Whippy v The University of Sydney [2023] NSWSC 1607

Supreme Court New South Wales

Medium Neutral Citation: Whippy v The University of Sydney [2023] NSWSC 1607 Hearing dates: 07 December 2023 Date of orders: 19 December 2023 Decision date: 19 December 2023 Jurisdiction: Common Law Before: Stern J Decision: (1) The plaintiff's summons filed 28 August 2023 is dismissed. (2) The plaintiff's motion for summary judgment filed 7 November 2023 is dismissed. (3) The plaintiff is to pay the costs of the summons and the motion for summary judgment, to be assessed if not agreed. Catchwords: ADMINISTRATIVE LAW – judicial review – jurisdictional facts – plaintiff made a complaint to the President of the Anti-Discrimination Board of NSW ("ADNSW") alleging the first defendant had contravened the Anti-Discrimination Act 1977 (NSW) – Delegate of the President of ADNSW declined plaintiff's complaint under s 89B(2)(a) of the Anti-Discrimination Act – plaintiff contends that the Delegate fell into jurisdictional error – whether the Delegate declined the plaintiff's complaint on an impermissible basis – whether the Delegate had jurisdiction to decline a complaint under s 89B(2)(a) of the Anti-Discrimination Act – whether the Delegate's power to decline a complaint under s 89B(2)(a) was dependent upon it being established as a jurisdictional fact that no part of the conduct complained of could amount to a contravention of a provision of the Anti-Discrimination Act – whether that jurisdictional fact was established by the Delegate – whether there was evidence to support the Delegate's second reason for declining the plaintiff's complaint. HUMAN RIGHTS – discrimination – racial discrimination – plaintiff alleged unlawful direct discrimination on the ground of race by the first defendant contrary to ss 7(1)(a) and 17(2)(a) of the Anti-Discrimination Act 1977 (NSW) – where plaintiff's complaint does not contend that the conduct of the first defendant constitutes unlawful indirect discrimination. CIVIL PROCEDURE – summary judgment – plaintiff filed a notice of motion seeking summary judgment – where motion listed for hearing at the same time as the substantive summons – where there is no longer any utility in the motion for summary judgment – where both parties consented to the motion being dismissed – motion seeking summary judgment dismissed. Legislation Cited: Anti-Discrimination Act 1977 (NSW), ss 4, 7, 17, 20C, 24(1)(b), 51, 53, 87, 87A, 87B, 89, 89A, 89B, 90, 90B, 91A, 91C, 92, 92A, 92B, 92C, 93A, 93B, 93C, 94C, 102, 103, 105, 108 Anti-Discrimination Amendment (Miscellaneous Provisions) Act 2004 (NSW), sch 1 [3] Interpretation Act 1987 (NSW), s 34(1)(b)(i) Supreme Court Act 1970 (NSW), s 69 Uniform Civil Procedure Rules 2005 (NSW), r 17.3(2) Cases Cited: AB v Western Australia (2011) 244 CLR 390; [2011] HCA 42 Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 El Khouri v Gemaveld Pty Ltd [2023] NSWCA 78 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane (2021) 274 CLR 398; [2021] HCA 41 New South Wales v Amery (2006) 230 CLR 174; [2006] HCA 14 R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13; [1980] HCA 13 Ross v Lane [2022] NSWCA 235 Reysson Pty Ltd v Minister Administering the Environmental Planning and Assessment Act 1979 [2020] NSWCA 281 Secretary, Department of Foreign Affairs and Trade v Styles (1989) 23 FCR 251; [1989] FCA 546 Timbarra Protection Coalition Inc v Ross Mining NL (1999) 46 NSWLR 55; [1999] NSWCA 8 Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707; [2004] NSWCA 422 Category: Principal judgment Parties: Miles Whippy (Plaintiff) The University of Sydney (First Defendant) Anti-Discrimination New South Wales (Second Defendant) Representation: Counsel: Self-represented (Plaintiff) C Trahanas (First Defendant)