Bassili v The Star Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Bassili v The Star Pty Ltd [2016] NSWCATAD 167
Hearing dates:	19 July 2016
Date of orders:	27 July 2016
Decision date:	27 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	The applicant’s application for leave for the complaint of disability discrimination to proceed is refused.
Catchwords:	ANTI-DISCRIMINATION – – refusal by respondent to revoke order excluding applicant from casino -complaint of disability discrimination declined by President of Anti-Discrimination Board as lacking in substance– whether fair and just for complaint to proceed
Legislation Cited:	Anti-Discrimination Act 1977, s 96, s 49A, s 49M Casino Control Act 1992 (NSW), s 4A(1)(c); 79, s 84.
Cases Cited:	Bassili v Star City Pty Ltd [2008] NSWADT 62 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Purvis v New South Wales (2003) 217 CLR 92 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Category:	Principal judgment
Parties:	Rene Bassili (Applicant) The Star Pty Ltd (Respondent)
Representation:	Counsel: J McLeod (Respondent) Self-represented (Appellant)
File Number(s):	1610320
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, publication or disclosure of the content of the respondent’s “Exclusions & Contact Policy” other than as referred to in these reasons, is prohibited.

REASONS FOR DECISION

The question

1. Mr Bassili lodged a complaint of disability discrimination against The Star Pty Ltd when they refused to revoke an order excluding him from the casino. Mr Bassili says that one of the reasons The Star refused to revoke the order was because he has paranoid schizophrenia with secondary depression. The Star says that they refused to revoke the order because Mr Bassili “was experiencing difficulties with gambling, and out of a genuine concern for his welfare.”

2. The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance. The question in these proceedings is whether it is fair and just for Mr Bassili’s complaint to go ahead: Anti-Discrimination Act 1977 (NSW), s 96(1). The onus is on Mr Bassili to satisfy the Tribunal that the complaint should proceed to a hearing.

3. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:◦

(1) emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

(2) found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

(3) concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that…