Federal Court of Australia

RST v Anti-Discrimination Commissioner (NT) [2026] FCA 990

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    Subject to paragraph 3:

(a)    the applicant pay the second respondent’s costs of the proceeding (including the costs of the proceeding in the Supreme Court of the Northern Territory and the costs of all interlocutory applications), as agreed or assessed; and

(b)    there be no order as to costs in relation to the costs incurred by the first respondent.

3.    If any party seeks a different costs order, the party may within seven days file and serve a short written submission. In that event, the other parties may within a further seven days file and serve a short responding written submission, and the issue of costs will be determined on the papers.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

MOSHINSKY J:

Introduction

1    On 7 May 2024, the second respondent to the present proceeding (UVW) lodged a complaint (the Complaint) under the Anti-Discrimination Act 1992 (NT) with the Anti-Discrimination Commissioner (NT) (the Commissioner). The Complaint relates to UVW’s employment as an Associate at the Supreme Court of the Northern Territory in 2013. The Complaint names five respondents, including the present applicant (RST), who is a former Judge of the Supreme Court of the Northern Territory. The Complaint makes allegations of sexual harassment and discrimination.

2    Section 65 of the Anti-Discrimination Act as currently in force (and as in force at the time of the Complaint, 7 May 2024) relevantly provides as follows

65    Time limit for making complaint

(1)    Subject to subsection[] … (2), a complaint must be made not later than 12 months after the alleged prohibited conduct took place.

…

(2)    The Commissioner may accept a complaint after the time referred to in subsection (1) … has expired if the Commissioner is satisfied it is appropriate to do so.

(Emphasis added.)

3    At the time of the alleged conduct (2013), the time limit in s 65(1) was 6 months rather than 12 months. The time limit in s 65(1) was amended from 6 months to 12 months by the Justice Legislation Amendment Act 2015 (NT) (the 2015 Amending Act), which relevantly commenced operation on 1 July 2015. As discussed later in these reasons, it is unnecessary to decide whether the applicable time limit was 6 months or 12 months.

4    The parties to the Complaint were given the opportunity to make submissions to the Commissioner as to whether the Complaint should be accepted out of time. Having received those submissions, on 12 June 2025 a delegate of the Commissioner (the Delegate) decided to accept the Complaint after the time referred to in s 65(1) had expired (the Decision). The Delegate provided reasons for her decision dated 12 June 2025 (the Delegate’s Reasons).

5    On 8 August 2025, RST filed an originating motion in the Supreme Court of the Northern Territory seeking judicial review of the Decision (the Supreme Court Proceeding). On 16 December 2025, the Supreme Court Proceeding was transferred to this Court pursuant to cross-vesting legislation. Following the transfer of the proceeding, this Court made an order that the parties be referred to as the applicant, the first respondent and the second respondent.

6    The first respondent to the proceeding is the Commissioner. Although the Commissioner appeared at the final hearing, the Commissioner did not present a substantive argument as to the validity of the Decision, consistent with the approach indicated in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; 144 CLR 13.

7    RST’s originating motion filed in the Supreme Court of the Northern Territory contains eight grounds of review (sub-paras (a)-(h) in para 3). In his outline of submissions for the final hearing, RST consolidates the eight grounds into three “overarching grounds”. In summary, RST contends that the Delegate:

(a)    erred in law in applying the statutory test required by s 65(2) of the Anti-Discrimination Act (originating motion, para 3(a) and (c)-(f));

(b)    erred in her satisfaction that it was appropriate to accept the Complaint (originating motion, para 3(b), (g), (h)(i) and (h)(iii)); and

(c)    was unreasonable in finding the delay was reasonable (originating motion, paras 3(h)(ii) and (h)(iv)).

8    For the reasons that follow, I have concluded that none of RST’s grounds of review are made out. In summary, I am not satisfied that the Delegate fell into jurisdictional error in the exercise of the discretion in s 65(2) of the Anti-Discrimination Act. The Delegate had regard to the relevant factors. While the period of time between the alleged events and the lodging of the Complaint was very long, I am not satisfied that the Delegate adopted an incorrect approach or acted unreasonably. Accordingly, the proceeding is to be dismissed.

9    Before the Supreme Court Proceeding was transferred to this Court, the Supreme Court of the Northern Territory made a broad suppression order. Following the transfer of the proceeding to this Court, both UVW and RST filed interlocutory applications in relation to suppression order issues. UVW’s interlocutory application (dated 13 February 2026) sought an order setting aside the suppression order that had been made by the Supreme Court of the Northern Territory. RST’s interlocutory application (dated 10 April 2026) sought a new suppression order in broad terms. These interlocutory applications were listed for hearing on the same day as the final hearing (18 June 2026) were dealt with at the outset of the hearing. Having heard submissions, I made a limited form of suppression order (set out later in these reasons) and said that I would provide my reasons later. My reasons for making that suppression order are set out at the end of these reasons for judgment.

10    In preparing these reasons for judgment, consistently with the suppression order made on 18 June 2026, I have sought to avoid setting out information that would tend to reveal the identity of RST (beyond the information set out in para A of the Notes to the order, which information is already in the public domain).

The material before the Court

11    The parties filed an electronic Application Book containing documents relevant to the judicial review application.

12    RST relies on the following affidavit material in relation to the suppression order issues:

(a)    affidavits of Elizabeth Forbes, a partner of Clayton Utz, the solicitors acting for RST, dated 8 August 2025 (comprising 24 paragraphs) (there are two affidavits of that date) and 2 March 2026; and

(b)    an affidavit of Zachery Cleal, a solicitor employed by Clayton Utz, dated 17 June 2026.

13    UVW relies on the following material in relation to the suppression order issues: affidavits of Imogen Szumer, a solicitor employed by Maurice Blackburn Lawyers, dated 7 October 2025 and 19 March 2026.

14    The Commissioner relies on an affidavit of Jeswynn Yogaratnam, the Commissioner, dated 28 April 2026. This affidavit seeks to describe the statutory regime applied by the Commissioner’s office to disclosure of information regarding complaints made under the Anti-Discrimination Act.

Legislative provisions

15    Section 65 is the key provision of present relevance and has been set out in the Introduction to these reasons.

16    Sections 66 and 67 of the Anti-Discrimination Act are referred to in some of the materials discussed later in these reasons and form part of the statutory context. They provide:

66    Commissioner to accept or decline complaint

(1)    The Commissioner must, after assessing a complaint, decide to accept or decline the complaint:

(a)    for a representative complaint – no later than 90 days after receiving it; or

(b)    otherwise – no later than 60 days after receiving it.

(2)    The Commissioner must notify the complainant of the Commissioner's decision under subsection (1) as soon as practicable after making it.

…

67    Commissioner to decline frivolous, etc., complaint

The Commissioner may decline a complaint at any time if the Commissioner reasonably believes that the complaint is:

(a)    frivolous or vexatious; or

(b)    trivial; or

(c)    misconceived or lacking in substance; or

(d)    fails to disclose any prohibited conduct or systemic discrimination.

Background facts

17    As noted above, on 7 May 2024, UVW lodged the Complaint. The Complaint relates to UVW’s employment as an Associate at the Supreme Court of the Northern Territory in 2013. The Complaint names five respondents, including RST, who is a former Judge of the Supreme Court of the Northern Territory. UVW relevantly alleges that RST contravened ss 22 and 31(2) of the Anti-Discrimination Act, which relate to sexual harassment and discrimination in relation to work. UVW seeks relief including an apology, compensation for loss, damage and/or injury, general damages and aggravated damages.

18    On 16 July 2024, the Commissioner invited submissions from the Solicitor for the Northern Territory (SFNT), who was acting for all respondents to the Complaint including RST, on whether to accept the Complaint pursuant to s 65(2). On 9 August 2024, the SFNT provided submissions on this issue to the Commissioner.

19    On 19 September 2024, UVW provided her response to the submissions of the SFNT as well as an accompanying statutory declaration.

20    On 29 October 2024, the SFNT provided the Commissioner with further submissions on the extension of time issue. On 18 November 2024, the SFNT provided the Commissioner with submissions in relation to s 67 of the Anti-Discrimination Act.

21    On 9 December 2024, UVW provided submissions in response to both the extension of time submissions and the s 67 submissions.

22    On 12 June 2025, the Delegate sent a letter to the parties (Application Book, tab 19) in which she stated that she had assessed the Complaint under s 66. The letter stated that the Delegate had decided to accept the Complaint, but had limited the scope of the Complaint to allegations of sexual harassment and discrimination. Pursuant to s 67(d), the Delegate declined to accept the complaint of victimisation (s 23 of the Act). The letter noted that the Complaint was lodged out of time. The Delegate stated that she was satisfied that it was appropriate to accept the Complaint despite the expiration of the limitation period. Reasons for that decision were attached as Attachment 4 to the letter. Those reasons appear at tab 20 in the Application Book and are referred to as the “Delegate’s Reasons” in these reasons for judgment.

Delegate’s Reasons

23    The Delegate’s Reasons, which are headed “Decision under Section 65 (Out of Time)”, comprise 9 pages.

24    After setting out background matters and setting out her decision to accept the Complaint despite the expiration of the limitation period, the Delegate deals with the applicable legislation at p 1. (In quotations of the Delegate’s Reasons, some footnoted material is inserted in square brackets.)

Section 65(2) of the Act was amended by the Justice Legislation Amendment Act 2015 (NT), extending the limitation period from 6 to 12 months. This amendment came into effect on 1 July 2015. The parties disagree on which point in time version of s 65(2) applies to the Complaint. The applicant says the 12 month limitation period applies to the Complaint. The respondents say that … the 6 month limitation period applies to the complaint.

I am persuaded that the 12 month limitation period applies, due to the transitional provision found in s 119 of the Act (as in force from 1 July 2015 to 19 September 2022), which provides that the Act, as in force before the commencement of the Justice Legislation Amendment Act 2015 (NT) ‘continues to apply in relation to a complaint if the complaint was made before the commencement’ (underlining added). I am also persuaded that the limitation period in these circumstances is a procedural matter, and therefore the law as at the time of making the complaint, rather than the law as at the time of the subject events should apply [Maxwell v Murphy (1957) 96 CLR 261, 267 (Dixon J)].

However, even if I am wrong and the 6 month limitation period applies, this would not have changed my decision.

(Emphasis added.)

25    I note that RST’s grounds of review do not challenge the Delegate’s view that the applicable time limit was 12 months (rather than 6 months). This is presumably because the Delegate indicated that, even if the applicable time limit was 6 months, she would have come to the same decision. However, in RST’s outline of submissions, he submits that the applicable time limit was 6 months, not 12 months. I will discuss the issue of the applicable time limit later in these reasons.

26    The Delegate outlines, at pp 1-2 of her reasons, the materials considered. In this section, the Delegate explains the use she made of the complainant’s statutory declaration dated 19 September 2024 and its exhibits (which the Delegate defines as the “Further Materials”). The Delegate states that these materials were extensive and the parties made submissions as to whether these materials should be considered at all. The Delegate states that she considered the Further Materials only to the extent they were directly relevant to the “out of time” question. The Delegate also states that she did not consider the Further Materials when deciding whether to otherwise accept or reject the Complaint under ss 66 and 67.

27    At pp 2-3 of her reasons, the Delegate sets out the principles she will apply to the issue of whether to accept the Complaint out of time.

In deciding whether it is appropriate to use my discretion to accept the complaint out of time, I have had regard to the factors set out in … Buderim Ginger Ltd v Booth [2002] QCA 177 (Buderim). [I note that the wording of the “out of time” provision in s 138 of the Anti-Discrimination Act 1991 (QLD) differs from the Act and requires the commissioner be satisfied that the complainant has shown “good cause” for accepting the complaint out of time. However, I consider the factors set out in Buderim are highly relevant and appropriate to guide my decision.] Namely, (1) the length of the delay, (2) explanation for the delay (3) the circumstances of the complaint (4) whether the delay is attributable to the acts or omissions of the complainant and/or the respondent, and (5) prejudice to the respondents a result of the delay.

The factors listed in Buderim are not exhaustive, and there is flexibility in what I can consider. Accordingly, I have also considered (1) the public interest, (2) the objects of the Act, (3) the seriousness of the allegations, and (4) whether the prejudice to the respondents can be attributed to the conduct of the respondents.

I agree with the respondents that it is inappropriate to consider the merits of the complaint in relation to the “out of time” question. [Buderim Ginger Ltd v Booth [2002] QCA 177, 23; McAulliffe v Puplick and Anor (1996) EOC 92-800.] I have only considered the merits under my section 66 decision, and only to the extent necessary to assess whether the complaint is legally capable of constituting a breach under the Act. [Bullard v Anti-Discrimination Tribunal [2020] TASSC 15 (19 May 2020).]

28    The balance of the Delegate’s Reasons is structured under the following main headings, which reflect factors referred to in the above passage:

(a)    Length of delay;

(b)    Explanation for delay;

(c)    Whether delay attributable to the acts/omissions of complainant and/or respondent;

(d)    Prejudice to the respondents; and

(e)    Public interest and the seriousness of the allegations.

Length of delay

29    In the section headed “Length of delay”, the Delegate noted that the Complaint was lodged on 7 May 2024 and stated in part:

The length of the delay varies slightly in relation to each respondent, because separate allegations relating to different events are made against them. The conduct complained of in relation to all respondents spans from approximately September to December 2013. The Complaint is therefore roughly:

•    9 and half years out of time, if the 12 month limitation period applies; or

•    10 years out of time, if the 6 month limitation period applies.

By any measure, the complainant’s delay in lodging the Complaint is significant. The respondents say that this significant delay ‘by and of itself’ is sufficient reason to reject the complaint.

I accept that the sheer length of the delay is a factor which weighs against accepting the Complaint. However, I do not agree that the length of the delay alone means it is inappropriate to accept the complaint.

Explanation for delay

30    The section headed “Explanation for delay” occupies nearly three pages of the reasons (pp 3-6). The Delegate states at the outset that she considered the complainant’s explanation for the delay in two steps: first, she considered whether there was at least some explanation for the entire period of the delay; secondly, she considered whether this explanation was satisfactory.

31    The Delegate states (at p 3) that she is satisfied that there is some explanation for the entire period of the delay, and sets out those explanations by reference to three time periods. The Delegate states that she is persuaded that there is a satisfactory explanation for the entire period of the delay, albeit that the explanation for the middle period is less cogent than for the other two periods.

32    The Delegate then discusses in some detail the explanations and whether they are satisfactory. One of the explanations provided by UVW was a desire to preserve a career in the law. Another was mental health symptoms.

33    A further explanation for the delay was that the complainant had relied on incorrect or incomplete advice from the Working Women’s Centre (WWC). In relation to this explanation, the Delegate refers to a submission by the respondents to the Complaint that the complainant is legally qualified and that ignorance of a time limit or lack of legal representation is not generally regarded as a satisfactory explanation for delay. The Delegate then states (at p 5):

I agree that the complainant was well placed to access legislation without assistance, and could have informed herself of the Commissioner’s discretion to extend the limitation period under section 65(2). For this reason, I have not placed much weight on the incorrect/incomplete legal advice in relation to the limitation period, although I accept it is a factor which contributed to the delay.

34    The Delegate refers next to the power imbalance between the complainant and RST and to cultural/societal factors. In this section, the Delegate refers to the complainant’s submission that, prior to the High Court’s apology in relation to Dyson Heydon (in June 2020), there had never been a public complaint of sexual harassment by a court employee against an Australian judge. The Delegate states that she agrees that “prior to the High Court’s apology, it was reasonable for the complainant to conclude that there was no realistic way to hold a judge accountable for sexual harassment”. The Delegate considers it significant that the complainant reported RST’s alleged sexual harassment to the Supreme Court of the Northern Territory, and requested an investigation, the day after the High Court released the public apology.

35    Under a sub-heading “Conduct of the respondents”, the Delegate discusses whether the conduct of the respondents to the Complaint provides a satisfactory explanation for the delay. The Delegate states (at p 5):

The complainant says the Supreme Court’s response to her internal complaints during 2013 led her to believe there were no options for progressing a complaint against [RST]. …

I accept that the respondents’ alleged conduct gave the complainant the impression that there was no internal or external process available to deal with her complaint. The nature of the employer is a relevant factor here. In a context where the employer is as sophisticated as the Supreme Court, an employee may more readily assume that adequate procedures are in place, and that they will be referred to appropriate dispute resolution mechanisms, if they are available.

36    The Delegate discusses internal investigations and without prejudice communications that took place in the period 23 June 2020 to 6 May 2024. The Delegate accepts that “the internal investigations and without prejudice negotiations are a legitimate reason for the delay” (p 6).

Whether delay attributable to the acts/omissions of complainant and/or respondent

37    In relation to the conduct of the respondents to the Complaint, the Delegate refers back to her earlier analysis under the sub-heading “Conduct of the respondents”. The Delegate states: “I find that this conduct, if proved, contributed to the delay.”

38    The Delegate also states that, although she has found that overall there is a satisfactory explanation for the delay, she considers that the complainant’s own conduct also contributed to the delay. The Delegate states (at p 6):

As the respondents point out, from late 2014 to 22 June 2020, the complainant relied on legal advice from the WWC, and did not perform legal research herself into the applicable limitation period, despite being legally qualified. I have considered this and weighed it in my decision.

Prejudice to the respondents

39    The Delegate considers the issue of prejudice to the respondents to the Complaint in some detail over nearly three pages (pp 6-9). The Delegate summarises her reasoning in the first part of this section:

I accept that the respondents are prejudiced by the delay, due to the loss of potentially relevant evidence and the fading recollections of relevant individuals. I recognise that delay can also cause ‘insidious prejudice’, which cannot be positively proved by a respondent. [Sivwright v St Ives Group Pty Ltd (No 2) [2023] FCA 1063 [41] (Feutrill [J]), citing Rossi v Qantas Airways Ltd (No 2) [2020] FCA 1080 [25]-[26]; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 [551], [555] (McHugh J).] However, I do not consider the prejudice so severe that it would preclude a fair hearing of the Complaint.

I also consider that this prejudice is mitigated by the apparent availability of some evidence and witnesses, and by prior notice of the complainant’s claims. I also consider it relevant that much of the prejudice complained of was potentially caused by the conduct of the respondents. …

40    The Delegate then considers these points in more detail over the following pages.

41    In a part headed “Available evidence and the ability of the Commission to conduct a fair inquiry”, the Delegate considers various matters and concludes: “I am therefore satisfied that the Commission (and subsequent decision-makers, should this matter progress to the Tribunal or court) could conduct a fair inquiry into the Complaint.”

42    In a part headed “Prior notice of claim”, the Delegate finds that RST was on notice of the Complaint from 7 December 2020.

43    In a part headed “Prejudice can be attributed to conduct of the respondents”, the Delegate refers to the complainant’s statement that she made internal complaints in 2013. The Delegate states that, if this is accepted, “it appears that despite these complaints, no formal records were kept, and no steps were taken to collect or preserve evidence”. The Delegate states that, if the complainant’s position is accepted, “much of the prejudice caused by the delay relating to the loss of potentially relevant documentary evidence can be attributed to the inaction of the respondents during the relevant period”.

Public interest and the seriousness of the allegations

44    The Delegate considers this factor in two paragraphs at p 9. The Delegate states that “[i]t is in the public interest that judges and public officials are not seen as ‘above the law’”.

Conclusion

45    The Delegate concludes: “Although the delay is significant, for the reasons explained above, I am satisfied that it is appropriate to accept the Complaint out of time.”

Application for judicial review

46    Paragraph 1 of RST’s originating motion seeks a declaration that the decision of the Commissioner made on 12 June 2025:

(a)    pursuant to s 65(2) of the Anti-Discrimination Act, to accept the Complaint after the time referred to in s 65(1) has expired; and

(b)    pursuant to s 66 of the Act, to accept the Complaint by UVW against RST (and others),

is unlawful, void and of no force and effect.

47    Although that paragraph of the originating motion refers to s 66 as well as s 65(2), with one possible exception, the grounds of review are directed at the Delegate’s decision under s 65(2). The possible exception is para 3(c) of the originating motion, which is a contention that the Delegate erred “by considering the merits of the Complaint when determining whether to accept the Complaint”. It is unclear whether this ground relates to the s 65(2) decision or the s 66 decision. The submissions on behalf of RST were directed to the s 65(2) decision.

48    While the originating motion sets out eight grounds of review (see para 3(a)-(h)), it is unnecessary to set these out in circumstances where, in RST’s outline of submissions, the grounds are consolidated into three overarching grounds (see [7] above).

Applicable principles

49    The applicable principles relating to jurisdictional error and, specifically, unreasonableness, irrationality or illogicality are well established.

50    In LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; 280 CLR 321, Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ stated the following in relation to jurisdictional error:

2    Jurisdictional error can refer to breach of an express or implied condition of a statutory conferral of decision-making authority which results in a decision made in the purported exercise of that authority lacking the legal force attributed to exercise of that authority by statute. …

3    Because an express or implied condition of a statutory conferral of decision-making authority can take many different forms, and because breach can occur in many different circumstances, the categories of jurisdictional error are not closed. Jurisdictional error can result from breach by a third party of a condition of a statutory process preceding a decision, but more often results from breach by a statutory decision-maker of a condition of the making of a decision. Jurisdictional error on the part of a statutory decision-maker in making a decision can include: misunderstanding the applicable law; asking the wrong question; exceeding the bounds of reasonableness; identifying a wrong issue; ignoring relevant material; relying on irrelevant material; in some cases, making an erroneous finding or reaching a mistaken conclusion; or failing to observe some applicable requirement of procedural fairness.

(Footnotes omitted.)

51    The principles relating to unreasonableness as a ground of judicial review of administrative decisions were discussed in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 (Li) at [23]-[30] per French CJ, [63]-[76] per Hayne, Kiefel and Bell JJ, [88]-[92], [105]-[113] per Gageler J; Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 (SZVFW) at [10]-[12] per Kiefel CJ, [51]-[60] per Gageler J, [80]-[89] per Nettle and Gordon JJ, [131]-[135] per Edelman J; and Minister for Home Affairs v DUA16 [2020] HCA 46; 271 CLR 550 at [26] per Kiefel CJ, Bell, Keane, Gordon and Edelman JJ.

52    Of particular relevance to some of the submissions in the present case, in Li, Hayne, Kiefel and Bell JJ said at [76]:

As to the inferences that may be drawn by an appellate court, it was said in House v The King that an appellate court may infer that in some way there has been a failure properly to exercise the discretion “if upon the facts [the result] is unreasonable or plainly unjust”. The same reasoning might apply to the review of the exercise of a statutory discretion, where unreasonableness is an inference drawn from the facts and from the matters falling for consideration in the exercise of the statutory power. Even where some reasons have been provided, as is the case here, it may nevertheless not be possible for a court to comprehend how the decision was arrived at. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.

(Footnote omitted; emphasis added.)

53    In relation to illogicality and irrationality as grounds of judicial review, in Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611 (SZMDS), Crennan and Bell JJ said:

130    In the context of the Tribunal’s decision here, “illogicality” or “irrationality” sufficient to give rise to jurisdictional error must mean the decision to which the Tribunal came, in relation to the state of satisfaction required under s 65, is one at which no rational or logical decision maker could arrive on the same evidence. In other words, accepting, for the sake of argument, that an allegation of illogicality or irrationality provides some distinct basis for seeking judicial review of a decision as to a jurisdictional fact, it is nevertheless an allegation of the same order as a complaint that a decision is “clearly unjust” or “arbitrary” or “capricious” or “unreasonable” in the sense that the state of satisfaction mandated by the statute imports a requirement that the opinion as to the state of satisfaction must be one that could be formed by a reasonable person. The same applies in the case of an opinion that a mandated state of satisfaction has not been reached. Not every lapse in logic will give rise to jurisdictional error. A court should be slow, although not unwilling, to interfere in an appropriate case.

131    What was involved here was an issue of jurisdictional fact upon which different minds might reach different conclusions. The complaint of illogicality or irrationality was said to lie in the process of reasoning. But, the test for illogicality or irrationality must be to ask whether logical or rational or reasonable minds might adopt different reasoning or might differ in any decision or finding to be made on evidence upon which the decision is based. If probative evidence can give rise to different processes of reasoning and if logical or rational or reasonable minds might differ in respect of the conclusions to be drawn from that evidence, a decision cannot be said by a reviewing court to be illogical or irrational or unreasonable, simply because one conclusion has been preferred to another possible conclusion.

…

135    On the probative evidence before the Tribunal, a logical or rational decision maker could have come to the same conclusion as the Tribunal. Whilst there may be varieties of illogicality and irrationality, a decision will not be illogical or irrational if there is room for a logical or rational person to reach the same decision on the material before the decision maker. A decision might be said to be illogical or irrational if only one conclusion is open on the evidence, and the decision maker does not come to that conclusion, or if the decision to which the decision maker came was simply not open on the evidence or if there is no logical connection between the evidence and the inferences or conclusions drawn. None of these applied here. It could not be said that the reasons under consideration were unintelligible or that there was an absence of logical connection between the evidence as a whole and the reasons for the decision. Nor could it be said that there was no probative material which contradicted the first respondent’s claims. There was. The Tribunal did not believe the first respondent’s claim that he had engaged in the “practice of homosexuality” in the UAE and accordingly it was not satisfied that he feared persecution if he returned to Pakistan.

(Emphasis added.)

See also Djokovic v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 3; 289 FCR 21 at [33]-[35] per Allsop CJ, Besanko and O’Callaghan JJ.

54    In the case of s 65(2) of the Anti-Discrimination Act, which provides that the Commissioner may accept a complaint after the time referred to in s 65(1) has expired if the Commissioner is “satisfied it is appropriate to do so”, the exercise of the power or discretion is subject to an implied condition that it be exercised reasonably in the sense discussed in Li and SZVFW. Further, jurisdictional error may arise if a decision under s 65(2), or findings on the way to a decision under the subsection, are illogical or irrational in the sense discussed in the passage from SZMDS set out above.

55    It is relevant to note that s 65(2) does not set out any list of factors that the Commissioner is required to take into account in exercising the power. However, the power is not without limitation. The subject matter, scope and purpose of the Anti-Discrimination Act provide limits on the exercise of the power: see Li at [90] per Gageler J; SZVFW at [90] per Nettle and Gordon JJ, [135] per Edelman J.

56    In the course of oral submissions, counsel for RST relied on BHL19 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 94; 277 FCR 420 at [127]-[134] per Wigney J (dissenting). The above statement of applicable principles is consistent with that passage. Counsel for RST also relied on SZWCO v Minister for Immigration and Border Protection [2016] FCA 51 at [62] per Wigney J. The principles that I have outlined above are consistent with that passage.

Consideration

57    I will now consider each of RST’s three overarching grounds for seeking judicial review of the Decision.

Overarching ground 1 – the Delegate erred in law in applying the statutory test required by s 65(2) of the Anti-Discrimination Act

58    In RST’s outline of submissions (at para 2), this overarching contention is said to reflect the grounds in para 3(a) and (c)-(f) of the originating motion. However, I consider that para 3(f) is more appropriately considered as part of the second overarching contention.

59    RST’s submissions can be summarised as follows:

(a)    The Delegate’s decision is affected by jurisdictional error on the basis that she identified the wrong issue and asked the wrong question. Where a significant period of time has elapsed, in all but very exceptional circumstances, the limitation period should be “rigidly applied”: Re Commonwealth; Ex parte Marks [2000] HCA 67; 75 ALJR 470 (Marks) at [16] per McHugh J.

(b)    The longer the delay, the more persuasive the explanation needs to be: Tran v Minister for Immigration and Border Protection [2014] FCA 533 at [38]. Impecuniosity does not ordinarily provide a sufficient explanation for delay, nor does mere ignorance of time limits or court processes without any additional justification: DLE16 v Minister for Home Affairs [2019] FCA 136 at [23]. Being unable to obtain legal advice, or receiving wrong advice, is not necessarily a sufficient explanation for a delay.

(c)    UVW bore the onus of establishing to the Delegate’s satisfaction that it is “appropriate” to accept the Complaint outside the statutory time limit. The 6 month time limit is the rule; any extension is the exception to it: Brisbane South Regional Health Authority v Taylor [1996] HCA 25; 186 CLR 541 (Brisbane South) at 553 per McHugh J.

(d)    The effect of the delay on the quality of justice is the overarching motivation for time limit provisions. Accepted reasons for the imposition of time limits to invoke procedure include that: as time goes by, relevant evidence is likely to be lost; it is oppressive, even cruel, to a defendant to allow an action to be brought long after the circumstances which give rise to it have passed; and people should be able to arrange their affairs and utilise their resources on the basis that claims can no longer be made against them: see Brisbane South at 552.

(e)    There has been a significant delay of over 10 years (which is over 20 times the applicable 6 month time limit) since the alleged prohibited conduct took place. Such delay of and by itself ought ordinarily result in a refusal to grant any application to extend the time frame. It is axiomatic that the longer the delay, the more likely it is that a case will be decided on less evidence than may have been available to the parties at the time a cause of action arose, thus occasioning a form of avoidable procedural unfairness.

(f)    At a high level of generality, it may be accepted that the purpose of a power to extend time is “to eliminate the injustice a prospective [complainant] might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced”: Brisbane South at 553. However, what would amount to an injustice to UVW in this context is not obvious. The text of s 65(2) reveals a legislative intention to restrict the Commissioner’s exercise of jurisdiction under s 66 by a 6 (or 12) month time limit on complaints, and to ameliorate injustice that might result from that time limit by allowing that time to be extended only in cases where the Commissioner has reached the state of satisfaction referred to in s 65(2).

(g)    On its face, the power conferred by s 65(2) is unfettered except by the requirements of form in conformity with s 64 and by the requirement that the Commissioner’s satisfaction that accepting the complaint out of time is “appropriate”. Other than appropriateness, there are no mandatory relevant considerations, whether express or to be implied from the subject matter, scope and purpose of the Act. The focus of s 65(2) is not on the interests of the complainant, but the broader interests of the administration of justice. So framed, the section allows the Commissioner to look at a myriad of facts and circumstances, including the length of the complainant’s delay, reasons for the delay, prejudice to the respondents to the complaint, prejudice to third parties and merits of the underlying complaint. The level of satisfaction for the Commissioner to reach is not low: the Commissioner must be satisfied not just that an extension of time is desirable, but also that it is needed in the interests of the administration of justice: see MZABP v Minister for Immigration and Border Protection [2015] FCA 1391; 242 FCR 585 at [47]-[50], [57], [62]-[63].

60    In oral submissions, counsel for RST placed emphasis on the observations made by McHugh J in Brisbane South. In that case, McHugh J said at 553-554:

… A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature's judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated. Against this background, I do not see any warrant for treating provisions that provide for an extension of time for commencing an action as having a standing equal to or greater than those provisions that enact limitation periods. A limitation provision is the general rule; an extension provision is the exception to it. The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case. The purpose of a provision such as s 31 is “to eliminate the injustice a prospective plaintiff might suffer by reason of the imposition of a rigid time limit within which an action was to be commenced.” But whether injustice has occurred must be evaluated by reference to the rationales of the limitation period that has barred the action. The discretion to extend should therefore be seen as requiring the applicant to show that his or her case is a justifiable exception to the rule that the welfare of the State is best served by the limitation period in question. Accordingly, when an applicant seeks an extension of time to commence an action after a limitation period has expired, he or she has the positive burden of demonstrating that the justice of the case requires that extension.

(Footnote omitted; emphasis added.)

61    In broad terms, in oral submissions, counsel for RST submitted that the Delegate erred by not taking a sufficiently stringent approach in deciding whether to accept the Complaint out of time.

62    Before addressing RST’s submissions generally, I will discuss the issue of the applicable time limit under s 65(1). As noted above, RST’s grounds of review do not challenge the Delegate’s view that the applicable time limit was 12 months (rather than 6 months). However, in some of his submissions (as summarised above), RST does submit that the applicable time limit was 6 months and not 12 months.

63    At the time of the alleged events (2013), the time limit in s 65(1) of the Anti-Discrimination Act was 6 months. Section 65(1) was amended by s 11 (located in Pt 2) of the 2015 Amending Act. Part 2 of the 2015 Amending Act also inserted transitional provisions into the Anti-Discrimination Act, namely new ss 118-120 of the Anti-Discrimination Act. Part 2 of the 2015 Amending Act commenced operation on 1 July 2015. Section 119 provides:

119    Complaint made before commencement

This Act, as in force before the commencement [of Pt 2 of the 2015 Amending Act, i.e. 1 July 2015], continues to apply in relation to a complaint if the complaint was made before the commencement.

64    Section 119, which may be described as a savings provision, relates to complaints made before the commencement of Pt 2 of the 2015 Amending Act (1 July 2015), not complaints made after that date. It therefore does not (at least directly) address the issue of the applicable time limit in the present case. The other transitional provisions also do not directly address the issue. The issue of whether the applicable time limit in the present case is 6 months or 12 months raises considerations of the retrospective operation of legislation. The principles concerning the retrospective operation of legislation were discussed by Keane, Gordon, Edelman and Gleeson JJ in Stephens v The Queen [2022] HCA 31; 273 CLR 635 at [30]-[34]. In my view, it is not necessary to resolve whether the applicable time limit is 6 months or 12 months, and it is preferable not to do so in circumstances where the parties did not address the issue in detail. The grounds of review do not directly raise this as an issue, and the Delegate made clear that she would have come to the same conclusion even if (contrary to her view) the applicable time limit was 6 months. For these reasons, I do not consider it necessary to resolve the issue.

65    I now address the balance of RST’s submissions as summarised above.

66    RST submits that, where a significant period of time has elapsed, in all but very exceptional circumstances, the limitation period should be “rigidly applied”, citing Marks at [16] per McHugh J. That statement was made in the context of provisions of the High Court Rules 1952 relating to applications for certiorari and mandamus. To apply that approach to s 65(2) would be to impose a gloss on the statutory language. I do not consider that the power in s 65(2) is to be approached in that way. Likewise, and for the same reasons, I do not accept RST’s submission that, given the length of the delay, the power in s 65(2) should “ordinarily” result in a refusal to extend the time frame. All relevant factors must be considered.

67    Insofar as RST submits that the longer the delay, the more persuasive the explanation needs to be, that may be accepted. In my view, the Delegate understood that and approached the task in that way. The Delegate’s Reasons contain consideration of the length of the delay and whether the explanations for the delay were satisfactory.

68    RST submits that the limitation period is the general rule and the extension provision is the exception to it. Reading the Delegate’s Reasons as a whole, I am satisfied that the Delegate understood that the time limit in s 65(1) is the general rule and the extension provision in s 65(2) is the exception to it. Among the factors that the Delegate considered were the length of the delay, the explanation for the delay, whether the delay was attributable to the acts or omissions of the complainant and/or the respondents to the Complaint, and prejudice to the respondents to the Complaint as a result of the delay. It is implicit in the Delegate’s consideration of these factors that the extension provision was the exception to the general rule. The Delegate’s Reasons as a whole demonstrate that she approached the matter by considering whether she was satisfied that it was appropriate to accept the Complaint despite the expiration of the limitation period.

69    RST submits that the effect of the delay on the quality of justice is the overarching consideration in time limit provisions; the submission appears to be that the Delegate asked the wrong question by not approaching the matter in this way. In my view, the Delegate did have regard the effect of the delay on the quality of justice from the perspective of the respondents to the Complaint. One of the five factors considered by the Delegate was prejudice to the respondents to the Complaint as a result of the delay. This was considered in detail at pp 6-9 of the Delegate’s Reasons. The Delegate set out (at p 6) the submissions that had been made by the respondents to the Complaint and then addressed those submissions. The Delegate accepted (at p 6) that the respondents to the Complaint are prejudiced by the delay, due to the loss of potentially relevant evidence and the fading recollections of relevant individuals. However, the Delegate did not consider that prejudice to be so severe that it would preclude a fair hearing of the Complaint. The Delegate also considered that the prejudice was mitigated by certain matters (at pp 6-7). The Delegate then expanded on these points at pp 7-8. In my view, these passages demonstrate that the Delegate appreciated that the quality of justice from the perspective of the respondents to the Complaint was a relevant (indeed, important) consideration and she had regard to this matter.

70    RST submits that the focus of s 65(2) is not the interests of the complainant, but the broader interests of the administration of justice. This appears to overlap with the contention discussed in the preceding paragraph above. For the same reasons as set out in that paragraph, in my view, the Delegate did have regard to the broader interests of the administration of justice.

71    Several of RST’s oral submissions appeared to take issue with the merits of the Delegate’s decision to accept the Complaint out of time, rather than identifying a wrong question or wrong approach sufficient to constitute jurisdictional error.

72    The reasons set out above cover the substance of para 3(a), (d) and (e) of the originating motion, as presented in RST’s submissions. By para 3(c) of the originating motion, RST contends that the Delegate erred “by considering the merits of the Complaint when determining whether to accept the Complaint”. It is unclear if para 3(c) is directed to the s 65(2) decision or the s 66 decision. Insofar as the s 65(2) decision is concerned, the Delegate did not consider the merits of the Complaint. This is apparent from the statement to this effect at the top of p 3 of the Delegate’s Reasons and from a consideration of the Delegate’s Reasons as a whole; the factors considered by the Delegate do not include the merits of the Complaint. Insofar as the s 66 decision is concerned, RST’s case as developed in his submissions is not directed at the s 66 decision. Accordingly, the ground in para 3(c) is not made out.

73    For these reasons, the first overarching contention is not made out.

Overarching ground 2 – the Delegate erred in her satisfaction that it was appropriate to accept the Complaint

74    In RST’s outline of submissions (at para 2), this overarching contention is said to reflect the grounds in para 3(b), (g), (h)(i) and (h)(iii). In addition, as indicated above, I will consider para 3(f) as part of this overarching contention.

75    RST’s submissions can be summarised as follows:

(a)    The Delegate’s decision is affected by jurisdictional error on the basis that she ignored relevant material, relied on irrelevant material and reached a mistaken conclusion. A fair reading of the Delegate’s Reasons does not easily disclose the basis on which her satisfaction was reached, when that finding was not open on the evidence.

(b)    The Delegate stated that, to determine whether it was “appropriate” to accept the Complaint out of time, she had regard to the factors set out in Buderim Ginger Ltd v Booth [2002] QCA 177; 1 Qd R 147 (Buderim Ginger), correctly listing that she was required to consider the length of and explanation for the delay, the circumstances of the complainant, whether the delay was attributable to the complainant and/or respondents, and the prejudice to the respondents. As the Delegate’s Reasons acknowledge, Buderim Ginger concerned a different statutory formulation requiring “good cause”. The invocation of a “good cause” framework involved a misdirection. The Delegate imported a different statutory test which alludes to the likely truth of the allegations, and then treated that test as a controlling guide.

(c)    The misdirection is compounded by the Delegate’s reliance on the “public interest”, the “objects of the Act”, the “seriousness of the allegations”, and whether the prejudice to the respondents to the Complaint could be attributed to their own conduct, as freestanding factors influencing the out-of-time decision (Delegate’s Reasons, pp 2-3). The Delegate’s Reasons include a substantive discussion culminating in the propositions that “[i]t is in the public interest that judges and public officials are not seen as ‘above the law’ and are held to account when there are serious allegations” and that “[p]roviding a process to progress complaints of this nature, despite the expiration of the limitation period, will not only advance the objects of the Act, but promote public confidence in the justice system more broadly” (p 9). These are policy-laden objectives that, while important in the abstract, are not anchored in the statutory criterion of whether, notwithstanding a very lengthy delay, it is appropriate to accept the Complaint in the circumstances of this case.

(d)    The Delegate’s Reasons reveal a failure to reach the requisite state of satisfaction on the explanation for delay across the entire period.

(e)    Relatedly, the Delegate treated societal and cultural context as central to her analysis. While context may bear upon psychological barriers to making a complaint, its elevation to an independent justification risks straying into considerations that go to the desirability of airing serious allegations (and perhaps as far as prejudging the truth of the allegations) rather than the discrete and preliminary statutory question of whether, despite a delay of over a decade, acceptance is appropriate under s 65(2).

(f)    The Delegate accepted and qualified (“if proved”) the allegation that internal handling at the Supreme Court of the Northern Territory led the complainant to believe there were no options of redress and that failures in record-keeping cannot be attributed to her. This feeds back into a finding that prejudice to the respondents to the Complaint should be discounted. In substance, the Delegate used a provisional merits-style assessment of the alleged conduct to support her acceptance of the Complaint out of time, notwithstanding her statement that merits would not be considered in the s 65 analysis. That conflation reflects a misconstruction of the statutory task.

(g)    The Delegate relied on the Attorney-General’s Department’s capacity to conduct an investigation, and a general observation that historical criminal matters proceed despite delays greater than 10 years, as reasons to downplay prejudice to the respondents to the Complaint, and to conclude that a fair inquiry is possible. In doing so, she introduced considerations that are extraneous to the requirements in s 65(2).

76    In oral submissions, counsel for RST also made the submission that the Delegate had erred by conflating the five respondents to the Complaint in considering whether prejudice (to the respondents to the Complaint) could be attributed to the conduct of the respondents to the Complaint (Delegate’s Reasons, pp 8-9).

77    I will now address RST’s submissions.

78    Insofar as RST submits that the Delegate ignored relevant material, relied on irrelevant material and reached a mistaken conclusion, these are generalised propositions. It is not clear what relevant material the Delegate is said to have ignored. It is also unclear what irrelevant material the Delegate is said to have relied on (beyond the matters set out in RST’s subsequent submissions). Insofar as RST submits that the Delegate’s Reasons do not easily disclose the basis on which her satisfaction was reached, I do not accept that submission. In my view, the Delegate’s Reasons are logically structured, clearly expressed, and make clear the bases upon which the Delegate reached a state of satisfaction that it was appropriate to accept the Complaint out of time. Insofar as RST submits that the Decision was “not open” on the evidence, I do not accept that submission. In my view, while the delay in lodging the Complaint was very great, and other decision-makers may well have come to a different conclusion, it was nevertheless open to the Delegate on the material to be satisfied that it was appropriate to accept the Complaint out of time.

79    There appears to be an internal tension in RST’s submissions in relation to the Delegate’s reliance on Buderim Ginger. On the one hand, RST states that the Delegate was correct in stating that she was required to consider the length of and explanation for the delay, the circumstances of the complainant, whether the delay was attributable to the complainant and/or respondents, and the prejudice to the respondents (these being the factors the Delegate drew from Buderim Ginger at [22]). On the other hand, RST submits that the statutory provision in issue in Buderim Ginger was different (requiring the complainant to show “good cause” why an extension of time should be granted) and the Delegate erred by invoking that test. I do not accept the submission that the Delegate erred as contended. The Delegate made clear that she understood that the statutory provision in Buderim Ginger was different (see fn 2 on p 2). Nevertheless, the Delegate considered the factors drawn from that case to be highly relevant and appropriate to guide her decision under s 65(2) of the Anti-Discrimination Act. I see no error in the Delegate’s approach. The factors drawn from Buderim Ginger were relevant for the purposes of s 65(2) notwithstanding that they were drawn from a case about a different statutory provision. I do not accept that the Delegate adopted a “good cause” framework. The Delegate did not use that language in her reasons. Having regard to the Delegate’s Reasons as a whole, I am not satisfied that she adopted such an approach.

80    RST submits that the Delegate erred by having regard to the “public interest”, the “objects of the Act”, the “seriousness of the allegations”, and whether the prejudice to the respondents to the Complaint could be attributed to their own conduct (being the four factors referred to by the Delegate at pp 2-3), as freestanding factors influencing the out-of-time decision. Section 65(2) does not identify specific matters that are to be taken into account by the Commissioner. In my opinion, the provision confers a broad power or discretion on the Commissioner, confined only by the subject matter, scope and purpose of the Anti-Discrimination Act. Although the objects section of the Act (s 3) has been amended over time, I do not consider the changes to that provision to make a difference for present purposes. In my view, having regard to the subject matter, scope and purpose of the Act, it was open to the Delegate to have regard to the public interest, the objects of the Act, the seriousness of the allegations and whether the prejudice to the respondents to the Complaint could be attributed to their own conduct, in exercising the power in s 65(2). Further, given the breadth of the power, I consider that it was open to the Delegate to rely on the propositions that “[i]t is in the public interest that judges and public officials are not seen as ‘above the law’ and are held to account when there are serious allegations” and “[p]roviding a process to progress complaints of this nature, despite the expiration of the limitation period, will not only advance the objects of the Act, but promote public confidence in the justice system more broadly” (at p 9). I consider that consideration of such matters was within the bounds of the subject matter, scope and purpose of the Act.

81    Insofar as RST submits that the Delegate failed to reach the requisite state of satisfaction on the explanation for delay across the entire period, I do not accept that submission. The Delegate dealt with this issue under the heading “Explanation for the delay” at pp 3-6. The Delegate explained that she would first consider whether there was at least some explanation for the entire period of the delay and then, secondly, consider whether this explanation was satisfactory. The Delegate then outlined, with respect to each of three sub-periods, the explanations that had been provided. The Delegate then evaluated whether each explanation was satisfactory. The upshot was that there was a satisfactory explanation for the entire period of the delay, albeit that the explanation for one sub-period was less cogent than for the other two sub-periods. I see no error in that approach. To say that the explanation for one sub-period was “less cogent” than for the other two sub-periods does not negate the Delegate’s acceptance that there was a satisfactory explanation for all three sub-periods.

82    RST submits that the Delegate erred in treating societal and cultural context as central to her analysis. It is debatable whether the Delegate’s consideration of these matters was “central”. I consider that it would be more accurate to say that these matters formed part of the Delegate’s consideration of whether there was a satisfactory explanation for the delay (at p 5). To the extent that the Delegate took these matters into account, I see no error in her approach. Indeed, in considering the complainant’s explanation for the delay, it was quite appropriate and relevant to take into account cultural and societal factors. I do not accept RST’s submission that this perhaps went as far as prejudging the allegations. I do not read this section of the Delegate’s Reasons (or the Delegate’s Reasons as a whole) as involving any prejudgment of the allegations.

83    Insofar as RST submits that the Delegate erred by accepting the complainant’s account regarding internal handling at the Supreme Court of the Northern Territory, I am not satisfied that any error has been established. In the section of her reasons dealing with “Explanation for delay”, the Delegate considered (among other things) the conduct of the respondents to the Complaint (at p 5). The Delegate stated that she accepted that the respondents’ “alleged” conduct gave the complainant the impression that there was no internal or external process available to deal with her complaint. I see no error in that approach. It was open to the Delegate to consider this aspect in a provisional way, and to have regard to it on that basis.

84    RST submits that the Delegate erred by relying on the Attorney-General’s Department’s capacity to conduct an investigation and a general observation that historical criminal matters proceed despite delays greater than 10 years. These matters were referred to by the Delegate in the section of her reasons dealing with “Prejudice to the respondents” (pp 6-9). I consider that it was open to the Delegate to have regard to the capacity of the Department to conduct an investigation. The Delegate made clear in fn 8 on p 7 that she had regard not to the outcome of that investigation but to the fact that the matter could be investigated. Insofar as RST relies on the Delegate’s observation regarding criminal matters, I consider that this was merely a passing observation and not a significant plank of the Delegate’s reasoning.

85    RST submits that the Delegate erred by conflating the five respondents to the Complaint in considering whether prejudice (to the respondents to the Complaint) could be attributed to the conduct of the respondents to the Complaint (Delegate’s Reasons, pp 8-9). This passage forms part of the Delegate’s consideration of “Prejudice to the respondents” (pp 6-9). The last point considered in this section was whether the prejudice to the respondents to the Complaint could be attributed to conduct of the respondents to the Complaint. In this section, the Delegate noted that the complainant said that she made internal complaints to at least five court staff during the relevant period, including to two of the other respondents to the Complaint (i.e. other than RST). The Delegate stated that, if that is accepted, it appears that, despite these complaints, no formal records were kept and no steps were taken to collect or preserve evidence. It is on this basis that the Delegate stated, at the end of this section, that much of the prejudice caused by the delay relating to the loss of potentially relevant documentary evidence can be attributed to “the inaction of the respondents during the relevant period”. In my opinion, while that statement is inaccurate if it is intended to apply to RST, it is clear from the Delegate’s Reasons as a whole that she understood and appreciated the different positions of the respondents to the Complaint, and therefore that she understood that that statement did not apply to RST. This is particularly evident from the discussion on pp 7-8 of the Delegate’s Reasons, where the Delegate discusses the time when each respondent to the Complaint had notice of the complaint. Accordingly, I consider that the Delegate understood that this factor did not apply to RST. Nevertheless, having regard to all relevant factors (including the prejudice to RST), the Delegate was satisfied that it was appropriate to accept the Complaint out of time.

86    The reasons set out above cover the substance of para 3(b), (f), (g), (h)(i) and (h)(iii) of the originating motion, as presented in RST’s submissions.

87    For these reasons, the second overarching contention is not made out.

Overarching ground 3 – the Decision was unreasonable

88    In RST’s outline of submissions (at para 2), this overarching contention is said to reflect the grounds in para 3(h)(ii) and (h)(iv).

89    RST’s submissions can be summarised as follows:

(a)    The Delegate’s finding as to an acceptable explanation for delay across the entire period (p 3) was legally unreasonable, irrational or illogical. The Delegate’s Reasons articulate that the complainant remained working, that she was capable of seeking advice and making a complaint in 2014, and that her mental health symptoms, though real, “were not so severe” (p 4) as to disable those steps. The Delegate nonetheless treated mental health as a partial explanation and then, considering the complainant’s mental health together with other factors, found an overall satisfactory explanation for the approximately 10 years of delay in making the Complaint.

(b)    The complainant’s asserted explanation for the middle sub-period centres on incorrect or incomplete advice from the WWC together with a power imbalance. The Delegate agreed that the complainant could have informed herself of s 65(2) of the Anti-Discrimination Act and therefore did not place much weight on the incorrect/incomplete legal advice in relation to the limitation period (p 5). Yet the Delegate credited it as a contributing factor to conclude overall that the explanation was satisfactory. That conclusion lacks an evident and intelligible justification when set against the Delegate’s own findings.

(c)    The Delegate’s Reasons rely upon a societal and cultural “blind spot” and the High Court’s apology as rendering it reasonable for the complainant to believe there was no realistic way to hold a judge accountable (p 5). Determinative weight was placed upon the fact that the complainant wrote to the Supreme Court of the Northern Territory the day after the High Court’s apology. However, the Delegate’s Reasons fail to provide an intelligible analysis of why such a belief sustained inaction for the six years prior. The result is a conclusion that no reasonable decision-maker could reach on the material the Delegate accepted, given the finding that the complainant could have sought legal advice and was working in the field.

(d)    The Delegate’s Reasons state that minimal further prejudice accrued to the respondents to the Complaint from the time they were on notice of the allegations, by virtue of an internal investigation (p 6). This finding is illogical and not open on the material because the existence of a separate administrative process does not preclude or justify the failure to lodge a complaint in a forum with a statutory time limit, particularly once the complainant had legal advice.

(e)    The Delegate’s treatment of prejudice also evidences legal unreasonableness. The Delegate accepted that respondents to the Complaint would be seriously prejudiced by loss of evidence and fading recollections, but nonetheless concluded this would not preclude a fair hearing (p 6). The fatal flaw in the Delegate’s reasoning lay in her decision to consider the complainant’s evidence in determining whether RST could allay any prejudice created by the delay (pp 6-7).

(f)    It was also irrational to treat the production of an administrative investigation report as probative of the appropriateness of accepting a complaint after over a decade, especially when the Delegate professed to give no weight to the findings, and also because the standards, procedures and aims of that process differed materially from those that fell to be adjudicated under the Anti-Discrimination Act.

(g)    The Delegate’s reliance on the “seriousness of the allegations” (p 9) and the “public interest” (p 9) to justify acceptance of the Complaint after over a decade cements the unreasonableness. The reasoning effectively assumes the conclusion that serious allegations should proceed, and uses that assumption to overwhelm countervailing factors, including findings of prejudice and a “less cogent” (p 3) explanation for a substantial portion of the delay. In doing so, the Decision is without an evident and intelligible justification addressing the statutory criterion in s 65, and instead approximates a merits-oriented view about the desirability of adjudication.

90    In addition to the submissions summarised above, RST’s outline of submissions contains a contention that the Decision was not lawfully open on the evidence (paras 61-66). This appears to go beyond the grounds in para 3 of the originating motion. Nevertheless, I do not consider that there is any prejudice in this contention being considered. RST contends (in para 61) that there is an internal tension in the Delegate’s Reasons in relation to whether there is a satisfactory explanation for the entire period of the delay. RST submits (in para 62) that there is an inconsistency in the Delegate’s treatment of mental health as an explanation. RST submits (in para 63) that there is an inconsistency in the Delegate’s treatment of the alleged incorrect legal advice as an explanation for the delay. RST submits (in para 64) that the Delegate’s approach to prejudice was flawed for the reasons there set out. In para 65 of the outline of submissions, RST criticises the Delegate’s reliance on the administrative investigation’s ability to proceed. In para 66, RST refers to the period between December 2020 and May 2024 and submits that there are gaps in the Delegate’s reasoning about this period which amount to legal unreasonableness.

91    I will now address RST’s submissions.

92    Insofar as RST submits that the Delegate’s finding as to an acceptable explanation for delay across the entire period (p 3) was legally unreasonable, irrational or illogical, I refer to and repeat [81] above. Having regard to the matters there set out, I am not satisfied that the Delegate’s reasoning was legally unreasonable, irrational or illogical. To the contrary, I consider that the Delegate’s Reasons were logical and rational. RST’s submissions appear to be no more than disagreement with that reasoning, rather than establishing unreasonableness, irrationality or illogicality in the sense discussed in the cases referred to above.

93    Insofar as RST submits that the Delegate’s conclusion that there was a satisfactory explanation for the delay in respect of the middle period lacks an evident and intelligible justification, I do not accept that submission. Again, I consider that the Delegate’s Reasons were logical and rational. It is not illogical to place little weight on the incorrect/incomplete advice, but still accept that it is a factor which contributed to the delay: it is a factor to which little weight is given.

94    Insofar as RST submits that the Delegate’s treatment of cultural/societal factors was legally unreasonable, I refer to and repeat [82] above. I am not satisfied that the Delegate’s reasoning on this sub-issue (which formed part of the assessment of whether there was a satisfactory explanation for the delay) lacked intelligible analysis as submitted by RST. To the contrary, I consider that the Delegate’s reasons on this sub-issue are logical and intelligible.

95    RST submits that the Delegate’s finding that minimal further prejudice accrued to the respondents to the Complaint from the time they were on notice of the allegations (by virtue of an internal investigation) (p 6) was illogical and not open on the material. I do not accept this submission. I consider this finding to be logical and open. Immediately after that finding, the Delegate states that “this is expanded on below”. In the section dealing with prejudice to the respondents to the Complaint, the Delegate accepts that the respondents are prejudiced by the delay (p 6) and explains why. It is apparent (given the nature of the prejudice – eg, loss of potentially relevant evidence and fading recollections) why the Delegate considered that minimal further prejudice accrued to the respondents to the Complaint after they were on notice of the allegations (by virtue of the internal investigation): potentially relevant evidence could be stored and fading recollections could be recorded.

96    Insofar as RST submits that the Delegate’s treatment of prejudice also evidences legal unreasonableness, I do not accept that submission. The Delegate explained the ways in which the respondents to the Complaint are prejudiced and then discussed mitigating factors. This was a logical and intelligible approach. I do not accept the submission that there is a “fatal flaw” in the Delegate’s reasoning because she relied on the complainant’s evidence on this issue. The Delegate was merely outlining the different types of evidence that would be available, which included contemporaneous communications from and to the complainant (p 7). It is factually correct that these formed part of the available evidence. I do not see any flaw in referring to this material as part of the evidence that would be available at a hearing.

97    Insofar as RST submits that it was irrational to treat the production of an administrative investigation report as probative of the appropriateness of accepting a complaint (given the differences between the processes), I do not accept that submission. The way in which the Delegate relied on this matter was carefully calibrated (as discussed at [84] above) and the Delegate can be taken to have been aware of the differences between the processes.

98    RST submits that the Delegate’s reliance on the “seriousness of the allegations” (p 9) and the “public interest” (p 9) to justify acceptance of the Complaint after over a decade cements the unreasonableness. As discussed at [80] above, given the breadth of the power in s 65(2), I consider that it was open to the Delegate to have regard to these matters. I do not accept the submission that the Delegate’s reasoning effectively assumes the conclusion that serious allegations should proceed. I am not satisfied that the Delegate’s reasons on these factors lack an evident and intelligible justification.

99    RST also relies on the above points together to establish legal unreasonableness. I am not satisfied that, even if the above points are taken together, the Decision was unreasonable (in the sense discussed in the cases referred to above). I appreciate that the period of the delay in the present case was very long (over 10 years) and other decision-makers may well have come to a different decision on the same material. Nevertheless, the Delegate had regard to all the relevant factors and gave detailed and logical reasons for being satisfied that it was appropriate to accept the Complaint out of time.

100    Insofar as RST contends that the Decision was not lawfully open on the evidence, I do not accept that contention. The matters raised by RST in paras 61-66 of his outline of submissions merely amount to disagreements with the reasoning of the Delegate. They do not satisfy me that the Decision was “not open”. Despite the very long period of the delay, I consider that it was open to the Delegate, having considered all relevant factors, to be satisfied that it was appropriate to accept the Complaint out of time.

101    The reasons set out above cover the substance of para 3(h)(ii) and (h)(iv) of the originating motion, as presented in RST’s submissions.

102    For these reasons, the third overarching contention is not made out.

Suppression order issue

103    As noted in the Introduction to these reasons, before the Supreme Court Proceeding was transferred to this Court, the Supreme Court of the Northern Territory made a broad suppression order. Following the transfer of the proceeding to this Court, both UVW and RST filed interlocutory applications in relation to suppression order issues. UVW’s interlocutory application sought an order setting aside the suppression order that had been made by the Supreme Court of the Northern Territory. RST’s interlocutory application sought a new suppression order in broad terms. These interlocutory applications were listed for hearing on the same day as the final hearing and were dealt with at the outset of the hearing. Having heard submissions, I made a suppression order as follows:

THE COURT NOTES THAT:

A.    The following matters are in the public domain:

i.    A former Associate has made a complaint under the Anti-Discrimination Act 1992 (NT) against a former Judge of the Supreme Court of the Northern Territory alleging sexual harassment.

ii.    The complaint was made in 2024, which was “out of time”, i.e. outside the limitation period in the Act.

iii.    The events the subject of the complaint took place more than a decade earlier.

iv.    A delegate of the Anti-Discrimination Commissioner (NT) decided to accept the complaint “out of time”.

B.    The above matters were publicly reported by the ABC Online in July 2025.

THE COURT ORDERS THAT:

1.    Orders 1 to 5 of the orders made by the Supreme Court of the Northern Territory on 13 August 2025 in [the Supreme Court Proceeding] be vacated.

2.    On the ground set out in s 37AG(1)(a) of the Federal Court of Australia Act 1976 (Cth), subject to further order, and for a period of 5 years:

a.    the applicant is to be referred to by the pseudonym “RST” and the second respondent is to be referred to by the pseudonym “UVW” in all documents relating to this proceeding; and

b.    all affidavits filed in this proceeding (including the Supreme Court Proceeding) and any information tending to reveal the identity of the applicant (beyond the information set out in paragraph A of the Notes to these orders) are not to be published or otherwise disclosed to any person other than:

i.    the Court and its staff;

ii.    the parties and their legal representatives; and

iii.    family of the second respondent and medical health practitioners of the second respondent on a confidential basis.

3.    For the avoidance of doubt, paragraph 2 does not prevent publication of the originating motion filed in the Supreme Court Proceeding (with the names of the applicant and the second respondent redacted) or the submissions filed by the parties (redacted as necessary in accordance with paragraph 2 of these orders) and the orders made by the Court.

104    The following are my reasons for making the above order.

105    Section 37AF(1) of the Federal Court of Australia Act 1976 (Cth) provides that the Court may, by making a suppression order or non-publication order on grounds permitted by Pt VAA of the Act, prohibit or restrict the publication or other disclosure of (among other things) information tending to reveal the identity of or otherwise concerning any party to a proceeding before the Court. Section 37AG(1)(a) provides that the Court may make a suppression order or non-publication order on the ground that the order is necessary to prevent prejudice to the proper administration of justice. These provisions were considered by Kennett J in SRGF v Comcare [2025] FCA 637 (see, in particular, [15], [18]).

106    The Anti-Discrimination Act contains provisions relating to anonymity of persons involved in proceedings under the Act (s 100) and for the confidentiality of information obtained in the course of performing functions connected with the administration of the Act (s 108). In particular, s 100(1) provides that, if the Commissioner considers that the preservation of anonymity of a person who is, or has been, involved in proceedings under the Act is necessary to protect the work security, privacy or any human right of the person, the Commissioner may make an order prohibiting the disclosure of the person’s identity. It seems that, perhaps through inadvertence, an anonymity order was not sought by the respondents to the Complaint. It may be that the representatives of the respondents to the Complaint proceeded on the basis that s 108 of the Anti-Discrimination Act was sufficient to protect the confidentiality of the process, including the identity of the respondents to the Complaint. However, s 108 is directed to persons who obtain information “in the course of performing functions connected with the administration of this Act”. The evidence before this Court is that RST intends to apply for an anonymity order under s 100(1). I consider it necessary to prevent prejudice to the proper administration of justice for RST’s name to remain confidential for the time being, to enable him to make an application to the Commissioner for an anonymity order. My reasons are as follows.

107    In my view, the proceeding in this Court is essentially ancillary to the proceeding under the Anti-Discrimination Act which was commenced by the lodging of the Complaint. Had RST already sought and obtained an anonymity order under s 100(1), I would have considered it appropriate to make a suppression order in respect of his name and identifying details. Otherwise, RST may have been disinclined to proceed with his application for judicial review for fear of losing the anonymity which he had in respect of the proceeding under the Anti-Discrimination Act. This would be inimical to the interests of justice. In circumstances where, perhaps through inadvertence, an anonymity order was not sought, and the evidence shows that RST intends to seek such an order, I consider that there should be a suppression order to hold the position for the time being.

108    To be clear, if (upon application by RST) the Commissioner decides not to make an anonymity order, my intention is that the suppression order in this Court would not continue. The reason for making the suppression order is that I consider this proceeding to be essentially ancillary to the proceeding under the Anti-Discrimination Act and consider that RST should not lose anonymity by bringing an application for judicial review. However, if the Commissioner decides not to make an anonymity order, the rationale for the suppression order ceases to exist. It is for this reason that the suppression order is expressed to be “subject to further order”. If the Commissioner decides not to make a suppression order, UVW may apply to this Court to have the suppression order vacated.

109    While I consider it appropriate to make a suppression order in respect of RST’s name and information that would tend to identify him, I do not consider it appropriate for the order to apply to matters that are already in the public domain. In July 2025, an article was published by ABC Online which contains a considerable amount of information about the Complaint and the Decision (but not the names of RST or UVW). Paragraph A of the Note to the order seeks to capture the main matters that are already in the public domain by reason of that article; these matters are not suppressed.

110    It was for these reasons that I made the suppression order.

Conclusion

111    For the reasons set out above, the proceeding is to be dismissed.

112    In relation to costs, my provisional view is that the following order is appropriate: (a) RST pay UVW’s costs of the proceeding (including the costs of the proceeding in the Supreme Court of the Northern Territory and the costs of all interlocutory applications), as agreed or assessed; and (b) there be no order as to costs in relation to the costs incurred by the Commissioner. I will make an order to this effect, but I will give the parties the opportunity to make submissions if they seek a different costs order.

Associate:

Dated:    28 July 2026