QY and QZ v State of New South Wales [2010] NSWADT 73

CITATION: QY and QZ v State of New South Wales [2010] NSWADT 73

DIVISION: Equal Opportunity Division

APPLICANTS QY and QZ PARTIES: RESPONDENT State of New South Wales

FILE NUMBER: 091078

HEARING DATES: 27 October 2009

SUBMISSIONS CLOSED: 20 November 2009

DATE OF DECISION: 19 March 2010

BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Parties, identity of respondent, liability of the Crown, judicial immunity

Anti-Discrimination Act 1977 LEGISLATION CITED : Coroners Act 1980 Judicial Officers Act 1986

Re East ; ex part Nguyen Nguyen [1998] HCA 73; (1998) 196 CLR 354 Paramasivam v O'Shane [2005] FMCA 1686 CASES CITED: Yeldham v Rajski (1989) 18 NSWLR 48 Rajski v Powell (1987) 11 NSWLR 522 Mirror Newspapers Ltd v Waller (1985) 1 NSWLR Attorney-General (NSW) v Mirror Newspapers Ltd [1980] 1 NSWLR 374

APPLICANT I Chaterjee, solicitor REPRESENTATION: RESPONDENT P Ginters, barrister

ORDERS: Leave for the complaint to be the subject of proceedings before the Tribunal is refused.

REASONS FOR DECISION

Introduction

1 QY and QZ complained that the 'Office of the State Coroner' discriminated against them by directing that the body of their 'associate' undergo a post mortem examination. The deceased was QZ's partner and a friend of QY. The Coroner directed the Department of Forensic Medicine (DOFM) to perform the examination to assist in the investigation of the manner and cause of his death. The deceased had been infected with the Human Immunodeficiency Virus (HIV). For occupational health and safety reasons DOFM has a policy of not reconstructing HIV affected bodies following post mortem examination. QY and QZ alleged that the 'Office of the State Coroner' knew that by directing the DOFM to undertake the post mortem examination, the deceased's body would not be reconstructed after that examination. The DOFM applied the policy and did not reconstruct the deceased's body. The body was released to a funeral home for burial. According to QY and QZ, the body was ultimately reconstructed by the funeral directors.