Hillie v Henson Properties Group [2012] NSWADT 194

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Hillie v Henson Properties Group [2012] NSWADT 194 Hearing dates: 11 September 2012 Decision date: 19 September 2012 Jurisdiction: Equal Opportunity Division Before: G B Furness SC, Judicial Member Decision: Refused application for leave for declined anti-discrimination complaint to proceed Catchwords: Leave, lacking in substance, residential tenancy, anti-discrimination Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Jones v Ekermawi [2009] NSWCA 388 Category: Principal judgment Parties: Vanessa Hillie (Applicant) Henson Properties Group (First Respondent) E and L Levi (Second Respondent) Oaks Groups Pty Ltd (Third Respondent) Representation: V Hillie (Applicant in person) R Chen (Agent for 1st and 2nd Respondents) J Benfield (Agent for 3rd Respondent) File Number(s): 121102, 121103, 121104

REASONS FOR DECISION 1This is an application by Ms Hillie for leave for complaints of sex and marital status discrimination and victimisation to proceed after they were declined by the Anti-Discrimination Board (the Board). 2When a complaint is declined by the Board as lacking in substance, s.96 of the Anti-Discrimination Act 1977 (the Act) requires the Tribunal to give leave before such a complaint can proceed. The Supreme Court and the Court of Appeal have determined the principles on which leave can be granted: Jones v Ekermawi [2009] NSWCA 388 with the effect that the Tribunal has an open discretion to grant or not grant leave for a complaint to proceed and is to be guided by what is fair and just in the circumstances. 3Section 92(1)(a) of the Act provides criteria which are relevant and of assistance but not determinative of a leave application. The onus is on the applicant to persuade the Tribunal that leave should be granted. 4Ms Hillie, the applicant, at the relevant time was a tenant in an apartment in the Goldsborough Apartment building in Pyrmont. Her complaint is against first, the owners of the apartment in which she was a tenant, Mr and Mrs Levi and secondly, Henson Properties Group (Henson) who the owners had engaged to manage the rental of their apartment. Finally, the complaint is against the Oaks Property Group (Oaks) which was contracted by the Owners Corporation to provide management services over common property including supervising the work done by sub-contractors of the Owners Corporation in the areas of security and the concierge services. 5The first complaints were made to the Board on 6 March 2012. While they contained accounts of events which occurred over 4 years prior, the complaints were about incidents which occurred from 30 January 2012 to the date of the complaint. 6On 6 March 2012, Ms Hillie complained that she had been discriminated against on the grounds of sex and marital status in the provision of services by Oaks in relation to the building concierge and security services. 7On 6 March 2012, Ms Hillie complained against Henson and Mr and Mrs Levi that she had been discriminated against on the grounds of sex and marital status in the provision of services and by seeking to evict her. On 2 March 2012, the applicant received a notice from Henson to vacate the premises within 14 days. 8On 29 March 2012, Ms Hillie alleged sex discrimination in the provision of services and victimisation against Oaks. 9On 4 May 2012, Ms Hillie complained that Henson had victimised her because she had lodged a complaint of sex and marital status discrimination with the Board. 10The relevant provisions of the Anti-Discrimination Act are as follows. Section 24 provides: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator: (a) 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 the opposite sex or who does not have such a relative or associate of that sex, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, 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 sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex. (1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women. (1C) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is breastfeeding or may breastfeed is a characteristic that appertains generally to women. For the purposes of this Act, "breastfeeding" includes the act of expressing breast milk. (2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs: (a) are a woman who is pregnant and a man, or (b) are not of the same marital or domestic status, or (c) are a woman who is breastfeeding and a man. 11Section 33 provides that: (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex: (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) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice. 12Section 34 provides that: (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of sex: (a) by refusing the person's application for accommodation, (b) in the terms on which he or she offers the person accommodation, or (c) by deferring the person's application for accommodation or according to the person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of sex: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or (b) by evicting the person or subjecting the person to any other detriment. (3) Nothing in this section applies to or in respect of the provision of accommodation in premises if: (a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and (b) theaccommodation provided in those premises is for no more than 6 persons. 13Section 39 provides that: (1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of marital or domestic status if, 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, the perpetrator: (a) 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 such 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. 14Section 47 provides that: 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. 15Section 48 provides that: (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital or domestic status: (a) by refusing the person's application for accommodation, (b) in the terms on which he or she offers the person accommodation, or (c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital or domestic status: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or (b) by evicting the person or subjecting the person to any other detriment. (3) Nothing in this section applies to or in respect of the provision of accommodation in premises if: (a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and (b) theaccommodation provided in those premises is for no more than 6 persons.