FGB v The Salvation Army (NSW) Property Trust [2022] NSWCATAD 32

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: FGB v The Salvation Army (NSW) Property Trust [2022] NSWCATAD 32 Hearing dates: 23 and 31 March 2021, written submissions closed 21 May 2021 Date of orders: 28 January 2022 Decision date: 28 January 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member F Given, General Member Decision: The Applicant's complaint of discrimination against the Respondent is dismissed. Catchwords: HUMAN RIGHTS — discrimination — evidence - onus of proof Legislation Cited: Anti-Discrimination Act 1977 Civil and Administrative Tribunal Act 2013 Equal Opportunity Act 1984 (WA) Evidence Act 1995 Privacy Act 1988 Cases Cited: IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 Spence v Roberts (No 2) [2006] NSWADT 361 Category: Principal judgment Parties: FGB (Applicant) The Salvation Army (NSW) Property Trust (Respondent) Representation: Bill Hoyles as GAL for the Applicant

Solicitors: Mills Oakley (Respondent) File Number(s): 2020 / 191739 Publication restriction: Pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 the names of the Applicant and the Respondent's witness are not to be published.

REASONS FOR DECISION 1. The Applicant and the Respondent's witness in these proceedings are referred to respectively as 'FGB' and 'FFM' pursuant to s 64(1)(a) of the Civil and Administrative Tribunal Act 2013 (the CAT Act). 2. The Applicant identifies his disabilities as motor dyspraxia, epilepsy, major depressive disorder, autism spectrum disorder and post-traumatic stress disorder. From 2016 to 2019 the Applicant was a client of a transitional accommodation program, OTAS, through the Oasis Youth Support Network (Oasis), which is operated by the Salvation Army (NSW) Property Trust (the Respondent). OTAS supports disadvantaged and marginalised young people who are at risk of homelessness to successfully transition from crisis and tertiary homelessness into long term sustainable accommodation in the community. 3. On 4 February 2019 the Applicant was met by his OTAS case manager, FFM, at the Applicant's residence. What went on at that meeting is the subject of the Applicant's discrimination complaint, summarised by the President of Anti-Discrimination NSW (ADNSW) as: The complainant alleges [he] was subject to abusive language and conduct from his case manager because of his disabilities. Specifically, Mr [FGB] alleges his then case manager, while being at his property to offer him support, said to him that he is lazy, he must live in an institution because he is a mental case, he is a robot, he is a freak and a retard. 1. On 3 February 2020 ADNSW received the Applicant's complaint of disability discrimination in the provision of services pursuant to s 49M of the Anti-Discrimination Act 1977 (the Act), and accepted it for investigation. ADNSW attempted conciliation through "arm's length negotiations" in May 2020 but was unsuccessful at resolving the complaint. Characterised as alleging breaches of ss 49A, 49B, 49C, 49M and 53 of the Act, the Applicant's complaint was referred to the Tribunal pursuant to s 93C of the Act on 24 June 2020. 2. The oral hearing of this matter took place on 31 March 2021 in person, with a preliminary hearing held on 23 March 2021 in relation to the Applicant's objections to summonses issued by the Respondent. Further evidence and submissions were filed pursuant to the Tribunal's orders following the conclusion of the oral hearing, with the decision being reserved thereafter on 21 May 2021. 3. The Applicant was represented in these proceedings by a Guardian Ad Litem, appointed pursuant to s 45(4)(a) of the CAT Act.