Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Winslow v City West Housing Pty Ltd [2016] NSWCATAD 174 Hearing dates: 24 May 2016 Date of orders: 24 May 2016 Decision date: 24 May 2016 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: The applicant's application for an interim order is dismissed. Catchwords: INTERLOCUTORY ORDERS – application for interim order – landlord taking steps in Consumer and Commercial Division of the Tribunal to terminate residential tenancy agreement - whether Tribunal constituted in the Administrative and Equal Opportunity Division can prevent respondent from taking any further steps in the proceedings - tenant has disability and alleges discrimination – serious question to be tried – Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 105, s 49B(1) Residential Tenancies Act 2010 (NSW), s 85 Cases Cited: Castlemaine Tooheys Ltd v South Australia [1986] 161 CLR 148 Couch v NSW Land and Housing Corporation [2015] NSWCATAP 253 Category: Procedural and other rulings Parties: Tahnee Winslow (Applicant) City West Housing Pty Ltd (Respondent) Representation: Counsel: K Jones (Respondent) Solicitor: Redfern Legal Centre (Applicant) File Number(s): 1610302 Publication restriction: Nil REASONS FOR DECISION EX TEMPORE 1. DEPUTY PRESIDENT HENNESSY: This is an application by Ms Winslow for an interim order under s 105 of the Anti‑Discrimination Act 1977 (NSW). The order sought is that City West Housing Pty Ltd takes no further steps in the proceedings RT16/08922 in the Consumer and Commercial Division of the Tribunal to terminate its residential tenancy agreement with Ms Winslow pending determination of the proceedings relating to her complaint under the Anti‑Discrimination Act. 2. The issue as to whether the Tribunal should make an interim order arises in the following way. Ms Winslow entered into a residential tenancy agreement with City West Housing on 19 September 2007. She is the sole tenant at the premises and has paid a subsidised rent of 25% of her income throughout her tenancy. On 18 November 2015 City West Housing issued Ms Winslow with a notice of termination under s 85 of the Residential Tenancies Act 2010 (NSW). These notices are sometimes referred to as "no grounds" termination notices because no particular reason has to be provided with the termination notice. Those notices give the tenant 90 days from the date of the notice to vacate the premises. The termination notice issued to Ms Winslow expired on 22 February 2016. 3. On 23 February 2016 City West Housing applied under s 85 of the Residential Tenancies Act seeking orders for termination of the tenancy and possession of the premises. 4. The matter has been listed for hearing before the Consumer and Commercial Division, however that hearing has been adjourned on the application of Ms Winslow. A further timetable has been set down and the parties are due to file their evidence - the respondent by today and the applicant by next Tuesday, 31 May 2016. The matter will be set down for hearing on the first available date after that time. 5. The application under s 105 of the Anti-Discrimination Act is for an interim order preventing City West Housing from taking any further steps in the proceedings before the Consumer and Commercial Division. I accept for the purposes of the hearing today that the Tribunal has power to make such an order. The Appeal Panel in the matter of Couch v NSW Land and Housing Corporation [2015] NSWCATAP 253 at [21] and [29] expressed the view that the Tribunal, in proceedings in the Administrative and Equal Opportunity Division, could make an order in proceedings in other divisions of the Tribunal. 6. The next question for the Tribunal is whether the principles set out in Castlemaine Tooheys Ltd v South Australia [1986] 161 CLR 148 have been satisfied. Those principles require consideration of whether there is a serious question to be tried, that attempts to rectify the situation other than by order have failed, that there is a reason for the urgency and that the applicant has acted promptly, but damages are not enough to cure the wrong and that the balance of convenience favours making the order. Further, a court granting interlocutory relief should generally grant the minimum relief necessary to do justice between the parties. It is also the case that the applicant bears the burden of proof. 7. The first question is whether there is a serious question to be tried. The complaint of disability discrimination is brought under s 49N of the Anti‑Discrimination Act. That provision states that it is unlawful for a person, whether as a principal or agent, to discriminate against a person on the ground of disability by evicting the person or subjecting the person to any other detriment. 8. The disability in this case is that Ms Winslow has a mental illness, details of which are set out in exhibit B which is a medical assessment produced by Family and Community Services and filled in by a medical practitioner. That document notes that Ms Winslow has severe chronic anxiety, attention deficit disorder, bipolar disorder and difficulty with affect and alcohol abuse. She is currently being treated with Risperidone and Lexapro. There is no doubt that she comes within the definition of a person with a disability in the Anti‑Discrimination Act. 9. A more contentious issue is whether the conduct of City West Housing in issuing a notice under s 85 of the Residential Tenancies Act amounts to indirect discrimination as defined in s 49B(1)(b) of the Anti‑Discrimination Act. Four elements are required. The first is that there is a requirement or condition to which the applicant is subject. The second is that a substantially higher proportion of people who do not have the same disability as the applicant can comply with the requirement. The third is that the applicant is unable to comply with the requirement. The fourth element is that the requirement is not reasonable in all the circumstances. 10. The major difficulty with Ms Winslow's case under this provision is that the requirement that she vacate the premises in 90 days is a requirement directed only to her. It is not a general or blanket requirement. In those circumstances it is not possible to compare the proportion of people with a disability who can comply with the requirement and the proportion of people without a disability who can comply. The features of this case align more closely with those addressed in s 49B(1)(a) relating to direct discrimination. 11. Another difficulty is that the requirement that Ms Winslow vacate the premises is itself a lawful mechanism provided to landlords under the Residential Tenancies Act. A landlord may issue such a notice under s 85 without giving reasons for the termination. Declaring that such a notice is in breach of the Anti-Discrimination is tantamount to the Tribunal ruling that a landlord cannot rely on a valid law of the state to evict a tenant. There is no such human rights jurisdiction in New South Wales and it is highly doubtful that the Anti‑Discrimination Act could be used to invalidate or prevent reliance on a provision of validly enacted legislation. 12. For those reasons, I doubt that Ms Winslow has an arguable case of indirect discrimination against City West Housing. Furthermore, all the circumstances of the case, including the respondent's reason for issuing the notice must be taken into account when determining whether the requirement is "not reasonable". 13. I am not satisfied that there is a serious question to be tried in this case. In those circumstances I do not need to determine where the balance of convenience lies. However, I do acknowledge that Ms Winslow appears to be in a very vulnerable situation with few options in terms of alternative housing and that the balance of convenience would, on the available evidence, be in her favour. To that end I have suggested that the parties attempt to resolve the complaint by mediation. I wish them all the best in that endeavour. ********** 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: 03 August 2016