Kyriakou v Guo [2014] NSWCATAD 6

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Kyriakou v Guo [2014] NSWCATAD 6 Hearing dates: 14 August 2013 Decision date: 29 January 2014 Jurisdiction: Administrative and Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: 1. Leave is granted for Mr Kyriakou's complaint to proceed. 2. This matter is listed for a case conference on Wednesday, 5 February 2014 at 2 pm. Catchwords: ANTI-DISCRIMINATION - leave for declined complaint to proceed - whether fair and just for leave to be granted - significant issues of credit and fact to be determined Legislation Cited: Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Cases Cited: Dutt v Central Area Health Services [2002] NSWADT 133 Jones v Ekermawi [2009] NSWCA 388 Category: Interlocutory applications Parties: Andrew Kyriakou (Applicant) David Guo (Respondent) Representation: Counsel Ms K Edwards (Respondent) Mr Kyriakou (Applicant in person) File Number(s): 131064

reasons for decision

Introduction 1Mr Guo owns a house in Hurstville which he rents to several individuals on a room by room basis. On 22 August 2012 Mr Kyriakou and Mr Guo signed a handwritten lease for Mr Kyriakou to rent a room in the house. The term of the lease was six months from 26 August 2012. 2Mr Kyriakou, who is originally from Greece, complains that Mr Guo discriminated against him on the ground of his race by: (1)accepting and acting on complaints about him from Chinese tenants when those complaints were not justified; (2)writing to him on 15 October 2012, asking him to leave by 17 November 2012 because Council was only allowing him to have four people remain as tenants; (3)accepting and acting on further complaints from Chinese tenants after Mr Kyriakou responded to Mr Guo's letter of 15 October 2012; (4)writing to him on 24 October 2012 threatening legal action if he did not vacate the room by 7 November 2012 and serving him with a Notice to Terminate Tenancy Agreement on the same day. 3The President of the Anti-Discrimination Board (ADB) declined Mr Kyriakou's complaint as lacking in substance: Anti-Discrimination Act 1977 (AD Act), 92(1)(a)(i). Mr Kyriakou is required to obtain leave from the Tribunal before the complaint can proceed: AD Act, s 96. 4The Court of Appeal set out the principles to be applied by the Tribunal in determining whether to grant leave in Jones v Ekermawi [2009] NSWCA 388. The Tribunal has a discretion to grant or refuse permission for a complaint to go ahead. That discretion is to be guided by what is fair and just in the circumstances of each case. The onus is on the applicant to persuade the Tribunal that leave should be granted. 5The President gave the following reasons for declining the complaint: (a) The complainant has failed to provide any evidence that he was treated less favorably in terms of his tenancy on the basis of race other than mere assertion. (b) The complainant has provided only unsupported conjecture as to his race being the reason why his lease was terminated. (c) Information provided by both parties supports the respondent's reasons for its actions and do not equate with discrimination. 6Mr Kyriakou suspects that the President of the Anti-Discrimination Board declined his complaint because he insisted on providing a 105 page response to Mr Guo's submission. He draws that inference because an officer from the Anti-Discrimination Board expressed concern when he said that he intended to provide a 105 page response. When providing his response, Mr Kyriakou said in an email to the ADB dated 24 April 2012 that he felt it necessary to provide a lengthy response because he may be criticised if he did not provide detailed information in support of his complaint. 7It is not the Tribunal's role to review the President's decision and determine whether it was influenced by any irrelevant considerations such as the length of a response. Rather, the Tribunal must assess the merits of Mr Kyriakou's complaint and determine whether it is fair and just for it to proceed.