Wombey v Apple Pty Ltd [2022] NSWCATAD 179

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Wombey v Apple Pty Ltd [2022] NSWCATAD 179 Hearing dates: 16 February 2022, 16 March 2022 Date of orders: 01 June 2022 Decision date: 01 June 2022 Jurisdiction: Administrative and Equal Opportunity Division Before: D Dinnen, Senior Member Decision: Leave is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW) for the complaint against the Respondent to proceed. Catchwords: HUMAN RIGHTS — discrimination — equal opportunity — disability discrimination – provision of goods and services - leave required for complaint to proceed — whether complaint lacking in substance – whether redress appropriate - principles applying to grant of leave Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Jones v Ekermawi [2009] NSWCA 388 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Category: Principal judgment Parties: Krista Wombey (Applicant) Apple Pty Ltd (Respondent) Representation: Solicitors: Applicant self-represented Clayton Utz (Respondent) File Number(s): 2022/00011600

REASONS FOR DECISION

Background 1. On 10 June 2021 the President of Anti-Discrimination New South Wales (ADNSW) received a complaint from Krista Wombey (the Applicant) alleging that Apple Pty Ltd (the Respondent) had discriminated against her in the provision of goods and services on the grounds of her disability. 2. The substance of the applicant's complaint was that she was prevented from accessing Apple's services to repair her phone on 31 December 2020 at an Apple retail store in Miranda, because she was not wearing a face mask, despite stating that she had a medical exemption. 3. The Respondent informed the President that: 1. for the safety of its staff and customers it had a policy at the time that required masks to be worn inside its retail stores. This policy was reasonable in the circumstances to minimise the risk of infection of COVID-19; 2. The Respondent provides a range of accommodations for people who are unable to wear a mask to access their goods and services; 3. The Respondent did not prevent the applicant from accessing its goods and services if she could not wear a face mask; and 4. The Respondent's staff were unable to explain the accommodations available to the applicant on 31 December 2020 as this conversation was interrupted by the applicant's daughter recording staff without their consent. 1. The President noted that the Applicant confirmed the Respondent had twice verbally apologised to her, offered $100 credit to spend on Apple products and offered to repair her phone. On 14 December 2021 the President's delegate declined the Applicant's complaint pursuant to s 92(1)(a)(vi) of the Anti-Discrimination Act 1977 (the Act) on the basis that the Respondent had taken appropriate steps to remedy or redress the conduct complained of. 2. On 26 December 2021 the Applicant requested that her complaint be referred to this Tribunal pursuant to s 93A(1) of the Act. The Tribunal has power to grant, or to refuse to grant, leave for the Applicant's complaint referred to the Tribunal under s 93A of the Act: s 96(1) of the Act. 3. The Applicant provided the Tribunal with written submissions dated 11 February 2022. At hearing on 16 February 2022 the Tribunal made orders for the Applicant to file and serve evidence and any further submissions to support her application for leave by 2 March 2022. The Tribunal received documents from the Applicant on 2 March 2022, including: 1. "Affidavit of Truth" dated 2 March 2022 signed by "Krista: of the Clan [Wombey]"; 2. "Affidavit of Truth" dated 2 March 2022 signed by "James: of the Clan [Wombey]"; 3. Patient Health Summary for Mrs Krista Wombey from 'Myhealth Brigadoon' printed 1 March 2022, numbering 4 pages including some redactions; 4. Order Invoice from Roogenic Australia dated 27 February 2021 for 'Native Happiness – Loose Leaf Jar' 5. Medical Certificate from Myhealth Medical Centre Brigadoon dated 19 May 2021 for the Applicant, signed by Dr Safwan Sayyal. 1. The Respondent provided written submissions dated 8 February 2022 and 16 March 2022, and both parties made oral submissions at the hearing on 16 February 2022 and 16 March 2022. 2. For the reasons that follow, I have decided to refuse leave for the complaint to proceed.