Han v NSW Department of Health

In the matter of Han v NSW Department of Health, the applicant, Mr Han, brought a complaint to the Australian Human Rights Commission against the NSW Department of Health. The complaint, which spanned multiple grounds, included claims of discrimination based on race and disability, non-payment of wages, issues with shift allocation, alterations to a recreation leave form, allegations of constructive dismissal, and concerns about the conduct of an investigation into the complaint. The NSW Department of Health sought dismissal of the complaint on the grounds that it was frivolous, vexatious, misconceived or lacking in substance under section 102 of the Anti-Discrimination Act 1977 (NSW).

The primary legal issues before the court were whether the complaint was frivolous, vexatious, misconceived or lacking in substance, and if so, whether the complaint should be dismissed in its entirety or only in part. The court considered the nature and substance of each individual complaint to determine whether they met the criteria for dismissal. The court also examined whether any part of the complaint could proceed to a full hearing despite the dismissal of other parts.

The court found that most of the complaints were either frivolous, vexatious, misconceived, or lacking in substance. Consequently, these complaints were dismissed under section 102 of the ADA. However, the court determined that the complaint of race discrimination concerning events on 23 April 2004 had sufficient substance and was not frivolous or vexatious. This particular complaint was allowed to proceed to a full hearing. The court reserved the decision on costs pending further proceedings.