Amery & Ors v State of New South Wales (Director-General NSW Department of Education and Training)

This case concerned an appeal to the Court of Appeal of New South Wales by the appellants, Amery and others, against orders made by the Appeal Panel of the Administrative Decisions Tribunal. The dispute arose from a finding of indirect discrimination on the grounds of sex by the Tribunal against the respondent, the State of New South Wales (Director-General NSW Department of Education and Training), in relation to the appellants' employment. The Appeal Panel had set aside the Tribunal's original orders.

The primary legal issues before the Court of Appeal were whether the Appeal Panel had erred in law in its interpretation and application of the *Anti-Discrimination Act 1977* (NSW), specifically concerning the elements of indirect discrimination under section 24(1)(b), the relevance of motive, and the entitlement to interest as compensation. The Court also considered whether the Appeal Panel's determination of costs was a question of law or fact.

The Court of Appeal found that the Appeal Panel had erred in law. It held that the motive for indirect discrimination is irrelevant under section 24(1)(b) of the *Anti-Discrimination Act 1977*. The Court clarified that the test of "reasonableness" in section 24(1)(b) is less demanding than necessity but more demanding than mere convenience. Furthermore, the Court determined that a claim for damages under the Act may include a claim for compensatory interest for the loss of use of money that should have been paid. The Court also held that the determination of costs under section 114(2) of the *Administrative Decisions Tribunal Act 1997* was a question of fact, not law.

Consequently, the Court of Appeal allowed the appeal, set aside the orders of the Appeal Panel, refused the respondent leave to appeal on the merits, and reinstated the original orders of the Tribunal, with modifications regarding the entitlement to interest and costs. The respondent was ordered to pay the appellants' costs of the appeal.