Chatwin v Bodyline Spa and Sauna Pty Ltd

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Chatwin v Bodyline Spa and Sauna Pty Ltd [2020] NSWCATAD 69
Hearing dates:	5 February 2020
Date of orders:	28 February 2020
Decision date:	28 February 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	C Ludlow, Senior Member
Decision:	(1) Leave to proceed with the complaint under section 96 of the Anti-Discrimination Act 1977 is granted.
Catchwords:	EQUAL OPPORTUNITY — leave required for complaint to proceed — principles applying to grant of leave - disability discrimination – provision of services
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW)
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Murray Chatwin (Applicant) Bodyline Spa and Sauna Pty Ltd (Respondent)
Representation:	Solicitors: Colquhoun & Colquhoun (Respondent) Intellectual Disability Rights Service (Applicant)
File Number(s):	2019/00392893
Publication restriction:	Nil

REASONS FOR DECISION

Background

1. The applicant in these proceedings seeks the leave of the Tribunal to proceed with his complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 8 May 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from the applicant against the respondent, Bodyline Spa and Sauna Ltd. The applicant alleged that he was discriminated against on the basis of his disability in the provision of goods and services.

2. The President declined the complaint as lacking in substance under s 92 of the AD Act. On 25 November 2019 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.

Legislation and principles governing the grant of leave

3. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the Act).

4. Section 92 provides:

“92 President may decline complaint during investigation

(1) If at any stage of the President’s investigation of a complaint—

(a) the President is satisfied that—

(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or

(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of,…