerations, and reached an unreasonable conclusion in finding it appropriate to extend time. He contended the delay of more than 10 years should ordinarily have prevented the complaint from proceeding and argued the delegate gave insufficient weight to the prejudice caused by fading memories and the loss of evidence.
The Federal Court rejected those arguments, finding that the delegate correctly approached the statutory discretion, considered all relevant factors and did not ask the wrong legal question. While acknowledging the delay was substantial, the court said the legislation did not require limitation periods to be applied rigidly in every case and that all relevant circumstances had to be assessed.
The Federal Court found the delegate was entitled to consider the complainant’s explanations for the delay, including concerns about preserving a legal career, mental health issues, the alleged absence of effective complaint mechanisms, and broader cultural factors affecting complaints against members of the judiciary. The court also held it was open to the delegate to take into account the public interest, the objects of the legislation and the seriousness of the allegations when deciding whether it was appropriate to accept the complaint outside the limitation period.
Although the delegate accepted the respondents would suffer prejudice because of the passage of time, she concluded a fair inquiry remained possible. The court found that reasoning was rational and supported by the available material, observing that different decision-makers might have reached a different conclusion but that the delegate’s decision nevertheless fell within the bounds of the statutory discretion. Ultimately, the court dismissed the judicial review application.
