Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Mewett v Michael Roberts Strata Management Services Pty Ltd [2020] NSWCATAD 160 Hearing dates: 15 June 2020 Date of orders: 24 June 2020 Decision date: 24 June 2020 Jurisdiction: Administrative and Equal Opportunity Division Before: Dr J Lucy, Senior Member J Green, General Member Decision: (1) The complaint is dismissed. (2) The respondent's costs application is dismissed. Catchwords: ANTI-DISCRIMINATION – Disability discrimination in the provision of services – Where applicant suffered from a disability which made it hard for him to communicate in writing - Whether service provider refused to communicate with the applicant by telephone – Whether service provider imposed a requirement that the applicant only communicate with it in writing – Whether special circumstances exist warranting an order for costs Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Cases Cited: El-Kassir v Commissioner of Police, NSW Police Force [2018] NSWCATAD 232 Texts Cited: None cited Category: Principal judgment Parties: Scott Mewett (Applicant) Michael Roberts Strata Management Services Pty Ltd (Respondent) Representation: Solicitors: LM Kariithi (Applicant) Mr J McGrath, Licensee in Charge of respondent (Respondent) File Number(s): 2019/00338958 Publication restriction: Nil reasons for decision 1. Mr Mewett, a lot owner in a strata scheme, claimed that a strata managing agent discriminated against him on the ground of disability. He said that the agent did this by failing to communicate with him in telephone calls, when he had told the agent's employees that, as a result of his disability, he had difficulty communicating in writing. 2. We have found that Mr Mewett has failed to establish the facts necessary to make out his case. Accordingly, we have dismissed his application. Background 1. Mr Mewett suffers from depression and anxiety and has a social phobia. He also has an acquired brain injury from a motor vehicle accident. As a result of his medical conditions, he becomes distressed when he communicates in writing or face to face in situations where the communication has an emotional content or is of a personal nature. In such circumstances, he has less difficulty speaking over the telephone. 2. Mr Mewett and his partner, Ms Appleton, are owners of a lot in a strata scheme. The respondent is the Strata Managing Agent for the owners corporation. 3. Mr Mewett's and Ms Appleton's air conditioning unit has not worked since about July 2018. At about this time, Mr Mewett and Ms Appleton saw the gardeners who clean the common areas in their strata complex blowing debris into their external air conditioning unit. 4. On or about 2 or 3 January 2019, Ms Appleton spoke to the son of a gardener who was using a leaf blower in the garden outside Mr Mewett's and Ms Appleton's apartment. Ms Appleton told him that he was on private property and pointed out the areas which she said were common areas, where he could do his gardening. She was apparently concerned about the boy blowing leaves towards her air conditioning unit. 5. On 22 January 2019, Ms Appleton spoke to the boy again whilst he was hedge-trimming. Later on the same day, Ms Appleton spoke to the head gardener about the leaves and the air conditioning unit. The gardener said to Ms Appleton: "Your air conditioner hasn't been working for years." An exchange followed and Mr Mewett, who witnessed the exchange, considered that the way the gardener spoke to his partner was "quite unpleasant." 6. In January 2019, Mr Mewett attempted on several occasions to speak to an employee of the respondent, Ms Stacey Saunders, about the gardeners blowing leaves into Mr Mewett's and Ms Appleton's external air conditioning unit. He says he made multiple phone calls through the respondent's reception but Ms Saunders did not reply to his requests for a telephone conversation. 7. After the incident on 22 January 2020, Ms Appleton became unwell and had to remain in bed for a number of days. She was subsequently taken by ambulance to hospital. 8. On 24 January 2019, Ms Saunders wrote to Mr Mewett and Ms Appleton "in regards to the multiple alleged incidents that have now occurred at the property with regards to the current gardeners via a verbal disagreement." Ms Saunders stated that this was in breach of a by-law which prohibited the use of language and behaviour in a manner likely to cause offence or embarrassment. Ms Saunders requested Mr Mewett and Ms Appleton to refrain from addressing the gardener in a negative way. 9. The letter caused Mr Mewett and Ms Appleton a significant amount of stress. 10. On 24 June 2019, Mr Mewett complained to the President of the Anti-Discrimination Board ("the President") alleging disability discrimination in goods and services against the respondent. The period of the complaint was determined to be 2 January 2019 to 24 June 2019. 11. The respondent responded to the complaint by stating that Mr Mewett interacted with the respondent by both phone and email and Ms Saunders responded accordingly. Ms Saunders said she returned any voicemail messages left by Mr Mewett. 12. The President endeavoured to resolve the complaint by conciliation but was not successful. The President then referred the complaint to the Tribunal under s 93C(b) of the Anti-Discrimination Act 1977 (NSW). Relevant legislation 1. It is unlawful for a person providing services to discriminate against a person on the ground of disability in certain ways. Section 49M(1) of the Anti-Discrimination Act provides: 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. 1. The term "disability" is defined in s 4(1) of the Anti-Discrimination Act as follows: disability means— (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. Section 49A of the Anti-Discrimination Act expands the meaning of "disability" as follows: 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(1) and (2) of the Anti-Discrimination Act provide for the circumstances in which a person discriminates against another person on the ground of disability, as follows: 49B 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 (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. 1. An employer is generally vicariously liable for an act of an employee, unless the act was unauthorised. Section 53 of the Anti-Discrimination Act provides: 53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. 1. Mr Mewett claims both "direct discrimination" (within s 49B(1)(a)) and "indirect discrimination" (within s 49B(1)(b)). Mr Mewett, as the applicant, has the onus of proving his case (see, for example, El-Kassir v Commissioner of Police, NSW Police Force [2018] NSWCATAD 232 at [18]). 2. To prove a complaint of direct discrimination on the ground of disability, Mr Mewett would have to establish that: 1. Mr Mewett has a disability; 2. the respondent is a person providing services; 3. by failing to communicate with him by telephone, the respondent's employees treated him less favourably than in the same or similar circumstances they treated or would have treated a person who did not have a disability; and 4. at least one of the reasons for that treatment was Mr Mewett's disability. 1. To prove a complaint of indirect discrimination on the ground of disability, Mr Mewett would have to establish that: 1. Mr Mewett has a disability; 2. the respondent is a person providing services; 3. the respondent refused to provide Mr Mewett with services or discriminated against him in the terms on which it provided him with services; 4. the respondent required Mr Mewett to comply with a requirement or condition; 5. a substantially higher proportion of persons who do not have Mr Mewett's disability comply or are able to comply with the requirement; 6. the requirement is not reasonable having regard to the circumstances of the case; 7. Mr Mewett did not or was not able to comply with the requirement. Does Mr Mewett have a disability? 1. We are satisfied that Mr Mewett has a disability. The respondent did not contend otherwise. 2. Mr Mewett has a partial loss of his mental functions as a result of his brain injury and "a disorder, illness or disease that affects" his thought processes, perception of reality or emotions (within the meaning of "disability" in s 4(1) of the Anti-Discrimination Act), being his depression and anxiety and the social phobia from which he suffers. Mr Mewett provided medical evidence to substantiate his claim that he suffers from these conditions. Is the respondent a person providing services? 1. The term "services" includes "services of any profession or trade" and "services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not" (Anti-Discrimination Act, s 4(1)). 2. The respondent provides services, such as gardening services, to lot owners, by looking after the common areas. The respondent also provides services such as dealing with lot owners' concerns and complaints. 3. We find that the respondent is "a person who provides… services" within s 49M(1) of the Anti-Discrimination Act. Did the respondent refuse to communicate with Mr Mewett by telephone? 1. Mr Mewett's case is that the respondent "refused to communicate with the Applicant via telephone on various occasions in January 2019," being aware of his disability. 2. Mr Mewett has provided the Tribunal with telephone records which show all of his calls. 3. Mr Joel McGrath, the Licensee in Charge of the respondent, reviewed those telephone records. His evidence is that the respondent's system is that voicemail messages time out following one minute, and that any telephone call in excess of one minute and 30 seconds would be a call where Mr Mewett had spoken to someone from the respondent's office. He identified that there were four such phone calls. His evidence was that three calls (on 22 January 2019 for 3 minutes and 9 seconds, on 23 January 2019 for 2 minutes and 12 seconds and on 4 February 2019 at 9.30am for 14 minutes and 6 seconds) were with Ms Saunders. The remaining call, on 4 February 2019 at 10.15am for 32 minutes, was with Mr McGrath. 4. Mr McGrath also gave evidence, which was not challenged in cross examination, that he had spoken to all of the respondent's administrative employees and none of them had any recollection of a telephone call from Mr Mewett in that period. 5. Ms Saunders' evidence was that she received many voicemail messages and calls from Mr Mewett in January. In cross examination, she denied that she did not take his calls. Ms Saunders said that she spoke to Mr Mewett and advised him that she would contact the strata committee on his behalf. 6. We accept the evidence of Mr McGrath and Ms Saunders. It is consistent with the documentary evidence and it was unshaken in cross-examination. 7. The evidence establishes that Mr Mewett left several voicemail messages for Ms Saunders and spoke to her on three occasions in late January and early February 2019. It also establishes that Mr Mewett spoke to Mr McGrath for half an hour on one occasion in early February 2019. We do not understand Mr Mewett to dispute that he spoke to Mr McGrath on the telephone. In these circumstances, we do not accept that the respondent refused to communicate by telephone with Mr Mewett in this period. It may be that Ms Saunders did not immediately return Mr Mewett's calls. That, however, is not the applicant's case. Was one of the reasons for the treatment Mr Mewett's disability? 1. Even if we had not found that the respondent had not refused to communicate with Mr Mewett by telephone, we would not have accepted Mr Mewett's contention that the respondent's treatment of him was "on the ground of" his disability. 2. Mr Mewett's evidence is that, in a telephone conversation with Ms Saunders in June or July 2018, he told her about his disability. He says that he told her that, due to his disability, he needed to communicate with her by telephone. 3. Ms Saunders' evidence is that Mr Mewett never advised her that he has a disability and only became aware of his disability following his application to this Tribunal. She denied that he informed her of his disability in a telephone conversation in July 2018. Ms Saunders maintained this position in cross examination. 4. Ms Saunders has previously worked as a nurse and has extensive experience working with people with disabilities. She has had regular training on how to work with people with disabilities. This makes it unlikely that she would have forgotten if Mr Mewett told her that he had a disability and needed to communicate by telephone. 5. Mr Joel McGrath, the Licensee in Charge of the respondent, gave evidence that he had only spoken to Mr Mewett on one occasion in February 2019 and that he was not aware at the time that Mr Mewett had a disability. He said that he only became aware of Mr Mewett's disability when he applied to the Tribunal. 6. During the hearing, Mr Mewett appeared to have difficulty remembering incidents of relatively recent occurrence. For example, when asked whether he prepared the statement he made in these proceedings (dated 17 February 2020), he first responded that he believed so, but was not entirely sure whether he had assistance. He said he did not believe that his solicitor assisted him with it. He later changed this answer and said his solicitor did assist him with the statement. 7. Mr McGrath suggested to Mr Mewett, in cross examination, that Mr Mewett had brought at least four actions against the respondent in the last two years. When Mr Mewett was asked how many actions he had brought against the respondent in the last two years, he said he did not know. 8. The Tribunal asked Mr Mewett whether he had any difficulties with his memory. He responded that he was a full-time student and how he remembers "is a grey area." He reiterated, however, that he was telling the truth. 9. It was apparent to the Tribunal that Mr Mewett had difficulty remembering relatively recent events. There is no medical evidence to the effect that Mr Mewett has memory difficulties. However, it is not in dispute that he suffered a brain injury and this is substantiated by the evidence of a psychiatrist, Dr John Baker. Whilst the Tribunal makes no findings in this regard, it is possible that there is a connection between Mr Mewett's apparent memory deficits and his brain injury. 10. Mr Mewett has not discharged his onus of establishing that the respondent (through Ms Saunders or Mr McGrath) knew of his disability. We find, on the balance of probabilities, that they did not know of it. We are not persuaded that we should reject Ms Saunders' evidence that Mr Mewett did not inform her of his disability. She remained firm in her evidence on this point under cross examination. 11. It follows that Mr Mewett has not established that any less favourable treatment of him by the respondent was on the ground of his disability and his direct discrimination claim must fail. Did the respondent require Mr Mewett to comply with a requirement or condition? 1. Mr Mewett's indirect discrimination claim is that the respondent required him to comply with an unreasonable requirement or condition, being to communicate only in writing. 2. We are not satisfied that the respondent required Mr Mewett to comply with this alleged requirement or condition. The evidence establishes that Ms Saunders spoke to Mr Mewett three times in late January and early February and that Mr McGrath spoke to him once, at length. 3. The respondent wrote to Mr Mewett and Ms Appleton on 24 January 2019. However, this did not preclude Mr Mewett from telephoning the respondent in response to the letter. There is no evidence that the respondent ever told Mr Mewett only to communicate with the respondent in writing. 4. Mr Mewett's indirect discrimination claim is, accordingly, rejected. Costs 1. The respondent has applied for costs. 2. The general rule is that each party to proceedings in the Tribunal is to pay the party's own costs (Civil and Administrative Tribunal Act 2013 (NSW) ("NCAT Act"), s 60(1)). However, the Tribunal may award costs if it is satisfied that there are special circumstances warranting an award of costs (NCAT Act, s 60(2)). 3. Section 60(3) of the NCAT Act sets out matters to which the Tribunal may have regard when determining whether there are special circumstances warranting an award of costs. The respondent relies upon s 60(3)(b), (c) and (e) of the NCAT Act. Unreasonably prolonging proceedings: s 60(3)(b) 1. The respondent submits that Mr Mewett has been responsible for unreasonably prolonging the time taken to complete the proceedings. It says that, having commenced the proceedings in June 2019, his decision, in December 2019 to engage a solicitor, led to him being granted an extension of time to submit documents. This also led to a change to the relief sought, including a new claim for monetary compensation. 2. We are not satisfied that any delays caused by Mr Mewett were due to unreasonable conduct on his part. The proceedings were not commenced in the Tribunal until 22 October 2019, when the President of the Anti-Discrimination Board made a referral. It was reasonable for Mr Mewett to seek an extension of time, having engaged a solicitor. The respondent has not pointed to any other conduct of Mr Mewett which unreasonably prolonged the proceedings. Relative strengths of parties' claims: s 60(3)(c) 1. The respondent submits that the applicant's claim has no tenable basis in fact or law as his documentation shows that he communicated with the respondent's office by telephone in January and February 2019. It also says that the respondent's office has never failed to take calls. 2. The telephone records show that Mr Mewett had some communications with the respondent in January and February 2020. They do not disclose the nature of the communications. With the exception of the 30 minute conversation between Mr Mewett and Mr McGrath, the telephone records are consistent with Mr Mewett's evidence that he spoke to people in the office and left messages. We accept the respondent's evidence that Ms Saunders spoke to Mr Mewett. However, we note Mr McGrath's evidence that Ms Saunders told him that she did not return Mr Mewett's voicemail messages because he called her before she could do so. This suggests that there may have been some delay in getting back to him. Mr Mewett gave credible evidence about being frustrated that his calls were not being returned. 3. We do not consider that the claim had no tenable basis in fact or law. Whilst we did not accept that Mr Mewett had established his claim on the balance of probabilities, this does not mean that it lacked any tenable basis. Proceedings frivolous or vexatious: s 60(3)(e) 1. The respondent submits that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, because the application should have been brought against the Owners Corporation. It also says that there is a lack of substance in the evidence to substantiate Mr Mewett's claims. 2. We do not agree that the proceedings "should have been brought" against the Owners Corporation. An agent is liable for acts done in the capacity of agent under the Anti-Discrimination Act. The principal also has liability for the agent's acts, under s 53(1) of the Anti-Discrimination Act, unless the relevant act is unauthorised. An applicant may choose whether to bring proceedings against the agent, the principal or both. 3. If Mr Mewett had established that the respondent refused to communicate with him by telephone, whilst knowing of his disability, and that this constituted unlawful discrimination, the respondent would have been liable for this conduct. 4. We do not consider that there was a lack of substance in the evidence, for reasons given in relation to s 60(3)(c) of the NCAT Act. Determination of costs application 1. For the reasons given above, we are not satisfied that there are special circumstances warranting an award of costs. Accordingly, the respondent's costs application is dismissed. Orders 1. We make the following orders: 1. The complaint is dismissed. 2. The respondent's costs application is dismissed. ********** 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2020