QT v State of New South Wales [2010] NSWADT 68

CITATION: QT v State of New South Wales [2010] NSWADT 68

DIVISION: Equal Opportunity Division

APPLICANT QT PARTIES: RESPONDENT State of New South Wales

FILE NUMBER: 091079

HEARING DATES: 27 October 2009

SUBMISSIONS CLOSED: 20 November 2009

DATE OF DECISION: 12 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 Chatterjee, solicitor REPRESENTATION: RESPONDENT P Ginters, counsel

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

REASONS FOR DECISION

Introduction

1 QT complained that the 'Office of the State Coroner' discriminated against him by directing that the body of his deceased partner undergo a post mortem examination. The State Coroner, Deputy Chief Magistrate Jerram (the Coroner), directed Dr Duflou of the Department of Forensic Medicine (DOFM) to perform the examination to assist in the investigation of the manner and cause of his death. QT's partner 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. QT 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. QT said that as a result of the direction to the DOFM he lost the opportunity to view his partner's body and pay his last respects.