Dezfouli v Justice Health and Forensic Mental Health Network (No 7) [2018] NSWCATAD 162

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Dezfouli v Justice Health and Forensic Mental Health Network (No 7) [2018] NSWCATAD 162 Hearing dates: 12 June 2018 Date of orders: 27 July 2018 Decision date: 27 July 2018 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member Decision: Leave to proceed with the complaint of victimisation is refused. Catchwords: ANTI-DISCRIMINATION – Where complaint of victimisation declined by President of Anti-Discrimination Board as lacking in substance – Application for leave to proceed with complaint -- Whether fair or just to grant leave Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 Carroll v Department of Family and Community Services [2015] NSWCATAD 82 Jones v Ekermawi [2009] NSWCA 388 Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 Category: Procedural and other rulings Parties: Saeed Dezfouli (applicant) Justice Health and Forensic Mental Health Network (respondent) Representation: Solicitors: Applicant by telephone Justice Health and Forensic Mental Health Network legal adviser (respondent) File Number(s): 2018/00167707

REASONS FOR DECISION 1. Mr Dezfouli complained that a nurse, employed by the respondent ("the Nurse"), sexually harassed him in breach of the Anti-Discrimination Act 1977 (AD Act). Mr Dezfouli also complained that he was victimised by other of the respondent's staff members after making the sexual harassment complaint and that the respondent introduced a policy of requiring a minimum of two staff to approach him. The President of the Anti-Discrimination Board ("President") declined his complaint of victimisation as lacking in substance: AD Act, s 92(1)(a)(i). 2. Mr Dezfouli applied to the Tribunal for leave to proceed with his complaint of victimisation in the Tribunal. 3. The Tribunal may give Mr Dezfouli permission for his complaint to go ahead if it is fair and just to do so: Jones v Ekermawi [2009] NSWCA 388; AD Act, s 96(1). The onus is on Mr Dezfouli to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; Pribicevic v State of New South Wales (Department of Family and Community Services) [2014] NSWCATAD 94 at [3]. 4. I have decided not to give Mr Dezfouli permission for his victimisation complaint to go ahead because it is highly unlikely that he would be able to substantiate it.