Australia, Jan. 11 -- New South Wales Land and Environment Court issued text of the following judgement on Dec. 17:

1. Mr Scully, the applicant in this proceeding, brought a claim pursuant to the Anti-Discrimination Act (NSW) ("the Act") against Secretary of the Department of Transport (Transport Secretary and Sydney Metro) ("the respondent") claiming that it, through its employees discriminated against him in employment on the ground of race and victimised him during the period of 13 February 2023 to 7 June 2023. Mr Scully's complaint is about a recruitment process the respondent carried out in 2023 and about statements made about his behaviour on 23 March 2023.

2. The respondent sought to summarily dismiss the proceeding pursuant to s 55(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) and or s 102 of the Act on the basis that the proceedings are misconceived or lacking in substance. The respondent submitted that the applicant's case, taken at its highest failed to disclose any evidence that the respondent breached ss 8 or 50 of the Act.

3. For the reasons that follow I have decided to grant the application for summary dismissal.

Relevant Law

4. Mr Scully's claim is made pursuant to ss 7(1)(a),8(2)(a),(b) and (c) and 50(1)(b) to (d) of the Act. Section 7(1)(a) defines direct discrimination as less favourable treatment on the ground of the person's race. Race does need to be the only reason for the treatment; s4A.

5. Section 8(2) makes it unlawful for an employer to discriminate against an employee on the ground of race:

(a) in the terms or conditions of employment which the employer affords the employee,

(b) by denying the employee access, or limiting the employee's access, to opportunities for promotion, transfer or training, or to any other benefits associated with employment, or

(c) by dismissing the employee or subjecting the employee to any other detriment.

6. Section 50 of the Act makes it unlawful for a person to victimise another person on the ground that the person had made a complaint or did other acts as set out in s 50(1)(a) to (d).

7. In a summary dismissal application pursuant to s 102 of the Act or s 55 of the CAT Act, the discretion to dismiss a claim prior to hearing the merits of the claim must be exercised with exceptional caution. In circumstances where there may be substance to an applicant's allegations which if accepted would ground a finding that discrimination has occurred, no strike out of the complaint should be contemplated. Seventh-Day Adventist Church (North NSW Conference) Limited v Seupule-Feau [2016] NSWCATAP 256 at [22] - [24]; Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11]; Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598 at [20].

8. A complaint or part of a complaint can be dismissed if it is 'so clearly untenable that it cannot possibly succeed.' General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130, [10] per Barwick CJ.

9. In a dismissal application, the applicant's case is taken at its highest to enable the Tribunal to determine whether the evidence is capable of amounting to a contravention of the Act. Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. The onus of proving that a complaint ought to be summarily dismissed lies on the person seeking such an order. Secretary, Department of Communities and Justice v Tebb [2020] NSWCATAP 179 at [53].

*Rest of the document and Footnotes can be viewed at: (https://www.caselaw.nsw.gov.au/decision/193cc5894d424d0239526dfd)

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