Barry v Futter [2011] NSWADT 205

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Barry v Futter [2011] NSWADT 205 Hearing dates: 18 May 2011, 12 August 2011 Decision date: 30 August 2011 Jurisdiction: Equal Opportunity Division Before: R J Wright SC, Judicial Member A Lowe, Non-Judicial Member J Newman, Non-Judicial Member Decision: The Tribunal orders that: 1.the complaint be dismissed in whole. Catchwords: Discrimination - Transgender, Vilification - Transgender Legislation Cited: Anti Discrimination Act 1977 (NSW) Administrative Decisions Tribunal Act 1997 (NSW) Interpretation Act 1987 (NSW) Anti-Discrimination (Racial Vilification) Amendment Act 1989 (NSW) Transgender (Anti-Discrimination and other Acts Amendment) Act 1996 (NSW) Racial Discrimination Act 1975 (Cth) Cases Cited: McLeod v Power (2003) 173 FLR 31 Veloskey v Karagiannakis [2002] NSWADTAP 18 Category: Principal judgment Parties: Malcolm Jay Barry (Applicant) Heidi Futter (Respondent) Representation: M Barry (Applicant in person) No appearance (Respondent) File Number(s): 111006

REasons for decision 1EQUAL OPPORTUNITY DIVISION (R J WRIGHT SC, Judicial Member, A LOWE, Non-Judicial Member, J NEWMAN, Non-Judicial Member): This proceeding concerns a claim of unlawful transgender vilification under s 38S of Anti-Discrimination Act 1977 (NSW) (the ADA ) brought by the Applicant ( Mr Barry ) against a fellow employee, the Respondent ( Ms Futter ). 2At the relevant time in June 2010, both Mr Barry and Ms Futter were employed by Statewide Traffic Control Pty Ltd ( Statewide Traffic Control ), which provided traffic management and traffic planning services in situations where construction work was being carried out on or near roadways. 3Mr Barry's claim was only against Ms Futter and not against Statewide Traffic Control and, accordingly, there could be no claim in these proceedings of discrimination by an employer under s.38C of the ADA. Nor were there circumstances in the present proceedings that could have attracted the operation of any of the other discrimination provisions of divisions 2 or 3 of Part 3A of the ADA.