Warren v Director General, Department of Attorney General and Justice (NSW Trustee and Guardian) [2013] NSWADT 292

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Warren v Director General, Department of Attorney General and Justice (NSW Trustee and Guardian) [2013] NSWADT 292 Hearing dates: 11 December 2013 Decision date: 19 December 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: The respondent's application for the applicant's complaint to be summarily dismissed is refused Catchwords: ANTI-DISCRIMINATION - application for summary dismissal - relevant test - applicant's evidence to be taken at its highest - complaint must be 'hopeless' Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Carter v Linuki Pty Ltd trading as Aussie Hire & Fitzgerald (EOD) [2005] NSWADTAP 40 Fricke v Corbett Research Pty Ltd [2004] NSWADT 128 Jones v Trad [2013] NSWCA 389 Linnell v Seachem Australia Pty Ltd [2011] NSWADT 61 Margan v University of Technology, Sydney [2003] NSWADTAP 65 Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Category: Interlocutory applications Parties: Damian Warren (Applicant) Director General, Department of Attorney General and Justice (NSW Trustee and Guardian) (Respondent) Representation: Counsel Ms P Lowson (Respondent) Mr D Warren (Applicant in person) File Number(s): 131037

reasons for decision

Introduction 1The Director-General, Department of Attorney General and Justice (the respondent) has applied to the Tribunal to summarily dismiss Mr Warren's complaint of victimisation under the Anti-Discrimination Act 1977 (AD Act). Mr Warren is employed as a Principal Client Property Officer in the Client Assets Branch of the NSW Trustee and Guardian (NSWT&G). He complains that the Chief Executive Officer, Ms Dodds, suspended him on full pay in May 2012 because he had provided information and a statement in support of a complaint of disability discrimination by Ms Bozinovska, a Senior Legal Officer in the Legal Branch of the NSWT&G. Ms Bozinovska is Mr Warren's partner. Her complaint was against an Assistant Director of the NSWT&G, Mr von Schill. 2Ms Minns, who is Mr Warren's direct supervisor, acted as Mr Warren's support person during these proceedings. 3I have decided not to dismiss the application. The basis for the respondent's application is a challenge to the sufficiency of the evidence available to support Mr Warren's complaint. Such an application would most usually be made only after his case has been heard and, even then, subject to the reasonable apprehension of what might be revealed in the respondent's case. The respondent's application is premature because the complaint is not so obviously untenable that it cannot possibly succeed.