Takavarasha v Gomes [2017] NSWCATAD 121

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Takavarasha v Gomes [2017] NSWCATAD 121 Hearing dates: On the papers Date of orders: 19 April 2017 Decision date: 19 April 2017 Jurisdiction: Administrative and Equal Opportunity Division Before: A Britton, Principal Member Decision: Leave for the complaint to proceed before the Tribunal is refused. Catchwords: EQUAL OPPORTUNITY — leave required for complaint to proceed — principles applying to grant of leave EQUAL OPPORTUNITY — victimisation — relationship between "retaliatory evictions" under s 115 of Residential Tenancies Act 2010 and "victimisation" under s 50 of the Anti-Discrimination Act 1977 Legislation Cited: Anti-Discrimination Act 1977 (NSW) Residential Tenancies Act 2010 (NSW) Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 Category: Principal judgment Parties: Ernest Takavarasha (Applicant) Anna Gomes (Respondent) Representation: Applicant (self-represented ) Respondent (No appearance) File Number(s): 1610602

REASONS FOR DECISION 1. Between March 2012 and March 2015, Ernest Takavarasha rented a two bedroom apartment from Dean Scaltrito under a residential tenancy agreement. The tenancy agreement was managed by real estate agent, Lesley Montano Pty Ltd t/a Raine and Horne Real Estate (Raine and Horne). In the course of the tenancy a number of disputes arose between Mr Takavarasha and Raine and Horne relating to, among other things, repairs to the premises and a rent increase. Throughout this period, Anna Gomes, the respondent in these proceedings, was employed by Raine and Horne and was largely responsible for the management of the premises. 2. In October 2015, Mr Takavarasha lodged complaints with the President of the Anti-Discrimination Board (the President) against Mr Scaltrito, Raine and Horne, Ms Gomes and another employee, Ashley Gomes, alleging, among other things, that he had been discriminated against on the grounds of race. 3. The President decided to decline Mr Takavarasha's complaints on the ground that each lacked substance: s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (NSW) (the Act). 4. At the request of Mr Takavarasha, the President referred the Complaints to New South Wales Civil and Administrative Tribunal (NCAT). under s 93A(1) of the Act. Because the President had declined the Complaints, the leave of the Tribunal is required for any of the Complaints to proceed. 5. At a hearing on 1 November 2016, I decided not to grant leave for the complaints made against Mr Scaltrito, Raine and Horne, and Ashley Gomes to proceed and gave oral reasons for that decision. 6. With respect to the complaint against Ms Gomes (the Complaint), while I decided not to allow it to proceed cast as a complaint of unlawful discrimination on the ground of race in the area of accommodation under s 20 of the Act, I decided to give consideration to whether leave should be granted for it to proceed cast as a complaint of victimisation under s 50 of the Act. I made that decision because while the focus of Mr Takavarasha's initiating complaint against Ms Gomes was the allegation of unlawful discrimination on the ground of race, he also made allegations of victimisation. It appears the President may have overlooked those allegations. Accordingly, I decided to give Mr Takavarasha the opportunity to identify those parts of the report prepared by the President as required by s 94A(2) (the President's report), which in his view supported the allegation that he had been victimised by Ms Gomes. 7. Mr Takavarasha provided lengthy submissions to the Tribunal. Despite being invited to respond to those submissions, no response was received from Ms Gomes. 8. For the purpose of the Act, Mr Takavarasha identifies his race to be "black African". 9. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.