Whippy v University of New England [2021] NSWCATAD 128

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Whippy v University of New England [2021] NSWCATAD 128 Hearing dates: On the papers Date of orders: 18 May 2021 Decision date: 18 May 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: K Ransome, Senior Member Decision: 1. The application is dismissed. 2. The case conference listed on 19 May 2021 is vacated. Catchwords: ADMINISTRATIVE REVIEW – applicant seeking review of decision made in the Administrative and Equal Opportunity Division – not an administratively reviewable decision – not an externally or internally appealable decision – application misconceived or lacking in substance Legislation Cited: Administrative Decisions Review Act 1997 Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Category: Procedural rulings Parties: Miles Whippy (Applicant) University of New England (Respondent) Representation: Solicitors: Applicant (Self-Represented) Heesom Legal (Respondent) File Number(s): 2021/00089981

REASONS FOR DECISION 1. On 31 March 2021 Miles Whippy lodged with the Administrative and Equal Opportunity Division of the Tribunal an application seeking review of a decision made on 19 October 2020 in matter 2020/00270314. That decision was a decision made by a Principal Member of the Tribunal sitting in the Administrative and Equal Opportunity Division. The decision was made under s 96(1) of the Anti-Discrimination Act 1977 refusing leave for a complaint made by Mr Whippy to proceed before the Tribunal. Reasons for that decision were provided orally on the day and a transcript of the reasons was provided on 4 March 2021. 2. The respondent, the University of New England, has sought an order under s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (CAT Act) that the proceedings be dismissed on the grounds that they are misconceived or lacking in substance. The primary submission of the respondent is that the Tribunal cannot review its own decision and, even if the application could be taken to be an internal appeal from the decision of 19 October 2020, a decision to refuse leave under s 96 of the Anti-Discrimination Act is not an internally appealable decision (cl 15(a) Schedule 3 CAT Act). 3. I note that at a directions hearing on 27 April 2021 the Tribunal determined that the application for dismissal is to be determined in the absence of the parties (see s 50 of the CAT Act). Directions were also made for the parties to provide submissions in relation to the application for dismissal. 4. In his submissions Mr Whippy states that his application for administrative review is on the grounds of jurisdictional error and error of law on the face of the record. He refers to the definition of decision in s 5(1)(g) of the CAT Act which provides that a decision includes "(g) doing or refusing to any other act or thing". He then refers to the objects of the Administrative Decisions Review Act 1997 and states that the Tribunal's decision of 19 October 2020 was not in accord with those objects for various reasons which are set out in his submissions. Mr Whippy also refers to the Tribunal's external appeal jurisdiction provided for in s 31 of the CAT Act, although the relevance of the external appeal jurisdiction to the current application is unclear.