Civil and Administrative Tribunal New South Wales Medium Neutral Citation: McHatton v Sydney of City Council [2024] NSWCATAD 149 Hearing dates: 14 February 2024 Date of orders: 30 May 2024 Decision date: 30 May 2024 Jurisdiction: Administrative and Equal Opportunity Division Before: C Mulvey, Senior Member Decision: (1) Leave to proceed with the complaint of discrimination on the ground of marital and domestic status is refused. (2) Leave to proceed with the complaint of victimisation is refused. Catchwords: EQUAL OPPORTUNITY — leave to proceed — principles applying to grant of leave — discrimination on the basis of marital and domestic status — victimisation Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: CZH v University of Technology Sydney [2017] NSWCATAD 82 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Category: Principal judgment Parties: Craig McHatton (Applicant) City of Sydney Council (Respondent) Representation: Solicitors: Applicant (self-represented) S Nooney (City of Sydney Council) (Respondent) File Number(s): 2023/00441412 Publication restriction: None REASONS FOR DECISION 1. The applicant, Mr Craig McHatton, complained that he was discriminated against and victimised by the respondent. 2. The President of Anti-Discrimination NSW declined Mr McHatton's complaint of discrimination and victimisation. The complaint was declined pursuant to s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (the AD Act) for the reason that it was lacking in substance. 3. The matter is before the Tribunal to determine whether the applicant should be granted leave to proceed under s 96 of the AD Act. Relevant legislation 1. Section 4 of the AD Act provides: "marital or domestic status" means the status or condition of being-- (a) single, or (b) married, or (c) married but living separately and apart from one's spouse, or (d) divorced, or (e) widowed, or (f) in a de facto relationship. 1. Section 39 provides: 39 What constitutes discrimination on the ground of marital or domestic status (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of marital or domestic status if the perpetrator— (a) on the ground of the aggrieved person's marital or domestic status or the marital or domestic status 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 of a different marital or domestic status or who does not have such a relative or associate of that marital or domestic status, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital or domestic status, or who do not have a relative or associate of that marital or domestic status, 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. (1A) For the purposes of subsection (1) (a), something is done on the ground of a person's marital or domestic status if it is done on the ground of the person's marital or domestic status, a characteristic that appertains generally to persons of that marital or domestic status or a characteristic that is generally imputed to persons of that marital or domestic status. (2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of a different marital or domestic status are not materially different by reason of the fact that the persons between whom the discrimination occurs are not of the same sex. 1. Section 47 provides: 47 Provision of goods and services It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of marital or domestic status-- (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 AD Act sets out what constitutes victimisation in s 50, which provides: 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. 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. Section 93A provides: 93A Referral of complaints to Tribunal at requirement of complainant (1) If the President has given a complainant a notice under section 87B (4) or 92, the complainant may, within 21 days after the date on which the notice was given, require the President, by notice in writing, to refer the complaint to the Tribunal. (2) On receipt of a notice under subsection (1) from the complainant, the President is to refer the complaint to the Tribunal. 1. Section 96 provides: 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. … Factual background 1. The applicant is a single male who resides with his landlord, another single male. His landlord has a designated car space on the land exclusively for his use. The applicant is required to park his car on the street in the immediate proximity to the residence. When the applicant applied for a parking permit, he alleged it was refused because he could not prove that two cars were registered at the premises and his landlord's car was parked on the exclusive use car space upon the land. The applicant's landlord said he would not provide private and personal details to the applicant about his ownership and registration of his vehicle. Due to the applicant not being able to demonstrate that two vehicles were registered at the premises, his application for a parking permit was refused. The complaint alleges unlawful discrimination and victimisation in relation to the respondent's parking permit application process and says that he was victimised by the respondent's council rangers increasing parking inspections and issuing fines to him after he made the complaint. 2. The applicant contends the following incidents occurred in relation to his request for a resident parking permit: 1. He applied for a resident street parking permit from the respondent in April 2023. The respondent denied the application. The reason provided by the respondent was because the applicant could not provide information regarding his landlord's parking spot ("the parking permit application"); and 2. following his complaint, the applicant noticed an increase in parking inspector visits to his parked car. He alleged that he was being disproportionately targeted and subjected to repeated inspections and penalties (parking inspections). 1. The complaints were not referred to the respondent. The President declined the complaint as lacking in substance under s 92)(1)(a)(i) of the AD Act. The applicant's submissions on leave 1. The applicant submits that his case should be taken at its highest (CZH v University of Technology Sydney [2017] NSWCATAD 82). In Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35] it was said that: " …the appropriate way forward is to take the Complainant's evidence at its highest point or in other words, and for the purposes of this exercise to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination." 1. The applicant said that he was directly discriminated against by the respondent. This is because he was treated differently in respect of his application for a parking permit in not being able to produce the evidence of his landlord's car being registered at the premises. 2. The applicant alleged that he was subjected to marital or domestic status discrimination and identifies himself as being a single male within the definition of martial or domestic status in s 4 of the AD Act. 3. The detriment suffered is said to be that he was refused a parking permit because he could not provide the registration details of his landlord. The applicant said that unlike a married couple, who could provide that information, he is being treated differently as a single person. 4. In relation to the claim of victimisation, the applicant submits inferences could be drawn that there is a causal link between the increase in parking inspections and fines issued to him after he made the complaint. 5. The applicant submits that he has put forward the elements of his complaint and it is fair and just to allow the complaint to proceed even if the evidence is perceived to be lacking, as the litigation process would allow an opportunity for further information to be gathered. The respondent's submissions on leave The Parking Permit Applicant 1. The respondent says that the same parking permit policy applies to any person who make an application. The criteria for issuing a parking permit has no relevance to the person's marital or domestic status. Each application is treated the same. There is no discrimination. 2. In relation to the parking inspections, the respondent's records show that the applicant's car incurred parking fines on 28 April 2023 and 3 May 2023. The complaint was notified to the respondent on 5 December 2023. The parking inspector does not know who the owner of the vehicle is. And the parking inspectors are a different team to the team issuing parking fines. The respondent says there is no causal connection between the complaint and the parking inspection or issuing of fines that would meet the criteria of victimisation in s 50 of the AD Act. Consideration 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 AD Act. 2. Section 92 provides that the President may decline the complaint if he or she is satisfied of any of the matters in that section. 3. Where the President has declined a complaint under s 92 of the AD Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so (s 93A). 4. 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)). 5. Section 96 of the AD Act 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]). Complaint of marital and domestic status discrimination 1. To prove direct discrimination on the ground of marital and domestic status, the applicant would have to establish that the respondent treated him less favourably than it treated or would have treated an applicant of a different marital or domestic status in the same or not materially different circumstances by subjecting him to some detriment in s 37 of the AD Act. The complaint is that the applicant was treated differently because he was single. 2. At its highest, the applicant's allegation is that a married couple would have access to the registration details of vehicles registered at the property and could comply with the parking permit application process. As he was not able to obtain the personal details from his landlord about his landlord's vehicle, he was being treated differently. I do not agree. The applicant was being treated the same as any person who applies for a parking permit. His marital and domestic status has no bearing on the details required to be provided to the respondent to obtain a parking permit. It is unfortunate that the applicant's landlord refused to provide the applicant with the information necessary to secure a parking permit. Perhaps this may be a matter the respondent can consider in determining applications where there exist special circumstances for an applicant who can not comply with obtaining personal information from a third party. However, it is not unlawful discrimination. 3. To the extent the applicant's complaint could be indirect discrimination, the applicant has not alleged that he was subjected to a requirement with which he was unable to comply because of his marital and domestic status which a substantially higher proportion of persons who were not single are able to comply. I find that the applicant's allegations also do not meet the elements required to constitute indirect discrimination. 4. I find, the complaint is lacking in substance. It is not fair or just for leave to be granted. Victimisation complaint 1. In order to establish his claim of victimisation, the applicant must establish that he was subjected to a detriment by the respondent on the ground that he had alleged that the respondent or its parking inspector(s) had committed an act which would contravene the AD Act. 2. The applicant claims that the detriment he suffered was less favourable treatment by the respondent in increased parking inspections of his vehicle and the issuing of fines. 3. The respondent disputes this conduct. It says that the evidence reveals that the applicant's allegations of increased parking inspections and fines occurred before the respondent became aware of the complaint. 4. I am not satisfied that the applicant could succeed in establishing that the respondent subjected him to detrimental treatment because of his complaint. The oral and documentary evidence reveals that the applicant was fined before the respondent became aware of the complaint. I also find there is no causal link between the parking inspections and the complaint being made. The complaint of victimisation, is lacking in substance. It is not fair nor just for the complaint to proceed. 5. In these circumstances the Tribunal cannot be satisfied that there is evidence of the causation required for the applicant to make out his complaint of victimisation. Conclusion 1. In relation to the complaint of discrimination in goods and services on the ground of marital and domestic status, it would not be fair and just to grant leave for the complaint to proceed. 2. The applicant has not established that it would be fair and just to grant leave for the complaint of victimisation to proceed, as it is lacking substance and a causal connection between the complaint and the conduct. Orders 1. Leave to proceed with the complaint of discrimination on the ground of marital and domestic status is refused. 2. Leave to proceed with the complaint of victimisation is refused. ********** 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: 30 May 2024