Parkes v The University of Newcastle [2011] NSWADT 302

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Parkes v The University of Newcastle [2011] NSWADT 302 Hearing dates: 6 December 2011 Decision date: 20 December 2011 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave is refused for the complaint to proceed. Catchwords: LEAVE - discrimination - race and disability - student complaint against University suspension after threats of harm - complaints declined as lacking in substance - leave required for complaints to proceed - leave refused Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC Dawkins v Department of Environment [1993] ICR 517 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Interlocutory applications Parties: Jesos Adrian Parkes (Applicant) The University of Newcastle (Respondent) Representation: Counsel R Warren (Respondent) J Parkes (Applicant in person) Hicksons Lawyers (Respondent) File Number(s): 111119

REasons for decision

Introduction 1Mr Parkes is a student at the University of Newcastle. He says he is a Rastafarian. He has a history of mental illness but there was no evidence as to the precise nature of that illness. He made the following allegations of race and disability discrimination against the University: (1)on 28 February 2011 I was playing music on youtube before the class when Dr Wilks "stormed into the lecture late as he always did, pointed his finger in my face (and told me) never to play music again"; (2)In my Religion, Nature and Morality class, my lecturer, Dr Wilks, warned me never to ask a question in his class again; (3)the University suspended me for a semester for no reason. 2The President of the Anti-Discrimination Board declined the complaints as lacking in substance. Mr Parkes requested that the complaint be referred to the Tribunal. 3Section 96 of the Anti-Discrimination Act 1977 (AD Act) provides that a complaint that is referred to the Tribunal after it has been declined by the President, cannot proceed unless the Tribunal gives its permission or 'leave'. The issue is whether leave should be granted for Mr Parkes' complaint to go ahead 4In Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Schmidt AJ emphasised that leave applications should be determined on the basis of fairness and justice and went on to say that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates . 5When 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 lacks substance or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The applicant bears the onus of persuading the Tribunal that it is appropriate for leave to be granted. While it is not the Tribunal's role when determining a leave application to decide whether the complaint has been substantiated, the merits of the complaint are relevant.