Applicant 201943 v The School

The case before the ACT Civil and Administrative Tribunal was brought by the applicant, who sought relief on the basis of alleged discrimination. The respondent, The School, opposed the application, arguing that it should be dismissed. The matter was heard by Presidential Member H Robinson, who was tasked with determining the admissibility of evidence and the confidentiality issues surrounding the case. The applicant sought to present evidence gathered during mediation and conciliation processes, which the respondent claimed was confidential and inadmissible. The core issue before the tribunal was whether the applicant could proceed with her discrimination claim without disclosing the protected evidence and whether the applicant had indeed been employed by the respondent, a fact that the respondent denied.

The legal issues addressed by the tribunal included the admissibility of evidence produced in the process of mediation or conciliation and the protection of such evidence under confidentiality agreements. The tribunal had to consider whether the applicant could proceed with her discrimination claim without disclosing the confidential evidence and whether the applicant had indeed been employed by the respondent. The respondent argued that the evidence was protected by confidentiality and without prejudice communications, and thus, should not be admissible. The applicant, on the other hand, contended that the evidence was necessary to establish her case and that she had been employed by the respondent, which was a critical element of her discrimination claim.

Presidential Member H Robinson concluded that the application to proceed with the discrimination claim without disclosing the confidential evidence should be struck out. The tribunal found that the evidence in question was protected by confidentiality and without prejudice communications, and therefore, it could not be admitted. Furthermore, the tribunal determined that the applicant had not provided sufficient evidence to establish that she had been employed by the respondent. Consequently, the tribunal wholly dismissed the application under section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008. The applicant’s request to proceed with her discrimination claim without disclosing the confidential evidence was denied, and the application was dismissed in its entirety.