Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Grass v McIntosh, Leong and Auyeng [2023] NSWCATAD 258 Hearing dates: 21 August 2023 Date of orders: 11 October 2023 Decision date: 11 October 2023 Jurisdiction: Administrative and Equal Opportunity Division Before: L Andelman, Senior Member
S Davison, General MemberDecision: 1. The first respondent and the second respondent is enjoined from continuing or repeating any conduct rendered unlawful by Anti-Discrimination Act 1977 against the applicant.
2. The first respondent is to provide a copy of this decision to the management of the tennis court within 14 days.
3. The first respondent is to place a copy of this decision next to the sign on sheet for the social group for two consecutive Tuesdays and Thursdays following receipt of this decision.
4. The application against the third respondent is dismissed.
Catchwords: HUMAN RIGHTS – victimisation – whether applicant was subjected to detriment on the ground that the applicant made allegations – s50(1)(c) of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited: Cases Cited: Chi v Technical and Further Education Commission [2012] NSWCA 421
Finch v Heat Group Pty Ltd [2010] VSCA 256
Grass v Voyager Tennis Pty Ltd, McIntosh, Leong and Auyeng [2023] NSWCATAD 68
Grass v Voyager Tennis Pty Ltd & Ors [2023] NSWCATAP 168
Hautlieu Pty Ltd t/a Russell Pathology v McIntosh [2000] WASCA 146
James v NSW Department of Communities and Justice [2022] NSWCATAD 280
Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62
Najmitdinov v Woolworths Group Ltd [2019] NSWCATAD 51
Nicholls v Director-General, Department of Education and Training (No 2) [2009] NSWADTAP
Texts Cited: Nil
Category: Principal judgment Parties: John Grass (Applicant)
Leonard McIntosh (First Respondent)
Edi Leong (Second Respondent)
Terry Auyeng (Third Respondent)Representation: John Grass (self-represented)
Leonard McIntosh (self-represented)
Edi Leong (self-represented)
Terry Auyeng (no appearance)
File Number(s): 2022/00156371 Publication restriction: Nil
REASONS FOR DECISION
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Mr Grass lodged a complaint of victimisation against Voyager Tennis Pty Ltd (Voyager), Mr Leonard McIntosh, Mr Edi Leong and Mr Terry Auyeng regarding events that occurred between 1 November 2021 and 4 January 2022 (the complaint period). Events prior to that date were not accepted for investigation by the Anti-Discrimination Board NSW because they occurred more than 12 months before the lodgement of the complaint.
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In summary, Mr Grass alleged that he is a long standing member of an unincorporated tennis club or group largely comprised of retired persons who have, over the last 50 years, hired tennis courts to play socially twice a week (the social group) and that he had been playing tennis with the social group for over 25 years.
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In late 2019, and again when the tennis courts re-opened following Covid restrictions in September/October 2021, he made numerous written complaints that some members of the social group were excluding older and less able members of the social group from playing tennis. His complaint to this Tribunal is that as…
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- Case
- [2023] NSWCATAD 258
- Decision Date
CaseChat Overview and Summary
The primary legal issue before the Board was whether the applicant had been subjected to unlawful discrimination and victimisation based on her making allegations against the respondents. The Board had to consider whether the conduct of the respondents amounted to a detriment on the grounds specified in the Act. The Board also had to determine whether the applicant's exclusion from the social tennis group constituted victimisation.
The Board found that the applicant had been subjected to conduct that contravened the Act, including intimidation and humiliation. However, the Board found that the exclusion from the social tennis group was not a detriment on the grounds specified in the Act. The Board found that the applicant's exclusion was not related to her making allegations against the respondents, but rather due to her behaviour towards other members of the group. The Board concluded that the applicant had not been subjected to victimisation on the grounds of making allegations.
The Board made several orders against the first and second respondents, including an injunction against continuing or repeating any unlawful conduct against the applicant. The Board also ordered the first respondent to provide a copy of the decision to the management of the tennis court and to place a copy of the decision next to the sign-on sheet for the social group. The application against the third respondent was dismissed.
Orders
Orders of the court
1. The first respondent and the second respondent is enjoined from continuing or repeating any conduct rendered unlawful by Anti-Discrimination Act 1977 against the applicant.
2. The first respondent is to provide a copy of this decision to the management of the tennis court within 14 days.
3. The first respondent is to place a copy of this decision next to the sign on sheet for the social group for two consecutive Tuesdays and Thursdays following receipt of this decision.
4. The application against the third respondent is dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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