Frost v TAFE NSW

[2020] NSWCATAD 219

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Frost v TAFE NSW [2020] NSWCATAD 219

Hearing dates:

30 November 2019, 1 December 2019

Date of orders:

8 September 2020

Decision date:

08 September 2020

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

M Tibbey, Senior Member
Dr M Murray, General Member

Decision:

Application is dismissed.

Catchwords:

DISABILITY DISCRIMINATION – “on the grounds of” -victimisation – vilification - aiding and abetting.

Legislation Cited:

Anti-Discrimination Act, 1977 (NSW), ss4, 4A, 49B, 49L, 50, 52.

Cases Cited:

Bassili v The Star Pty Ltd [2016] NSWCATAD 167

Commission of Corrective Services v Aldridge [2000] NSWADTAP5

DHL v Nationwide News Pty Ltd [2013] NSWCATAD 92

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Frost v TAFE [2019] NCATAD 62

Frost v TAFE NSW (No 2) [2019] NCATAD 129

Hall v Shieban (1988) 20 FCR 217 at 277

Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99

John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131

Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20

Category:

Principal judgment

Parties:

Julie Frost (Applicant)
TAFE NSW (Respondent)

Representation:

Counsel:
M Lee (Respondent)

Solicitors:
Applicant (Self Represented)
Minter Ellison (Respondent)

File Number(s):

2018/00161029

Publication restriction:

Nil

REASONS FOR DECISION

Introduction

1. This is an application under the Anti-Discrimination Act 1977 (NSW) (hereafter ‘ADA’) alleging discrimination, vilification and victimisation of the applicant, Ms Frost, by the respondent, on the grounds of an actual disability, depressive illness and an imputed disability, mental illness.

2. Ms Frost also alleges a breach of workplace health and safety laws, breach of her privacy and harassment but these are not, as such, causes of action available under the ADA.

3. Ms Frost also seeks non-publication orders in relation to the decision of the Tribunal.

What is required in order to establish discrimination on the grounds of disability?

4. Section 4 of the ADA defines the term ‘disability’ as follows:

“disability” means –

(a)   Total or partial loss of a person’s bodily or mental functions or of a part of a person’s body, or

(b)   The presence in a person’s body of organisms causing or capable of causing disease or illness, or

(c)   The malfunction, malformation or disfigurement of a part of a person’s body, or

(d)   A disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e)   A disorder, illness or disease that affects a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.”

5. Section 49A provides as follows:

“A reference in this Part to a person’s disability is a reference to a disability –

(a)   That a person has, or

(b)   That a person is thought to have (whether or not the person in fact has the disability), or

(c)   That a person had in the past, or is thought to have had in the past (whether or not the person in…