Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Clarke v South Eastern Sydney Local Health District [2017] NSWCATAD 81 Hearing dates: 28 February 2017 Date of orders: 23 March 2017 Decision date: 23 March 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: Leave refused. Catchwords: Disability discrimination in employment Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Coomaraswamy v University of New South Wales [2016] NSWCATAD 41 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Hayne v YMCA NSW [2016] NSWCATAD 14 Purvis v State of NSW [2003] HCA 62; (2003) 217 CLR 92 Category: Principal judgment Parties: Sharmain Clarke (Naicker) (Applicant) South Eastern Sydney Local Health District (Respondent) Representation: Solicitors: In Person (Applicant) Hicksons (Respondent) File Number(s): 2017/00025027 Publication restriction: N/A

Reasons for decision

Background

The Application 1. Ms Naicker, now known as Ms Clarke, ("the Applicant") brought proceedings for leave pursuant to section 96 of the Anti-Discrimination Act 1977 ("the Act") arising out of the Acting President of the Anti-Discrimination Board declining her complaint to the Anti-Discrimination Board ("ADB"). 2. The Applicant's complaint as accepted by the Acting President was of disability discrimination under sections 49A, 49B, 49C, 49D and 53 of the Act. 3. The Acting President of the Anti-Discrimination Board declined the complaint as lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1) (a). 4. On 21 November 2016 Ms Clarke requested that the matter be referred to the New South Wales Civil and Administrative Tribunal ("the Tribunal") for a hearing. 5. The issue in this case is whether it is fair and just for the Tribunal to give Ms Clarke permission (or "leave") for her complaint to go ahead: Anti-Discrimination Act, s 96. Ms Clarke bears the onus of persuading the Tribunal that leave should be granted. 6. The Tribunal conducted a hearing of the application for leave on 28 February 2017. Ms Clarke represented herself. The Respondent was represented by Ms Kumar. 7. The Tribunal is not satisfied that it is fair and just for Ms Clarke to be given leave to proceed with her complaint. The Tribunal has refused to grant leave for the disability discrimination in employment complaint to proceed against the Respondent for the following reasons.