De Souza v Independent Unit Management Pty Limited [2009] NSWADT 311

CITATION: De Souza v Independent Unit Management Pty Limited [2009] NSWADT 311

DIVISION: Equal Opportunity Division

APPLICANT Sydney De Souza PARTIES: RESPONDENT Independent Unit Management Pty Limited

FILE NUMBER: 091032

HEARING DATES: 27 October 2009

SUBMISSIONS CLOSED: 27 October 2009

EXTEMPORE DECISION DATE: 27 October 2009 BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Leave to proceed, complaint declined by Anti-Discrimination Board as lacking in substance, whether fair and just for complaint to proceed

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977

CASES CITED: Xu v Sydney West Area Health Service [2006] NSWADT 3 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

APPLICANT Sydney De Souza REPRESENTATION: RESPONDENT Independent Unit Management Pty Limited

ORDERS: 1. Leave is refused for the complaint to proceed 2. The respondent's application for costs is refused.

REASONS FOR DECISION

1 Mr De Souza made a complaint of discrimination to the Anti-Discrimination Board on 11 June 2008. The complaint was against Independent Unit Management Pty Limited (IUM) which is the agent of the Owners Corporation in relation to the apartment where Mr De Souza lives. The complaint was of race discrimination in the area of the provision of services by IUM. Following the Board's investigation of the complaint, the President declined it as lacking in substance under s 92 of the Anti-Discrimination Act 1977 (ADA). Mr De Souza requested the matter to be referred to the Administrative Decisions Tribunal under s 93A of the ADA. In those circumstances, s 96(1) requires that leave (or permission) must be granted before the complaint can proceed. Until recently on an application for leave to proceed the Tribunal applied a test developed in Xu v Sydney West Area Health Service [2006] NSWADT 3. The substantial ground aspect of that test was criticised by Acting Justice Schmidt in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. The decision is presently under appeal to the New South Wales Court of Appeal. However in Ekermawi, Acting Justice Schmidt emphasised that leave applications should be determined on the basis of fairness and justice.