Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Asquith v Bluehills 7 26 15 Pty Ltd [2015] NSWCATAD 73 Hearing dates: 24 March 2015 Decision date: 14 April 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: N Hennessy LCM, Deputy President Decision: The applicant's application for leave to proceed is refused. Catchwords: ANTI-DISCRIMNIATION – complaint of marital status discrimination declined by President of Anti-Discrimination Board as lacking in substance – whether fair and just for complaint to proceed Legislation Cited: Anti-Discrimination Act 1977 (NSW) Births Deaths and Marriages Registration Act 1995 (NSW) Cases Cited: Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. Category: Principal judgment Parties: Emmeline Asquith (Applicant) Bluehills 7 26 15 Pty Ltd t/as Parkview Funeral Home (Respondent) Representation: Solicitors: E Asquith (Applicant in person) S + P Lawyers (Respondent) File Number(s): 1510134 Introduction 1. Ms Asquith seeks the Tribunal's permission for a complaint of marital or domestic status discrimination against Bluehills 7 26 15 Pty Ltd trading as Parkview Funeral Home to go ahead: Anti-Discrimination Act 1977 (NSW), s 96. The main basis of the complaint is the way the General Manager, Mr Guthrie, treated Ms Asquith when making funeral arrangements for her de facto partner and when providing information for the preparation of the Death Certificate. 2. The President of the Anti-Discrimination Board declined Ms Asquith's complaint as lacking in substance: Anti-Discrimination Act, 92(1)(a)(i). Ms Asquith is required to obtain leave from the Tribunal before the complaint can proceed. I have decided to refuse leave because it is not fair and just for the complaint to proceed in circumstances where it lacks substance. Principles for granting leave – whether "fair and just" 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. In that case Schmidt J: * emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights": [32]; * found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint: [28]; * concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted . . ." and went on to say, that: "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 is already being redressed elsewhere, leave may be refused, if that is what justice dictates": [38]. Alleged conduct 1. The deceased passed away on 4 December 2013. Two days later, on 6 December, Ms Asquith, the deceased father and a friend of the deceased went together to the Parkview Funeral Home and met with Mr Guthrie. At that time, they were all on good terms. 2. According to Ms Asquith, Mr Guthrie frustrated her attempts to claim the funeral expenses from her insurer because he entered into a contract for payment of the funeral expenses with the deceased's father. 3. Mr Guthrie's version is that the father signed the contract engaging Parkview Funeral Home and signed all the necessary documentation. The funeral account was paid in full by the father. 4. As well as making the funeral arrangements and estimating the cost, Mr Guthrie needed to complete various documents to comply with legislative requirements. Those documents were: 1. the Death Information Form; 2. NSW Health application for cremation and statutory declaration; and 3. Disposition of Ashes. 1. According to Mr Guthrie, all forms were signed in the presence of Ms Asquith, the deceased's father and the deceased's friend. The deceased father told him that he was the executor of the estate. No-one disagreed with anything that was discussed. Ms Asquith did not claim to be the executor, the deceased's de facto partner or the senior next of kin, nor did she mention that she had funeral insurance. 2. Ms Asquith did not contradict Mr Guthrie at the time but now says that the deceased's father was not the executor of the estate because there was no valid will. She has since applied to the Supreme Court to be the administrator or executor of the estate. There is an unsigned and undated will in which she is named as the executor. 3. The Death Information Form was completed by Mr Guthrie in compliance with s 41 of the Births Deaths and Marriages Registration Act 1995 (NSW). In response to Question 16 "Marital status of the deceased at time of death", he ticked the box beside the word "married." Other options included "separated but not divorced" and "de facto". I understand that the information in that form was conveyed by another employee of the Parkview Funeral Home, on line, to the Registrar of Births, Deaths and Marriages. 4. Ms Asquith's complaint is that Mr Guthrie knowingly recorded the deceased as 'married' to his ex-wife on the Death Information Form instead of recording that he was "separated but not divorced". In addition, Mr Guthrie did not ask Ms Asquith to sign the Death Information Form because he knew Ms Asquith would see the error in relation to the deceased's marital status. Ms Asquith alleges that Mr Guthrie later instructed an employee not to record Ms Asquith as the deceased's de facto partner when registering the death online. 5. The Disposition of Ashes form, which was signed by the deceased's father, authorised Mr Guthrie to prepare the ashes for collection by himself or the deceased's friend. Ms Asquith was not nominated on that form as a person authorised to collect the ashes. 6. It is not in dispute that despite the fact that Ms Asquith telephoned Parkview Funeral Home to arrange to pick up the ashes, when she arrived, Mr Guthrie refused to release the ashes to her. The cremated remains were collected by the deceased's friend in accordance with the father's direction. 7. Several weeks after the 6 December 2013 meeting, Ms Asquith attended the office of the Parkview Funeral Home. It is Mr Guthrie's recollection that she said that "due to the family's grief, we were not informed of the true situation" and requested that he alter the Death Registration form to note a change in the marital status of the deceased and to include herself as "de facto of the deceased". This amendment was not authorised by the deceased's father so staff contacted the Registrar of Births Deaths and Marriages and were told that as the information had already been lodged electronic no alteration could be made. Ms Asquith was advised that she would need to apply to the Registrar of Births, Deaths and Marriages for an amendment. 8. On 8 January 2014 Mr Guthrie received a request from the deceased father's solicitors that the original death certificate be forwarded to them. He complied with that request. Potential breaches of the Anti-Discrimination Act 1. When determining whether it is fair and just for the complaint to proceed, the merits of the complaint are relevant. As Schmidt J held in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [38], while "an obviously meritorious complaint will not be refused leave" a complaint which lacks substance may be refused. 2. No pleadings have been filed in these proceedings. The factual and legal parameters of the complaint are those set out in the President's report. The President referred one complaint of marital status or domestic status discrimination to the Tribunal. 3. Discrimination on the ground of marital or domestic status in the provision of goods and services is unlawful. Section 47 of the Anti-Discrimination Act states 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. 1. The President of the Anti-Discrimination Board declined the complaint because he took the view that the Parkview Funeral Home was not providing a service of any kind to Ms Asquith. The contract with the funeral home was signed by the deceased's father and any the services were provided to him, not to Ms Asquith. 2. "Services" are defined in s 4 of the Anti-Discrimination Act to include: (a) services relating to banking, insurance and the provision of grants, loans, credit or finance, (b) services relating to entertainment, recreation or refreshment, (c) services relating to transport or travel, (d) services of any profession or trade, (e) services provided by a council or public authority, (f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not. 1. It is uncontroversial that the Parkview Funeral Home provides services including making funeral arrangements. In this case the deceased's father contracted with the Parkview Funeral Home for the provision of those services. Contrary to Ms Asquith's submission, those services were not provided to all the deceased's family members or to those who attended the meeting with Mr Guthrie on 6 December 2013. The deceased's father engaged the Parkview Funeral Home to make those arrangements and paid the account in full. 2. The complaint that the Parkview Funeral Home frustrated Ms Asquith's attempts to claim the funeral expenses from her insurer lacks substance because the Parkview Funeral Home did not have a contractual relationship with Ms Asquith and was not providing funeral services to her. It is not fair or just to grant leave for that part of the complaint to proceed. 3. The other parts of the complaint relate to the documentation that was to be completed, the requested amendment to the Death Information Form, the possession of the ashes and the provision of the Death Certificate. Although it is not uncontroversial, I have assumed for the purposes of these proceedings that those activities constitute a service to Ms Asquith. The issue, if this part of the complaint proceeded to a hearing, would be whether the Parkview Funeral Home discriminated against Ms Asquith on the ground of marital or domestic status by refusing those services or providing them on certain terms. The Parkview Funeral Home did not dispute that it is vicariously liable for the actions of its employees by virtue of s 53. 4. Marital or domestic status discrimination is defined in s 39. I understand Ms Asquith to be relying on direct discrimination as defined in s 39(a): (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, 1. On the basis of these provisions, in order to substantiate a complaint of direct marital or domestic status discrimination in the area of the provision of services, Ms Asquith would have to prove that: 1. she has a particular marital or domestic status as defined in s 4 of the Anti-Discrimination Act ; 2. Parkview Funeral Home refused to provide her with a service or provided her with a service on unfavourable terms; 3. in refusing that service or providing it on unfavourable terms, Parkview Funeral Homes treated her less favourably than it treated or would have treated a person who was of a different marital or domestic status in the same or similar circumstances; and 4. at least one of the reasons for that treatment was Ms Asquith's marital or domestic status: Anti-Discrimination Act, s 7 and s 4A. 1. Marital or domestic status is defined in s 4 of the Anti-Discrimination Act as meaning 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. We note that following a decision of this Tribunal in Asquith v Registrar, NSW Births, Deaths and Marriages [2015] NSWCATAD 8, the Registrar of Births Deaths and Marriages has amended the deceased's Death Certificate to record that Ms Asquith was the deceased's de facto partner at the time of death. I understand Ms Asquith's to be submitting that her marital or domestic status was "in a de facto relationship". 2. The two elements which must be proved to substantiate a complaint of direct discrimination are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. The treatment afforded to Ms Asquith must be compared with the treatment that was or would have been afforded to a real or hypothetical person of a different marital or domestic status in the same circumstances or in circumstances which are not materially different. In addition, domestic or marital status must be at least one of the reasons for the treatment: Anti-Discrimination Act s 4A. 3. There is no reference in the President's Report to a person who could serve as an actual comparator. The Tribunal would have to imagine a hypothetical person of a different marital or domestic status and identify the circumstances to be taken into account when comparing how the Parkview Funeral Home treated Ms Asquith and how it would have treated such a hypothetical person. 4. In relation to the "causation' part of the test for direct discrimination, there is no evidence that Ms Asquith's marital or domestic status was a reason for the way she was treated. As with the vast majority of complaints of discrimination, a causal link between Ms Asquith's domestic or marital status and the conduct of the Parkview Funeral Home would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: ". . . (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence." 1. Ms Asquith submitted that an inference can be drawn that her marital status was a reason for the treatment based on the following contentions: 1. Mr Guthrie was aware that it was her right to decide to which funeral home the deceased's body would be released following the Coroner's Report; 2. Mr Guthrie released the deceased's personal effects to her so he must have known that they were living together in a de facto relationship; 3. Ms Asquith was referred to as the deceased's 'partner' in the death notices; 4. the deceased's father contacted Mr Guthrie prior to the meeting on 6 December 2013 and told him that he did not want Ms Asquith's name on the Death Certificate 5. Mr Guthrie did not ask Ms Asquith to sign the Death Information form because he knew she would see the error in relation to the deceased's marital status; and 6. Mr Guthrie instructed an employee not to record Ms Asquith as the deceased's de facto partner when registering the death online. 1. The Death Notice was in evidence. It described Ms Asquith as the deceased's "loving partner". Neither Mr Guthrie nor the deceased's father responded to the other assertions because they were not made in the complaint to the President of the Anti-Discrimination Board. 2. Mr Guthrie said that at no stage during the meeting in December 2013 did Ms Asquith say that she was in a de facto relationship with the deceased. Ms Asquith does not deny that that was the case. It was only after several weeks had passed that Ms Asquith contacted him again. Ms Asquith's response was that Mr Guthrie "took my details and published in the newspaper that I was (the deceased's) partner, not girlfriend, and he knew full well my partner's marital status was not married and that (the deceased's ex-wife had no involvement whatsoever in planning the funeral arrangements . . " 3. It is Ms Asquith's submission that Mr Guthrie deliberately ticked the "married" box so that the deceased's ex-wife could obtain access to his estate. 4. In my view, this aspect of the complaint is based on assertions about Mr Guthrie's knowledge and motive which are not credible. Ms Asquith suggests that Mr Guthrie behaved in a fraudulent manner by deliberately making a record which he knew to be incorrect. There is no proper basis for such a serious allegation. This part of the complaint lacks substance and it is not fair or just for it to proceed. 5. Similarly, there is no basis for drawing an inference that the decision to refuse to release the deceased's ashes to Ms Asquith was based on her marital or domestic status. A more probable and innocent explanation is that the Disposition of Ashes form did not nominate Ms Asquith as a person who was authorised to collect the ashes. 6. I deal next with the decision not to alter the Death Registration form to note a change in the marital status of the deceased and to include Ms Asquith as "de facto of the deceased". Rather than being based on Ms Asquith's marital or domestic status, a more probable and innocent explanation for this decision is that the Registrar of Births Deaths and Marriages told Parkview Funeral Home that as electronic lodgement of death had already been completed, no alteration could be made. Ms Asquith subsequently applied to the Registrar of Births, Deaths and Marriages for an amendment. 7. Finally, the complaint that Mr Guthrie forwarded the original death certificate to the deceased father's solicitors lacks substance. Mr Guthrie says that he understood that the deceased's father was the executor and that is why he complied with the request from the solicitors. 8. I refuse leave for Ms Asquith's complaint of marital or domestic status discrimination against Parkview Funeral Home to proceed. 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: 14 April 2015