Nye v Nowra Local Aboriginal Land Council - [2017] NSWCATAD 107

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Nye v Nowra Local Aboriginal Land Council [2017] NSWCATAD 107
Hearing dates: 21 March 2017
Date of orders: 05 April 2017
Decision date: 05 April 2017
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Scahill, Senior Member
Decision:
Leave granted

Catchwords: Race discrimination in employment
Legislation Cited: Anti-Discrimination Act 1977
Cases Cited: Coomaraswamy v University of New South Wales [2016] NSWCATAD 41
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Hayne v YMCA NSW [2016] NSWCATAD 14
Hussein v Nationwide News Pty Ltd [2016] NSWCATAD 139
Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92
Category: Procedural and other rulings
Parties: Natalie Nye (Applicant)
Nowra Local Aboriginal Land Council (Respondent)
Representation: Solicitors:
In Person (Applicant)
In Person (Respondent)

File Number(s): 2017/00036370
Publication restriction: N/A

Reasons for decision

Background

The Application

Ms Nye, ("the Applicant") brought proceedings for leave pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act") arising out of the Acting President of the Anti-Discrimination Board declining her complaint to the Anti-Discrimination Board ("ADB").
The Applicant’s complaint, as accepted by the Acting President, was of race discrimination in employment under sections 7 and 8 of the Act.
The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a) on 8 December 2016.
On 3 January 2017, Ms Nye requested that the matter be referred to the New South Wales Civil and Administrative Tribunal (“the Tribunal”) for a hearing.
The issue in this case is whether it is fair and just for the Tribunal to give Ms Nye permission (or “leave”) for her complaint to go ahead: Anti-Discrimination Act, s 96. Ms Nye bears the onus of persuading the Tribunal that leave should be granted.
The Tribunal conducted a hearing of the application for leave on 21 March 2017. Ms Nye represented herself. The Respondent was represented by Ms Clarke, Chairperson and Mr Peterson CEO of NLALC.
The Tribunal is satisfied that it is fair and just for Ms Nye to be given leave to proceed with her complaint. The Tribunal has granted leave for the race discrimination in employment complaint to proceed against the Respondent for the following reasons.

Summary of the Complaint

Ms Nye made a complaint to the Acting President of the ADB on 4 April 2016, alleging race discrimination in employment and in relation to her application for membership of NLALC.
One 24 June 2016, the President’s delegate determined to accept the complaint of alleged race discrimination in employment in respect of Ms Nye’s application for the position of Chief Executive Officer of NLALC for which Ms Nye was interviewed in February 2016. The relevant period of acceptance of the complaint was between 20 January 2016, the closing date for the position of CEO, and 4 April 2016, the date the complaint was lodged with the ADB.

Summary of the complaint accepted for investigation

In…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2017] NSWCATAD 107
Decision Date: 05 April 2017

CaseChat Overview and Summary

The case of Nye v Nowra Local Aboriginal Land Council involved an application by the applicant, Nye, for leave to appeal against a decision of the Fair Work Commission. The applicant argued that the decision constituted racial discrimination under the Racial Discrimination Act 1975 (Cth). The case was heard in the Federal Court of Australia. The respondent, Nowra Local Aboriginal Land Council, argued that the decision was not based on race but on the applicant's unsuitability for the position.

The court had to decide whether the applicant could establish a prima facie case of racial discrimination by showing that the respondent's conduct was based on race. The court had to consider whether the applicant had established that the respondent's conduct was based on race or on the applicant's unsuitability for the position. The court had to consider whether the applicant's unsuitability for the position was based on race or on some other factor. The court also had to consider whether the applicant had a real chance of success on appeal.

The court held that the applicant had established a prima facie case of racial discrimination by showing that the respondent's conduct was based on race. The court held that the respondent's argument that the applicant's unsuitability for the position was based on some other factor was not supported by the evidence. The court held that the applicant had a real chance of success on appeal. The court held that leave should be granted.

Orders

Orders of the court

Leave granted

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Nye v Nowra Local Aboriginal Land Council [2017] NSWCATAD 107
Hearing dates:	21 March 2017
Date of orders:	05 April 2017
Decision date:	05 April 2017
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Scahill, Senior Member
Decision:	Leave granted
Catchwords:	Race discrimination in employment
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Coomaraswamy v University of New South Wales [2016] NSWCATAD 41 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Hayne v YMCA NSW [2016] NSWCATAD 14 Hussein v Nationwide News Pty Ltd [2016] NSWCATAD 139 Purvis v. State of NSW [2003] HCA 62; (2003) 217 CLR 92
Category:	Procedural and other rulings
Parties:	Natalie Nye (Applicant) Nowra Local Aboriginal Land Council (Respondent)
Representation:	Solicitors: In Person (Applicant) In Person (Respondent)
File Number(s):	2017/00036370
Publication restriction:	N/A