Green v The National Trust of Australia (NSW) [2006] NSWADT 77

CITATION: Green v The National Trust of Australia (NSW) [2006] NSWADT 77 This decision has been amended. Please see the end of the decision for a list of the amendments.

DIVISION: Equal Opportunity Division

APPLICANT PARTIES: Cathy Green RESPONDENT The National Trust of Australia (NSW)

FILE NUMBER: 051008

HEARING DATES: 19/01/06

SUBMISSIONS CLOSED: 01/19/2006

EXTEMPORE DECISION DATE: 01/19/2006

DATE OF DECISION: 03/14/2006

BEFORE: Conley J - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Schembri A - Non Judicial Member

CATCHWORDS: Disability Discrimination - In work

MATTER FOR DECISION: Principal matter

LEGISLATION CITED : Anti-Discrimination Act 1977

APPLICANT In person REPRESENTATION: RESPONDENT D Hillard, solicitor

ORDERS: That the Application be dismissed.

REASONS FOR DECISION 1 Oral reasons were given in this matter on the day of the hearing 19 January 2006. The Applicant now requests written reasons. These are the reasons given on the day. 2 This is an application to dismiss the complaint pursuant to section 102 of the Anti Discrimination Act by the respondent. Section 102 of the Act provides that the Tribunal may at any stage in proceedings dismiss either whole or part of the complaint on a ground which the president may decline a complaint under Section 92(1) (a) (i) or (ii) or (b) of the Anti Discrimination Act 1977 (the Act). 3 Section 92(1)(a) (i) provides that the President may dismiss the complaint if the complaint is frivolous, vexatious, misconceived or lacking in substance. Section 92(i) (b) adds an additional ground of "for any other reason". 4 The respondent submits that this complaint should be dismissed citing the basis of the application as "for any other reason". The "reasons" given by the Respondent are the combined factors that the President of the Anti-Discrimination Board (the President) has declined the complaint as lacking in substance and that the Applicant herself agrees that she has no evidence to support the complaint. 5 The Respondent relies on the President's letter of 29 November 2004 to Ms Green dated 29 November 2004, which forms part of the President's Report. The President writes; I have looked at all the information you and the Trust have given the Board and I've decided your complaint is 'lacking in substance' under Section 90 (1) of the Anti Discrimination Act. 6 The President goes on to define what lacking in substance means. He writes, 'Lacking in substance' means that I believe that you do not have enough information to show that what you say the Trust did was unlawful discrimination. 7 He provides the reasons for his decision as; You have failed to provide any evidence to substantiate your complaint of disability discrimination other than the allegation that disability (presumed and past) must have been the reason for not being offered opportunities for advancement (supervisory work), and being refused casual employment. The respondent has provided sufficient other reasons for why you were not offered Supervisory positions and ongoing casual work. 8 The Respondent also relies upon the Applicant's response to that letter. In a letter dated 24 December 2004 Miss Green writes to the President and writes as follows: My preference would be to resolve this complaint via investigation and conciliation, however, unfortunately I cannot supply the evidence. As I'm unable to supply any evidence, would you please send my complaint to the Equal Opportunity Division of the Administrative Decisions Tribunal for hearing. 9 Further to this the Respondent relies upon the oral evidence of the Applicant given this morning. 10 In an application for an adjournment and leave to issue a late summons the Applicant gave oral evidence conceding that she could not succeed with her claim before the Tribunal without further evidence. She indicated that she was aware that she could not succeed with her complaint. She sought an adjournment to issue summonses to call witnesses. This application was declined. 11 The Respondent submits that therefore in these circumstances the matter is such that nothing further has changed since the matter was before the Anti-Discrimination Board, no further evidence has been provided. The Respondent further submits that the Applicant indicated that she could not proceed with the claim today. She also indicated that in the event that the complaint was dismissed that she would recommence further proceedings. In summary the Respondent submits that this amounts to something in the nature of a vexatious complaint, or vexatious conduct. 12 The Applicant in turn submitted that she had gone to great lengths in relation to this claim and that the claim should not be dismissed. The Applicant made it clear at the outset this morning that she was not prepared to and would not participate in the hearing of the substantive matter which had been listed for 2 days hearing. She was only prepared to deal with the summons application. 13 The circumstances of this matter are unusual. These circumstances include the fact that the President declined the Applicant's complaint as lacking in substance because a lack of evidence, the Applicant acknowledged to the President in writing that she could not provide any evidence, the Applicant did not provide any further evidence to this Tribunal. She indicated at the outset of the proceedings that she was not prepared to deal with the substantive hearing and also stated that she could not succeed with the complaint. We also note that the Applicant had indicated an intention to leave prior to us taking an adjournment and has in fact left the hearing. We therefore find that it is appropriate in these circumstances to dismiss the complaint.