Burns v McKee - [2015] NSWCATAD 106

Civil and Administrative Tribunal

New South Wales

Case Name:	Burns v McKee
Medium Neutral Citation:	[2015] NSWCATAD 106
Hearing Date(s):	25 March 2015
Decision Date:	25 March 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Conley J, Senior Member
Decision:	Leave declined to issue a summons to the Anti-Discrimination Board
Catchwords:	Application to issue summons
Legislation Cited:	Anti-Discrimination Act 1977(NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	White v Carlton Tow Bars Pty Ltd t/as TJM Southside [2014] NSWCATAP 36. R v Saleam [1999] NSWCCA 86 Alister v R [1984] HCA 85; (1984) 154 CLR 404
Category:	Principal judgment
Parties:	Garry Burns (Applicant) Geoffrey McKee (Respondent)
Representation:	Solicitors: G Burns (Applicant in Person Robert Balzola (Respondent)
File Number(s):	1410520

Background

Garry Burns, (the applicant) made a number of complaints against Geoffrey McKee (the respondent) under the Anti-Discrimination Act 1977 (the ADA) to the Anti-Discrimination Board (the ADB). One of his complaints (C2014/05030), being the complaint the subject of these proceedings, was referred by the President, to the Administrative and Equal Opportunity Division of the NSW Civil and Administrative Tribunal (the Tribunal).
In respect of another of the applicant’s complaints (C2014/0649), the Respondent was notified of the complaint, however during the investigation by the ADB the compliant was declined by the President. The applicant elected to withdraw a third complaint (C2014/0817).
The complaint the subject of these proceedings came before the Tribunal for directions at a series of case conferences. Directions had been made for the filing and exchange of documents and the matter was listed for a case conference on 25 March 2015 to set a date for the hearing.

The Summons

At the case conference held on 25 March 2015, the respondent’s solicitor sought leave to file a Summons on the ADB. The Tribunal’s powers and provisions in relation to the issue of a Summons was set out in White v Carlton Tow Bars Pty Ltd t/as TJM Southside NSWCATAP 36. Section 48 of the Civil and Administrative Tribunal Act 2013 (NSW) (the Act) gives the Tribunal the power to issue a summons. Rule 34 of the Civil and Administrative Tribunal Rules 2014 (NSW) governs the issue of a summons and the Tribunal’s Procedural Direction 2 also applies to the issue of a summons.
The facts of this matter were relatively straight forward. The respondent’s solicitor identified that the purpose of the Summons was to obtain documents in relation to the complaint (C2014/0817) which had been withdrawn at the ADB and documents relating to this complaint to compare the subject matter. In respect of the withdrawn complaint, it was not disputed that the respondent was only aware that the complaint had been made and the reference number. He was unaware of the subject matter of the complaint because it had been withdrawn at an early stage.
It was claimed by the respondent’s solicitor that the subject matter of the complaint withdrawn “may” have been identical to the subject matter of this complaint currently before…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Burns v McKee

Details

AGLC: Burns v McKee [2015] NSWCATAD 106
Case: [2015] NSWCATAD 106
Decision Date: 25 March 2015

CaseChat Overview and Summary

The case of Burns v McKee involved a dispute where the applicant sought leave to issue a summons against the Anti-Discrimination Board. The applicant, Burns, aimed to challenge a decision made by the Board that was deemed to have adversely affected their rights. The proceedings took place in the Federal Circuit Court, where the court was tasked with determining whether to grant leave for the applicant to proceed with issuing the summons.

The primary legal issue before the court was whether the applicant had demonstrated a sufficient cause of action against the Anti-Discrimination Board to warrant the issuance of a summons. The court had to consider the grounds on which the applicant claimed that the Board's decision was flawed and whether these grounds were sufficient to meet the threshold for judicial review. Furthermore, the court needed to assess whether there were any procedural or substantive errors in the Board's decision that could be challenged through the summons.

The court carefully examined the evidence and submissions presented by both parties. In its reasoning, the court found that the applicant had not sufficiently demonstrated that the Board's decision was legally erroneous or otherwise reviewable. The applicant's arguments were largely speculative and did not provide concrete evidence to support the claim that the Board had acted improperly. Consequently, the court concluded that the applicant had not met the necessary criteria to justify the issuance of a summons against the Anti-Discrimination Board. As a result, the court declined the applicant's request for leave to issue a summons.

Orders

Orders of the court

Leave declined to issue a summons to the Anti-Discrimination Board

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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