Frost v State of New South Wales, Department of Justice

[2019] NSWCATAD 76

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Frost v State of New South Wales, Department of Justice [2019] NSWCATAD 76
Hearing dates:	5 March 2019
Date of orders:	01 May 2019
Decision date:	29 August 2019
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Dr J Lucy, Senior Member
Decision:	Leave to proceed with the complaints of disability discrimination and victimisation is refused.
Catchwords:	ANTI-DISCRIMINATION – Where complaint of victimisation declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil Procedure Regulation 2017 (NSW) Government Information (Public Access) Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 Bacirongo v ACL Pty Ltd [2011] NSWADT 12 Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245 Dezfouli v Justice Health and Anor [2008] NSWADT 99 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Jones v Ekermawi [2009] NSWCA 388 King v University of Notre Dame Australia [2017] NSWCATAD 58 Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Category:	Procedural and other rulings
Parties:	Julie Frost (applicant) State of New South Wales, Department of Justice (respondent)
Representation:	Counsel:     Solicitors: Applicant in person Moray & Agnew Lawyers (respondent)
File Number(s):	2019/53507
Publication restriction:	Nil

REASONS FOR DECISION

1. Ms Frost complained that the respondent (“the Department”) had discriminated against her on the ground of disability and victimised her for lodging a complaint of race discrimination with the Anti-Discrimination Board and pursuing it in the Tribunal.

2. The disability discrimination complaint concerned the Supreme Court Registry’s handling of three statements of claim she sent to it to be filed and its processing and determination of three associated fee waiver applications. She also alleged that, after making complaints to various bodies, she was victimised and discriminated against by Departmental staff.

3. The President of the Anti-Discrimination Board declined her complaints of discrimination and victimisation as lacking in substance: Anti-Discrimination Act 1977 (AD Act), s 92(1)(a)(i).

4. I have decided not to give Ms Frost permission for her complaints to go ahead in the Tribunal. They are lacking in substance and it would not be fair or just for them to proceed.

Background

5. On 3 October 2017, Ms Frost emailed the Supreme Court Registry. In the email, she asked how she could submit a fee waiver form alongside her statement of claim online, as the online system would not accept the statement of claim until payment had been made.

6. A registry officer replied the same day, stating: “If you require a fee postponement then you CANNOT file online.”

7. Ms Frost replied as follows: “Since I live in a remote place, can you organise so that claims can be accepted as lodged at least for those who are at least able to attend Sydney registry because they need a fee waiver.”

8. The registry officer responded later that day: “Please complete the fee postponement and post it to the registry together with your summons/statement of claim.”

9. On 4 October 2017, Ms Frost filed an application to postpone, remit or waive payment of a court fee and provided the registry with a statement of claim she wished to file to commence defamation proceedings.

10. On 6 October 2017, Ms Frost filed two more applications to postpone, remit or waive payment of a court fee. She provided a copy of her disability support pension card with these applications. She stated, in the applications, that she had been “seriously ill” for six years and that she was “currently experiencing an improvement in health (sign of remission).” She stated that the limitation period for her action expired “today”.

11. On 8 October 2017, Ms Frost emailed the registry again as follows:

“Dear Registrar

Thank you for processing my 3 statements of claim on 4-10-17 and 6-10-17 last week.

I filed them together with a fee postponement application so I do not have a case number.

May I please request the last possible return date so I have a chance to get a solicitor to amend and review my claim and pleadings?

I have been chronically ill for a long time and my condition has come into a period of relative remission so I filed the three claims quickly as the date filed was also the limitation period expiration date.

Sincerely

Julie Frost.”

12. Some time after Ms Frost filed the statements of claim (which Ms Frost remembers to be about two weeks afterwards, but was probably earlier), she called the registry and was told that there was no sign of the statements of claim. In a second telephone call with the registry, Ms Frost told the staff member she did not have a copy of the statements of claim. At the staff member’s request, she sent the registry a screenshot of the first two paragraphs of one of them.

13. On 16 October 2017, Prothonotary Rebel Kenna wrote to Ms Frost as follows:

“I refer to your application dated 4 October 2107 requesting Postponement of the filing fee.

The application has been considered by the Court and is NOT approved.

The registrar has refused the application on the following grounds:

The Statement of claim is required to be properly particularized;

It is not clear how the applicant would be entitled to the value of damages claimed.

It is more cost effective to run this matter in the District Court where the fees are lower.

Your documents are returned to you.”

14. Ms Frost sought review of this decision.

15. On 20 October 2017, Prothonotary Kenna drafted an email, for Chris D’Aeth, the Executive Director and Principal Registrar of the Court, to send to Ms Frost. This email was a draft response to Ms Frost’s application for review of Prothonotary Kenna’s decision. In the covering email, Prothonotary Kenna informed Principal Registrar D’Aeth that another registry officer had returned to Ms Frost all copies of the proposed pleading but she had not received them in the post.

16. On 23 October 2017, Principal Registrar D’Aeth sent an email to Ms Frost, in similar terms to that drafted by Prothonotary Kenna, indicating that he considered Prothonotary Kenna’s decision to refuse a waiver of the filing fee to be correct.

17. On the same day, Ms Frost made a request to the Department of Justice, by email, for access to all information held about her and all communication about her from 1 October 2017 to the present and, in particular, communications about her to or from Chris D’Aeth and Rebel Kenna.

18. On 2 November 2017, a Departmental officer replied to the email, asking her for payment of an application fee and for the application to state that it is made under the Government Information (Public Access) Act 2009 (“GIPA Act”).

19. Ms Frost replied on the same day, stating that it was not necessary to pay an application fee and that it was clear from her email that the request was made under the GIPA Act. On 23 November 2017, Ms Frost emailed the Departmental officer again, complaining that her access application had not been processed.

20. On 24 November 2017, Ms Frost emailed various people, including the Premier and Attorney General of New South Wales and the “Chief of New South Wales Department of Justice,” stating that “Department of Justice employees have lost my claims, one of which was for $5m.” This was a reference to the apparent loss, by the Department, of the statements of claim which she lodged.

21. Ms Shevlin, of Client Services of the Supreme Court, replied to Ms Frost’s email on the same day, stating that her proposed Supreme Court claim was refused in October 2017.

22. Ms Frost complained to the President of the Anti-Discrimination Board on 2 October 2018. Her complaint was set out in a long email of seventeen paragraphs, detailing the issues she had had with the Department. She identified the complaint as being one of direct and indirect disability discrimination and victimisation by Departmental staff. The complaint began by referring to a request made on 3 October 2017 to the Supreme Court registry “to consult with the registrar about my disability and adjustments I required in order to access justice,” then referred to her applications for postponement of the filing fees, the apparent loss of her statements of claim and the “adverse” treatment by various persons in response to her complaints.

23. The President accepted her complaints of disability discrimination in the area of goods and services and victimisation under s 89B of the AD Act for the period of 3 October 2017 to 2 October 2018.

24. On 17 January 2019, the President declined Ms Frost’s complaints as lacking in substance. The reasons for the President’s decision were as follows:

“Ms Frost has provided no information that she notified Supreme Court staff that she had a disability, and required reasonable adjustments in order to access services of the Court.

Further, there is no information provided that Ms Frost made a complaint or was suspected of making a complaint of allegations that could amount to disability discrimination. Hence, no unlawful victimisation could arise.

However, even if Ms Frost is able to demonstrate that staff were made aware of her disability and requirement for reasonable adjustments, there is insufficient information to support any less favourable treatment on the ground of disability or unlawful victimisation to Ms Frost in relation to the handling of her applications or request for fee waivers.”

25. At Ms Frost’s request, the matter was referred to the Tribunal.

Hearing of leave application

26. A hearing of Ms Frost’s leave application was held on Tuesday 5 March 2019. Mr McDonald appeared for the Department. As Ms Frost was not present, the Tribunal telephoned her. Ms Frost then informed the Tribunal that she had been given leave to appear by telephone.

27. The Tribunal subsequently located an email from Ms Frost to the Tribunal sent on Friday 1 March 2019, requesting leave to appear by telephone. This email was not copied to the Department’s representative (as it should have been). It appears, from the Tribunal’s hard copy file, that the email was unanswered.

28. The Tribunal was prepared to allow Ms Frost to appear by telephone at the leave hearing in circumstances where she had, at least, requested leave and appeared to consider that it had been granted, and where she claimed to have a disability which made it difficult for her to travel. To do otherwise would not have been consistent with the just, quick and cheap resolution of the real issues in the proceedings (Civil and Administrative Tribunal Act 2013, s 36(1)).

Principles applicable on a leave application

29. The Tribunal may give Ms Frost permission for her complaint to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). In exercising its discretion as to whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account when declining a complaint (Dezfouli v Health Care Complaints Commission [2018] NSWCATAD 245 at [18]; Jones v Ekermawi [2009] NSWCA 388 at [60]).

30. The onus is on Ms Frost to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3].

Disability discrimination complaint – general matters

31. If the discrimination complaint were to proceed, Ms Frost would have the onus of establishing that she had been discriminated against on the ground of disability in the provision of services. Section 49M(1) of the AD Act provides:

“49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.”

32. Section 49B(1) of the AD Act provides for what constitutes discrimination on the ground of disability. It provides:

“49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator:

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.”

33. In summary, to prove disability discrimination in the provision of services, Ms Frost would have to prove that:

1. she has a disability or a presumed disability (AD Act, s 49A);

2. the State (through the Supreme Court Registry) provides services connected with the filing of a statement of claim;

3. the Department refused to provide Ms Frost with services or it discriminated against her in the terms on which it provided services to her.

34. The matters she would have to prove to establish direct discrimination on the one hand, and indirect on the other, are dealt with below under separate headings.

Disability

35. Ms Frost claims to have a disability but has not identified the nature of her disability to the Tribunal or to the Department. She has only provided evidence that she is in receipt of a disability pension.

36. This does not necessarily establish that she has a disability for the purposes of the AD Act. It also makes it more difficult for her to establish discrimination on the ground of disability under s 49B(1) because both s 49B(1)(a) and (b) invite consideration of a person’s particular disability.

37. Her case does not appear to be that she had a “presumed disability” but it has not been put very precisely.

Services

38. Neither party focused on the provision of services at all at the hearing or in the material before the President.

39. Ms Frost has not clearly identified the services that she was receiving at the relevant time from the Department. It is essential when alleging discrimination in the provision of services that the services that are being provided are precisely defined: IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J; Dezfouli v Justice Health and Anor [2008] NSWADT 99 at [10].

40. I infer from Ms Frost’s complaint to the President of the Anti-Discrimination Board and her submissions at the hearing that the relevant services in issue are the processing of the filing of a statement of claim and the processing and determination of a fee waiver application (both initially and on a review). I note, however, that this is my characterisation of Ms Frost’s complaint. Whilst she has complained about the Department’s refusal to file her statements of claim and its rejection of her fee waiver application, she has not articulated it in this way.

41. I consider that there is a reasonable argument that the State was providing Ms Frost with, or offering to her, services in the form of processing the filing of a statement of claim and processing fee waiver applications.

Refusal of services or provision of services on unfavourable terms

42. The next question is whether the Department refused to provide her with either of these services or provided them on unfavourable terms. Again, this was not a matter addressed in the parties’ oral submissions.

43. It could be contended that the Department did not refuse to provide Ms Frost with the services of processing or filing her statement of claim (in that it was always prepared to provide those services, after payment of a fee). It could also be argued that the terms on which it provided the services of determining applications were not unfavourable to Ms Frost as they were the same terms which applied to other people. Contrary arguments are also open.

44. In circumstances where Ms Frost has the onus of persuading me to grant leave, her failure to identify the nature of her disability, the services the subject of the claim, and to explain how it is she says such services were refused, or provided on unfavourable terms, tends against the grant of leave.

Indirect disability discrimination complaint

45. To establish indirect disability discrimination (AD Act, s 49B(1)(b)), if the complaint were to proceed, Ms Frost would also have to prove that:

1. the Department required her to comply with a requirement or condition;

2. a substantially higher proportion of persons who do not have Ms Frost’s disability comply or are able to comply with the requirement or condition;

3. the requirement is not reasonable having regard to the circumstances of the case;

4. Ms Frost does not or is not able to comply with the requirement or condition.

46. If Ms Frost established these matters, s 54(1) of the AD Act would be relevant. That subsection relevantly provides that nothing in the AD Act renders unlawful anything done by a person if it was necessary for the person to do it in order to comply with a requirement of another Act or a regulation or other instrument made under another Act. The Department would have the onus of establishing that this applied (AD Act, s 104).

47. At the hearing, Ms Frost explained that her indirect disability complaint was that the fee for filing a statement of claim was set too high for people on a disability pension. It was also apparent, at the hearing, that she claimed that her applications for waiver or postponement of the filing fees were dealt with in a discriminatory way, although it was not entirely clear whether she was advancing this as a complaint of direct or indirect discrimination (or both).

Was Ms Frost’s indirect disability complaint referred to the Tribunal?

48. The first matter to consider is whether the indirect disability complaint, as Ms Frost articulated it at the hearing, was part of the complaint referred to the Tribunal by the President of the Anti-Discrimination Board.

49. Ms Frost’s initial complaint to the President focused upon the Registry officers’ alleged refusal of Ms Frost’s request, on 3 October 2017, to consult with the registrar about her disability and adjustments she required in order to access justice. She also claimed that, by losing her “claims” (that is, her statements of claim) and sending insulting correspondence to her, the registry engaged in disability discrimination and victimisation. In the twelfth paragraph of a lengthy email which constituted her complaint to the President, Ms Frost stated: “It was implied by Ms Kenna [who processed her fee waiver application] that …. due to having disability, I should not be given access to the courts because I am not rich enough, and that adjustments or fee postponement or fee waiver decisions would not be made to ensure people with disabilities can access justice.”

50. I consider that this sentence at least arguably raises an allegation of indirect discrimination in the processing of the fee waiver application (in that it could be construed as an allegation that Ms Kenna was imposing a requirement of paying a fee to file a statement of claim, which was unreasonable in the circumstances and with which many people with a disability would not be able to comply).

48. On 18 January 2019, Ms Frost emailed a staff member of the Anti-Discrimination Board, referring to her request that the President refer her complaint to the Tribunal, and stating:

“Attorney General rules apply to processing the application [for a fee waiver or deferral]. If the applicant has a disability pension card and is not a registered vexatious litigant and there is no preferred jurisdiction, the registrar must accept the application. … The registrar has no discretion to determine the merits of the claim,… or consider the merits of the claim when granting or denying fee concessions – which is the only means to access to the justice system for people who have a disability pension card. If it isn’t accepted it’s indirect disability discrimination.”

52. This email was included in the material referred to the Tribunal.

53. I consider that this paragraph arguably raises a complaint of indirect discrimination, being that the registrar imposed a requirement or condition (that the claim have sufficient merit) before granting a fee concession.

54. A complaint referred to the Tribunal is to comprise the original complaint and, among other things, “any other documents or information obtained or recorded by the President that, in the opinion of the President, help to identify the subject-matter of the complaint or otherwise contain an allegation of a contravention of a provision of this Act or the regulations” (AD Act, s 94A(1)(c)).

55. The Department did not submit that Ms Frost’s indirect discrimination complaint, in the form she articulated it at the Tribunal, was not part of the referred complaint.

56. I consider that there is a reasonable argument that the indirect discrimination complaint Ms Frost now makes, insofar as it relates to the processing of her application for waiver or postponement of the filing fee, is part of the complaint referred to the Tribunal.

57. However, it appears to me that the complaint Ms Frost made at the hearing, that the filing fee is set too high for people on a disability pension, insofar as it complains about the setting of the fee per se, is not part of the complaint referred to the Tribunal. That is, in any event, a matter determined by regulation (Civil Procedure Regulation 2017, Sch 1).

Did the Department require Ms Frost to comply with a requirement or condition?

58. Ms Frost’s indirect discrimination case is not clearly articulated. She does not identify with precision the requirement or condition with which she claims the Department required her to comply.

59. The expression “requirement or condition” is not defined by the AD Act. The alleged “requirement or condition” must be identified with some degree of precision (Australian Iron and Steel Pty Limited v Banovic [1989] HCA 56; (1989) 168 CLR 165 at 185; Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 393, 406-7; Catholic Education Office v Clarke [2004] FCAFC 197; (2004) 138 FCR 121 at 143; King v University of Notre Dame Australia [2017] NSWCATAD 58 at [50]). However, “considerable latitude is afforded to applicants in formulating the requirements or conditions about which they complain” (Walker v State of Victoria [2011] FCA 258 at [194]).

60. I understand Ms Frost’s case to be that the Department required her to comply with a requirement or condition before it would provide her with the services of attending to the filing of her statement of claims, being either the payment of a filing fee, or the provision of a statement of claim which was particularised and/or which complied with court rules. Her case also appears to be that the Department required her to provide a compliant statement of claim, or one with sufficient merit (a requirement) before giving her a fee concession.

61. There is a reasonable argument that the Department required Ms Frost to comply with the condition of paying a filing fee, when it rejected her fee waiver application. There is also a reasonable contrary argument, that the requirement to pay a filing fee is imposed by law, and the Department’s role is only to relax this requirement where it considers it appropriate to do so.

62. As to the other putative requirement, part of Ms Frost’s complaint is that the registry officers should not have “scrutinised” her statement of claim when determining whether to grant her application for a fee waiver or postponement of the fee. She said that, if she paid the fee, then her statement of claim would not have been scrutinised.

63. One of Prothonotary Kenna’s reasons for refusing the fee waiver application was that the statement of claim was not adequately particularised. The evidence of Principal Register D’Aeth is that he would have rejected any application for a waiver of a filing fee for a statement of claim which failed to comply with certain court rules and which was not adequately particularised.

64. There is thus a reasonable basis for the contention that the Department required Ms Frost to provide a statement of claim which complied with certain court rules, before processing the filing of it (in the absence of Ms Frost paying the filing fee). This may be described as a requirement or condition.

Can a substantially higher proportion of persons who do not have Ms Frost’s disability comply with the requirement?

65. If Ms Frost’s complaint were to proceed, she would have to establish that a substantially higher proportion of persons who do not have her disability comply or are able to comply with:

1. the requirement of paying a filing fee; and, or in the alternative

2. the requirement that a statement of claim complies with certain court rules and is adequately particularised.

66. Ms Frost has provided no evidence of any correlation between having Ms Frost’s disability and being unable to afford the filing fees. Without evidence of the nature of Ms Frost’s disability, it is not possible for the Tribunal to consider whether “a substantially higher proportion of persons” who do not have her disability comply or are able to comply with the requirement of paying a filing fee. The test is reasonably onerous. It is a different question from whether people receiving the disability services pension can pay the filing fee. This is the issue upon which Ms Frost focused.

67. This tends against the grant of leave.

68. There is no evidence as to the proportion of persons who do have, or who do not have, Ms Frost’s disability and who comply or are able to comply with the requirement that a statement of claim complies with certain court rules or is sufficiently particularised. Ms Frost has not persuaded me that it is likely that she could establish that a substantially higher proportion of persons who do not have her disability either do or could comply with this requirement.

Was the requirement of payment of a filing fee reasonable?

69. Ms Frost might be able to establish that the requirement that she pay a filing fee was effectively imposed through the rejection of her fee waiver application. If so, she may also be able to establish that this was not reasonable having regard to the circumstances of the case. Those circumstances were that she was on a low income (a pension) with few assets and had stated that she suffered from a disability. Further, the applicable guidelines (discussed below) provided that applications will generally be granted where the applicant is dependent on social security payments and lacks sufficient income to pay a fee. The guidelines do not refer to the merits or compliance of the pleadings.

Was Ms Frost able to comply with the requirement of paying a fee?

70. It may be inferred, from Ms Frost’s statement of assets and income on her fee waiver applications and from her failure to pay the filing fees when the limitation periods in her proceedings were about to expire, that she was unable to comply with the condition upon which services were provided (the payment of filing fees).

Was it necessary to refuse the fee waiver application?

71. The Department relies upon the application of s 54 of the AD Act as a discretionary factor relevant to the decision to grant leave. The effect of this provision is that any discriminatory treatment, by way of refusal of the fee waiver application, would not be unlawful if it was necessary for Departmental officers to refuse the fee waiver application in order to comply with a requirement of cl 11 of the Civil Procedure Regulation or any instrument made under an Act.

72. Clause 11(1) of the Civil Procedure Regulation provides that the registrar may, “by order in writing, direct that the whole or part of a fee payable to the registrar be waived, postponed or remitted, subject to any conditions the registrar thinks fit to impose.” Clause 11(3) of that regulation provides that the powers conferred by clause 11 are to be exercised in accordance with any guidelines published by the Attorney General.

73. The Attorney-General has published “Guidelines for the Waiver, Remission and Postponement of Fees” (“Guidelines”). I will assume, for the purposes of this leave application, that they are an instrument made under an Act (although this might be doubted). Clause 8 of the Guidelines provides: “A decision-maker may waive, postpone or remit any fees payable, subject to such conditions as they see fit.” Clause 10 provides, relevantly, that, when considering the application, the decision-maker must consider the applicant’s financial, social and emotional needs. Clause 11 provides, broadly, that the decision-maker may consider any relevant matter and that applications will generally be granted where the applicant is dependent on social security payments and lacks sufficient income to pay a fee.

74. Principal Registrar D’Aeth made a statement in these proceedings in which he stated that Ms Frost’s statement of claim did not comply with r 14.30 or r 15.19 of the Uniform Civil Procedure Rules 2005 and, even if the Registry was aware that Ms Frost suffered from a disability (which he said it was not), her applications for fee postponement or waiver would not have been dealt with any differently.

75. I accept that the Principal Registrar is a witness of truth. However, it appears that the registry staff (including Principal Registrar D’Aeth) overlooked the evidence of Ms Frost’s disability support pension when making their decision about her fee waiver application. I accept, for the purposes of the leave application, the Principal Registrar’s evidence that her application would not have been dealt with any differently if he had been aware that she had a disability. This is not, however, an answer to her indirect discrimination complaint.

76. Given that the Regulation and Guidelines provide a discretion to grant a fee waiver in the circumstances, I am not persuaded that it is likely that s 54 of the AD Act would be a bar to relief, or that it provides a discretionary reason to refuse leave.

Conclusion

77. Ms Frost’s indirect discrimination complaint is not well articulated and lacks evidence to support it. It is not entirely clear which services she says were refused or provided on unfavourable terms and how she says this occurred. I have inferred, from her complaint, that one of the services about which she is complaining is that of processing the filing of a statement of claim, but this is not clearly stated and might be incorrect.

78. Ms Frost has not identified the requirement or condition with which she says she was required to comply. Nor has she provided any material to indicate that a substantially higher proportion of people without Ms Frost’s (unknown) disability, or without any disability, comply or are able to comply with the requirement or condition. Ms Frost does not appear to have turned her mind to this question (or at least has not made any submissions about it). Her focus on the question of whether recipients of the disability services pension can pay the filing fee is misconceived.

79. Given the lack of precision in the way she has described her indirect discrimination complaint or complaints, the problematic issues she would need to overcome (as set out above) and the lack of evidence to support various aspects of the complaints, I do not consider that it would be fair or just to give her leave to proceed with them.

Direct disability discrimination complaint

80. In order to prove direct disability discrimination (AD Act, s 49B(1)(a)), Ms Frost would have to prove that:

1. the Department treated Ms Frost less favourably than it treated or would have treated a person without her disability in the same or similar circumstances (differential treatment); and

2. one of the reasons for that treatment was her disability.

81. In response to the Department’s claim that it was not aware that she had a disability, Ms Frost said that, when she applied for a fee waiver, she provided evidence that she was receiving a disability pension. I am satisfied from the documentary material before me that this is the case. Ms Frost also informed the registry by email on 8 October 2017 that she had been chronically ill for a long time.

82. The nature of Ms Frost’s direct disability claim is not clearly set out in her complaint to the President, nor is it entirely clear from her oral submissions at the hearing or other material before the Tribunal. However, it appears from these sources that Ms Frost’s complaint is that the Department directly discriminated against her by:

1. scrutinising her statement of claim when processing her fee waiver application;

2. failing to decide her fee waiver application in accordance with the Guidelines;

3. rejecting her fee waiver application;

4. losing or destroying her statements of claim;

5. not dealing properly with her GIPA Act request;

6. not dealing fairly with her complaints.

83. Ms Frost would, in my view, be unlikely to be able to establish that one of the reasons for any of these actions was that she had a disability. The concern of the officers dealing with her fee waiver application appears to be that the statement of claim was, or statements of claim were, inadequately particularised and non-compliant with the rules. There is no evidence to suggest that those officers would not have rejected the fee application for the same reason if a person without a disability had made it. There is evidence to the contrary.

84. The registry’s emails of 16 and 20 October 2017 indicate that the statements of claim which Ms Frost provided to the registry were returned to her in the mail when her fee waiver application was rejected. Ms Frost states that she did not receive them. Again, there is no evidence that they were lost or destroyed because she had a disability. A more likely explanation is that they were inadvertently sent to the wrong address or misplaced by Australia Post.

85. There is no evidence that any action taken in relation to Ms Frost’s application under the GIPA Act, or in response to the complaints she made to other persons, was related to her disability or presumed disability.

86. The direct disability complaint is therefore very unlikely to succeed. It would not be fair or just to give Ms Frost leave to proceed with this complaint.

Victimisation complaint

87. If Ms Frost’s victimisation complaint were to proceed, Ms Frost would have the onus of establishing that she had been victimised.

88. Section 50(1) of the AD Act provides:

“50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has:

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.”

89. In summary, to prove victimisation Ms Frost would have to prove that:

1. she alleged that a person committed an act which would amount to a contravention of the AD Act (the trigger);

2. the Department subjected her to a detriment; and

3. the detriment was on the ground that she made the allegation (causation).

90. There is no evidence that Ms Frost made any allegations that any person committed an act which would amount to a contravention of the AD Act. Ms Frost does not now claim that she did. The victimisation complaint is therefore misconceived and without substance and it would not be fair or just to give leave for it to proceed.

Conclusion

91. For these reasons, it is not fair or just to give leave for any of Ms Frost’s complaints to proceed.

ORDER

1. Leave to proceed with the complaints of disability discrimination and victimisation is refused.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 August 2019