Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Lees v Blacktown Arts and Crafts Group [2021] NSWCATAD 261 Hearing dates: 4 August 2021 Date of orders: 10 September 2021 Decision date: 10 September 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: Leave for the complaints to proceed is refused. Catchwords: EQUAL OPPORTUNITY - application for leave to proceed with complaints – victimisation – detriment – lack of evidence Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Prakash v Bobb Borg Pty Ltd [1999] NSW ADT 73 Category: Procedural rulings Parties: Jeffrey Lees (First Applicant) Michael Moore (Second Applicant) Blacktown Arts and Crafts Group (First Respondent) Brenda deSmid (Second Respondent) Representation: Applicants self-represented Brenda deSmid (First Respondent and self-represented) File Number(s): 2021/186461 reasons for decision Background 1. Jeffrey Lees and Michael Moore (the Applicants) seek the leave of the Tribunal to proceed with complaints under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 3 July 2020 the President of the Anti-Discrimination Board of NSW (the ADB) received 4 complaints under the AD Act from the Applicants against the Respondents, the Blacktown Arts and Crafts Centre (First Respondent) and its President, Brenda deSmid (Second Respondent). The Applicants alleged that the Respondents had victimised them by refusing their applications for membership to the First Respondent because they had previously brought anti-discrimination proceedings against the First Respondent in 2010. 2. On 24 May 2021 the President's delegate declined the complaints against the First Respondent as not disclosing a contravention pursuant to section 92(1)(a)(ii) of the AD Act and against the Second Respondent as lacking in substance pursuant to section 92(1)(a)(i) of the AD Act. The reasons provided by the ADB were stated as: Based on the information provided by both parties, the complaint against Blacktown Arts and Crafts Group does not amount to a contravention of the Anti-Discrimination Act 1977 (NSW) because the group is a voluntary body under s57 which can make membership decisions without regard to the Act. The complaint against Ms deSmid lacks substance as she rejected the complainants' membership request because they are ineligible under the constitution, not because they had previously brought a complaint of discrimination against the respondent. 1. On 10 June 2021 the Applicants requested that the complaints be referred to this Tribunal under s 93A of the AD Act. The leave hearing took place on 4 August 2021 by telephone. The Applicants appeared on their own behalf and the Second Respondent appeared on her behalf and on behalf of the First Respondent. The parties relied on the responses provided to the ADB and made oral submissions at the leave hearing. Legislation and principles governing the grant of leave 1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: (s 87A(1)(a)(i) of the AD Act). 2. Section 92 provides: "92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint— (a) the President is satisfied that— (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of— (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96." 1. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave: s 96(1). 2. Section 96 of the AD Act gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme. 3. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]. 4. Section 50 provides: "50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has— (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith." Consideration 1. The Applicants alleged that they had settled a discrimination complaint against the First Respondent in 2010, by which it was agreed that they resign their membership of the First Respondent. In 2018 the then Vice President of the First Respondent suggested to the Applicants that they run a pottery class but when they made inquiries in August 2018, they were informed by other members of the First Respondent and the Second Respondent that they were "banned from going within 100 metres" of the First Respondent's buildings because they had lost their discrimination case against the First Respondent. The Applicants made attempts to renew their membership and involvement with the First Respondent, including conversations with the Second Respondent on 8 August 2018 and in early June 2020 during which she is alleged to have stated again that because they had "lost their case" they were "banned from BA&CG". On 26 June 2020 they sent messages to the First Respondent's Facebook page, each seeking to renew their membership, but were refused. The Applicants again contacted the Second Respondent by telephone on 30 June 2020, and were told that they would not be accepted as members. 2. The Second Respondent is the current elected President of the First Respondent. The Second Respondent stated that the Applicants had resigned as members of the First Respondent in 2010. This was not disputed by the Applicants. 3. The Respondents submitted that the Applicants' resignations in 2010 were final, and that since the Applicants had not been nominated for membership since their resignation, they were not eligible for membership. A copy of the First Respondent's Constitution was provided to the Tribunal, which included: a person is qualified to be a member if: (a) they have not ceased to be a member of the group; or (b) they have been nominated by a member of the group and approved by the committee of the group. … A person ceases to be a member of the group if they die, resign or are expelled. 1. The Respondents denied that the refusal of the Applicants' membership was because of their 2010 discrimination proceedings. In correspondence with the ADB, the Second Respondent stated: As I have said before they will not be given new membership not because they took us to discrimmination but because of their behaviour when they were with us, we all have a code of conduct to adhere to and they did not,and constant threats from them as to the phone call that they taped from Lea is an example. Please note that the other calls abusing me and Lea and intimidating caroline have not been used at all but the threat of having us closed down is certainly in the call to Lea 1. The Second Respondent complained of various harassing telephone calls from the Applicants, both to herself and other members of the First Respondent. 2. In order for the substantive complaint to succeed, the Applicants must show that they were subjected to a detriment on the ground that they had brought discrimination proceedings against the First Respondent pursuant to s 50(1)(a) of the AD Act. The Tribunal accepts that they fulfil the criteria at s 50(1)(a) of the AD Act. The question is whether they have suffered a detriment as a result of bringing those proceedings. 3. The Applicants' case should be taken at its highest. In Prakash v Bobb Borg Pty Ltd [1999] NSW ADT 73 at [35] it was said that: " …the appropriate way forward is to take the Complainant's evidence at its highest point or in other words, and for the purposes of this exercise to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination". 1. If it was the case that they had applied for membership of the First Respondent in accordance with the Constitution, and were then rejected by the committee of the First Respondent because of their 2010 discrimination proceedings, there may be a basis for leave. However taking the Applicants' evidence at its highest, there is no evidence of their nomination for membership of the First Respondent by a member of the First Respondent. The only applications or nominations have been made by the Applicants themselves. The effect of this is that they haven't applied for membership in accordance with the First Respondent's constitution. It is difficult to understand, as a result, what "detriment" the Applicants could rely on to establish victimisation in the circumstances. The conduct which is relied upon to establish victimisation has not been established. 2. The Applicants have not established that it is just or fair for leave to be granted in the circumstances. Order 1. Leave for the complaints to proceed is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 September 2021