Heber v Glen Henney & Son Pty Ltd (No 2)

CITATION:	Heber v Glen Henney & Son Pty Ltd (No 2) [2007] NSWADT 230
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Adrian Heber RESPONDENT Glen Henney & Son Pty Ltd
FILE NUMBER:	071021
HEARING DATES:	15 June 2007
SUBMISSIONS CLOSED:	15 June 2007
DATE OF DECISION:	2 October 2007
BEFORE:	Needham J SC - Deputy President
CATCHWORDS:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Briginshaw v Briginshaw (1938) 60 CLR 336 Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Fricke v Corbett Research P/L [2004] NSWADT 128 Han v. NSW Department of Health [2006] NSWADT 113 Heber v. Glen Henney & Son Pty Ltd [2007] NSWADT 93 Razaghi v. Director General, Department of Health [2006] NSWADTAP 33 Seltsam Pty Ltd v. McGuinness (2000) 49 NSWLR 262
REPRESENTATION:	APPLICANT In person RESPONDENT G Grasso,agent
ORDERS:	Application for dismissal dismissed. The matter is listed for a case conference on Wednesday, 14 November 2007 at 3.15pm to fix a date for hearing.

1 On 30 May 2006 Mr Heber (“the applicant”), complained to the Anti-Discrimination Board that he had been discriminated against by his former employer, Glen Henney and Son Pty Ltd (“the respondent”). The complaint alleged race, sexuality, appearance and age discrimination over a period of 17 October 2005 to 28 October 2005.

2 On 2 February 2007, the President declined the complaint as lacking in substance. The applicant sought his matter to be referred to the Administrative Decisions Tribunal pursuant to s 93A of the Anti-Discrimination Act 1977. The matter was referred on 22 February 2007.

3 As required by s 96 of the Anti-Discrimination Act, the applicant needed the leave of the Tribunal to proceed with his complaint. Mr Heber brought an application for leave which was heard by Deputy President Magistrate Hennessy on 5 April 2007. Leave was granted and reasons for that leave handed down by her Honour on 19 April 2007.

4 In her decision, Her Honour Magistrate Hennessy said:-

“8 The parties disagree fundamentally about what happened in the course of Mr Heber’s employment. Mr Henney categorically denies that he made the statements attributed to him by Mr Heber and has provided a statutory declaration to that effect. Statutory declarations have also been provided by Mr Grasso and Mr Henney in relation to the discussions at a meeting on 28 October 2005 during which Mr Heber says his employment was terminated. Where there is a dispute about the facts, the usual approach in preliminary proceedings such as these is to take the applicant’s evidence at its highest. If Mr Heber is able to prove his version of events, then he has an arguable case of age discrimination.

9 In those circumstances, Mr Heber’s complaint has some prospects of success even though, in my view, there is some doubt about Mr Heber’s credibility. That…