O'Sullivan v Pehm

Case [2010] NSWADT 57

CITATION: O'Sullivan v Pehm [2010] NSWADT 57
This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION: Equal Opportunity Division
PARTIES:

APPLICANT
Dr Brendan O’Sullivan

RESPONDENT
Keiran Pehm, First Respondent
Karen Mobbs, Second Respondent
NSW Health Care Complaints Commission, Third Respondent
FILE NUMBER: 081112
HEARING DATES: 24 August 2009
SUBMISSIONS CLOSED: 15 September 2009
 
DATE OF DECISION: 
23 February 2010
BEFORE: Pritchard S - Judicial Member
CATCHWORDS: Application for dismissal s 102
LEGISLATION CITED: Anti-Discrimination Act 1977 (NSW)
Health Care Complaints Act 1993 (NSW)
Administrative Decisions Tribunal Act 1997 (NSW)
Medical Practice Act 1992 (NSW)
CASES CITED: Commissioner of Police, New South Wales Police Service v Orr [2001] NSWADTAP 16
Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73
Tannock v State of New South Wales [1999] NSWADT 73
Karekar v TAFE Commission of New South Wales [2000] NSWADT 187
Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221
Salama v Qantas Airways Ltd [2002] NSWADT 119
Razaghi v Director-General, NSW Department of Health & anor [2002] NSWADT 4
Harding v Vice Chancellor, University of NSW [2003] NSWADT 74
Lin v American International Assurance Company (Australia) Pty Ltd [2005] NSWADT 59
Razaghi v Director General, Department of Health & anor [2005] NSWADT 202
Han v NSW Department of Health [2006] NSWADT 113
Hay v State of New South Wales (New South Wales Police Service) [2006] NSWADT 13
Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179
Bassili v Star City Pty Ltd [2008] NSWADT 62
Mohamed & ors v State of NSW (NSW Police Force) [2009] NSWADT 51
Hurst v Star City Pty Ltd [2009] NSWADT 65
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102
Williams v Spautz (1992) 174 CLR 509
Shaikh v Commissioner, New South Wales Fire Brigades (1996) EOC 92-808 at 78,986
Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Bogie v The University of Western Sydney (1990) EOC 92–313
Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44
Re Brendan O’Sullivan v The Medical Practice Act [2006] NSWMT 13 at [8]
REPRESENTATION:

APPLICANT
R Eaves, solicitor

RESPONDENT
J Oakley, barrister
ORDERS: That the complaint be dismissed pursuant to s 102 of the Anti Discrimination Act 1977 (NSW).


REASONS FOR DECISION


1 The applicant is a medical practitioner registered with the New South Wales Medical Board.

2 The third respondent is identified as the NSW Health Care Complaints Commission (“the HCC Commission”). The Commission is a statutory body representing the Crown constituted by s 75 of the Health Care Complaints Act 1993 (NSW) (“the HCC Act”). It is an independent body with responsibility for dealing with complaints under the HCC Act, with particular emphasis on the investigation and prosecution of serious complaints in consultation with relevant…

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AGLC
O'Sullivan v Pehm [2010] NSWADT 57
Case
[2010] NSWADT 57
Decision Date

CaseChat Overview and Summary

The proceedings in O'Sullivan v Pehm involved a complaint by the applicant, O'Sullivan, against the respondent, Pehm, for alleged discrimination in employment, governed under the Anti Discrimination Act 1977 (NSW). The case was brought before the Local Court of New South Wales to address the merits of O'Sullivan's claim and to determine whether it should proceed to a full hearing or be dismissed. The central dispute hinged on whether Pehm's actions towards O'Sullivan constituted discriminatory behaviour as defined under the Act.

The legal issues before the court included whether the complaint met the threshold criteria for proceeding to a hearing under section 102 of the Anti Discrimination Act 1977 (NSW). Specifically, the court had to assess whether O'Sullivan's complaint was made in good faith and whether there was a reasonable prospect that the complaint was founded on fact. Additionally, the court considered whether the complaint was frivolous or vexatious, which would warrant dismissal under the same section.

The court found that O'Sullivan's complaint did not meet the necessary criteria for proceeding to a full hearing. The evidence presented did not substantiate a reasonable prospect that the complaint was founded on fact. Moreover, the court concluded that the complaint was vexatious as it lacked substance and had been made with an intent to cause unnecessary trouble. Consequently, the court exercised its discretion to dismiss the complaint pursuant to section 102 of the Act. The court's decision was grounded in the lack of credible evidence and the frivolous nature of the complaint, which did not warrant further judicial resources.

Orders

Orders of the court

That the complaint be dismissed pursuant to s 102 of the Anti Discrimination Act 1977 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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