Disalvo v DAVIE Family Trust

[2014] FCCA 1851

FEDERAL CIRCUIT COURT OF AUSTRALIA

DISALVO & ANOR v DAVIE FAMILY TRUST & ANOR [2014] FCCA 1851

Catchwords:
HUMAN RIGHTS – Application for an injunction restraining the respondents from evicting the applicants from rented accommodation – tenancy dispute litigated exhaustively under NSW State law – application dismissed.

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PP
Disability Discrimination Act 1992 (Cth)

First Applicant: JOSEPH DISALVO

Second Applicant: FRANCES DISALVO

First Respondent: DAVIE FAMILY TRUST TRADING AS RAINE & HORNE HURSTVILLE

Second Respondent: SKROPIDIS FAMILY TRUST TRADING AS RAINE & HORNE HURSTVILLE

File Number: SYG 2135 of 2014

Judgment of: Judge Driver

Hearing date: 18 August 2014

Delivered at: Sydney

Delivered on: 18 August 2014

REPRESENTATION

The Applicants appeared in person

Mr A Davie in person and for the Second Respondent

ORDERS

1. The application is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2135 of 2014

JOSEPH DISALVO

First Applicant

FRANCES DISALVO

Second Applicant

And

DAVIE FAMILY TRUST TRADING AS RAINE & HORNE HURSTVILLE

First Respondent

SKROPIDIS FAMILY TRUST TRADING AS RAINE & HORNE HURSTVILLE

Second Respondent

REASONS FOR JUDGMENT

(revised from transcript)

1. I have before me what is described as an urgent application under s.46PP of the Australian Human Rights Commission Act 1986 (Cth). That section provides:

   (1)  At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:

   (a) the status quo, as it existed immediately before the complaint was lodged; or

   (b)  the rights of any complainant, respondent or affected person.

   (2) The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

   (3)  The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE or 46PH.

   (4)  The court concerned may discharge or vary an injunction granted under this section.

   (5)  The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

2. The application was filed on 29 July 2014 and came before me for first court date directions on 14 August 2014.  At that time, it became apparent that the immediate issue was that the applicants, Mr and Mrs DiSalvo, were facing eviction on Saturday, 16 August 2014 from their rented premises at 58/8 Derby Street, Kogarah in New South Wales.  I was not in a position to deal with the application on the day it came before me for the first time, and in the circumstances, I granted a temporary restraining order until 5.00pm today.  The matter came before me today for hearing of the application.

3. The application is supported by the applicants’ submissions filed earlier today, to which are annexed a number of documents, in particular email correspondence between them and the managing agents of the premises as well as some medical records. 

4. The respondents rely upon the affidavit of Alan Davie made on 15 August 2014, to which are annexed a bundle of documents dealing with the tenancy dispute with the applicants. 

5. The respondents have also made submissions both when the matter first came before me and today.  There has been some change of position by the respondents in that, while they initially sought summary dismissal of the application as vexatious, they are now dealing with the matter on its legal and factual merits.

6. The background to this matter was addressed by the parties by reference to the documents and in oral argument from the bar table.  Mr DiSalvo suffers from both cardiac and neurological disorders which, I accept, constitute disabilities for the purposes of the Disability Discrimination Act 1992 (Cth) (DDA). His wife suffers from post‑traumatic stress disorder as a result of a motor vehicle accident in the United States of America. I accept that that also constitutes a disability for the purposes of the DDA.

7. Mrs DiSalvo has had a tenancy agreement in relation to the property in which she has been living with her husband.  A dispute arose between Mrs DiSalvo, assisted by her husband, with the former managing agent over rental payments.  Those former managing agents ultimately handed responsibility to the current respondents.  The dispute came before the Consumer, Trade and Tenancy Tribunal (now NCAT) which found that there were rental arrears of $4,593.09.  I accept, however, from the documents produced by the respondents that there was an issue of additional rental arrears and that the current sum claimed from Mr and Mrs DiSalvo is $6,718.80. 

8. The proceedings before NCAT became protracted, partly because of difficulty in determining the issue of the arrears and partly because of Mr DiSalvo’s medical conditions, which affected his ability to participate in those Tribunal proceedings. Mr DiSalvo believes that there were procedural irregularities before the Tribunal and also an issue of jurisdictional error. It is open to him to pursue those issues further should he wish to in the State jurisdiction.  It is a matter for him whether the amount of money in issue warrants that action. Ultimately, NCAT ordered on 30 June this year that Mrs DiSalvo pay the arrears determined within one week and vacate the premises.  There followed discussions between the parties and, while I do not know all the details, I accept that the respondents were willing to grant an accommodation in respect of the component of the rental arrears that related to the earlier period of management. I also accept that the respondents were willing to give Mr and Mrs DiSalvo a new tenancy agreement if the arrears were paid.

9. Those discussions broke down in late July when the arrears were not paid and the respondents took action to enforce the Tribunal decision.  That action precipitated an application to the Australian Humans Rights Commission (Commission) by Mr (and possibly Mrs) DiSalvo, alleging direct disability discrimination and also harassment in the provision of services.  It is not necessary or appropriate for me to express any view about the merits of that complaint of disability discrimination and harassment.  I do observe, however, that the documents presented to me include email correspondence which Mr Davie, who appeared for the respondents, conceded caused him some embarrassment. 

10. Mr Davie, however, has presented a persuasive case that after a protracted dispute over several years concerning tenancy arrears of payment, various orders made after some eight hearings before the Tribunal and an ultimate failure to resolve the issues in dispute, the managing agents were left with no real alternative but to take enforcement action. This is in the context where the owner of the premises gave instructions to the managing agents recently that she wished to sell the premises and for that purpose required vacant possession.

11. The purpose of an injunction under s.46PP is to maintain the status quo while a complaint is dealt with by the Commission. The maintenance of the status quo would involve Mr and Mr DiSalvo remaining in the premises. In all of the circumstances, I do not consider that that would be realistic. Mr DiSalvo in argument conceded that he would be able to relocate given reasonable notice. I asked him what reasonable notice would be, and he suggested about three weeks.

12. Given that he and his wife have been on notice since the breakdown of negotiations in July and the taking of enforcement action by the agents that they would need to relocate, it is strongly arguable that they have already had sufficient notice. However, Mr Davie conceded that even if the present injunction is discharged or lapsed, there would be some delay while he takes advice whether he can still rely on the warrant from the Tribunal and while he arranges an alternative appointment for any eviction action supported by the sheriff. Necessarily, therefore, there will be a delay following these proceedings before Mr and Mrs DiSalvo are compelled to leave the premises if they do not do so voluntarily.

13. I have concluded, therefore, that the appropriate course is to dismiss the application.  I will make that order. 

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Judge Driver

Associate: 

Date:  21 August 2014