Kuruppa v Director General, Department of Justice and Attorney General [2011] NSWADT 51

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kuruppa v Director General, Department of Justice and Attorney General [2011] NSWADT 51 Hearing dates: 1 March 2011 Decision date: 11 March 2011 Before: Magistrate N Hennessy Decision: Leave is refused for Ms Kuruppa's complaint of disability discrimination to be the subject of proceedings in the Tribunal. Catchwords: LEAVE - whether fair and just for complaint of disability discrimination in employment to proceed - complaint lacks merit Legislation Cited: Anti-Discrimination Act 1977 Category: Interlocutory applications Parties: Mahanel Kuruppa (Applicant) Director General, Department of Justice and Attorney General, Department of Justice and Attorney General (Respondent) Representation: G Mahony (Respondent) Gilbert and Tobin (Applicant) Crown Solicitors Office (Respondent) File Number(s): 111013

Reasons for Decision

Introduction 1Ms Kuruppa complained to the Anti-Discrimination Board that she had been discriminated against by her employer, the Director-General of the Department of Justice and Attorney General, on the ground of her disability (trigeminal neuralgia). The President of the Board declined the complaint as lacking in substance. Ms Kuruppa requested that her complaint be referred to the Tribunal. A complaint which has been declined cannot go ahead unless the Tribunal gives its permission ('leave'): Anti-Discrimination Act 1977 ( AD Act ), s 96. 2Leave applications should be determined on the basis of what is fair and just in all the circumstances: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 per Schmidt AJ. The test is not the same as that for determining whether to summarily dismiss a complaint because it lacks substance. The applicant bears the onus of persuading the Tribunal that it fair and just for it to proceed. The only issue in this case is whether the complaint has sufficient merit to justify leave being granted.