Mahmoud v Sydney Trains

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mahmoud v Sydney Trains [2015] NSWCATAD 185
Hearing dates:	14 July 2015
Date of orders:	07 September 2015
Decision date:	07 September 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	Leave is refused for the complaint of race discrimination to proceed.
Catchwords:	PRACTICE AND PROCEDURE – leave sought for complaint declined under the Anti-Discrimination Act 1977 to proceed – whether fair and just for leave to be granted-
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Category:	Procedural and other rulings
Parties:	Tawfek Mahmoud (Applicant) Sydney Trains (Respondent)
Representation:	Solicitors: Applicant (in person) Legal Services Division, Sydney Trains (Respondent)
File Number(s):	1510263

reasons for decision

Introduction

1. Mr Mahmoud, who is of Egyptian ethnic background, complains that Sydney Trains has breached the Anti-Discrimination Act 1977 (NSW) on the ground of his race. On 30 August 2014 Mr Mahmoud applied for a position as Assistant Engineer which was advertised on the Sydney Trains website. He complains that:

1. no-one on the interview panel requested the original documents he was asked to bring to the interview;

2. he was not offered the job;

3. despite requesting feedback as to why he did not get the job, no-one responded until he lodged a complaint of discrimination; and

4. although he attempted to appeal against the decision not to give him the job, no-one responded to his request for information.

2. Mr Mahmoud also mentioned age discrimination in his written submissions to the Tribunal. He acknowledged that he had not complained of age discrimination to the President of the Anti-Discrimination Board and that the President had not referred such a complaint to the Tribunal. In those circumstances the Tribunal does not have jurisdiction to determine whether to grant leave in relation to a complaint of age discrimination.

3. The President of the Anti-Discrimination Board declined the complaints of race discrimination on the basis that they were lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or ‘leave’ for the complaint to go ahead: Anti-Discrimination Act, s 96. I have refused leave in this case because the complaint lacks substance and it is not fair and just for it to proceed.

Principles for granting leave – whether “fair and just”

4. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

1. emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

2. found that the Tribunal’s discretion is unfettered and…