Complainant

Respondent

Parties

Roberto  Alamazani

Judge Sarah Berkeley

Representatives

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00026151-001

08/02/2019

The complainant states that he has been discriminated against by a person, organisation, company who provides goods, services or facilities. Specifically, he brings a complaint against a Circuit Court Judge arising from Judge Berkeley hearing a case involving the complainant. He states that:

“I am offended to be victim of unfair treatment, bullying and intimidation by you [Sarah Berkeley] during the hearing at the Circuit Court in Dublin on 21st day of February 2018. The way you treated me is completely and utterly unacceptable. I feel demeaned, insulted and discriminated. It’s against the Law discriminating people as clearly stated under the Equal Status Acts 2000-2015. The way I have been treated is discriminating against me and victimizing because I am black. I strongly believe that if I was white, the treatment will be different.”

The complaint is made against the respondent in her capacity as a Circuit Court Judge and the complaint arise from interactions during the hearings.

The complainant relies upon the Equal Status Acts 2000-2015 to ground his complaint against the Adjudicator who the complainant states is a person, organisation, company who provides goods, services or facilities and that when providing that service he was discriminated on the ground of race.

Section 2 of the Equal Status Act 2000 as amended defines a service as:

“ service” means a service or facility of any nature which is available to the public generally or a section of the public, and without prejudice to the generality of the foregoing, includes—

( a) access to and the use of any place,

( b) facilities for—

(i) banking, insurance, grants, loans, credit or financing,

(ii) entertainment, recreation or refreshment,

(iii) cultural activities, or

(iv) transport or travel,

( c) a service or facility provided by a club (whether or not it is a club holding a certificate of registration under the Registration of Clubs Acts, 1904 to 1999) which is available to the public generally or a section of the public, whether on payment or without payment, and

( d) a professional or trade service,

but does not include pension rights (within the meaning of the Employment Equality Act, 1998 ) or a service or facility in relation to which that Act applies;

Judy Walsh in the Equal Status Acts 2000-2011, 2012 edition, Blackhall Publishing, at page 43 states:

“Equivalent UK provisions have been subject to fairly extensive interpretation (McColgan, 2005, pp 255-285; Monaghan, 2007, pp 505-508). In a number of cases UK courts concluded that ‘services’ were confined to acts of similar kind to acts that might be carried out by a private person. Therefore, functions that are of a public law nature (i.e. enforcement, regulatory and control functions) have fallen outside the scope of that country’s non-discrimination legislation.”

The matters complained of relate to the conduct of court proceedings and they do not constitute a service as defined under the Equal Status Act 2000, as amended. This claim is misconceived as it is incorrectly based in law.

Furthermore, the exercise of judicial decision making is immune from suit.

In Kemmy v Ireland [2009] IEHC 178 the principle of Judicial Immunity and its purpose was comprehensively addressed:

'This freedom from action and question at the suit of an individual is given by the law to the judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independent in judgment, as all who are to administer justice ought to be.'"

30.

In Desmond & Anor v. Cornelius Riordan [2000] 1 I.R. 505, at p. 507, Morris P. stated:

"It is, in my view, well settled that the immunity from suit enjoyed by the judiciary exists not for the benefit of the judge but for the benefit of the community as a whole. This immunity is perceived to be necessary and desirable so that a judge may perform his functions the better, freed of concern that in the course of performing his duties he may defame a third party and be required to be answerable to that party in damages."

31.

(Endorsed by Geoghegan J., in the Supreme Court in Beatty and Beatty v. the Rent Tribunal and Anor [2006] 2 I.R. (S.C.), 191, at 212 where he said: "The immunity of judges is based on public policy considerations.")

32.

In an earlier case, Macaulay & Company Limited v. Wyse-Power [1943] 77 I.L.T.R. 61 at 63, McGuire J. held that:

"The people were entitled to have the opinion of a judge without fear of his words being challenged elsewhere. It was salutatory and beneficial privilege."

Section 22 of the Equal Status Act 2000 as amended provides that a claim maybe dismissed at any time if of opinion that it has been made in bad faith or is frivolous, vexatious or misconceived or relates to a trivial matter. The alleged conduct referenced in this complaint occurred during a Court hearing. Judicial decision making is not a service or facility available to the public and does not constitute a service as defined under the Equal Status Act 2000 as amended. The Judge in exercising judicial decision making is immune from suit.

This claim is misconceived as it is incapable of achieving the desired outcome and is not a service as defined under the Act.  I find that I have no jurisdiction to investigate this complaint as the matters complained of are not properly before me. I therefore find that the complaint is misconceived and dismiss the complaint.

This complaint relying upon the Equal Status Acts to bring an action against a Judge arising from alleged unfair treatment during a Court hearing is not properly before me. Section 22 of the Equal Status Act 2000 as amended provides for a complaint to be dismissed at any time if an opinion is formed that the complaint is misconceived. As I have formed the opinion that the complaint is misconceived pursuant to section 22, I dismiss the claim and determine that I have no jurisdiction to investigate and adjudicate on the matter.

Claim dismissed misconceived – not a service - Judicial Immunity - Jurisdiction