Xian v RailCorp [2011] NSWADT 173

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Xian v RailCorp [2011] NSWADT 173 Hearing dates: 7 June 2011 Decision date: 19 July 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the Applicant's complaints against the 1 st , 2 nd and 3 rd Respondents under the Anti-Discrimination Act 1977 to proceed. Catchwords: LEAVE - complaints declined by President of Anti-Discrimination Board as lacking in substance - whether fair and just for complaints to proceed Legislation Cited: Anti-Discrimination Act 1977 Occupational Health and Safety Act 2000 Rail Safety Act 2008 Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones and Anor v Ekermawi [2009] NSWCA 388 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Category: Interlocutory applications Parties: Wei Fen Xian (Applicant) RailCorp (First Respondent) Vince Lofaro (Second Respondent) Association of Professional Engineers, Scientists and Managers, Australia (Third Respondent) Representation: Mr Peteris Ginters (1st and 2nd Respondents) Ms Wei Fen Xian (Applicant - in person) Mr Jun Lee (3rd Respondent) File Number(s): 111034

REasons for decision

Introduction 1EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): The issue in these proceedings is whether the Tribunal should give Ms Xian permission for her complaints of discrimination, harassment and victimisation under the Anti-Discrimination Act 1977 ( AD Act ) to proceed. The complaints, which are against her former employer RailCorp, her former supervisor Mr Lofaro and the Association of Professional Engineers, Scientists and Managers, Australia (APESMA) were declined by the President of the Anti-Discrimination Board as lacking in substance. 2Ms Xian needs to obtain the Tribunal's permission before any of her complaints can proceed: AD Act , s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint is frivolous, vexatious, misconceived or lacking in substance. In this case I have decided to refuse leave for each of the complaints to proceed.