Brala v Fieldworks Pty limited [2017] NSWCATAD 331

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Brala v Fieldworks Pty limited [2017] NSWCATAD 331 Hearing dates: 25 October 2017 Date of orders: 16 November 2017 Decision date: 16 November 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Memeber Decision: Leave to proceed refused Catchwords: Disability, goods and services Legislation Cited: Anti -Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCCA 388 Category: Procedural and other rulings Parties: Anthony Brala (Applicant) Fieldworks Pty Limited (Respondent) Representation: Both parties self-represented File Number(s): 2017/00305821

reasons for decision 1. This was an application by Mr Anthony Brala for leave for a complaint of disability discrimination in the provision of goods and services to go ahead. 2. Mr Brala brought the complaint because he was banned from attending at Fairfield Golf Course. 3. The complaint was declined by the President of the Anti-Discrimination Board and in those circumstances leave is required under s 96 of the Anti-Discrimination Act 1977 (the Act). 4. The Supreme Court in the case of Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143, has set out principles on which leave should be granted. In that case, Acting Justice Schmidt said: "Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which include 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." 1. 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 Act including that the complaint lacks substance or that the nature of the conduct is such that further action is not required: Jones v Ekermawi [2009] NSWCCA 388 at [60]. 2. The Applicant, Mr Brala, 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. 3. The factual basis of this complaint is set out in a letter to the Anti-Discrimination Board from the Applicant dated 23 November 2016. The complaint relates to a decision by Mr Porter for Fairfield Golf Course to ban Mr Brala from Fairfield Golf Course. Mr Porter is the manager of Fieldworks Pty Limited, the company that leases the Fairfield Golf Course from Fairfield City Council. Mr Brala was advised of the banning by letter dated 23 December 2015, signed by Mr Porter. 4. Mr Porter wrote to the Anti-Discrimination Board on or around 27 June 2017 to respond to Mr Brala's complaint to the ADB. The letter stated that the reason for the decision was due to Mr Brala's behaviour to Mr Porter, his staff, their customers and the damage to the furniture. The letter refers to security footage and phone recordings showing Mr Brala's behaviour as demonstrating why he had to be banned. The letter refers to incidents at the course involving Mr Brala on 31 October 2015, 5 December 2015 and 23 December 2015. The letter states that Mr Brala had never mentioned having a disability.