QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Stancombe v State of Queensland [2023] QCAT 445	
PARTIES:	Anna-Marie Stancombe	

(applicant)	

	v	
	State of Queensland	

(respondent)	

APPLICATION NO/S:	ADL028-23	
MATTER TYPE:	Anti-discrimination matters	
DELIVERED ON:	17 November 2023	
HEARING DATE:	24 October 2023	
HEARD AT:	Brisbane	
DECISION OF:	Acting Senior Member Fitzpatrick	
ORDERS:	1.	The Tribunal record is corrected to name State of Queensland as the respondent in the place of Department of Justice and Attorney-General.
2.	The complaint and relief sought, set out in paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the applicant Anna-Marie Stancombe’s statement of contentions filed 29 May 2023, is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) insofar as it relates to the conduct of the Maroochydore Magistrate on 16 July 2021, and any liability of State of Queensland for that conduct.	
CATCHWORDS:	MAGISTRATES – GENERALLY – DISCIPLINARY AND RELATED MATTERS – ACTIONS AGAINST MAGISTRATES – where a complaint is bought against a Magistrate – where the complaint alleges contravention of the Anti-discrimination Act 1991 (Qld) and the Human Rights Act 2019 (Qld) – whether judicial immunity extends to the conduct of the Magistrate - whether the matter should proceed against State of Queensland if judicial immunity is established 
PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – LIABILITY OF CROWN FOR ACTS OF SERVANTS – where a complaint is bought against Registry staff of a Magistrates Court – where the complaint alleges contravention of the Anti-discrimination Act 1991 (Qld) – whether the alleged conduct is sufficiently connected to the judicial function of conduct of a hearing – whether judicial immunity extends to administrative staff of a court who perform purely administrative duties
Human Rights Act 2019 (Qld) ss 15(4), 31
Justices Act 1886 (Qld) s 4 (definition of 'justices’ or ‘justice’)
Attorney-General for the State of Queensland v Grant (No 2) [2022] QSC 252
Brown v State of Queensland [2020] FCA 1614
Ex parte Tubman; Re Lucas (1970) 72 SR (NSW)
Fingleton v R (2005) 227 CLR 166
Owen-D’Arcy v Chief Executive, Queensland Corrective Services [2021] QSC 273
Re East Ex parte Nguyen (1998) 196 CLR 354
Towie v Victoria [2008] VSC 177
Wentworth v Wentworth (2000) 52 NSWCA

APPEARANCES & REPRESENTATION:	
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld)	

REASONS FOR DECISION
[1]	The Registrar of the Tribunal accepted a referral of a complaint from the Queensland Human Rights Commissioner on 11 April 2023.
[2]	Following a compulsory conference in this matter on 14 August 2023 a Direction was made that a preliminary issue be determined as to whether the Tribunal has jurisdiction to hear and decide matter ADL028-23.
Ms Stancombe’s complaint
[3]	The complaint is made by Anna-Marie Stancombe about an un-named Magistrate and Registry staff of the Maroochydore Court House. State of Queensland has subsequently identified the Magistrate. Ms Stancombe asserts contravention of the Anti-Discrimination Act 1991 (Qld) by indirect discrimination on the basis of an impairment in the area of State laws and programs, and a breach of s 124 of the Anti-Discrimination Act 1991 (Qld), by requesting unnecessary information on which unlawful discrimination may be based. Ms Stancombe also contends that the Magistrate’s conduct was incompatible with her human rights under the Human Rights Act 2019 (Qld).
[4]	The complaint arises from Ms Stancombe’s request to be excused from wearing a mask in her appearance before the Magistrate on 16 July 2021.
[5]	Ms Stancombe says that a security guard at the Court House refused her entry unless she was wearing a face mask and that Registry staff required her to email her medical exemption from the wearing of a face mask to the Registry, and then to email an exemption current as at 16 July 2021.
[6]	Ms Stancombe says that whilst she was waiting outside the Court House the Magistrate telephoned her to ask what medical condition prevented her wearing a face mask, and that she was required to divulge personal information. 
Correct respondent
[7]	The Queensland Human Rights Commissioner appears to have determined that the Department of Justice and Attorney-General is the appropriate respondent.
[8]	Upon referral the Tribunal noted the Department of Justice and Attorney-General as the respondent. State of Queensland has provided submissions in relation to the preliminary issue, and in its response to Ms Stancombe’s contentions says that the proper respondent is State of Queensland. 
[9]	The Department of Justice and Attorney-General is not a legal entity which can sue and be sued. By s 8 of the Crown Proceedings Act 1980 (Qld) a claim against the Crown may be made and enforced by a proceeding against the Crown under the title ‘State of Queensland’. 
[10]	The Tribunal record is now corrected to reflect that the respondent is State of Queensland. To the extent that State of Queensland has asserted that the Magistrate’s acts or decisions cannot be attributed to the respondent, I take that to mean attributed to the Department of Justice and Attorney-General. Given that the Department is not a proper respondent, as it is not a legal entity, that argument need not be further addressed.
Preliminary issue
[11]	The preliminary issue is somewhat awkwardly framed in its reference to jurisdiction. This Tribunal has jurisdiction to determine complaints in relation to alleged contraventions of the Anti-Discrimination Act 1991 (Qld).  By s 3 the Act is expressed to bind the Crown. The heart of the preliminary issue before me is whether the matter should proceed against State of Queensland if judicial immunity is established. That is not a question of jurisdiction but rather a question of whether the complaint is misconceived or so doomed to fail that it is an abuse of process. If that is the case the Tribunal may dismiss the complaint under s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld). Although that procedure has not been expressly set out because of the way the preliminary issue is framed, I am satisfied by reference to Ms Stancombe’s submissions that she is aware determination of the preliminary issue may result in her complaint being brought to an end.
Complaint about the Magistrate
[12]	As to the Magistrate’s conduct, the following considerations are relevant.
[13]	Judicial immunity offers protection to judicial officers from being personally sued and being held personally liable for matters arising out of the conduct of their judicial functions and ancillary administrative tasks. The purpose of the doctrine of judicial immunity is to protect the independence of judicial and quasi-judicial officers. The immunity is an entitlement at common law and may also be conferred by statute.
[14]	By s 24 of the Justices Act 1886 (Qld) a Justice (defined to include a Magistrate) may compel the attendance of witnesses and do all other necessary acts and matters preliminary to the hearing. Apart from this section of the Justices Act, a Magistrate controls all aspects of the conduct of a hearing before him, which I find includes the mode of attendance of persons. 
[15]	On this basis I find that the conduct of the Magistrate in determining whether Ms Stancombe had the benefit of an exemption from wearing a mask in the Court House and upon her attendance at the hearing before him, fell within the scope of his authority and jurisdiction. 
[16]	I find that judicial immunity applies to the Magistrate with respect to his conduct by virtue of the common law. If the Magistrate’s conduct is characterised as administrative, protection is afforded to the Magistrate pursuant to s 51 of the Magistrates Act 1991 (Qld), which provides that a Magistrate has, in the performance or exercise of an administrative function or power conferred on the Magistrate under an Act, the same protection and immunity as a Magistrate has in a judicial proceeding in a Magistrates Court. Because of the power given under the Justices Act 1886 (Qld) I consider the Magistrate has the benefit of the statutory immunity under s 51 of the Magistrates Act.
[17]	The immunity to which the Magistrate is entitled covers any contravention of the Anti-Discrimination Act 1991 (Qld) and any failure to act in a way which is compatible with Ms Stancombe’s human rights.
[18]	If a Magistrate is immune from suit in relation to his conduct, then State of Queensland must stand in the same position viz a viz his actions.  Justice Perram in Brown v State of Queensland recognised judicial immunity arising out of an alleged contravention of the Australian Human Rights Commission Act 1986 (Cth) by a Queensland Supreme Court Justice and said with respect to any liability on the part of State of Queensland: ‘there can be no secondary liability without a primary liability’.
[19]	Insofar as conduct of the Magistrate is concerned it is clear that no liability can attach to the Magistrate nor to State of Queensland. On this basis the complaint should not proceed with respect to the Magistrate’s conduct because it is misconceived. The complaint is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld).
[20]	Because of this conclusion it is not necessary to consider further the submission by State of Queensland that the alleged contravention of s 124 of the Anti-Discrimination Act 1991 (Qld) was not part of the Complaint accepted by the Queensland Human Rights Commissioner. The result is that even if the Tribunal may be prepared to allow amendment of the Complaint to cover a contravention of s 124, the outcome would be the same in terms of the principle of judicial immunity preventing prosecution of the Complaint against State of Queensland.
Complaint about Registry staff
[21]	As to the balance of the claim directed to the Magistrates Court officers who dealt with Ms Stancombe, judicial immunity can extend to the Court itself and to Court officers if their conduct is sufficiently connected to the judicial function of conduct of a hearing. I do not consider that is the case in this matter.
[22]	The common law immunity does not extend to administrative staff of a court who perform purely administrative duties. If any protection exists it must be based on a statutory provision.
[23]	In my view s 51 of the Magistrates Act 1991 (Qld) does not cover administrative action by the Registry officers. I have not been referred to any statutory protection from suit which might cover Registry staff.
[24]	That being the case the complaint must be determined on the basis of the facts before the Tribunal. I do not consider the complaint against Registry staff can be dismissed as a result of consideration of a question of jurisdiction or abuse of process based on judicial immunity.
[25]	State of Queensland points to the difficulties in Ms Stancombe’s case against the Registry staff, including that the staff are not named, and they were following a direction of the Magistrates of Maroochydore Courthouse that no person could enter a Courtroom without wearing a mask. I note from the response to Ms Stancombe’s contentions that the wearing of face masks was mandated by Public Heath Directions, subject to certain exemptions. 
[26]	Ms Stancombe submits that her original complaint to the Queensland Human Rights Commission covered both the conduct of the Magistrate and the conduct of the Maroochydore Court staff. She has indicated a willingness to proceed only against the Registry staff by imputing vicarious liability for their conduct to their employer or principal, and also if necessary, by proceeding against the individuals personally.
[27]	If Ms Stancombe does proceed as she has indicated, it will be necessary for her to address the relevant issues in an amended statement of contentions and she may wish to apply for joinder of named Registry staff.
[28]	The complaint may then proceed to be dealt with by the Tribunal insofar as it relates to the alleged conduct of the Registry staff. Further Directions will issue from the Tribunal to progress the matter.
Human Rights Considerations
[29]	In making this decision I am bound to give effect to the law relating to judicial immunity. Accordingly, by s 58(2) of the Human Rights Act 2019 (Qld), to the extent my decision is of an administrative character, the obligations in s 58(1) of the Human Rights Act do not apply.  However, for completeness I note that Ms Stancombe’s human right to equal and effective protection against discrimination is affected by my decision. I consider that a limitation on that right is reasonable and justified given the strong public policy basis for judicial immunity which goes to ensuring the primacy of the rule of law through an independent judiciary, in a free and democratic society. In balancing Ms Stancombe’s private interests with the public interest, I conclude that the public interest in protecting judicial officers from civil suit outweighs Ms Stancombe’s private interest in pursuing a complaint about the conduct of the Magistrate.
[30]	To the extent that I am acting in a judicial capacity, in the performance of this function I have taken into account Ms Stancombe’s human right to equal and effective protection against discrimination. However, I consider I am bound to ensure application of the principle of judicial immunity in this case, especially where the principle has not been expressly displaced by the Anti-Discrimination Act 1991 (Qld) or the Human Rights Act 2019 (Qld).
[31]	As to Ms Stancombe’s human right to a fair hearing that has occurred with no limitation to the right.  
Order and Directions
[32]	The Tribunal record is corrected to name State of Queensland as respondent.
[33]	I order that the complaint and relief sought, set out in paragraphs 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 of the applicant Anna-Marie Stancombe’s statement of contentions filed 29 May 2023, is dismissed pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) insofar as it relates to the conduct of the Maroochydore Magistrate on 16 July 2021, and any liability of State of Queensland for that conduct.
[34]	The Tribunal directs that:
(a)	Anna-Marie Stancombe advise the Tribunal in writing, copied to State of Queensland as to whether she intends to apply to join any person to the proceeding by 4pm 5 December 2023;
(b)	Upon receipt of that advice the Tribunal will give further Directions in relation to any such application and the future conduct of the matter, including the filing of an amended statement of contentions and an amended response.