Australia, Aug. 26 -- New South Wales Land and Environment Court issued text of the following judgement on July 25:

1. Ms Trott complained to the President of the Anti-Discrimination Board about conduct of Uniting NSW.ACT. She claimed that Uniting had discriminated against her on the ground of her disability and victimised her in breach of the Anti-Discrimination Act 1977 (NSW).

2. The President accepted the complaints for investigation. Following investigation, the President declined the complaints as "lacking in substance" under s 92(1)(a)(i) of the Anti-Discrimination Act. Ms Trott exercised her right to require the President to refer the complaints to the Tribunal: Anti-Discrimination Act, s 92 and s 93A. A complaint that is referred to the Tribunal on the requirement of a complainant "may not be the subject of proceedings before the Tribunal without the leave of the Tribunal": Anti-Discrimination Act, s 96(1). The word "leave" means "permission".

3. For the following reasons I refuse to give Ms Trott permission for her complaints of disability discrimination and victimisation to be the subject of proceedings in the Tribunal.

4. I am unsure if Uniting NSW.ACT is a legal entity. Their legal representative did not object to the proceedings being brought against that entity. If Uniting is not a legal entity, either party may apply, within 7 days of the date these reasons are published, for the correct respondent to be substituted for Uniting NSW.ACT.

Legal principles for granting or refusing "leave" under s 96(1) of the Anti-Discrimination Act

5. Section 96(1) provides that:

96 Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

6. This provision gives the Tribunal a discretion to allow a complaint to be the subject of proceedings or to refuse to allow a complaint to be the subject of proceedings. That decision is not "dictated by the application of a fixed rule to the facts" but involves "value judgments in respect of which there is room for reasonable differences of opinion, no opinion being uniquely right": Norbis v Norbis [1986] HCA 17 at [4]; (1986) 161 CLR 513 at 518 per Mason and Deane JJ. However, the court may give guidance "as to the manner in which the discretion should be exercised": Norbis at [519].

7. The courts have provided guidance of that kind in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 (Ekermawi). On appeal, the Court of Appeal endorsed that approach: Jones & Anor v Ekermawi [2009] NSWCA 388 (Jones). In summary:

1) The Tribunal's decision is not subject to any fixed rule or legislative standard, but it must be exercised "having regard to the context in which it appears and the purposes for which it is provided": Salido v Nominal Defendant (1993) 32 NSWLR 524 at 536 (Kirby P) (Emphasis added.)

2) Leave should be granted or refused depending on what is "fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted": Ekermawi at [40].

3) The President's reasons for declining a complaint are relevant "although not necessarily determinative of the leave application ...": Jones [2009] NSWCA 388 at [60].

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19839bbbb87ea490d2db5220)

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