Bignell v New South Wales Casino Control Authority

The New South Wales Casino Control Authority (the Authority) appealed to the Supreme Court of New South Wales, Court of Appeal, against a decision concerning its refusal to grant a special employee licence to Ms Bignell. Ms Bignell had complained to the Equal Opportunity Tribunal that the Authority's decision was discriminatory on the ground of marital status. The central dispute was whether the Authority's decision was final and not subject to appeal or review, as stipulated by section 155(1) of the *Casino Control Act 1992* (NSW), thereby precluding the Tribunal's inquiry.

The legal issues before the Court of Appeal were whether the Equal Opportunity Tribunal had jurisdiction to inquire into Ms Bignell's complaint of discrimination, notwithstanding the privative clause in section 155(1) of the *Casino Control Act 1992*. This required the Court to determine the scope and effect of the privative clause, specifically whether an inquiry by the Tribunal constituted an "appeal or review" of the Authority's decision, or whether the Authority's decision, if found to be discriminatory, was not a "decision under the Act" for the purposes of the privative clause.

The Court, by majority, held that the Tribunal's inquiry was not precluded by the privative clause. Sheller JA reasoned that if the Tribunal upheld Ms Bignell's complaint, the Authority's decision would not be a decision made *under* the Act, thus falling outside the ambit of the privative clause. Stein and Giles JJA concluded that the Tribunal's examination of the discrimination complaint would not constitute an "appeal or review" of the Authority's decision in the sense contemplated by section 155(1). The Court allowed the appeal, setting aside the orders of the Supreme Court and dismissing the Authority's appeal to that court with costs.