McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299

McCrystal v Commissioner of Police, NSW Police Force [2018] NSWCATAD 299

The Tribunal exercised its discretion to amend the victimisation complaint to extend its temporal scope and add certain disability discrimination allegations because these were sufficiently particularised, recent, and would avert delay and duplication. The Tribunal refused amendment of older, unparticularised sex discrimination allegations and an additional disability discrimination allegation due to lack of specificity, age of the conduct, and insufficient evidentiary basis. The application for interim orders was refused on the basis that the applicant failed to establish a real and material risk of irreparable harm that would justify intervention pending the final hearing.

Parties
Applicant: Lee McCrystal; First Respondent: Commissioner of Police, NSW Police Force; Second Respondent: Arthur Kopsias; Third Respondent: Stuart Davies
Jurisdiction
Australia
Judgment Date
21 December 2018
Procedural Posture
Administrative Discrimination Complaint / Procedural Application for Amendment and Interim Orders
Outcome
Application to amend complaint granted in part; interim orders refused
Legal Topics
Complaint Amendment, Interim Orders, Victimisation, Disability Discrimination, Employment Discrimination
Anti Discrimination Law Administrative Law Complaint Amendment Interim Orders Victimisation Disability Discrimination Employment Discrimination

Case Brief

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Parties

Lee McCrystal

Applicant

Commissioner of Police, NSW Police Force

First Respondent

Arthur Kopsias

Second Respondent

Stuart Davies

Third Respondent

Procedural Posture

Administrative Discrimination Complaint / Procedural Application for Amendment and Interim Orders

Legal Issues

  1. 1 Whether to grant amendment extending temporal scope of victimisation complaint
  2. 2 Whether to add disability discrimination allegations to complaint
  3. 3 Whether to grant interim orders returning applicant to previous role

Ratio Decidendi

The Tribunal exercised its discretion to amend the victimisation complaint to extend its temporal scope and add certain disability discrimination allegations because these were sufficiently particularised, recent, and would avert delay and duplication. The Tribunal refused amendment of older, unparticularised sex discrimination allegations and an additional disability discrimination allegation due to lack of specificity, age of the conduct, and insufficient evidentiary basis. The application for interim orders was refused on the basis that the applicant failed to establish a real and material risk of irreparable harm that would justify intervention pending the final hearing.

Court Disposition

Application to amend complaint granted in part; interim orders refused

Orders

  • The complaint is amended by extending the temporal scope of the victimisation complaint to include the period 29 June 2017 to 7 November 2018 for allegations listed at Points of Claim [13],[14]
  • The complaint is amended to include an allegation of discrimination on the ground of disability under s 49D(2) of the Anti-Discrimination Act 1977 (NSW) for the period 21 January 2016 to 7 November 2018 regarding Points of Claim [9],[10]