Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Murphy v Trustees of Catholic Aged Care Sydney [2017] NSWCATAP 183 Hearing dates: 10 August 2017 Date of orders: 10 August 2017 Decision date: 07 September 2017 Jurisdiction: Appeal Panel Before: N Hennessy LCM, Deputy President Decision: (1) The following order of the Tribunal made on 16 June 2017 in proceedings RV 16/42545 is stayed pending further order of the Tribunal: On or before 11 August 2017 the respondent is to remove the German Shepherd dog known as 'Rex' from his Unit in the retirement village of which he is a resident, and ensure that the dog is not kept in his Unit or brought onto common areas of the village, in compliance with Rule 5 of the village Rules. Catchwords: INTERIM ORDER – where retirement village has a 'no dogs' rule – where resident has a dog – whether stay should be granted to allow the dog to remain with the resident pending the appeal – prospects of success – balance of convenience – interests of justice Legislation Cited: Civil and Administrative Tribunal Act 2013 (NCAT Act) Retirement Villages Act 1999 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Civil and Administrative Tribunal Rules 2014 (NSW) Cases Cited: Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 NSW Bar Association v Stevens [2003] NSWCA 95 Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 Category: Procedural and other rulings Parties: John Murphy (Appellant) Trustees of Catholic Aged Care Sydney (Respondent) Representation: Appellant (Self-represented) Solicitors: Makinson d'Apice Lawyers (Respondent) File Number(s): AP 17/33024 Publication restriction: Nil Decision under appeal Court or tribunal: NSW Civil and Administrative Tribunal Jurisdiction: Consumer and Commercial Division Citation: [2017] NSWCATCD 46 Date of Decision: 16 June 2017 Before: G Sarginson, Senior Member File Number(s): RV 16/42545 REASONs FOR DECISION Overview 1. I have to decide whether Mr Murphy should be allowed to keep his German shepherd, Rex, in his unit at a retirement village until the Appeal Panel makes a decision about his appeal. I have decided that he should be allowed to keep his dog with him because his appeal has some prospects of success and there is very little risk to the health or safety of other residents if Rex stays with Mr Murphy. The appeal is listed for hearing on 30 October 2017, and determined soon after that time. It is in the interests of justice for Rex to stay with Mr Murphy until the appeal is finalised. Background 1. The rules for the retirement village where Mr Murphy lives provide that dogs and cats are not to be kept in units or brought in to common areas (the no dogs rule). The respondents, who are the operators of the retirement village, applied to the Tribunal for an order to prevent Mr Murphy from keeping his dog: Retirement Villages Act 1999 (NSW), s 128(1)(c). 2. The no dogs rule is "of no effect to the extent that it is inconsistent with . . . any . . . Act or law.": Retirement Villages Act, s 74. The parties agree that the Disability Discrimination Act 1992 (Cth) (DDA) is an Act or law that could be inconsistent with the no dogs rule in a particular case. 3. The inconsistency potentially arises because the DDA provides that it is unlawful for "a person, whether as principal or agent, to discriminate against another person on the ground of the other person's disability by subjecting the other person to any . . . detriment in relation to accommodation occupied by the other person": DDA, s 25(2)(c). The Tribunal impliedly found that enforcing the no dogs rule would constitute a detriment to Mr Murphy. Discrimination on the ground of disability includes discrimination against a person who has an assistance animal: DDA s 8(1). The effect of s 8 is that to establish discrimination it will not be necessary to make and additional finding that the discrimination occurred on the ground of disability. It follows that the nature of Mr Murphy's disability is relevant to the question of whether Rex is an "assistance animal" within the meaning of that term in s 9(2)(c) of the DDA. That provision requires that Rex be "trained to assist a person with a disability to alleviate the effect of that disability; and to meet standards of hygiene and behaviour that are appropriate for an animal in a public place." 4. The Tribunal referred to the definitions of "disability" and "assistance animal" in the DDA and held that if Mr Murphy has a disability and Rex is an assistance animal, the DDA is inconsistent with the no dogs rule. The Tribunal was not satisfied that Mr Murphy has a disability or that Rex was an assistance animal at the time. 5. The Tribunal ordered Mr Murphy to remove his dog by 11 August 2017. Mr Murphy appealed and applied for a 'stay' of the Tribunal's decision. The Tribunal has power to grant a stay if it considers it "appropriate to secure the effectiveness of the determination of the . . . appeal": Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), s 43(3). I consider that it is appropriate to stay the decision in this case. Legal principles 1. The principles applicable to applications to stay a decision of the Tribunal are set out in Bentran Pty Ltd v Sabbarton [2014] NSWCATAP 37. In considering whether to grant a stay I have to take into account: 1. whether a stay is necessary "to secure the effectiveness of the appeal": NCAT Act, s 43(3); Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; 2. whether the appeal has "any real prospects of success"; Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; 3. the competing interests of the parties and the balance of convenience: Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694; 4. what the interests of justice require: NSW Bar Association v Stevens [2003] NSWCA 95 at [83]; Penrith Whitewater Stadium Ltd v Lesvos Pty Ltd [2007] NSWCA 103 at [18]. Is a stay necessary to secure the effectiveness of the appeal? 1. Mr Murphy gave informal evidence that he depends on Rex and would have to move out of the retirement village to other accommodation if he cannot keep his dog with him. I accept that evidence which was not challenged. If Mr Murphy moves out of the retirement village, then even if the Appeal Panel upholds the appeal, it will be too late for him to move back again. I am satisfied that a stay is necessary to secure the effectiveness of the appeal. The Tribunal's findings and reasoning 1. The Tribunal was not satisfied on the basis of the evidence Mr Murphy provided that he has a disability or that Rex is an assistance animal. 2. The definition of disability in the DDA includes a "disorder, illness or disease that affects . . . thought process, perception of reality, emotions or judgement or that results in disturbed behaviour": DDA, s 4(g). Mr Murphy gave evidence that he has a psychological condition that is badly affected by his wife's medical condition, and that Rex improved his mental health. A clinical psychologist and a staff specialist in psychogeriatric from St Vincent's Hospital, wrote in a letter that: Mr Murphy was referred to our service in the context of significant carer stress, which was adversely affecting his mental health. 1. Ms O'Grady, an employee of mindDog, stated that Mr Murphy's doctor had given her written advice that he fits the medical criteria to have an assistance dog. 2. On the basis of the evidence outlined above, the Tribunal was not satisfied that Mr Murphy has a disability. One ground of appeal is that the Tribunal should have given this evidence more weight even if it was not considered to be expert medical evidence. 3. Mr Murphy also appealed on the basis that the Tribunal should have given more weight to the evidence that Rex is an assistance animal. That term is defined in s 9(2)(c) of the DDA . 4. Mr Murphy's evidence was from Ms O'Grady of mindDog who stated that Rex "has been accepted as a trainee assistance animal from mindDog (Psychiatric Service Dogs)." Mr Murphy also submitted that the Tribunal should have permitted Ms Phillips, the chairman of mindDog who was present at the hearing, to give oral evidence. 5. The Tribunal concluded that there was "no evidence of what training had been, or would be, given to Rex by mindDog . . . or how that would assist a person with a disability." Does the appeal have real prospects of success? 1. Mr Murphy has applied for the time for the lodging of the appeal to be extended. The respondent did not make any submissions about this application at the stay hearing. An appeal must be lodged within 28 days from the day on which Mr Murphy was notified of the decision or was given reasons for the decision, whichever is the later: Civil and Administrative Tribunal Rules 2014 (NSW), s 25(4)(c). The date of decision is 16 June 2017. The appeal was lodged on 26 July 2017. 2. There was no evidence from Mr Murphy as to when he was notified or given reasons for the decision. The respondent did not submit that the Appeal Panel should not accept the appeal. While the Appeal Panel will need to determine whether the appeal was lodged out of time and, if so, whether it should be accepted, I have not taken this issue into account in determining Mr Murphy's prospects of success. 3. Apart from the out of time issue, Mr Murphy has the right to appeal on a question of law but needs the Appeal Panel's permission before appealing on a ground other than a question of law: NCAT Act, s 80(2)(b). Mr Murphy did not identify any questions of law in his Notice of Appeal but I note that he is not represented by a lawyer. The principles about the assistance a court, or tribunal, is required to give a self-represented litigant were considered by the Court of Appeal in Pollock v Hicks [2015] NSWCA 122 at [91]. It may be that, in accordance with these principles, the Appeal Panel would consider identifying potential grounds of appeal which Mr Murphy has not articulated including an appeal on a question of law. The Appeal Panel would not do so without being fair to both parties. 4. For appeals from decisions in the Consumer and Commercial Division which are not on a question of law, the Appeal Panel cannot give its permission unless it is "satisfied that the appellant may have suffered a substantial miscarriage of justice" because: 1. the decision of the Tribunal under appeal was not fair and equitable, or 2. the decision of the Tribunal under appeal was against the weight of evidence or 3. significant new evidence has arisen (being evidence that was not reasonably available at the time the proceedings under appeal were being dealt with). 1. Mr Murphy has provided the following fresh evidence as to his disability: 1. a letter from Prof Brian Draper, a clinical psychologist at St Vincent's Hospital dated 7 July 2017; and 2. a letter from NSW Health dated 7 July 2017. 1. Mr Murphy has also provided fresh evidence that Rex is an assistance animal including a letter from MindDog dated 13 July 2017. 2. His explanation for not providing this evidence to the Tribunal was that the clinical psychologist and the staff specialist in psychogeriatrics from St Vincent's Hospital, believed they had demonstrated that he has a disability as defined in the DDA. Furthermore he was not a patient of Prof Brian Draper at the time of the Tribunal hearing. 3. The Appeal Panel may regard some or all of this evidence as significant and find that it was not reasonably available at the time of the hearing. I have taken into account that possibility when assessing Mr Murphy's prospects of success on appeal. Contrary to the respondent's submission, if accepted, that evidence is likely to strengthen Mr Murphy's case. The new evidence contains a more specific diagnosis and further evidence of the training Rex has undergone. 4. In my view given the matters to which I have referred, the appeal is not without "any real prospects of success": Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 695; Balance of convenience 1. The respondent submitted that the hygiene and safety of other residents will be adversely affected if Rex is permitted to stay with Mr Murphy until the appeal is finalised. The respondent provided statutory declarations from four people. I have not recorded or taken into account any evidence from these people about what other people told them. While the Tribunal is not bound by the rules of evidence, second hand evidence is often unreliable: NCAT Act, s 38(2). In addition neither Mr O'Shea nor Mr Shepherd was available for cross-examination. For that reason I give their evidence less weight than that of Ms Clarke and Mr Shumsky. 2. Ms Clarke, an employee of the management company for the retirement village, visited Mr Murphy on 15 May 2017 and 12 July 2017. She has seen Mr Murphy and Rex on perhaps a dozen occasions in the last three years. On the 15 May visit she was accompanied by a handyman, Mr O'Shea, who also gave a statement. According to Ms Clarke when they knocked on Mr Murphy's door, Rex was barking and growling and had to be restrained on his lead. Ms Clarke agreed that on that occasion Rex stopped barking after they come in through the front door. Mr O'Shea's statement supports this version of events. Mr Murphy agreed that Rex often barks when someone comes in the front door. I am satisfied that the events occurred as outlined by Ms Clarke 3. On 12 July 2017 Ms Clarke says she went to Mr Murphy's unit. When she rang the bell, Rex began to bark loudly. Mr Murphy put Rex in another room. According to Ms Clarke, Rex was "frantically scratching on the bedroom door and barking loudly." Mr Murphy questioned Ms Clarke about her recollection of what she heard. I am satisfied that the events occurred as outlined by Ms Clarke. 4. Mr Shepherd, an upstairs neighbour of Mr Murphy, said that they had experienced a very strong "dog odour" on more than one occasion and that he and his wife had seen dog excrement on Mr Murphy's balcony. As Mr Shepherd was not available for cross-examination I give this evidence no weight. 5. Mr Shumsky gave evidence that about a year ago when he was walking from his garage to his unit, Rex growled at him and lunged at him in a threatening way. Mr Shumsky estimated that Rex was about 10 meters away from him at the time. I am satisfied that this event occurred and that Mr Shumsky felt threatened even though the dog was some distance away. 6. I also accept Mr Murphy's evidence that normally Rex is very quiet and rarely barks unless someone comes to the door. I also accept that when he is outside he is generally on a lead but that was one occasion when he got off the lead and ran past a resident. There was no evidence that Rex had ever attacked or injured anyone or endangered the health or safety of other residents. The balance of convenience is heavily in favour of Mr Murphy. Order 1. The following order of the Tribunal made on 16 June 2017 in proceedings RV 16/42545 is stayed pending further order of the Tribunal: On or before 11 August 2017 the respondent is to remove the German Shepherd dog known as 'Rex' from his Unit in the retirement village of which he is a resident, and ensure that the dog is not kept in his Unit or brought onto common areas of the village, in compliance with Rule 5 of the village Rules. ********** 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: 07 September 2017