Tebb v State of NSW - [2020] NSWCATAD 85

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Tebb v State of NSW [2020] NSWCATAD 85
Hearing dates: 2 December 2019
Date of orders: 17 March 2020
Decision date: 17 March 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
Decision:
(1)   The application made by the respondent to dismiss the First Complaint is refused, except in relation to the allegations of indirect discrimination on the grounds of disability and carers’ responsibilities.
(2)   The application made by the respondent to dismiss the Second Complaint is refused.
(3)   The application made by the applicant to amend the First and Second Complaints is refused.

Catchwords: HUMAN RIGHTS — discrimination — whether power to dismiss complaint summarily under s 102 of the Anti-Discrimination Act 1977 should be exercised
WORDS AND PHRASES — meaning of “misconceived” and “lacking in substance”
HUMAN RIGHTS — discrimination — factors relevant to power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW)
Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil and Administrative Tribunal Act 2013 (NSW)
Government Sector Employment Act 2019 (NSW)
Cases Cited: Alchin v Rail Corporation NSW [2012] NSWADT 142
BDK v Department of Education and Communities [2015] NSWCATAP 129
Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]; Bonella v Wollongong City Council [2001] NSWADT 194
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953
Kitoko v Sydney Local Health District [2018] NSWCATAP 38
McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299
Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38
Penhall-Jones v New South Wales [2007] FCA 925 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92
Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256
Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91
Sivananthan v Commissioner of Police [2001] NSWADT 44
Texts Cited: None cited
Category: Procedural and other rulings
Parties: Andrew Tebb (Applicant)
State of NSW (Respondent)
Representation:
Counsel:
R Graycar (Respondent)
Solicitors:
Crown Solicitor (Respondent)
Applicant (Self represented)

File Number(s): 2018/00366593
Publication restriction: Nil

Judgment

In April 2018, Court Officer, Mr Andrew Tebb, made a complaint to the President of the NSW Anti-Discrimination Board (the President) alleging that his employer (the Secretary of the Department of Justice) had discriminated against him on the grounds of disability and carers’ responsibilities (the First Complaint). Six weeks later, Mr Tebb made a further complaint (the Second Complaint) alleging that he had been victimised by his employer as a result of making the First Complaint.
The respondent in these proceedings, the State of NSW (Department of Justice), applies for orders under s 102 of the Anti-Discrimination Act 1977 (NSW) (the Act) dismissing both complaints on the ground that each…

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: [2020] NSWCATAD 85
Decision Date: 17 March 2020

CaseChat Overview and Summary

The case of Tebb v State of NSW involved a dispute between the applicant and the State of New South Wales, concerning alleged discrimination under the Anti-Discrimination Act 1977 (NSW). The applicant brought two complaints against the State, and the State sought to dismiss these complaints on the grounds that they were misconceived or lacking in substance, or alternatively, to amend the complaints. The matter was heard in the Supreme Court of New South Wales, where the central legal issues were whether the court should exercise its discretion to dismiss the complaints summarily under section 102 of the Anti-Discrimination Act, and if there were grounds to amend the complaints under section 103 of the same Act.

The court considered the definitions of "misconceived" and "lacking in substance" in the context of the complaints. It concluded that the complaints, while not entirely without merit, did not meet the stringent threshold for dismissal under section 102 of the Act. The court also assessed the application for amendment under section 103, finding that the complaints could not be adequately amended to satisfy the requirements of the legislation. The court balanced the need for efficient use of judicial resources with the importance of protecting the applicant's rights under the Act.

Ultimately, the court ruled that the application to dismiss the complaints should be refused, except for the allegations of indirect discrimination on the grounds of disability and carers' responsibilities. The application to amend the complaints was also refused. The court’s decision underscored the importance of allowing discrimination complaints to proceed unless they are clearly without merit. The final orders of the court reflect this balancing act, ensuring that the process remains fair and just while also managing the court's resources effectively.

Orders

Orders of the court

(1) The application made by the respondent to dismiss the First Complaint is refused, except in relation to the allegations of indirect discrimination on the grounds of disability and carers’ responsibilities.

(2) The application made by the respondent to dismiss the Second Complaint is refused.

(3) The application made by the applicant to amend the First and Second Complaints is refused.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Tebb v State of NSW [2020] NSWCATAD 85
Hearing dates:	2 December 2019
Date of orders:	17 March 2020
Decision date:	17 March 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	(1) The application made by the respondent to dismiss the First Complaint is refused, except in relation to the allegations of indirect discrimination on the grounds of disability and carers’ responsibilities. (2) The application made by the respondent to dismiss the Second Complaint is refused. (3) The application made by the applicant to amend the First and Second Complaints is refused.
Catchwords:	HUMAN RIGHTS — discrimination — whether power to dismiss complaint summarily under s 102 of the Anti-Discrimination Act 1977 should be exercised WORDS AND PHRASES — meaning of “misconceived” and “lacking in substance” HUMAN RIGHTS — discrimination — factors relevant to power to amend complaint under s 103 of Anti-Discrimination Act 1977 (NSW)
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Government Sector Employment Act 2019 (NSW)
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 BDK v Department of Education and Communities [2015] NSWCATAP 129 Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]; Bonella v Wollongong City Council [2001] NSWADT 194 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Glasgow City Council v Zafar [1997] UKHL 54; [1998] 2 All ER 953 Kitoko v Sydney Local Health District [2018] NSWCATAP 38 McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299 Obieta v Australian College of Professionals Pty Ltd [2014] NSWCATAP 38 Penhall-Jones v New South Wales [2007] FCA 925 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Purvis v New South Wales [2003] HCA 62; (2003) 217 CLR 92 Seventh Day Adventist Church (North NSW Conference) Ltd v Seupule-Feau [2016] NSWCATAP 256 Sharma v Legal Aid (Qld) [2002] FCAFC 196; (2002) 115 IR 91 Sivananthan v Commissioner of Police [2001] NSWADT 44
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Andrew Tebb (Applicant) State of NSW (Respondent)
Representation:	Counsel: R Graycar (Respondent) Solicitors: Crown Solicitor (Respondent) Applicant (Self represented)
File Number(s):	2018/00366593
Publication restriction:	Nil