Choi v NSW Ombudsman (No 5)

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Choi v NSW Ombudsman (No 5) [2022] NSWCATAD 92

Hearing dates:

On the papers

Date of orders:

17 March 2022

Decision date:

17 March 2022

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member

Decision:

(1) Leave for the applicant to proceed with a claim of discrimination pursuant to section 96 is refused.

(2) Leave for the applicant to proceed with a claim of victimisation pursuant to section 96 is refused.

Catchwords:

Discrimination – Victimisation – Leave to proceed –determination ‘on the papers’.

Legislation Cited:

Anti-Discrimination Act, 1977 – (NSW)

Civil and Administrative Tribunal Act, 2013 (NSW)

Cases Cited:

Burns v Sunol (No 2) [2017] NSWCATAD 236

Chen v Commissioner NSW Police Force [2020] NSWCATAD 245Dutt v Central Coast Area Health Service [2002] NSWADT 133

Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143

Frost v Southern Cross University [2020] NSWCATAD 105

IW v City of Perth (1997) 1912 CLR 1

Jones v Ekermawi [2009] NSWCCA 388

Sivananthan v Commissioner of Police [2001] NSWADT 44

Category:

Principal judgment

Parties:

Jae Hee Choi (Applicant)
NSW Ombudsman

Representation:

Applicant (self-represented)
M Smith (Legal Counsel, NSW Ombudsman)
(Respondent)

File Number(s):

2018/00299612

Publication restriction:

Nil

Reasons for decision

Background

1. On 27 February 2018, the applicant, Ms Choi, lodged a complaint with the Anti-Discrimination Board (now known as Anti-Discrimination New South Wales, referred to here as ADNSW)). That application was investigated by ADNSW and was declined on 29 September 2018 as lacking in substance. It has been referred to the Tribunal at the request of the applicant pursuant to s93A of the Anti-Discrimination Act, 1977 (hereafter ‘the Act’).

2. Section 96 of the Act provides that if a complaint is referred to the Tribunal pursuant to section 93A, it may not be the subject of proceedings before the Tribunal without leave of the Tribunal.

3. This determination is a determination as to whether or not leave should be given for this complaint to proceed.

Principles for Granting Leave

4. The Supreme Court has set out principles upon which decisions in relation to granting leave to proceed should be made. Acting Justice Schmidt (as she then was) stated in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [38]:

"Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which include precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates."

5. As stated by Senior Member Scahill in Frost v Southern Cross University [2020] NSWCATAD…