Stewart v Hunt [2012] NSWADT 12

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Stewart v Hunt [2012] NSWADT 12 Hearing dates: 25 January 2012 Decision date: 01 February 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint to proceed is refused. Catchwords: LEAVE - complaint of age discrimination in the provision of services - test is what is fair and just - merits of the complaint considered - leave to proceed refused Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: Jones and Anor v Ekermawi [2009] NSWCA 388 Category: Interlocutory applications Parties: James Stewart (Applicant) Robert Hunt (First Respondent) SJ Hunt (Second Respondent) SD Hunt (Third Respondent) Representation: James Stewart (Applicant, in person) Robert Hunt (First Respondent, in person) File Number(s): 111141

REasons for decision

Introduction 1Mr Stewart complained to the President of the Anti-Discrimination Board that the licensees of the Bangor Post Office had discriminated against him. He said that Mr Hunt asked him to leave his pram at the front of the shop and refused to serve him on another occasion. He says the discrimination was on the ground of the age of his children. At the time Mr Stewart had a 3 year old and 20 month old twins. The licensees deny discriminating against Mr Stewart and say that he was asked to leave his pram at the front of the shop because it was damaging shop fittings. He was refused service because of his abusive and threatening behaviour. Mr Stewart denies both those assertions. 2The President of the Anti-Discrimination Board declined Mr Stewart's complaint because there was no evidence to support his allegation that the licensees' treatment of him was based on the age of his children. He has applied to the Tribunal for permission for his complaint to go ahead: Anti-Discrimination Act 1977 ( AD Act ), s 96. The Tribunal has a discretion to grant or refuse leave for the complaints 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 lacks substance. 3In order to decide whether the complaint should proceed I need to examine both the factual and legal basis for the complaint and come to a conclusion as to its merits.