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. Statutory framework and principles governing grant of leave 1. Headed "Complaints - the functions of the President", Division 2 of Part 9 of the Act deals with the making of complaints. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act. 2. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation, the President is satisfied that the complaint is misconceived or lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, the President may decline the complaint in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii). 3. Where the President has declined a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act. 4. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1). 5. Section 96 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. Background to the Complaint 1. The following history is taken from material which Mr Takavarasha provided to the President and the Tribunal. 2. On 24 October 2014, Mr Takavarasha lodged an application under the Residential Tenancies Act 2010 (NSW) (the RT Act), with the Consumer and Commercial division of the New South Wales Civil and Administrative Tribunal (NCAT). In that application Mr Takavarasha alleged that Mr Scaltrito had failed to comply with his obligations as a landlord to maintain the premises in a reasonable state of repair: s 63(2) of the RT Act. Mr Takavarasha claims that five days after lodging that application, Raine and Horne, through its accountant, Victoria Rosetto, "embarked on a vigorous pursuit of victimisation and harassment". He alleged that the accountant demanded payment for"quasi-overdue water charges". According to Mr Takavarasha, this was the start of a "vindictive crusade designed to inconvenience and disturb the marginalised tenants in a manner that could only be described as unlawful racial discrimination". 3. Mr Takavarasha wrote that Ms Gomes was "now firmly enshrined under her biased perception that since I was a tenant of marginalised black African descent that it would naturally follow that I would be so naïve as not understand that was never my obligation [to pay water usage charges]", because the premises did not have a separate water meter. 4. He stated that at the start of November 2015, Ms Gomes converted the payment for water charges to a demand for payment for a "call-out fee" for repairs to the dishwasher in the premises. He said that from that point in time until he vacated the premises in March 2015, Ms Gomes continued to harass him to pay that fee. 5. Mr Takavarasha claimed that on the eve of the NCAT hearing listed for 5 November 2015, after Ms Gomes failed in her efforts to pressure him to abandon his application, he was issued with an "invalid and unsubstantiated eviction notice". He stated that at the hearing, the Tribunal made several repair orders against the landlord, which did "not sit well with the agent". 6. He asserted that despite the decision made by the Tribunal not to order him to pay the callout fee for the repair to the dishwasher, Raine and Horne continued to harass him to pay that fee. 7. He claimed that the "outrageously excessive rent increase" demanded by the landlord on 15 December 2015, left him in "no doubt" that the reason for that increase was to "victimise me for taking a stand against the landlord's breaches ... with regard to his obligations under the RT Act". 8. On 2 January 2015, Mr Takavarasha was issued with a second notice of termination under s 85 of the RT Act. Section 85 of the RT Act, permits a landlord to terminate a tenancy agreement, providing the tenant is given at least 90 days' notice of the date of termination of the tenancy agreement. Providing notice requirements are met, the landlord can terminate a tenancy agreement under s 85 even where there no grounds have been established which might otherwise permit the landlord to terminate the agreement, such as, a breach of the tenancy agreement by the tenant. Mr Takavarasha contends that Ms Gomes decided to issue this termination notice because he had requested repairs be undertaken to the flyscreens in the premises and she was determined to "never bow and honour any of the repairs requests made by a marginalised African". 9. Mr Takavarasha claimed that between 20 December 2014 and 9 January 2015, Ms Gomes refused to provide him with a rental ledger he had requested because she was "still irate ... for [me] being granted orders against the landlord". When he finally obtained the ledger, it revealed several errors which he asserted established an "obvious intention to portray a negative rental worthiness image towards other prospective rent estate agents". 10. Mr Takavarasha said that the harassment by Ms Gomes continued after the tenancy ended by, among other things, refusing to allow him to participate in the exit inspection and making a claim on the rental bond paid to the Rental Bond Board. Decision to award Mr Takavarasha compensation 1. At a hearing on 6 July 2015, the Tribunal sitting in the Consumer and Commercial division of NCAT: 1. Declared that that the increase in rent that came into effect on 15 February 2015, was "excessive" and ordered the Owner to refund to Mr Takavarasha that part of the rental payments made, found to be excessive. 2. Ordered that the Owner pay Mr Takavarasha $5,000 for breach of a term of the tenancy agreement, namely interference with loss of quiet enjoyment of the premises. 1. While the Tribunal rejected many of the claims made by Mr Takavarasha, it was nonetheless critical of Raine and Horne. In reasons for its decision given on 27 August 2015 (the Reasons), the Tribunal wrote at [16]: As will emerge further in these reasons, the Tribunal is disturbed by the circumstances in which the Applicant was served with two Termination Notices and a Notice of Rent Increase. On the evidence before it, it is open to the Tribunal to conclude that those Notices were, at least in part, motivated by a desire to remove the tenant from the rented premises because he had applied to the Tribunal for orders in his earlier application, and had obtained orders that were in force with respect to the landlord. 1. The Tribunal went on write at [43]: On the evidence before it, the Tribunal is comfortably satisfied that the two Notices of Termination of tenancy and Notice of Rent Increase served on the tenant by the Managing Agent were, at least in part, in retaliation for the Applicant pursuing and obtaining orders against the landlord in this Tribunal. It is comfortably satisfied that the Managing Agent failed to provide the tenant with a rent ledger upon his written request within the period required by the Act. It is comfortably satisfied that the Managing Agent and landlord's conduct in refusing to conduct a joint final inspection of the rent premises, and in refusing to allow the tenant to rectify issues claimed to have been identified at the landlord's inspection was unreasonable. It is also comfortably satisfied that the landlord's claim upon the tenant's rental bond was vexatious, and had the purpose or effect of inflicting hardship on the tenant at a time of financial vulnerability. Approach to evidence in deciding to grant or refuse leave 1. For the purpose of deciding whether the power to grant leave for the Complaint to proceed should be exercised, I will accept the facts alleged by Mr Takavarasha. Statutory framework: victimisation 1. Section 50 of the Act states: 50 Victimisation (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has: (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith. 1. To succeed as a complaint of victimisation under s 50 of the Act against Ms Gomes, Mr Takavarasha must establish: 1. That Ms Gomes subjected him to a detriment, and 2. That Ms Gomes did so "on the ground" that Mr Takavarasha had done one or more of the things listed in par. (a),(b),(c) and/or (d) of s 50(1), or suspectad that Mr Takavarasha had done, or intended to do, any of those things. 1. The phrase "on the ground" in s 50(1) of the Act has been held to mean one of the "real", "genuine" or "true" reasons for subjecting the victim, in this case Mr Takavarasha, to a detriment: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [37]. Allegation of victimisation under the Act 1. As noted, I directed Mr Takavarasha at the hearing of the leave application to provide written submissions identifying the material he asserts supports the allegation that Ms Gomes had victimised him under s 50 of the Act. 2. In submissions provided in the form of an affidavit dated 10 November 2016, Mr Takavarasha identified four actions by Ms Gomes which he asserts constitute a detriment: 1. Ms Gomes' refusal to permit him to participate in a joint final inspection of the premises, for the purpose of completing the "condition report" (After the termination of a residential tenancy agreement, the landlord or their agent and the tenant must complete a "condition report", in the presence of the other party: s 29(4) of the RT Act). 2. Ms Gomes' actions in making a claim on behalf of the landlord in respect of the rental bond. 3. Ms Gomes' actions in ignoring the entries in the in-coming condition report, which recorded defects in the premises. 4. Ms Gomes' actions in obtaining "inflated" quotations to rectify defects in the premises after the end of the tenancy. 1. According to Mr Takavarasha, the trigger for each of these actions was a series of text messages he sent to Ms Gomes on 28 March 2015. In those messages, Mr Takavarasha wrote: Tell the landlord in no uncertain terms that I will not accept any discriminatory treatment … With regards to the bond … the landlord has no other way of exercising his discriminatory tendencies is now aiming to abuse my bond money to spruce up his house [I] am ready to address any fair repairs … as any other tenant who is not racially discriminated… 1. In his submissions Mr Takavarasha wrote: The Key Critical Element of the Victimisation Claim: I warned Ms Gomes against any attempt to discriminate against me or to take any abusive discriminatory actions regarding my bond monies and let her know that in the event of any such thing happening, I would progress to litigate via the appropriate authorities. 1. In addition, Mr Takavarasha claims that during a telephone conversation with Ms Gomes on 28 March 2015, he gave "stern and clear warnings" that he would "report and litigate any further discriminatory action". 2. I understand Mr Takavarasha to rely on s 50(1)(c ) of the Act. Is there some material which might support a finding that the elements of s 50 are established? 1. The word "detriment" in s 50 has been interpreted to mean "loss, damage or injury" that is "real and not trivial": Sivananthan v Commissioner of Police, New South Wales Police Service [2001] NSWADT 44 at [40]. Whether something constitutes a detriment must be determined objectively and not subjectively: Sivananthan v Commissioner of Police, NSW Police Service at [41]. 2. On the available material it appears arguable that: (i) the alleged conduct described above, constitutes a detriment within the meaning of s 50(1) of the Act, and (ii) that it was Ms Gomes who subjected Mr Takavarasha, to each alleged detriment. 3. The more difficult issue is whether there is any evidence to support a finding that one of the "real", "genuine" or "true" reasons Ms Gomes subjected Mr Takavarasha to one or more of the alleged detriments was that he had alleged that Ms Gomes or the landlord had committed an act which would amount to a contravention of the Act. 4. Before considering the available material it is necessary to comment on the oral submissions made by Mr Takavarasha to the effect that findings made by the Tribunal in the proceedings under the RT Act support the proposition that he had been victimised by Ms Gomes in contravention of s 50 of the Anti-Discrimination Act. This submission is misconceived because it conflates the concept of "retaliatory evictions" under the RT Act with the concept of victimisation under the Act. 5. Under the RT Act, the Tribunal may declare that a termination notice has "no effect", if it is satisfied that the notice given by the landlord was a "retaliatory notice": s 115(1). A notice will be a retaliatory notice if the Tribunal is satisfied that the landlord was wholly or partly motivated to give the notice because the tenant had applied or proposed to apply to NCAT for an order, or the tenant had taken or proposed to take any other action to enforce their right under the residential tenancy agreement, the RT Act or any other law: s 115(2). 6. In contrast, s 50 of the Anti-Discrimination Act makes it unlawful for a person ("the discriminator") to victimise another because the person victimised has, or is suspected of, among other things, having commenced or intending to commence proceedings under the Anti-Discrimination Act or alleging that the discriminator has engaged in unlawful conduct under the Anti-Discrimination Act. 7. Section 115 of the RT Act and s 50 of the Anti-Discrimination Act is each designed to protect a person seeking to enforce rights conferred by statute. However, s 115 is concerned with rights under the RT Act, while s 50 is concerned with rights under the Anti-Discrimination Act. As noted above, the Tribunal found that the two notices of termination and the notice of rent increase were issued "[A]t least in part, in retaliation for [Mr Takavarasha] pursuing and obtaining orders against the landlord in this Tribunal": Reasons at [43]. That finding was but one of a number of findings made by the Tribunal which criticised the conduct of Ms Gomes (the Reasons described Ms Gomes as "the managing agent"). The Tribunal found that Ms Gomes' refusal to conduct a joint final inspection of the premises, and to allow Mr Takavarasha to rectify issues claimed to have been identified at the landlord's inspection, was "unreasonable": at [43]. In addition, the Tribunal found that the claim made on Mr Takavarasha's rental bond was "vexatious": at [43]. 8. While the Tribunal was critical of various actions taken by Raine and Horne and Ms Gomes in particular, it cannot be read into its Reasons, that the Tribunal implicitly found that one of the grounds for those actions was Mr Takavarasha's race or because he had alleged that he had been subjected to unlawful race discrimination. 9. In a response to the President dated 15 December 2015, Ms Gomes addressed the various allegations made by Mr Takavarasha. At that point Ms Gomes had not been expressly notified of the allegation of victimisation. Nonetheless, she gave an innocent explanation for her actions in relation to much of the conduct which Mr Takavarasha claims constitute a detriment. She claimed to have treated Mr Takavarasha in a professional manner and denied the allegation that she had harassed or victimised Mr Takavarasha. Indeed, she asserted that "I was the one constantly being harassed by Mr Takavarasha whenever we spoke". 10. There are a number of possible explanations for Ms Gomes' conduct in respect of each alleged detriment. It may be that she held the honest belief that her actions were reasonable and necessary to protect the interests of the landlord. Alternatively, it may be as the Tribunal apparently found, that the actions were motivated in part by a desire to "punish" Mr Takavarasha for pursuing actions against the landlord under the RT Act. A further possibility, is as asserted by Mr Takavarasha, that she was seeking to victimise him for having accused her of being motivated by race discrimination. 11. Mr Takavarasha's subjective belief, however genuinely held, is insufficient to establish that one of the reasons for Ms Gomes' conduct was because he had made an allegation of race discrimination. There must be objective material capable at law of establishing the requisite connection between the alleged detriment(s) and the allegation made by Mr Takavarasha on 23 March 2015. 12. There is no direct evidence to support a finding that one of the reasons Ms Gomes subjected Mr Takavarasha to one or more of the alleged detriments was because he had made allegations of race discrimination. Nor in my opinion does the available material, taken as a whole, support the drawing of that inference. Arguably there might be merit in allowing the Complaint to proceed and giving Mr Takavarasha the opportunity to test Ms Gomes' explanation for her conduct. However, given the paucity of material relied upon by Mr Takavarasha to support his hypothesis about the reasons for Ms Gomes' conduct, I have decided that it would not be fair and just to grant leave for the Complaint to proceed. I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** 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: 19 April 2017