Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Malouf v NSW Department of Communities & Justice [2021] NSWCATAD 69 Hearing dates: On the papers Date of orders: 19 March 2021 Decision date: 19 March 2021 Jurisdiction: Administrative and Equal Opportunity Division Before: C Ludlow, Senior Member Decision: Leave to proceed with the complaint is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW). Catchwords: HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave EQUAL OPPORTUNITY — discrimination in goods and services – refusal of service - terms of the service Legislation Cited: Anti-Discrimination Act 1977(NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 Rodwell v Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34 Spence v Roberts (No 2) [2006] NSWADT 361 Texts Cited: None cited Category: Procedural rulings Parties: Frederick Malouf (Applicant) NSW Department of Communities & Justice (Respondent) Representation: Applicant (Self Represented) Respondent (Self Represented) File Number(s): 2020/00344237 Publication restriction: None REASONS FOR DECISION Background 1. On 18 February 2020 the President of the Anti-Discrimination Board received a complaint of disability discrimination in goods and services from Mr Frederick Malouf, the applicant in these proceedings. 2. The President's delegate declined the complaint under s 92(1)(a)(vi) of the Anti-Discrimination Act 1977 (the ADA) after being satisfied that the Department of Communities and Justice (the respondent) had taken appropriate steps to remedy or redress the conduct complained of. On 30 November 2020 Mr Malouf requested that the matter be referred to this Tribunal under s 93A of the Act. Mr Malouf seeks leave to proceed with his complaint in this Tribunal. The nature of the complaint 1. According to the President's summary of the complaint, the conduct covered the period between 1 June 2019 and 18 February 2020. Mr Malouf stated that he had been diagnosed with mental illnesses including hyperacusis, phonophobia, misophonia and misokinesia, which made him acutely sensitive to certain sounds, spaces and movements. He also suffered from panic attacks, anxiety and depression. 2. He claimed his illness had been aggravated by being placed in unsuitable housing. The conduct comprised the failure to place him in suitable housing but also the failure to communicate with him because of his disability Legislative context 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. Section 92 provides: "92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint— (a) the President is satisfied that— (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or (ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or (iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or (iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or (v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or (vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or (vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or (b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint. (2) The President, in a notice under this section, is to advise the complainant of— (a) the reason for declining the complaint or part of the complaint, and (b) the rights of the complainant under sections 93A and 96." 1. Where the President has declined a complaint under s 92 of the ADA, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s93A). 2. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)). 3. Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, 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. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]). 4. Sections 49A and 49B of the ADA provide: "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). 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. Section 49M 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. (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." The applicant's case 1. The applicant said that the respondent was discriminating against him: 1. By placing him in inappropriate housing 2. By the manner in which it communicated with him and responded to his requests. 1. It is apparent from the papers that the matter has a long history outside the period referred by the President. The applicant also sought in the Tribunal to rely additionally on s 49N of the ADA which deals with discrimination in accommodation. The complaint which was referred to the Tribunal, however, is confined to goods and services. 2. A complaint may be amended under 91C of the ADA while it is still before the President of the Anti-Discrimination Board. This did not occur. Once a complaint is the subject of proceedings before the Tribunal, amendment may occur pursuant to s 103 of the ADA which provides: "103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit." 1. A complaint referred to the Tribunal at the request of a complainant under s.93A of the ADA may not be the subject of proceedings before the Tribunal without the leave of the Tribunal; and before leave has been granted under s.96(1) there are no proceedings before the Tribunal (Rodwell v Terrey Hills Golf & Country Club Holdings Ltd trading as Terrey Hills Golf & Country Club [2014] NSWCATAD 34). Accordingly, I have no power under s.103 to amend the complaint at this stage and in determining whether to grant leave I will be considering the complaint as it was referred by the President. 2. In his complaint, Mr Malouf said his residence at Bondi Beach was not suitable for him and he was yet to receive a suitable transfer (he has since been transferred). He said that offers of other housing were made by the respondent, but he rejected them because they had factors which made them unsuitable on the grounds of noise. He said that he believed the respondent had not appropriately considered his disability and made reasonable adjustments. 3. Mr Malouf provided documents including correspondence, medical assessments and appeal papers from his dealings with the respondent. I have considered these materials. The complainant resided in a property at Bondi Beach from April 2016 to December 2020. Therefore, he was residing at that property during the relevant period. He said that during the period, he dealt with the Department's office at Surry Hills. He complained that he did not have an allocated officer to deal with his issues but was referred to whoever was available. He said he was subjected to abuse by one particular officer, accused of anti-social behaviour, and told that in fact there was no noise as he alleged. Another officer allegedly ignored his medical assessments and said that the respondent did not cater for mental disability. When he suggested a property, he was allegedly told that even if it was available it would not be offered to him and when he asked why, was allegedly told that they did not have to inform him. The respondent did not ensure that its allocations unit were aware of the necessary criteria. He alleged that he was not prioritised for transfer after his motorcycle was vandalised. 4. He is seeking: 1. an investigation, 2. compensation for his rent between August 2018 and December 2020, and for distress and trauma and removalists' costs, 3. a formal apology, 4. that leasing a property be considered as an option, and 5. that he is not required to deal with the Surry Hills Office of the respondent. The respondent's case 1. Since the complaint was made, the applicant has been relocated to another property. The respondent said it understood that this property met Mr Malouf's needs. 2. The respondent had committed to a number of actions with regard to its dealings with the applicant in the future, including procedures for future communications, timeframes for response and escalation of concerns. 3. The respondent submitted that the evidence indicated that it had appropriately considered the respondent over many years. The difficulties he faced were caused by the lack of available properties and long waiting lists. These difficulties were faced by all housing clients, not just the applicant. 4. Regarding the communication difficulties experienced, an internal review was undertaken and changes were made to the client services team as well as specific communication arrangements implemented. Consideration 1. For the purposes of this application I accept that Mr Malouf has a disability. This was not disputed, nor was it disputed that the respondent provided him with a service when it dealt with his housing needs. 2. The area of unlawful discrimination in which Mr Malouf's complaint is based is the provision of goods and services. Should leave be granted, to establish his complaint the applicant would need to establish that he had a disability, that the respondent provides services and that he was 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. Terms are the conditions on which the service 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 extend to the performance of the service. 2. Whether the applicant could possibly establish his complaint is relevant to whether the complaint has substance and it is fair and just for it to proceed. 3. In relation to (a), there is some evidence that the respondent refused to provide Mr Malouf with the specific housing he wanted. Whether this equates to a refusal to provide services is debatable. But assuming that it does, the available evidence taken at its highest does not indicate that Mr Malouf was treated less favourably than a person without his disabilities in relation to those services. He was offered a number of housing options. Even had he been treated less favourably in this area, there is no evidence that the reason for this treatment was his disability. In fact his disability was the reason that he was given multiple housing choices. 4. In relation to the communications with the respondent, again taken at its highest there is some evidence that indicates he was treated less favourably in dealings with certain housing officers on the ground of his disabilities. In this regard I refer to the allegation that he was accused of antisocial behaviour and that his medical assessments were ignored. It is not clear that all this alleged conduct occurred within the relevant period, however. 5. I turn then to whether he was discriminated against in the terms on which the respondent provided the services. The available evidence, taken at its highest, indicates that Mr Malouf was, like other clients in that area, required to deal with staff at the Surry Hills office of the respondent. This could be construed as a term on which the services were provided. But there is no evidence of less favourable treatment because other clients in his area also dealt with that office. The differential treatment alleged by Mr Malouf is that the staff at that office did not consider his medical assessments and accused him of antisocial behaviour. These matters were not part of the terms of any service. They relate to the manner in which the service was performed. Accordingly, because of the limited operation of s 49M as discussed above, I am not satisfied that Mr Malouf has any prospect of establishing his complaint under s 49B and s 49M, and his complaint lacks substance. 6. I note also that he is now dealing with a different office and that he considers that this office provides much better support. In addition, he is in new accommodation. Conclusion 1. In my view, the complaint lacks substance for the reasons stated above and does not disclose the contravention of a provision of the ADA. 2. The respondent has taken appropriate steps to remedy part of the conduct complained of by allocating Mr Malouf to a different office. 3. For those reasons it would not be fair and just in my view to grant leave for the complaint to proceed. Order 1. Leave to proceed with the complaint is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW). ********** 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: 19 March 2021