Trott v Uniting NSW.ACT [2025] NSWCATAD 183;

Legal principles for granting or refusing "leave" under s 96(1) of the Anti-Discrimination Act

1. Section 96(1) provides that:

96 Leave of Tribunal required for inquiry into certain matters

(1) A complaint that is referred to the Tribunal on the requirement of a complainant under section 93A (1) may not be the subject of proceedings before the Tribunal without the leave of the Tribunal.

1. This provision gives the Tribunal a discretion to allow a complaint to be the subject of proceedings or to refuse to allow a complaint to be the subject of proceedings. That decision is not "dictated by the application of a fixed rule to the facts" but involves "value judgments in respect of which there is room for reasonable differences of opinion, no opinion being uniquely right": Norbis v Norbis [1986] HCA 17 at [4]; [1986] HCA 17; (1986) 161 CLR 513 at 518 per Mason and Deane JJ. However, the court may give guidance "as to the manner in which the discretion should be exercised": Norbis at [519].
2. The courts have provided guidance of that kind in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 (Ekermawi). On appeal, the Court of Appeal endorsed that approach: Jones & Anor v Ekermawi [2009] NSWCA 388 (Jones). In summary:

(1) The Tribunal's decision is not subject to any fixed rule or legislative standard, but it must be exercised "having regard to the context in which it appears and the purposes for which it is provided": Salido v Nominal Defendant (1993) 32 NSWLR 524 at 536 (Kirby P) (Emphasis added.)

(2) Leave should be granted or refused depending on what is "fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted": Ekermawi at [40].

(3) The President's reasons for declining a complaint are relevant "although not necessarily determinative of the leave application ...": Jones [2009] NSWCA 388 at [60].

1. Applying these principles, Schmidt AJ in Ekermawi at [38] held that question of leave should be approached "on the basis of identifying whether it is fair and just to grant or refuse the leave sought in the particular circumstances in which the application for leave to proceed with a complaint comes forward". Her Honour went on, in the same paragraph, to explain what is meant by fairness and justice in the context of the discretion under s 96(1) of the Anti-Discrimination Act:

That requires the position of both parties to be considered. Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

President's reasons for declining the complaint

1. The President's reasons for declining the complaint were that:

The complainant's allegations that she was discriminated against because of her disability lack substance. The respondent provided services as per its role as a Local Area Coordinator and, while the complainant felt that she was treated in a discriminatory manner in her dealing with a particular employee, the manner in which services are provided is not covered (by the) Anti-Discrimination Act.

The complainant was also not victimised pursuant to s 50 of the ADA. Because the respondent cannot create or approve a plan, the change to her plan cannot be the result of her complaint to them. (Words in brackets added.)

1. While these reasons are relevant, they are not determinative of the leave application. In determining whether to grant leave the main consideration is whether the complaints lack substance in the sense that the alleged conduct was not the conduct of Uniting or the alleged conduct does not disclose a breach of the Anti-Discrimination Act.

1. Ms Trott has an intellectual disability which she says leads to "sensory overload" and "lack of executive function". For the purposes of these proceedings, I accept that she has a disability within the meaning of that term in the Anti-Discrimination Act.
2. Ms Trott is a participant in the National Disability Insurance Scheme (NDIS) and receives funding directly from that scheme in accordance with the provisions of the National Disability Insurance Scheme Act 2013 (Cth). Uniting is Ms Trott's Local Area Co-ordinator (LAC). It is a community-based organisation that receives funding from the NDIS to help deliver local area coordination services. Uniting's role is to support people with disabilities "to create and work towards their goals, build capacity to make their own decisions and choices and access the supports they need to live the life they choose." (https://www.ndis.gov.au/understanding/what-ndis/whos-delivering-ndis). The NDIS Quality and Safeguards Commission manages complaints about the quality and safety of NDIS supports and services.
3. In her written submissions to the Tribunal, Ms Trott identified the following conduct as being in breach of the Anti-Discrimination Act:

(1) I was excluded from the development of my March 2024 NDIS plan, which was issued without involving me in any planning meetings, phone calls, or written consultations, despite being the participant.

(2) The plan was materially altered, with key goals from my previously agreed December 2023 plan removed without any explanation or opportunity for input.

(3) A meeting specifically requested by my Support Coordinator to support my participation in the planning process was refused by Uniting Team Leader Teresa Chard, blocking a reasonable pathway to inclusion.

(4) Despite clear knowledge of my psychosocial disability, Uniting failed to provide reasonable adjustments such as supported communication or alternative engagement strategies. It also failed to adopt a trauma-informed approach that would have enabled me to engage more safely and effectively.

(5) I was not notified or consulted about the new plan at any stage, even though Uniting was aware of my need for structured and supported decision making.

(6) Following my formal complaints about a distressing interaction with Uniting LAC Mark Gilbert and related planning failures, I was further excluded from the process - constituting victimisation under s 50 of the Anti-Discrimination Act.

1. Ms Trott says she has suffered a loss of critical supports, a profound sense of disempowerment and psychological harm.
2. In the summary of complaint Ms Trott referred to s 31 of the NDIS Act which sets out the principles relating to plans. One of the principles states that:

The preparation, variation, reassessment and replacement of a participant's plan, and the management of the funding for supports under a participant's plan, should so far as reasonably practicable:

(a) be individualised; and

(b) be directed by the participant; and

. . .

1. This Tribunal has no power to determine whether there has been a breach of that provision. The Tribunal can only determine whether any conduct of Uniting could be in breach of the Anti-Discrimination Act.
2. I understand from the six points set out above, and from Ms Trott's submissions, that she is not complaining about Mark Gilbert's conduct on 29 November 2023. She points to that conduct as being the trigger for conduct that she says constitutes victimisation in breach of s 50 of the Anti-Discrimination Act.
3. Points (1), (2) and (5) and (6) allege victimisation in breach of s 50 of the Anti-Discrimination Act. Points (3) and (4) allege that Uniting refused to provide a service on the ground of Ms Trott's disability in breach of s 49M.

Ms Trott's complaint of victimisation - points (1), (2), (5) and (6)

1. On 27 November 2024 Ms Trott lodged a complaint with the President. Ms Trott summarised her complaint as follows:

After I complained to Uniting (in December 2023) and the NDIS safeguards commission (in January 2024) about how I was treated by the LAC at Uniting, I then had a new plan made by Uniting that removed my goals that were very important to me and had false information added and removed that would mean I didn't receive the appropriate supports I required.

. . .

I had a new plan that was created that was not directed by me the participant. I had no input into (it). This affected the supports I required as I had a number of my goals removed and false information added that denied me appropriate support. I have been denied support to have my children. This has caused me a considerable loss and affected my relationship with them a time I would never get back. I was never asked and no-one at Uniting called me to change my plan. Please read the document attached I completed as this has caused me considerable distress and highly triggering to me in repeating this. (Words I brackets added.)

1. On 8 March 2024, Ms Trott saw, via the NDIS portal, that her plan had been changed back to "self-managed". She says she was not aware that a new plan had been created as she had not been consulted about it. When she read the new plan, she noticed that there was incorrect information in the plan. For example, in the previous plan her ex-partner was described as "available as an emergency support". However, in the new plan, that person was described as being "very supportive". The fact that her family lives in Hobart and cannot provide support, was omitted from the new plan. Ms Trott emphasised that she has no support other than formal supports. She says that because her current situation has been misrepresented, she has not been given appropriate supports.
2. It was after she made complaints about Mark Gilbert that Ms Trott says her plan was changed without her knowledge or input. As a result, she felt that Uniting had victimised her. Ms Trott also says that she has had no input into the development of a new plan.
3. The summary quoted above and points (1), (2), (5) and (6) allege victimisation as defined in s 50 of the Anti-Discrimination Act. Under s 50(1)(c). It is unlawful for Uniting to subject Ms Trott to "any detriment in any circumstances" on the ground that Ms Trott has alleged that Uniting "has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act".

50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has -

(a) brought proceedings against the discriminator or any other person under this Act,

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

1. The "detriment" is said to be firstly, the creation of a plan that removed her goals and included false information. Secondly, she did not direct the plan and she had no input into it. Ms Trott claims that the reason Uniting subjected her to those detriments was that she complained to them about the behaviour of a Uniting employee, Mark Gilbert. The complaint was made in December 2023.

Uniting's response to complaints of victimisation

1. Mr Glendon Rumble, the Service Area Manager for the Hunter New England region of Uniting, emailed Ms Trott on 16 December 2024 responding to her concerns about changes to her goals and the information about her levels of support in the March 2024 plan:

In regards to your plan that commenced on 8/3/24, it appears that your goals and the about me section are a mix of the information from the plan that commenced on 6/12/23 and the previous plan that commenced on the 13/9/21. Whether it was a systems error or an issue with the information entered by the NDIA planner, I am unable to determine as LAC are not part of the building and approval of plans.

1. Mr Rumble added that he understood that Ms Trott had spoken to a NDIA complaints officer on 10 December 2024 when he explained that the plans were built by NDIA planners and not Uniting. Uniting can talk about a participant's current situation, supports and goals to help develop a plan, but Uniting does not create or approve a plan. That is done by the NDIA.
2. In response to Ms Trott's query about lack of consultation before the March 2024 plan was finalised, Mr Rumble advised her that:

Your plan that was approved on 8/3/24 was created and approved by a NDIA planner. Uniting had no involvement in creation of the plan and provided no information as there had not been any type of check in (meeting with you to discuss a plan change) between the plan that was approved in December 2023 and the new plan in March 2024. We can't answer this question and only the NDIA planner can explain why there was no consultation with you.

Tribunal's assessment of the merits of the victimisation complaints

1. The March 2024 plan was not in the material provided to the Tribunal. I accept Ms Trott's summary as to what was in that plan. Based on the material now before the Tribunal, Uniting was not responsible for preparing the plan which she says downgraded her goals and misrepresented of her needs. Despite Ms Trott's assertion that the new plan was made by Uniting, she did not dispute that it was the NDIA planner who prepared the March 2024 plan. It follows that Uniting did not subject Ms Trott to the "detriment" of creating a plan that removed her goals and included false information. In those circumstances, the issue as to whether any detriment was on the ground that Ms Trott had lodged a complaint against Mark Gilbert does not arise. For those reasons, this complaint lacks substance and it would not be fair or just for it to be the subject of proceedings in the Tribunal.
2. The second "detriment" Ms Trott complains about is that Uniting did not notify or consult her about the March 2024 plan at any stage. Ms Trott says a new plan was created without her knowledge or input. Uniting accepts that its role as an LAC is to talk to participants about their current situation, supports and goals and to help develop a plan. However, in this case Uniting says there was no meeting to discuss a plan change between 8 December 2023 when a plan was approved, and the implementation of a new plan in March 2024. According to Uniting, only the NDIA planner can explain why there was no consultation.
3. Ms Trott says she had no input into the March 2024 plan and Uniting says that they had no involvement in the creation of the plan. Even if it is accepted that no-one at Uniting consulted Ms Trott about that plan, the reason for the lack of consultation is that they had no knowledge that the plan was being developed. There is no evidence from the NDIA planner as to why there was no consultation. It follows that, on the material currently before the Tribunal, Uniting did not subject Ms Trott to any "detriment" within the meaning of that term in s 50 of the Anti-Discrimination Act by not consulting her. The issue as to whether any detriment was on the ground that Ms Trott had lodged a complaint against Mark Gilbert does not arise. For those reasons, this complaint lacks substance and it would not be fair or just for it to be the subject of proceedings in the Tribunal.

Ms Trott's complaints of disability discrimination - points (3) and (4)

1. Under s 49M(1)(a) of the Anti-Discrimination Act, it is unlawful for Uniting to discriminate against Ms Trott on the ground of disability by refusing to provide her with services or in the terms on which services are provided.

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. I have assumed, for the purpose of these proceedings, that Uniting provides the service of supporting people with disabilities "to create and work towards their goals, build capacity to make their own decisions and choices and access the supports they need to live the life they choose."
2. Discrimination on the ground of disability is defined in s 49B of the Anti-Discrimination Act:

(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

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(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.

...

(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

Section 4A of the Act provides that:

If -

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

1. The conduct summarised at (3) above is that Teresa Chard refused to attend a meeting requested by Ms Trott's Support Coordinator. The email making that request is not in the material before the Tribunal. I understand Ms Chard is employed by Uniting. She explains in an email of 25 March 2024, to Ms Trott's support coordinator, that the NDIA is looking after the review of her plan. The reason she gives is the number of complaints Ms Trott has submitted against Uniting. She says she is not able to speed up the process but offers to alert NDIA staff to contact Ms Trott's support coordinator. Ms Trott adds that she is not able to respond directly to Ms Trott because her application for information under the "Freedom of Information Act" is yet to be determined.
2. This complaint lacks substance because agreeing to meet on request, regardless of the circumstances, is not a service that Uniting provides. Ms Chard explains that the NDIA is looking after the review of the plan. She also provides a reasonable explanation as to why she cannot contact Ms Trott directly. As Uniting has not refused to provide a "service" to Ms Trott, or provided that service on less favourable terms, this complaint lacks substance. Even if Uniting has refused to provide a service, or provided a service on less favourable terms, there is no basis for drawing an inference that one of the reasons for doing so was Ms Trott's disability. Ms Chard gives credible reasons for not agreeing to a face to face meeting with Ms Trott. It would not be fair or just for Ms Trott's complaint of disability discrimination to go ahead.
3. The conduct summarised in (4) above is that Uniting failed to provide "reasonable adjustments" such as supported communication or alternative engagement strategies. There is no positive duty in s 49M of the Anti-Discrimination Act or in any other provision, to provide "reasonable adjustments" when services are being provided to a person with a disability. For that reason, this complaint lacks substance. It would not be fair or just for Ms Trott's complaint to go ahead.

(1) Leave is refused for the applicant's complaint to be the subject of proceedings before the Tribunal.

(2) Within 7 days of the date of these reasons, either party may apply to substitute a legal entity for the respondent named in these proceedings if that entity is not a legal entity.

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.