Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35

Star City Pty Ltd v Hurst (EOD) [2009] NSWADTAP 35

Leave to appeal was refused because the Tribunal's refusal to summarily dismiss the complaint was a discretionary decision, reasonably open on the evidence, and did not exceed the boundaries of the discretion as set out in House v The King and General Steel. There was some evidence that, if accepted, might allow the primary claim to proceed under the imputed or 'thought of as' transgender basis in s 38A; the appellant's arguments did not demonstrate that the complaint was manifestly untenable or that the Tribunal fell into legal error justifying appellate intervention.

Parties
Appellant: Star City Pty Ltd; Respondent: Paul Hurst
Jurisdiction
Australia
Judgment Date
04 June 2009
Procedural Posture
Appeal / Interlocutory Appeal (leave Application)
Outcome
leave to appeal refused
Legal Topics
Transgender Discrimination, Summary Dismissal, Statutory Interpretation
Anti Discrimination Law Administrative Law Transgender Discrimination Summary Dismissal Statutory Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Star City Pty Ltd

Appellant

Paul Hurst

Respondent

Procedural Posture

Appeal / Interlocutory Appeal (leave Application)

Legal Issues

  1. 1 Whether the Tribunal erred in refusing summary dismissal of a complaint of unlawful transgender discrimination under the Anti-Discrimination Act 1977
  2. 2 Whether there was evidence to justify proceeding on the basis that the complainant was 'thought of as a transgender person' under s 38A of the Anti-Discrimination Act 1977
  3. 3 The proper construction and application of 'transgender person' including the 'thought of as' clause in s 38A

Ratio Decidendi

Leave to appeal was refused because the Tribunal's refusal to summarily dismiss the complaint was a discretionary decision, reasonably open on the evidence, and did not exceed the boundaries of the discretion as set out in House v The King and General Steel. There was some evidence that, if accepted, might allow the primary claim to proceed under the imputed or 'thought of as' transgender basis in s 38A; the appellant's arguments did not demonstrate that the complaint was manifestly untenable or that the Tribunal fell into legal error justifying appellate intervention.

Court Disposition

leave to appeal refused

Orders

  • Leave to appeal refused