McElroy v Sutton [2012] NSWADT 24

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: McElroy v Sutton [2012] NSWADT 24 Hearing dates: 31 January 2012 Decision date: 15 February 2012 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. Leave is granted for the applicant's complaint of homosexuality discrimination in the provision of goods and services to proceed. 2. The matter is listed for case conference on 14 March 2012 at 10.30am. Catchwords: LEAVE - complaint declined lacking in substance - whether fair and just for complaint to proceed - merits of the complaint Legislation Cited: Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997 Cases Cited: 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; Dutt v Central Coast Area Health Service [2002] NSWADT 133 Category: Interlocutory applications Parties: Ian McElroy (Applicant) Damien Sutton (First Respondent) Craig Waters (Second Respondent) Representation: I McElroy (Applicant in person) D Sutton (Respondent in person) File Number(s): 111138

REasons for decision

Introduction 1Mr McElroy has been banned for life from the Royal Hotel, Guyra. The licensee, Mr Sutton, says that the ban was imposed because of suspicions that McElroy was selling drugs and spiking drinks. Mr McElroy denies those allegations and says that at least one of the reasons he was banned was because he is gay. 2The President of the Anti-Discrimination Board declined Mr McElroy's complaint as lacking in substance. Mr McElroy 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 permission 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 making that decision, 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 legal and factual basis for the complaint and come to a view as to its merits. Under the AD Act that the legal and evidential burden is on the applicant to prove his case.