Ekz v Active Kids Group Pty Ltd - [2020] NSWCATAD 20

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: EKZ v Active Kids Group Pty Ltd [2020] NSWCATAD 20
Hearing dates: 3 June 2020
Date of orders: 26 August 2020
Decision date: 26 August 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
E Hayes, General Member
Decision:
(1) The complaint of discrimination on the grounds of disability is dismissed.

Catchwords:
EQUAL OPPORTUNITY — direct discrimination — determination of less favourable treatment
EQUAL OPPORTUNITY — distinction between direct and indirect discrimination

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Disability Discrimination Act 1992 (Cth)

Cases Cited:
Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197
Hurst v Queensland (2006) 151 FCR 562; [2006] FCAFC 100
Purvis v New South Wales (Department of Education and Training) (2013) 217 CLR 92; [2003] HCA 62
Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49

Texts Cited:
None cited

Category: Principal judgment
Parties: EKZ and ELA (Applicants)
Active Kids Group Pty Ltd (Respondent)
Representation: In person (Applicants)
Penhall & Co Lawyers (Respondent)

File Number(s): 2019/00400927
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, publication of the name of the Applicants, EKZ and ELA and their son, ELB is prohibited.

REASONS FOR DECISION

Four-year-old ELB has epilepsy and developmental delay. In August 2019, his parents EKZ and ELA (the Applicants in these proceedings) enrolled ELB and his younger brother, at Vaucluse Cottage Child Care Centre, operated by Active Kids Group Pty Ltd (Active Kids). On 10 September 2019, two days before the brothers were to commence at Vaucluse Cottage, Active Kids notified the Applicants that their application to enrol ELB had been revoked because of “his needs”.
Three weeks later the Applicants lodged a complaint with the President of the Anti-Discrimination Board on behalf of their son, alleging that Active Kids had discriminated against ELB on the ground of disability in contravention of the Anti-Discrimination Act1977 (NSW).
For the reasons that follow, we find the complaint of discrimination on the ground of disability as formulated by the Applicants, is not substantiated.

Publication of names

We decided to exercise the power conferred by s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) to make an order prohibiting the disclosure of the name of the applicants, EKZ and ELA and their son. In making that decision, we formed the opinion that despite the presumption of open justice, given his age and the nature of his disability, it would not be in ELB’s interests for his identity to be disclosed. As the publication of the names of the Applicants would identify ELB, we also decided to prohibit the disclosure of their names. Neither party objected to that decision.
For ease of reading, in these reasons we will refer to “ELB” as “the Son”, ELBs younger brother as “the Brother”, ELA and EKZ, respectively, as “the Mother” and “the Father”…

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.

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Details

Case: [2020] NSWCATAD 20
Decision Date: 26 August 2020

CaseChat Overview and Summary

Ekz filed a complaint against Active Kids Group Pty Ltd, alleging discrimination based on disability. The case was heard in the relevant Australian court, where the primary issue was to determine whether the actions of the respondent constituted direct discrimination against the complainant. The court also needed to clarify the distinction between direct and indirect discrimination in this context.

The court examined the nature of the complainant's allegations and the respondent's actions. It considered the definitions and legal frameworks governing discrimination and equal opportunity. The court found that the complainant had not provided sufficient evidence to substantiate the claim of direct discrimination. It highlighted the need for a clear demonstration of less favourable treatment directly attributable to the disability. The court also elaborated on the distinctions between direct and indirect discrimination, emphasising the importance of intent and causation in such cases.

Given the findings, the court dismissed the complaint of discrimination on the grounds of disability. It concluded that the complainant had not met the necessary burden of proof to establish direct discrimination. The court's decision was based on the absence of evidence linking the respondent's actions to the complainant's disability in a manner that constituted direct discrimination. The dismissal of the complaint resulted in no orders being made in favour of the complainant.

Orders

Orders of the court

(1) The complaint of discrimination on the grounds of disability is dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	EKZ v Active Kids Group Pty Ltd [2020] NSWCATAD 20
Hearing dates:	3 June 2020
Date of orders:	26 August 2020
Decision date:	26 August 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member E Hayes, General Member
Decision:	(1) The complaint of discrimination on the grounds of disability is dismissed.
Catchwords:	EQUAL OPPORTUNITY — direct discrimination — determination of less favourable treatment EQUAL OPPORTUNITY — distinction between direct and indirect discrimination
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Disability Discrimination Act 1992 (Cth)
Cases Cited:	Catholic Education Office v Clarke (2004) 138 FCR 121; [2004] FCAFC 197 Hurst v Queensland (2006) 151 FCR 562; [2006] FCAFC 100 Purvis v New South Wales (Department of Education and Training) (2013) 217 CLR 92; [2003] HCA 62 Waters v Public Transport Corporation (1992) 173 CLR 349; [1991] HCA 49
Texts Cited:	None cited
Category:	Principal judgment
Parties:	EKZ and ELA (Applicants) Active Kids Group Pty Ltd (Respondent)
Representation:	In person (Applicants) Penhall & Co Lawyers (Respondent)
File Number(s):	2019/00400927
Publication restriction:	Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013, publication of the name of the Applicants, EKZ and ELA and their son, ELB is prohibited.