Barry v Futter

[2011] NSWADT 205

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Barry v Futter [2011] NSWADT 205

Hearing dates:

18 May 2011, 12 August 2011

Decision date:

30 August 2011

Jurisdiction:

Equal Opportunity Division

Before:

R J Wright SC, Judicial Member
A Lowe, Non-Judicial Member
J Newman, Non-Judicial Member

Decision:

The Tribunal orders that:

1.the complaint be dismissed in whole.

Catchwords:

Discrimination - Transgender, Vilification - Transgender

Legislation Cited:

Anti Discrimination Act 1977 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Interpretation Act 1987 (NSW)
Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW)
Transgender (Anti-Discrimination and other Acts Amendment) Act 1996 (NSW)
Racial Discrimination Act 1975 (Cth)

Cases Cited:

McLeod v Power (2003) 173 FLR 31
Veloskey v Karagiannakis [2002] NSWADTAP 18

Category:

Principal judgment

Parties:

Malcolm Jay Barry (Applicant)
Heidi Futter (Respondent)

Representation:

M Barry (Applicant in person)
No appearance (Respondent)

File Number(s):

111006

REasons for decision

1. EQUAL OPPORTUNITY DIVISION (R J WRIGHT SC, Judicial Member, A LOWE, Non-Judicial Member, J NEWMAN, Non-Judicial Member): This proceeding concerns a claim of unlawful transgender vilification under s 38S of Anti-Discrimination Act 1977 (NSW) (the ADA ) brought by the Applicant ( Mr Barry ) against a fellow employee, the Respondent ( Ms Futter ).

1. At the relevant time in June 2010, both Mr Barry and Ms Futter were employed by Statewide Traffic Control Pty Ltd ( Statewide Traffic Control ), which provided traffic management and traffic planning services in situations where construction work was being carried out on or near roadways.

1. Mr Barry's claim was only against Ms Futter and not against Statewide Traffic Control and, accordingly, there could be no claim in these proceedings of discrimination by an employer under s.38C of the ADA. Nor were there circumstances in the present proceedings that could have attracted the operation of any of the other discrimination provisions of divisions 2 or 3 of Part 3A of the ADA.

Hearings

1. The matter first came on for hearing before the Tribunal on 18 May 2011 but, on that occasion, Ms Futter did not appear and the Tribunal was concerned that neither the report of the President of the Anti Discrimination Board nor any other relevant document relating to the application had been served on Ms Futter. As a result, the hearing did not proceed on that day and the matter was stood over for directions to a later date to enable service to be effected by Mr Barry, at the direction of the Tribunal.

1. The matter came on for hearing again on 12 August 2011 before the Tribunal. On that occasion, Mr Barry appeared representing himself but there was no appearance by or on behalf of Ms Futter.

Service of Documents

1. In the absence of any appearance by Ms Futter after she had been formally called, the Tribunal required Mr Barry to prove service of the documents, by which the application came before the Tribunal.

1. In this regard, Mr Barry gave oral evidence that shortly after the hearing on 18 May 2011, he obtained access to the documents…