NZ v State of New South Wales (Department of Housing) [2009] NSWADT 165

CITATION: NZ v State of New South Wales (Department of Housing) [2009] NSWADT 165

DIVISION: Equal Opportunity Division

APPLICANT NZ PARTIES: RESPONDENT State of New South Wales (Department of Housing)

FILE NUMBER: 091028

HEARING DATES: 5 May 2009

EXTEMPORE DECISION DATE: 5 May 2009 BEFORE: Hennessy N - Magistrate (Deputy President)

CATCHWORDS: Capacity of applicant to represent herself - whether fair and just to grant leave.

LEGISLATION CITED : Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997

CASES CITED: Ekermawi v The Administrative Decisions Tribunal of New South Wales [2009] NSW SC143.

APPLICANT In person (by phone) REPRESENTATION: RESPONDENT Mr Jungwirth, solicitor

ORDERS: Leave is refused.

REASONS FOR DECISION 1 The following is the text of reasons for decision delivered orally on 5 May 2009. 2 First of all I am going to grant a suppression order in relation to the publication of your name and I am going to prohibit publication of your name or any information that may lead to your identification and I am going to give you the initials "NZ" in these proceedings. 3 The second thing I want to say is in relation to "NZ's" capacity. In previous proceedings the Tribunal has found that because of "NZ's" psychiatric illness she is totally or partially incapable of representing herself and has appointed a person to represent her pursuant to section 71 of the Administrative Decisions Tribunal Act 1997. In relation to these proceedings I still have the view that "NZ" is incapable of representing herself, however, as the Tribunal is unable to identify a person who is prepared to represent "NZ" I have not exercised the discretion under 71(4) to appoint such a person in the circumstances of this case. 4 The history of this matter is that "NZ" lodged a complaint with the Anti- Discrimination Board on 29 February 2008. It was a complaint of disability discrimination against the New South Wales Department of Housing in the area of goods of services pursuant to the Anti-Discrimination Act 1977. "NZ" lives in a Department of Housing flat and the substance of the complaint was in relation to the condition of her flat including, firstly the alleged failure over some five years of the Department of Housing to install a new bath tub in her home; secondly, the failure of the Department of Housing to complete renovation works within the flat and thirdly, the failure of the Department to agree to a proposal by "NZ" that she be given a free standing house but that, what she refers to as her safe house, that is her existing flat, also be maintained so that she could transition living into the free standing house. 5 The complaint was declined by the President of the Anti-Discrimination Board by letter of 10 March 2009. It was declined as lacking in substance and I will not read out the letter in full but it appears on page 383 of the President's Report. When a complaint is declined as lacking in substance the Tribunal's leave is required before the complaint can continue. The test for the granting of leave was recently set out by the Supreme Court in Ekermawi v The Administrative Decisions Tribunal of New South Wales [2009] NSW SC143. Acting Judge Justice Schmidt, at paragraph 38, said: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand an obviously meritorious complaint will not be refused leave where for example on the other, it is apparent that the complaint lacks substance, or where the complaint has already been redressed elsewhere, leave may be refused if that is what justice dictates. 6 In order to make out a claim of disability discrimination in the provision of goods of services contrary to section 49M of the Anti-Discrimination Act, "NZ" would have to prove several things: 1) that she has a disability within the meaning of that term in section 4 and section 49A; 2) that the services the Department of Housing was providing to her come within the meaning of services in the Anti-Discrimination Act; and 3) that the services were refused or provided on less favourable terms; 4) that refusal or provision on less favourable terms constitutes direct or indirect discrimination as defined in section 49B. 7 I accept for the purposes of these proceedings that "NZ" has a disability within the meaning of that term in the Anti-Discrimination Act and I also accept that the Department of Housing is providing her with services within the meaning of that term in the Act. The remaining question would be whether or not the conduct of the Department of Housing constitutes direct or indirect discrimination as that term is defined in section 49B(1) paragraph (a) or (b) of the Act. "NZ" did not specify whether her complaint was on the ground of direct or indirect discrimination. 8 It is difficult to see how her complaint could constitute direct discrimination on the ground of disability. "NZ's" complaint is a general one about the failure of the Department of Housing to attend to renovation work in her flat. There is no evidence whatsoever that work has been refused or not provided on the basis of "NZ's" disability, indeed, evidence has been accepted that a new bath tub was provided to "NZ" in June 2008. The Department of Housing says that attempts have been made since that time to complete the works, however that has not been possible because of her inability or unwillingness to allow tradesman to enter her flat. "NZ" contests that and says that the failure is not one of her making. Regardless of which version is accepted, there is no evidence nor any basis on which an inference can be drawn that she has been treated less favourably than a person who does not have her disability was or would have been treated in the same or similar circumstances. 9 In relation to indirect discrimination "NZ" has not identified a requirement or condition that the Department of Housing has imposed upon her nor the way in which she is unable to comply with that requirement. Having read the complaint and listened to "NZ" I am unable to see how the complaint could be characterised as one of indirect discrimination. Based on those observations it would be highly unlikely that a Tribunal, hearing this case, would find that the complaint had been substantiated. 10 Apart from lack of merit, the second factor I want to address is the history of these kinds of complaint by "NZ". "NZ" has filed numerous complaints with the Anti-Discrimination Board and has asked that those complaints be referred to this Tribunal. I refer, in particular, to a complaint against the Department of Housing with the file number 051030. In that case "NZ" complained about the Department's failure to transfer her or to accommodate her in the manner she requested. She also complained about the state of her flat in particular, the bathroom. A representative, Ms Ramjan, was appointed because the Tribunal took the view that "NZ" lacked capacity to represent herself. 11 Solicitors were instructed on behalf of "NZ" and negotiations were entered into with the Department of Housing resulting in a deed of settlement dated 1 August 2006. Although "NZ" denies that the deed addresses the issues that she is now raising before the Tribunal, perusal of the deed of settlement satisfies me that they are largely the same issues and that a great deal of time and effort was involved in negotiating that deed back in August 2006. "NZ" has also had litigation in the Commercial Tenancy and Trader Tribunal in relation to her bathroom and a decision was made in February 2007. Again, "NZ" was not satisfied with the outcome of those proceedings but it remains the fact that the matters which "NZ" is attempting to re-agitate before the Tribunal today, have been dealt with at length in the past, not only by this Tribunal but by the C.T.T.T. 12 . I understand the Department's frustration and its sentiment that they have done everything possible to attempt to remedy the issues that "NZ" has with her flat. It appears that "NZ's" illness is, to some extent, preventing her from taking advantage of those efforts. 13 In all the circumstances, it would be unfair for "NZ's" complaint to proceed, given both the fact that it is unlikely to be substantiated and the history of litigation in relation to these issues. I am confident that the Department will continue to attempt to address "NZ's" issues, however, I am not satisfied that it is fair, in the circumstances, for her complaint to proceed. For those reasons leave is refused.