De Souza v Independent Unit Management Pty Limited

[2009] NSWADT 311

CITATION:	De Souza v Independent Unit Management Pty Limited [2009] NSWADT 311
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sydney De Souza RESPONDENT Independent Unit Management Pty Limited
FILE NUMBER:	091032
HEARING DATES:	27 October 2009
SUBMISSIONS CLOSED:	27 October 2009
EXTEMPORE DECISION DATE:	27 October 2009
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	Leave to proceed, complaint declined by Anti-Discrimination Board as lacking in substance, whether fair and just for complaint to proceed
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Xu v Sydney West Area Health Service [2006] NSWADT 3 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143
REPRESENTATION:	APPLICANT Sydney De Souza RESPONDENT Independent Unit Management Pty Limited
ORDERS:	1. Leave is refused for the complaint to proceed 2. The respondent’s application for costs is refused.

REASONS FOR DECISION

1 Mr De Souza made a complaint of discrimination to the Anti-Discrimination Board on 11 June 2008. The complaint was against Independent Unit Management Pty Limited (IUM) which is the agent of the Owners Corporation in relation to the apartment where Mr De Souza lives. The complaint was of race discrimination in the area of the provision of services by IUM. Following the Board’s investigation of the complaint, the President declined it as lacking in substance under s 92 of the Anti-Discrimination Act 1977 (ADA). Mr De Souza requested the matter to be referred to the Administrative Decisions Tribunal under s 93A of the ADA. In those circumstances, s 96(1) requires that leave (or permission) must be granted before the complaint can proceed. Until recently on an application for leave to proceed the Tribunal applied a test developed in Xu v Sydney West Area Health Service [2006] NSWADT 3. The substantial ground aspect of that test was criticised by Acting Justice Schmidt in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. The decision is presently under appeal to the New South Wales Court of Appeal. However in Ekermawi, Acting Justice Schmidt emphasised that leave applications should be determined on the basis of fairness and justice.

2 In this case Mr De Souza brings his complaint under s 19 of the ADA saying that IUM provides him with services and that they have refused to provide those services on the grounds of his race. Discrimination is defined in s 7 of the ADA. I will not read those provisions but it suffices to say that for Mr De Souza to make out his claim he would have to prove four things. Firstly, that the respondent was providing him with a service. Secondly, that the respondent refused to provide that service or provided it on unfavourable terms. Thirdly, if the respondent was providing the service to a person who was not of Indian descent, the service would not have been refused or provided on unfavourable terms. Fourthly, that at least one of the reasons for refusing the service or providing the service on less favourable terms was Mr De Souza’s race.

3 The period of the complaint is from 11 June 2007 to 11 June 2008. If any allegations that Mr De Souza makes fall outside that period, then leave should be refused in relation to those matters. I will start with each of the eight matters about which Mr De Souza has complained. The first is ignoring complaints about illegal car parking. This matter goes back to October and November 2006. Mr De Souza says that his numerous letters to the respondent have had no effect. The issue was brought up at the April 2008 Annual General Meeting due to other owners complaining. Mr De Souza says that it is only when others complain that something is done and that his correspondence was not answered. To the extent that Mr De Souza is alleging that his correspondence was not answered during the period of complaint, that may be a matter with which the Tribunal can deal. However there are other reasons why leave is refused in relation to this matter.

4 The first is that IUM is not providing Mr De Souza, as an individual, with a service. IUM is contracted by the Owners Corporation and is their agent. The agreement to provide services is between IUM and the Owners Corporation, not between IUM and any individual owner. Consequently, and this applies to each one of Mr De Souza’s allegations, there is no ‘service’ being provided directly by IUM to Mr De Souza. Secondly, there is nothing Mr De Souza has pointed to which would lead to an inference being drawn that race was a reason for any of the treatment. Mr De Souza says that he is a tolerant, mild and amicable person and that IUM has taken advantage of those characteristics. He says he does not fight back and he is submissive when treated in this way. Mr De Souza does not provide any evidence which could make a connection between those characteristics and his Indian race. Nor was there any mention of his race by anybody employed by IUM. It is not open on the evidence to draw an inference that race was even one of the reasons IUM treated Mr De Souza in the way that they did. My conclusion is that firstly, there is no relationship of service provider and customer between IUM and Mr De Souza and secondly, even if there is, race is not a reason for any of the treatment Mr De Souza has been afforded.

5 I turn now to the second matter Mr De Souza raises, that is, ignoring a request for postage charges. This came about in 2006 when IUM charged the Owners Corporation $500 for postage. Mr De Souza disputed that amount and said that Mr Geoff Sutton from IUM agreed to refund to the Owners Corporation’s account half that amount. Mr De Souza said nothing has been done and he has been ignored or discriminated against. The dispute arose in the 2006 financial year and is not within the period covered by the complaint. Mr De Souza says that this was an ongoing issue. If that is the case, it may come within the complaint period, however the entitlement of the Owners Corporation to be refunded $250 is not a matter that can be characterised as IUM providing a service to Mr De Souza. It was not Mr De Souza’s money that he sought to be refunded, it was money charged by IUM to the Owners Corporation. Consequently the relationship of service provider and customer did not exist in relation to that transaction. In addition, for the reasons I have already given, there is no inference that race was a factor in the failure to be refunded any part of that $500.

6 The third matter relates to being threatened with legal action for non-payment of levies. Mr De Souza sets out a long history of correspondence between himself and IUM in relation to non-payment of levies. He says he attempted to negotiate to pay levies by instalments but that those representations were, on some occasions, refused by IUM. Mr De Souza says that he has been refused three services: the service of being told what his balance is on any given day, the failure to allocate payments to a category that he elected and the service of being denied a satisfactory reply to his letters. Again IUM is the agent for the Owners Corporation and is collecting money on behalf of the Owners Corporation. In relation to the payment of levies, there is no relationship of service provider and customer between IUM and Mr De Souza nor is there any evidence on which the inference can be drawn that race was a factor in any of the treatment that Mr De Souza received.

7 The fourth matter relates to ignoring requests for routine maintenance. Mr De Souza says that he has been requesting that his door be painted and that those requests have been ignored. Ms Hall says, in response, that he has been told to apply to the Owners Corporation and that that matter would need to go to an executive committee. Mr De Souza says that all that is required is a telephone call to the real estate agent so that the painting can proceed. In my view there is no relationship of service provider and customer in Mr De Souza’s request to IUM that his door be painted and nor is there any basis on which an inference could be drawn that race was a factor in any decision.

8 The fifth matter is refusing to give Mr De Souza the personal details of other owners. IUM is not providing a service to Mr De Souza to give details of names and telephone numbers of other owners in the building. I accept Ms Hall’s evidence, even though given from the bar table, that IUM is not required to give Mr De Souza those details, but he can obtain them by searching the records after paying the required fee. Again there is no service relationship or any evidence of race discrimination.

9 The sixth matter is ignoring requests for a visitor-only parking sign. Ms Hall has submitted that it is not within the authority of IUM to erect such a sign and that a decision would have to be made by the Owners Corporation. Much of the dispute in relation to this issue pre-dates the period of the complaint and I understand that as of May 2008 such a sign has been erected.

10 The seventh matter that Mr De Souza raises is that at the AGM in April 2008 he was defamed in front of the other owners by an individual telling them that he was in arrears when he had made an offer of repayment and had started paying by instalments. Whether or not Mr De Souza has been defamed is a legal issue that this Tribunal does not have the jurisdiction to determine. If there is a legal dispute between IUM and Mr De Souza then there are other places in which those kinds of disputes would have to be resolved. Similarly, in relation to the reimbursement Mr De Souza claims for legal expenses in responding to two letters, that is a matter over which this Tribunal has no jurisdiction.

11 For those reasons, leave is refused for the complaint to proceed.

12 Ms Hall made an application for costs pursuant to s 88 of the Administrative Decisions Tribunal Act 1997 of $550 plus GST. The basis for that application was that Mr De Souza applied for the hearing listed on 29 September 2009 to be adjourned because he wished to obtain legal advice. Ms Hall says that he has appeared today without legal advice or representation and her client has been put to the expense of appearing on two occasions. Mr De Souza has told me that he sought and obtained legal advice from a solicitor at the Legal Aid Commission and that he telephoned three private solicitors. He says he met with two of them and received legal advice.

13 On the basis of Mr De Souza’s evidence that he sought and obtained some legal advice between 29 September and today, I make no order as to costs.