Mitry v Abbas

[2013] NSWADT 214

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Mitry v Abbas [2013] NSWADT 214

Hearing dates:

19 September 2013

Decision date:

01 October 2013

Jurisdiction:

Equal Opportunity Division

Before:

M Chesterman, Deputy President

Decision:

1. Leave to proceed with the complaint is refused.

2. No order as to costs.

Catchwords:

Racial vilification - complaint declined by President of Anti-Discrimination Board - leave to proceed in Tribunal

Legislation Cited:

Anti-Discrimination Act 1977

Cases Cited:

Burns v Dye [2002] NSWADT 32
Haas v Hosking [2010] NSWADT 42
Jones & Anor v Ekermawi [2009] NSWCA 388

Category:

Principal judgment

Parties:

Rick Mitry (Applicant)
Talgat Abbas (Respondent)

Representation:

Mitry Lawyers (Applicant)
T Abbas (Respondent in person)

File Number(s):

131071

reasons for decision

Introduction

1. This decision relates to an application by the Applicant, Rick Mitry, for leave under section 96 of the Anti-Discrimination Act 1977 ('the Act') to proceed in the Tribunal with a complaint of unlawful racial vilification against the Respondent, Talgat Abbas.

1. In circumstances outlined below, the President of the Anti-Discrimination Board ('the President') declined this complaint under section 92 of the Act, on the ground that it was 'lacking in substance'. The Applicant then requested the President to refer the complaint to the Tribunal under section 93A. Section 96 states that any complaint so referred 'may not be the subject of proceedings before the Tribunal without the leave of the Tribunal'.

1. The hearing of the Applicant's application for leave was set down to be heard by me on 10 September 2013. Mr Lee, of Mitry Lawyers, appeared for the Applicant, but the Respondent did not appear. I adjourned the hearing to 19 September, requesting the Registrar to communicate this date to the Respondent by telephoning him on a number furnished by Mr Lee and to advise him that if he did not appear at the adjourned hearing the matter would be determined in his absence. I reserved the question of costs.

1. At the adjourned hearing, Mr Lee again appeared for the Applicant and the Respondent appeared in person. The Respondent indicated that the reason why he failed to appear at the earlier hearing was that the Registrar's letter to him about it had been sent to an address at which he no longer resided. Mr Lee did not dispute this explanation.

1. The evidence put before me at the adjourned hearing comprised the President's Report on the complaint. I have also taken in consideration certain factual statements made from the Bar Table by Mr Lee and by the Respondent, as well as their submissions. Mr Lee advised me that the Applicant, being overseas, was unable to attend.

Outline of facts

1. On 27 August 2012, the Applicant lodged his complaint with the Anti-Discrimination Board ('the Board'). It contained allegations to the following effect.

1. During August 2012, the Respondent, after carrying out a painting job for him, had asked to be paid in cash and, on being requested to furnish an invoice, had become abusive of him in SMS and voicemail messages. On 20…