FBJ v Saul

[2021] NSWCATAD 339

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

FBJ v Saul [2021] NSWCATAD 339

Hearing dates:

6 October 2021

Date of orders:

15 November 2021

Decision date:

15 November 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

D Dinnen, Senior Member

Decision:

Leave for the complaints of victimisation to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977

Catchwords:

HUMAN RIGHTS — discrimination — equal opportunity —

leave required for complaint to proceed —

principles applying to grant of leave – victimisation

Legislation Cited:

Anti-Discrimination Act 1977

Civil and Administrative Tribunal Act 2013

Cases Cited:

Carroll v Department of Family and Community Services [2015] NSWCATAD 82

Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282

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

Jones v Ekermawi [2009] NSWCA 388

Langley v Niland [1981] 2 NSWLR 104

Category:

Procedural rulings

Parties:

FBJ (Applicant)
Rosemary Ellen Curran Saul (First Respondent)
Justin Aitken (Second Respondent)

Representation:

Dr K Johnson as GAL for the Applicant

Solicitors:
Hospitality Legal (Respondent)

File Number(s):

2021/205892

Publication restriction:

Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the name of the Applicant is not to be published.

REASONS FOR DECISION

Background

1. The Applicant in these proceedings is referred to as ‘FBJ’ due to previous orders made by the Tribunal pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the CAT Act).

2. The Applicant was a patron of the Bar Broadway Hotel in Chippendale, Sydney. The respondents are employees of the Bar Broadway Hotel. In 2019 the Applicant made a complaint to the President of the Anti-Discrimination Board (ADB) against Karasumi Holdings Pty Ltd trading as the Bar Broadway. That matter was declined and referred to this Tribunal under s 92 and 93A of the Anti-Discrimination Act 1977 (the Act).

3. On 13 October 2020, the ADB received a complaint under the NSW Anti-Discrimination Act 1977 from the Applicant against Rosemary Ellen Curran Saul (the First Respondent) alleging unlawful victimisation. On 29 January 2021, the ADB received a further complaint from the Applicant against both the First Respondent and Justin Aitken (the Second Respondent) alleging further unlawful victimisation.

4. On 15 February 2021, the Applicant’s complaints were partially accepted for investigation as follows. The remainder of the complaints were declined under s 89B(2)(a) of the Act:

1. that the First Respondent unlawfully victimised the Applicant when on 22 April 2020, she allegedly made a false Apprehended Personal Violence Order (APVO) application against him because of his prior complaint to ADNSW; and

2. that the First and Second Respondents subjected him to further victimisation on 28 October 2020 when they issued him with a notice permanently banning him from Bar Broadway.

5. On 2 July 2021 the ADB declined the complaints pursuant to s 92(1)(a)(i) of the Act on the basis that the complaints were lacking in substance. On 13 July 2021 the Applicant requested that the matter be referred to this under section 93A of the Act. The Tribunal has…