Riley v State of NSW (Department of Education)

The applicants, Riley and another, sought to challenge a decision of the Anti-Discrimination Tribunal in relation to claims of racial discrimination, racial vilification and victimisation. The applicants, both of whom were contract workers, alleged that they had been subjected to racial discrimination and racial vilification by staff of the Department of Education, and that the Department had victimised the second applicant for lodging informal complaints of racial discrimination. The case was dismissed by the tribunal and the applicants sought to appeal that decision. The applicants needed to establish that they were denied access to benefits or subjected to a detriment, that the termination of their contract with their employer constituted not allowing them to work, and that there was differential treatment. In addition, they needed to prove that the laughter and comments at a school staff meeting constituted a public act, were capable of inciting serious contempt or severe ridicule and that the second applicant had done anything under or by reference to the Anti-Discrimination Act and that the respondents had subjected the second applicant to a detriment.

The court found that the applicants had not established that they had been subjected to racial discrimination or racial vilification, or that they had been victimised. The laughter and comments made at the school staff meeting did not constitute a public act, were not capable of inciting serious contempt or severe ridicule and there was no evidence that the second applicant had done anything under or by reference to the Anti-Discrimination Act, or that the respondents had subjected the second applicant to a detriment. Therefore, the applicants' appeal was dismissed. The court found that the applicants' application for costs should be dealt with on the papers and ordered that any party may make an application for costs by providing any evidence and submissions in support of such application to the Tribunal and the other parties by 19 November 2019. Any party against whom, or against which, a costs application is made, is to provide any submissions and evidence on which the party intends to rely in response to the costs application, to the Tribunal and the other parties by 3 December 2019. The applicant for a costs order is to provide any reply to the Tribunal and the other parties by 10 December 2019. Any party applying for costs, or responding to an application for costs, is to address in the party’s submissions whether the costs application should be dealt with on the papers.