YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: YFA v Secretary, NSW Ministry of Health [2023] NSWCATAP 285 Hearing dates: 25 August 2023, further hearing on papers after 29 September 2023 Date of orders: 24 October 2023 Decision date: 24 October 2023 Jurisdiction: Appeal Panel Before: Hennessy, ADCJ, Deputy President Dr R Dubler SC, Senior Member Decision: 1. Appeal allowed. 2. Set aside the orders of the Tribunal of 4 April 2023. 3. The parties are to file submissions on the question as to whether or not the Respondent at the relevant time had de facto power to grant the approval of health care workers with a blood borne virus to perform exposure prone procedures within the meaning of s 49J of the Anti-Discrimination Act 1977 (NSW) in accordance with the following timetable: (a) the Appellant is to file submissions within 14 days of the date of this decision; (b) the Respondent is to file any submissions in response within 14 days thereafter; (c) the Appellant is to file any submissions in reply within seven days thereafter; (d) such submissions are to include whether or not the hearing on this question should be dispensed with pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). Catchwords: HUMAN RIGHTS - disability discrimination – whether the Secretary, NSW Ministry of Health is a qualifying 'authority or body' within the meaning of s 49J(1) of the Anti-Discrimination Act 1977 (NSW) in respect of private health facilities Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Health Services Act 1997 (NSW) Public Health Act 1991 (NSW) (repealed) Public Health Act 2010 (NSW) Private Health Facilities Act 2007 (NSW) Private Health Facilities Regulation 2017 (NSW) Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 Construction, Forestry, Maritime, Mining and Energy Union v The Australian Building and Construction Commissioner (2020) 282 FCR 1 Dionysatos v Acrow Formwork & Scaffolding Pty Ltd [2015] NSWCA 281 Eagle Arts and Vocational College v State of NSW [2018] NSWCATAD 147 FBY V Secretary, NSW Ministry of Health [2021] NSWCATAD 319 Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503 FHH v Port Stephens Council [2023] NSWCATAP 239 Khoury v Government Insurance Office of NSW (1984) 165 CLR 622 Moavenian v Transport for NSW [2021] NSWCATAD 77 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 SZTAL v Minister of Immigration and Border Protection (2017) 262 CLR 362 TU v AMI Australia Holdings Pty Ltd trading as Advanced Medical Institute [2010] NSWADT 290 Yong v Antworks Pty Ltd [2016] NSWCATAP 14 Waters v Public Transport Corporation (1991) 173 CLR 341 Texts Cited: Nil Category: Principal judgment Parties: YFA (Appellant) Secretary, NSW Ministry of Health (Respondent) Representation: Counsel: P Lowson (Appellant) T Prince (Respondent)