CEU v University of Technology Sydney [2017] NSWCATAD 323

CEU v University of Technology Sydney [2017] NSWCATAD 323

Leave was granted because, applying the fair and just test cautiously, it was not apparent that the complaint lacked substance. CEU was likely to be able to prove that she had a disability and that UTS subjected her to various detriments, while unresolved questions remained about causation, whether her behaviour was...

Source-derived case information.

Jurisdiction
Australia
Judgment Date
09 November 2017
Procedural Posture
Complaint of Disability Discrimination in Education Under the Anti Discrimination Act 1977 (nsw) / Application for Leave for Complaint to Proceed After the President of the Anti Discrimination Board Declined the Complaint as Lacking in Substance
Outcome
Leave granted for the Applicant's complaint of disability discrimination in education to proceed.
Legal Topics
['disability Discrimination in Education' 'leave to Proceed With Complaint' 'fair and Just Test' 'direct Discrimination' 'detriment' 'comparator' 'causation']
['human Rights' 'anti Discrimination' 'education' 'administrative Law'] ['disability Discrimination in Education' 'leave to Proceed With Complaint' 'fair and Just Test' 'direct Discrimination' 'detriment' 'comparator' 'causation']

Source-derived case record

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Procedural Posture

Complaint of Disability Discrimination in Education Under the Anti Discrimination Act 1977 (nsw) / Application for Leave for Complaint to Proceed After the President of the Anti Discrimination Board Declined the Complaint as Lacking in Substance

Legal Issues

  1. 1 ["Whether it is fair and just for CEU's complaint of disability discrimination in education to proceed." 'Whether it is apparent that the complaint lacks substance.' 'Whether CEU is likely to be able to prove disability and detriments by UTS.' "Whether one of the reasons for UTS's decisions was CEU's disability, behaviour connected with disability, a characteristic of disability, or behaviour with no connection to disability." 'What comparator is appropriate for the differential treatment element of direct disability discrimination.' 'What remedy, if any, would be available and appropriate if the complaint is substantiated.']

Ratio Decidendi

Leave was granted because, applying the fair and just test cautiously, it was not apparent that the complaint lacked substance. CEU was likely to be able to prove that she had a disability and that UTS subjected her to various detriments, while unresolved questions remained about causation, whether her behaviour was a manifestation or characteristic of disability or unrelated to disability, and the appropriate comparator. The allegations raised complex legal issues that should proceed to determination.

Court Disposition

Leave granted for the Applicant's complaint of disability discrimination in education to proceed.

Orders

  • ["Leave is granted for the Applicant's complaint of disability discrimination in education to proceed."]