Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83

Dezfouli v Justice Health and Forensic Mental Health Network [2018] NSWCATAD 83

Leave was refused because the Tribunal was not persuaded that it was fair or just for the sexual harassment or sex discrimination complaints to proceed. The applicant had not identified the relevant services, there was doubt whether activities in a forensic hospital were services under the Anti-Discrimination Act 1977 (NSW), and there were significant evidentiary obstacles to proving the alleged unwelcome sexual conduct given the denial by the second respondent and the applicant's history of serious unsubstantiated allegations. The Tribunal also lacked jurisdiction to consider the victimisation complaint because it had not been investigated or referred under s 93A.

Jurisdiction
Australia
Judgment Date
16 April 2018
Procedural Posture
Application for Leave to Proceed With Complaints Under the Anti Discrimination Act 1977 (nsw) / Leave Application After the President of the Anti Discrimination Board Declined Complaints and the Applicant Requested Referral to the Tribunal
Outcome
Leave refused.
Legal Topics
['sexual Harassment' 'sex Discrimination' 'victimisation' 'provision of Services' 'forensic Hospital' 'leave to Proceed']
['anti Discrimination Law' 'administrative Law'] ['sexual Harassment' 'sex Discrimination' 'victimisation' 'provision of Services' 'forensic Hospital' 'leave to Proceed']

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Procedural Posture

Application for Leave to Proceed With Complaints Under the Anti Discrimination Act 1977 (nsw) / Leave Application After the President of the Anti Discrimination Board Declined Complaints and the Applicant Requested Referral to the Tribunal

Legal Issues

  1. 1 ['Whether it was fair and just under s 96(1) of the Anti-Discrimination Act 1977 (NSW) to grant leave for the sexual harassment complaints to proceed.' "Whether the Tribunal had jurisdiction to consider the victimisation complaint where the President's delegate declined to accept it for investigation." 'Whether the applicant identified services received from the respondents for the purposes of a complaint of sexual harassment or sex discrimination in the provision of services.' 'Whether the respondents were providing services within the meaning of the Anti-Discrimination Act 1977 (NSW).' 'Whether the applicant was likely to prove that the second respondent engaged in unwelcome conduct of a sexual nature.' 'Whether the sex discrimination complaint should proceed.']

Ratio Decidendi

Leave was refused because the Tribunal was not persuaded that it was fair or just for the sexual harassment or sex discrimination complaints to proceed. The applicant had not identified the relevant services, there was doubt whether activities in a forensic hospital were services under the Anti-Discrimination Act 1977 (NSW), and there were significant evidentiary obstacles to proving the alleged unwelcome sexual conduct given the denial by the second respondent and the applicant's history of serious unsubstantiated allegations. The Tribunal also lacked jurisdiction to consider the victimisation complaint because it had not been investigated or referred under s 93A.

Court Disposition

Leave refused.

Orders

  • ['Leave to proceed with the complaints of sexual harassment and sexual discrimination is refused.']