GJE & GKA v Inner West Council - [2025] NSWCATAD 11

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: GJE & GKA v Inner West Council [2025] NSWCATAD 11
Hearing dates: 22, 23 and 24 July 2024, final submissions received 14 August 2024
Date of orders: 9 January 2025
Decision date: 09 January 2025
Jurisdiction: Administrative and Equal Opportunity Division
Before: J Redfern, Senior Member
S Davison, General Member
Decision:
The application is dismissed.

Catchwords:
HUMAN RIGHTS – discrimination – on the ground of disability – direct and indirect discrimination alleged – consideration of planning approval by Council - whether unlawful discrimination – discrimination alleged in relation to complaint made –privacy breaches alleged in relation to health information –the provision of services – jurisdiction to deal with privacy breaches alleged

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Environmental Planning and Assessment Act 1979 (NSW)
Health Records and Information Privacy Act 2002 (NSW)
Land and Environment Court Act 1979 (NSW)
Privacy and Personal Information Act 1998 (NSW)

Cases Cited:
Australian Iron & Steel v Banovic [1989] HCA 56; (1989) 68 CLR 165
IW v City of Perth 1997] HCA 30; 191 CLR 1
State of NSW v Whiteoak [2014] NSWCATAP 99
Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349
Weldon-Bowen v Commissioner of Police, NSW Police Force [2024] NSWCATAD 71

Texts Cited:
Discrimination Law and Practice (Ronalds and Raper, 2019)
Inner West Local Environmental Plan 2020
Marrickville Development Control Plan 2011
Marrickville Local Environmental Plan 2011

Category: Principal judgment
Parties: GJE and GKA (Applicant)
Inner West Council (Respondent)
Representation:
GJE and GKA (Self Represented)
Counsel:
P Boncardo (Respondent)
Solicitor:
R Dunston (Inner West Council) (Respondent)

File Number(s): 2024/00019494
Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the applicants and any other identifying information is prohibited.

REASONS FOR DECISION

Introduction

GJE has multiple sclerosis (MS). She and her husband, GKA, submitted a development application (DA) to the respondent - their local government council - seeking approval for renovations to their home. GJE and GKA contend that the renovations were intended to accommodate GJE’s disability.
GJE and GKA lodged the application on 22 December 2021. The respondent refused the application by decision dated 22 July 2022. GJE and GKA appealed this decision to the Land and Environment Court in August 2022. There was a conciliation conference in December 2022 and on 2 December 2022 the Land and Environment Court made consent orders upholding the appeal and granting consent to the DA subject to certain conditions.
On 19 June 2023, GJE and GKA lodged a complaint with the respondent in relation to concerns about how their DA was processed and decided. They alleged disability discrimination under the Anti-Discrimination Act 1977 (NSW) (ADA) and a breach of privacy. The complaint was investigated by the respondent’s general counsel and GJE and GKA were advised of the outcome by letter dated 11 October 2023. In brief, the respondent concluded that there…

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: [2025] NSWCATAD 11
Decision Date: 09 January 2025

CaseChat Overview and Summary

In this matter, GJE and GKA were applicants who sought relief from the Administrative Appeals Tribunal (AAT) against a decision made by the Inner West Council. The applicants alleged that the Council discriminated against them on the basis of disability, both directly and indirectly, when considering their application for planning approval. They also claimed that the Council's handling of their complaint about the decision constituted further discrimination and that there were privacy breaches related to their health information. The AAT was asked to determine whether the Council's actions were unlawful, whether they amounted to discrimination, and if the AAT had jurisdiction to address the privacy breaches.

The legal issues before the AAT included whether the Council's actions constituted unlawful discrimination under the Anti-Discrimination Act and whether the AAT had the jurisdiction to address the privacy breaches alleged by the applicants. The AAT also had to consider whether the Council's handling of the complaint constituted further discrimination. In addressing these issues, the AAT examined the evidence presented and the relevant legislative frameworks.

The AAT concluded that the Council's actions did not constitute unlawful discrimination and that the AAT lacked jurisdiction to address the privacy breaches. The Tribunal found that the Council had considered the applicants' disability in the planning process, but this did not amount to discrimination as the considerations were reasonable and proportionate. Regarding the handling of the complaint, the AAT determined that there was no evidence of discriminatory intent or effect. The AAT also held that the privacy breaches alleged were not within its jurisdiction, as they related to health information and were not covered by the Anti-Discrimination Act. Consequently, the application was dismissed.

The AAT's decision resulted in the dismissal of the application, with no orders made in favour of the applicants. The Tribunal found no unlawful discrimination by the Inner West Council and held that it did not have jurisdiction over the alleged privacy breaches.

Orders

Orders of the court

The application 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:	GJE & GKA v Inner West Council [2025] NSWCATAD 11
Hearing dates:	22, 23 and 24 July 2024, final submissions received 14 August 2024
Date of orders:	9 January 2025
Decision date:	09 January 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	J Redfern, Senior Member S Davison, General Member
Decision:	The application is dismissed.
Catchwords:	HUMAN RIGHTS – discrimination – on the ground of disability – direct and indirect discrimination alleged – consideration of planning approval by Council - whether unlawful discrimination – discrimination alleged in relation to complaint made –privacy breaches alleged in relation to health information –the provision of services – jurisdiction to deal with privacy breaches alleged
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Health Records and Information Privacy Act 2002 (NSW) Land and Environment Court Act 1979 (NSW) Privacy and Personal Information Act 1998 (NSW)
Cases Cited:	Australian Iron & Steel v Banovic [1989] HCA 56; (1989) 68 CLR 165 IW v City of Perth 1997] HCA 30; 191 CLR 1 State of NSW v Whiteoak [2014] NSWCATAP 99 Waters v Public Transport Corporation [1991] HCA 49; (1992) 173 CLR 349 Weldon-Bowen v Commissioner of Police, NSW Police Force [2024] NSWCATAD 71
Texts Cited:	Discrimination Law and Practice (Ronalds and Raper, 2019) Inner West Local Environmental Plan 2020 Marrickville Development Control Plan 2011 Marrickville Local Environmental Plan 2011
Category:	Principal judgment
Parties:	GJE and GKA (Applicant) Inner West Council (Respondent)
Representation:	GJE and GKA (Self Represented) Counsel: P Boncardo (Respondent) Solicitor: R Dunston (Inner West Council) (Respondent)
File Number(s):	2024/00019494
Publication restriction:	Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the applicants and any other identifying information is prohibited.