Cairns v ANZ Banking Group Ltd

[2016] NSWCATAD 165

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Cairns v ANZ Banking Group Ltd [2016] NSWCATAD 165
Hearing dates:	14 June 2016
Date of orders:	25 July 2016
Decision date:	25 July 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	(1) Leave is granted for complaint of race discrimination in the provision of services to proceed against both Respondents (2) Leave is granted for the complaint of aiding and abetting to proceed against the First Respondent.
Catchwords:	ANTI-DISCRIMINATON – whether leave should be granted for declined complaints of race discrimination and aiding and abetting to proceed – whether fair and just in all the circumstances
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) s, 88B, 92, 96, Civil and Administrative Tribunal Act 2013 (NSW) s 45
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Burns v Sunol [2015] NSWCATAD 178 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Stanborough v Woolworths Ltd [2005] NSWADT 203
Category:	Procedural and other rulings
Parties:	Charles Cairns and Judith Cairns (Applicants) ANZ Banking Group Limited (First Respondent) OnePath Life Limited ANZ (Second Respondent)
Representation:	Counsel: D Chin (First and Second Respondents)   Solicitors: D Faulkner (Agent for the Applicants)
File Number(s):	1610291

Reasons for decision

Introduction

1. On 16 September 2015 Mr Charles Cairns and Mrs Judith Cairns lodged a complaint of race discrimination in the provision of services – insurance – against ANZ Banking Group Limited (ANZ Group) and OnePath Life Limited ANZ (OnePath) with the President of the Anti-Discrimination Board. In January 2016 the Applicants further alleged that ANZ Group had aided and abetted OnePath in the complaint of race discrimination. On 16 April 2016 the acting President of the Anti-Discrimination Board declined the complaint because it was lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a). When that happens, the complainant must apply to the Tribunal for permission or ‘leave’ before the complaint can go ahead: Anti-Discrimination Act, s 96.

2. I have granted leave in this case. If these complaints were to proceed to a hearing, it is possible that Mr and Mrs Cairns would be able to prove that the alleged conduct constitutes a breach of the Anti-Discrimination Act.

Principles for granting leave – whether “fair and just”

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…