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
Category: Principal judgment Parties: Jae Hee Choi (Applicant)
NSW OmbudsmanRepresentation: Applicant (self-represented)
M Smith (Legal Counsel, NSW Ombudsman)
(Respondent)
File Number(s): 2018/00299612 Publication restriction: Nil
Reasons for decision
Background
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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’).
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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.
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This determination is a determination as to whether or not leave should be given for this complaint to proceed.
Principles for Granting Leave
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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."
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As stated by Senior Member Scahill in Frost v Southern Cross University [2020] NSWCATAD…
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- Case
- [2022] NSWCATAD 92
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether there were sufficient grounds for Choi to proceed with his claims. This involved examining whether the allegations, if proven, would constitute discrimination or victimisation under the Anti-Discrimination Act 1977 (NSW). The court also had to assess the merits of the application and consider whether there was a reasonable prospect of success.
The court found that Choi had not demonstrated a reasonable prospect of success on the claims of discrimination and victimisation. It determined that the facts presented did not support a finding of discrimination or victimisation. The court held that the application did not disclose sufficient grounds to warrant leave to proceed with the claims. Consequently, the court refused leave for Choi to proceed with his claims of discrimination and victimisation.
No further orders were made as the court determined that there was no reasonable prospect of success on the merits of the claims, and therefore, leave to proceed was refused.
Orders
Orders of the court
(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.
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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