Nicholls v Director General, Department of Education and Training [2010] NSWADTAP 35

Appeal Panel - Internal

CITATION: Nicholls v Director General, Department of Education and Training [2010] NSWADTAP 35

APPELLANT David Nicholls PARTIES: Donna Nicholls

RESPONDENT Director General, Department of Education and Training

FILE NUMBER: 109006

HEARING DATES: 23 April 2010

SUBMISSIONS CLOSED: 23 April 2010

EXTEMPORE DECISION DATE: 23 April 2010 BEFORE: Hennessy N - Magistrate (Deputy President); Rice S - Judicial Member; Lowe A - Non-Judicial Member

CATCHWORDS: APPEAL - identification of question of law - no error of law

DECISION UNDER APPEAL: Nicholls v Department of Education and Training, unreported 21 October 2009

FILE NUMBER UNDER APPEAL: 091036, 091037

APPELLANT In person REPRESENTATION: RESPONDENT E Brus, counsel

ORDERS: 1. Leave is refused for appeal to extend to the merits of the Tribunal's decision 2. The appeal is dismissed.

REASONS FOR DECISION

1 HER HONOUR: The decision is that the appeal is dismissed. We are going to give some short reasons for that decision.

2 The background to this appeal is that Mr and Mrs Nicholls were teachers in a school in New South Wales and they brought complaints of race discrimination and victimisation against the Department of Education and Training. The complaints were heard by the tribunal and were dismissed. Mr and Mrs Nicholls appealed to the Appeal Panel against the tribunal's decision. The main issue that arose on that appeal was the test that the tribunal had applied in relation to victimisation complaints. The tribunal had applied a test that the link between the making of a complaint and any detriment which followed had to be a 'substantial reason'. On appeal the Appeal Panel said that that was the incorrect test and it was sufficient if the link between a complaint and a detriment was one of the real or genuine reasons. The Appeal Panel remitted the matter to the tribunal who re-decided some of the victimisation claims applying the test that the Appeal Panel had articulated in its decision. The tribunal came to the same conclusion after applying that test, that is, that the remaining complaints of victimisation were dismissed.