Flynn v Illion Data Registries Pty Ltd [2025] NSWCATAD 315;

Going forward all actions or lack of actions by Illion that involve me, needs to take into account my ADHD and Anxiety disorder with reference to all complaints and Privacy Requests I have raised with Illion that are active or will be active in the future.

1. The Applicant made a complaint to the Australian Financial Complaints Authority (AFCA) about the Respondent's conduct which was determined on 1 April 2025. The AFCA found that the Respondent had provided the Applicant with the information he sought and his "privacy requests", had not breached the Australian Privacy Principles (APPs), but had failed to comply with ASIC's Regulatory Guide 271 to provide a compliant Internal Dispute Response (IDR) within 30 days. The Applicant then complained to the Anti-Discrimination Board (ADB) on 22 August 2025, raising the same issues in the context of disability discrimination in the provision of goods and services.
2. On 19 August 2025, the ADB President's delegate decided to decline the Applicant's complaint on the basis that it was lacking in substance, because:

- The complainant hasn't provided any information capable of establishing that he was refused a service or provided a service on less favourable terms due to having a disability.

- On the complainant's own information, the respondent wasn't informed of his disability until 5 February 2025 and there is no information of communications between the parties after that date.

- AFCA investigated the complaint which found that the information requested by the complainant had been provided.

1. At the Applicant's request, the President of the ADB referred the complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act.
2. The Applicant's leave application proceeded to hearing on 29 October 2025. In addition to the President's Summary of Complaint, the Tribunal heard oral submissions from the Applicant and the Respondent's representative.
3. For the reasons that follow, I have decided to refuse leave for the complaint to proceed.

1. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
2. Where the President decides to accept a complaint under s 89B, she must investigate that complaint: s 90(1) of the Act. If the President is satisfied at any time of the investigation that the complaint is lacking in substance, she may decline the complaint in whole or in part: s 92(1)(a)(i). A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].
3. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if she has received a written request from the complainant to do so: s 93A of the Act.
4. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
5. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] ("Ekermawi"). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].
6. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.
7. The applicant's evidence must be taken at its highest, that is, everything the applicant has put in evidence is accepted as true and then the Tribunal determines whether she could possibly succeed in her complaint of racial discrimination (Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]).

1. Section 4 of the Act defines disability to mean:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

1. In addition, the Act defines disability to include past, future and presumed disability:

49A Disability includes past, future and presumed disability

A reference in this Part to a person's disability is a reference to a disability -

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

1. Section 49B of the Act explains what constitutes discrimination on the ground of disability:

1. A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator -

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or

...

(2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

1. Section 49M makes disability discrimination in the provision of goods and services unlawful:

"49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services."

1. To substantiate a complaint of disability discrimination in the provision of goods and services, the applicant would need to establish that the respondent provides services, and that they were discriminated against (as defined by s 49B) in a manner which was unlawful under s49M. The conduct which is unlawful under s 49M is limited to either:

(1) refusing to provide the services, or

(2) in the terms on which the services are provided.

1. The manner in which the services are provided is not grounds for unlawful discrimination. The "terms on which the services are provided" are the conditions on which the service is or will be performed; they are not part of the manner of actual performance (Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]). Section 49M does not allow a complaint of discrimination to be brought in relation to the manner in which goods or services are provided.

1. In order to establish a claim of unlawful disability discrimination, the applicant needs to establish that at least one of the reasons he was treated less favourably than others in the same or similar position (sometimes referred to as "differential treatment") was "on the grounds of" his disability (sometimes referred to as "the causation question").
2. The words "on the grounds of" have been paraphrased as "because of", "due to," or "a real" reason, a "genuine" reason or "true" reason for the treatment alleged to have been discriminatory: see Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
3. The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his disability: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].
4. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].
5. It is not the case that because a person has a disability, and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person has a disability. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the protected attribute of the person, or that was one of the reasons for the conduct. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned is his disability.

1. The Applicant complains that the Respondent's conduct in delaying dealing with his privacy complaint for 270 days was disability discrimination in the provision of goods and services. The Respondent disputes the delay, disputes that there was any less favourable treatment of the Applicant, and disputes that any of its conduct was on the grounds of the Applicant's disability.
2. There was no direct evidence causally connecting the Respondent's conduct, with the Applicant's disability. Without direct evidence, an inference would need to be drawn by the Tribunal that the Respondent's conduct was because of the Applicant's disability. Any such inference must be logical and reasonable and must show that a connection is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence (Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).
3. The more probably and innocent explanation available to the Tribunal on the evidence, specifically the AFCA report findings, is that the Applicant's privacy complaints and requests for information were dealt with by the Respondent in the same manner as they dealt with any other individual's complaints or requests for information. There was no evidence that the Applicant was treated less favourably than an individual who did not have his disability.
4. Whilst I accept that the Applicant informed the Respondent of his disability in February 2025, this is not sufficient evidence on which the Tribunal would infer that the Respondent's conduct was causally connected to the Applicant's disability.
5. On the evidence before the Tribunal, taken at its highest, I therefore cannot infer that the Respondent's conduct towards the Applicant was causally connected to his disability.
6. The Applicant also appeared to complain that the Respondent should have "made arrangements to assist" him once he notified them of his disability, because "ADHD requires clear communication". This does not disclose less favourable treatment.
7. I therefore agree with the decision made by the President's delegate that the Applicant's complaint of disability discrimination in the provision of goods and services is lacking in substance, for the same reasons given by the ADB.
8. In deciding whether it is "fair and just" to grant or to refuse leave, I take into account that the Tribunal's discretion must be exercised having regard to the purpose of the legislative scheme established by the Act. I am also guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme.
9. I take into account the Applicant's evidence that his disability makes him more susceptible to perceived injustice and requires clear communication, which he believes the Respondent failed at. However, on the basis of the Applicant's evidence there is no prospect of success in substantiating a complaint of disability discrimination against the Respondent. It would therefore not be fair or just to grant leave for the Applicant's complaint to proceed against the Respondent.
10. Leave is therefore refused for the Applicant's complaint of disability discrimination in the provision of goods and services to proceed against the Respondent.

(1) Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the Applicant's complaint against the Respondent to proceed.

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.