Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frost v TAFE NSW [2020] NSWCATAD 12 Hearing dates: 03 December 2019 Date of orders: 10 January 2020 Decision date: 10 January 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: A Scahill, Senior Member Decision: (1) The application for leave under s 96 of the Anti-Discrimination Act 1977 (NSW) is refused. Catchwords: Complaint declined and referred by President ADNSW - disability discrimination in education 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: Principal judgment Parties: Julie Frost (Applicant) TAFE NSW (Respondent) Representation: Counsel: Ms C Hooper (Respondent) Solicitors: Self Represented (Applicant) Mr Li (Respondent) File Number(s): 2019/00335263 Publication restriction: N/A REASONS FOR DECISION 1. Ms Julie Frost has been a student at TAFE in Kingscliff, New South Wales. Ms Frost has made complaints to the President of Anti-Discrimination NSW (ADNSW) about her treatment at TAFE NSW. 2. In October 2019 the President of ADNSW wrote to Ms Frost and the Respondent, TAFE NSW declining a complaint of discrimination Ms Frost had made against TAFE NSW under section 92 of the Anti-Discrimination Act 1977 NSW (the ADA). Ms Frost requested in a letter to the President of ADNSW dated 16 October 2019 "Please refer any finalised TAFE complaints to NCAT." 3. The matter before the Tribunal on 3 December 2019 was referred to the Tribunal under sections 92, 93A and 96 of the ADA. In the circumstances where the President has declined a complaint it is necessary for an applicant to seek leave of the Tribunal to proceed with the complaint. History of the complaint 1. On 1 October 2019 a delegate of the President of ADNSW wrote to Ms Frost in relation to complaints of disability discrimination and victimisation against TAFE NSW that she had lodged on 28 June 2019 and 1 July 2019. That letter stated that having considered all the information that Ms Frost had given ADNSW, the President's delegate had decided to decline the complaints under section 92(1) of the Anti-Discrimination Act 1977 New South Wales. The reason for declining the complaints was that the President's delegate had determined that for any other reason no further action should be taken in respect of the complaints or parts of the complaints. 2. The background to this declination was that there were proceedings in NCAT in relation to Ms Frost's complaint - C. 2017/0568 against TAFE NSW. The President of ADNSW had declined other complaints made by Ms Frost against TAFE NSW and its employees dealing with similar subject matter. These complaints had been referred to the Tribunal at Ms Frost's request. In these circumstances the President considered that there was no public interest in the President continuing to investigate allegations of the same or similar conduct which were currently before the Tribunal. The letter noted that Ms Frost had requested that her matters be referred to the NCAT due to her lack of faith in ADNSW's processes. Principles for Granting Leave 1. 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 Anti-Discrimination 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 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. Tribunal's hearing of leave application 3 December 2019 1. Ms Frost attended the Tribunal's hearing of the application for leave on 3 December 2019 by telephone. Ms Frost asserted that she continued to be victimised by TAFE NSW . She thought it was unusual that the delegate of the President of the ADNSW had declined the complaint as the delegate had not sought her view or the Respondent's view of the complaint. Ms Frost described the number of proceedings as quite complex. Her primary concern had been her treatment by TAFE NSW in relation to her alleged withdrawal from a TAFE NSW course. She had sought her student records from TAFE NSW through proceedings. These documents had not been made available to her. Ms Frost told the Tribunal that without these records she was unable to prove her case against TAFE NSW. Ms Frost stated that if the Respondent did not hand over her student records, she would continue bringing these proceedings. She thought that all of the proceedings should be combined as it involved the same conduct. The Tribunal's consideration 1. In leave applications under section 96 of the ADA, the onus is upon the applicant for leave to prove the case. Ms Frost's comments before the Tribunal related to her ongoing disputes with TAFE NSW. Ms Frost did not address the criteria necessary in seeking leave for a complaint to proceed under section 96 of the ADA. 2. The Tribunal understood from this that Ms Frost was not seeking that the leave application should proceed. Her greater concern was with access to her student records. The Respondent's submissions 1. The Respondent submitted that it was not fair and just for leave to be granted in the matter. There was no detriment to Ms Frost because the Respondent had provided her with specific records that she sought in four emails from June and July 2019. 2. In all the circumstances the Tribunal considered that it was not fair and just to grant leave to Ms Frost to proceed with the complaint. This was not the focus of Ms Frost's submissions to the Tribunal. Decision 1. Leave is refused to proceed with the complaint. Orders 1. The application for leave under s 96 of the Anti-Discrimination Act 1977 (NSW) is refused. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 January 2020