Vance v EML NSW Limited

[2025] NSWCATAD 199

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Vance v EML NSW Limited [2025] NSWCATAD 199
Hearing dates:	30 July 2025
Date of orders:	8 August 2025
Decision date:	08 August 2025
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	Hennessy ADCJ, Deputy President
Decision:	1. Leave is refused for the applicant’s complaints to be the subject of proceedings before the Tribunal.
Catchwords:	HUMAN RIGHTS — Legislation — Anti-Discrimination Act 1977 (NSW) --- where applicant has required the President of the Anti-Discrimination Board to refer a declined complaints to the Tribunal – whether Tribunal should exercise discretion to grant leave for the complaint to be the subject of proceedings under s 96(1) of the Anti-Discrimination Act
Legislation Cited:	Anti-Discrimination Act 1977 (NSW)
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
Category:	Principal judgment
Parties:	Glen Vance (Applicant) EML NSW Limited (First Respondent) Trustee for Illawarra Health Service Unit Trust (Second Respondent)
Representation:	Solicitors: Applicant (self-represented) Bartier Perry Lawyers (First Respondent) Hall & Wilcox (Second Respondent)
File Number(s):	2025/00187706
Publication restriction:	Nil

REASONS FOR DECISION

Overview

1. On 25 March 2025 Mr Vance complained to the President of the Anti-Discrimination Board about conduct of EML NSW Limited (EML) and the Trustee for Illawarra Health Service Unit Trust (Illawarra Occupational Health).

2. icare (insurance and care NSW) is a government organisation that delivers insurance and care services to people with workplace injuries under the NSW workers compensation scheme. icare contracts “claims service providers” such as EML to manage claims on its behalf. A claims service provider co-ordinates the benefits and services a worker is entitled to receive. EML is the agent of icare managing Mr Vance’s workers compensation claim.

3. From July 2020 to May 2021 Illawarra Occupational Health was the “rehabilitation service provider” engaged to assist in the management of Mr Vance’s rehabilitation and return to work plan.

4. Mr Vance complained that both EML and Illawarra Occupational Health had discriminated against him on the ground of his disability by refusing to provide him with services or in the terms on which they provided him with services: Anti-Discrimination Act 1977 (NSW), s 49M. I accept, for the purposes of this hearing that Mr Vance has a disability.

5. The President accepted for investigation one complaint of disability discrimination in the provision of services against EML for the period 25 March 2024 to 25 March 2025: Anti-Discrimination Act, s 89B. The President accepted one complaint of disability discrimination against Illawarra Occupational Health for the same period. Following investigation, the President declined both complaints as “lacking in substance” under s 92(1)(a)(i) of the Anti-Discrimination Act.

6. Mr Vance exercised his right to require the President to refer these two complaints of disability discrimination in the provision of services for the period 25 March 2024 to 25 March 2025 to the Tribunal: Anti-Discrimination Act, s 92 and s 93A.

7. A complaint that is referred to the Tribunal on the requirement of a complainant “may not be the subject of proceedings before the Tribunal without the leave of the Tribunal”: Anti-Discrimination Act, s 96(1). The word “leave” means “permission”. If the complaint does not disclose a contravention of the Anti-Discrimination Act, it will not be “fair and just” for the complaint to go ahead: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143.

8. I have addressed three preliminary issues at the end of these reasons.

Complaint against Illawarra Occupational Health

9. Illawarra Occupational Health was engaged to provide services to Mr Vance on 6 July 2020. Mr Vance did not dispute their assertion that on 18 May 2021 it ceased to provide those services. The period of the complaint as referred by the President is 25 March 2024 to 25 March 2025. As Illawarra Occupational Health was not providing services to Mr Vance during that time, this complaint does not disclose a contravention of the Anti-Discrimination Act.

10. The Tribunal has no power to extend the period of the complaint as referred by the President. That is the case for two reasons. Firstly, under s 89B(4) of the Anti-Discrimination Act the President’s decision to decline a complaint which occurred more than 12 months before the making of the complaint, is not reviewable by the Tribunal.

89B Acceptance or declining of complaints by the President

(1) The President is to determine whether or not a complaint made to the President is to be accepted or declined, in whole or in part.

(2) The President may decline a complaint if—

(a) no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations, or

(b) the whole or part of the conduct complained of occurred more than 12 months before the making of the complaint, or

(c) the conduct complained of could amount to a contravention of a provision of this Act for which a specific penalty is imposed, or

(d) in the case of a vilification complaint, it fails to satisfy the requirements of section 88, or

(e) the President is not satisfied that the complaint was made by or on behalf of the complainant named in the complaint.

(3) The President is to give notice of a decision to accept or decline a complaint to—

(a) the person who made the complaint, and

(b) if the respondent has been given notice of the complaint, the respondent,

so far as is reasonably practicable, within 28 days after the decision is made.

(4) A decision under this section to decline a complaint in whole or in part is not reviewable by the Tribunal.

11. Secondly, s 41 of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act) gives the Tribunal power to extend time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

41 Extensions of time

(1) The Tribunal may, of its own motion or on application by any person, extend the period of time for the doing of anything under any legislation in respect of which the Tribunal has jurisdiction despite anything to the contrary under that legislation.

(2) Such an application may be made even though the relevant period of time has expired.

12. However, there is no time limit in the Anti-Discrimination Act for the making of a complaint. Section 89B merely gives the President discretion to decline a complaint where the conduct occurred more than 12 months before the making of the complaint. As there is no time limit for the making of a complaint to the President, the Tribunal cannot exercise its power under s 41 of the NCAT Act to “extend the period of time” for the making of a complaint.

Complaint against EML

13. EML submits that its services as a claims service provider are provided under the Workers Compensation Act 1987 (NSW). It does not provide a “discretionary or a commercial service” in the usual sense contemplated by s 49M of the Anti-Discrimination Act.

14. Services are defined in s 4 of the Anti-DiscriminationAct to include “(a) services relating to banking, insurance and the provision of grants, loans, credit or finance.”

15. I am not persuaded on the submissions put by EML that, as a claims service provider, it does not provide services to Mr Vance within the meaning of that term in the Anti-Discrimination Act. While I make no finding that it does provide such services, Mr Vance’s complaint is not lacking in substance on that basis.

16. In his written complaint to the Tribunal Mr Vance did not mention the dates on which EML had engaged in allegedly discriminatory conduct apart from events in 2020 which he said were still not resolved. At the hearing, Mr Vance mentioned dates including 26 November 2020, April 2021 and 16 June 2023. Mr Vance did not identify any specific conduct of EML during the period of the complaint (25 March 2024 to 25 March 2025). He says he did not get a chance to give specific dates and “struggles with chronological order”. While I accept that Mr Vance may have those difficulties, he managed to nominate specific dates for a variety of events.

17. As Mr Vance has not identified any conduct of EML during the period of the complaint, the complaint does not disclose a contravention of the Anti-Discrimination Act. I refuse to give Mr Vance permission for his complaint of disability discrimination against EML to be the subject of proceedings in the Tribunal.

Preliminary matters

Application for non-publication order

18. Mr Vance applied for a “de-identification” order, prohibiting the publication of his name. He said that there is extremely sensitive personal information in the material before the Tribunal and there is no public interest in disclosing that information.

19. The Tribunal’s power to make such an order is in s 64 of the NCAT Act:

64 Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders—

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report, including a sound recording or transcript, of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.

20. In order to determine the issues in these proceedings there is no need for me to identify the nature of Mr Vance’s disability or to refer to any sensitive personal information. For that reason, I refuse to make an order prohibiting or restricting the disclosure of his name.

Application for an adjournment

21. Mr Vance applied for the hearing to be adjourned to late August 2025. The Tribunal refused that application on 28 July 2025. The Tribunal added that the issues raised can be considered by the Tribunal at the hearing on 30 July 2025.

22. At the hearing I gave Mr Vance an opportunity to re-apply for an adjournment. He relied on a letter dated 28 July 2025 from a clinical psychologist. She wrote that “based on Mr Vance’s long standing (description of disabilities deleted). ...(she) would be grateful if the court could consider rescheduling Mr Vance’s hearing to a later date to assist with managing his current stress levels”. Mr Vance requested an adjournment on “compassionate and medical grounds”.

23. Despite the request from a clinical psychologist, I was not persuaded that delaying the hearing would help manage Mr Vance’s stress levels or allow him to better respond to complex matters that would arise in the hearing. There is no basis for concluding that Mr Vance would be less stressed in 3 or 4 weeks than he is now. I refused the adjournment.

Joinder of party

24. Mr Vance applied to join icare as a party to the proceedings. The Tribunal has power to join a party under s 44(1) of the NCAT Act:

44 Parties and intervention

(1) The Tribunal may order that a person be joined as a party to proceedings if the Tribunal considers that the person should be joined as a party.

25. Under s 96(1) of the Anti-Discrimination Act the Tribunal has power to determine whether a complaint which the President has referred to the Tribunal, should be the subject of proceedings. The Tribunal does not have power to amend the complaint or add parties to the complaint. For that reason, the application for joinder is refused.

Order

1. Leave is refused for the applicant’s complaints to be the subject of proceedings before the Tribunal.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar