DT 152023 v AB & Anor (Discrimination)

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

DT 152023 v AB & ANOR (Discrimination) [2023] ACAT 82

DT 15/2023

Catchwords:               DISCRIMINATION – disability – unfavourable treatment by failing to rectify apartment defects, refusing to communicate, and denying access to documents, portal and information of executive committee – whether the unfavourable treatment was because of the applicant’s disability – balance of probabilities – reasonable explanation for the unfavourable treatment – application dismissed

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 39

Discrimination Act 1991 ss 5AA, 7, 8

Human Rights Commission Act 2005 s 53CA(2)

Cases cited:Pedrotta v Communities@Work [2022] ACAT 84

Purvis v New South Wales [2003] HCA 62

Tribunal:Senior Member D Kerslake

Date of Orders:  14 December 2023

Date of Reasons for Decision:      14 December 2023

AUSTRALIAN CAPITAL TERRITORY          )

CIVIL & ADMINISTRATIVE TRIBUNAL     )          DT 15/2023

BETWEEN:

DT 152023
Applicant

AND:

AB
First Respondent

CD
Second Respondent

TRIBUNAL:Senior Member D Kerslake

DATE:14 December 2023

ORDER

The Tribunal orders that:

1. The application is dismissed.

   ………………………………..

Senior Member D Kerslake

REASONS FOR DECISION

Background

1. This matter arises from a discrimination complaint made to the ACT Human Rights Commission (the Commission) in December 2022. Where the Commission concludes that a complaint is unlikely to be resolved successfully through conciliation (which it did in this instance), a complainant has the right to request that the matter be referred to the ACT Civil and Administrative Tribunal (ACAT). Following such a request, the complaint was referred to the ACAT on 25 May 2023.

2. In accordance with the ACTCivil and Administrative Tribunal Act 2008 (the ACAT Act), such referrals are treated by the ACAT as an application for orders (discrimination application) arising from the alleged breach. For the purposes of ACAT proceedings, the complainant thus becomes the applicant, and the persons complained about in this case are the respondents.

3. In his initial complaint to the Commission, the applicant claimed that in contravention of the Discrimination Act 1991, the respondents discriminated against him because of his disabilities. He stated that he has been diagnosed with bipolar affective disorder and mild non-psychotic querulous paranoia. Since 2018, he and his family have owned a unit in an apartment complex in the suburb of Harrison. After they moved in, he noted structural and building services noises affecting the apartment. These defects have caused him sleep disturbance and exacerbated the symptoms of his mental illness and have yet to be fixed.

4. The respondents are the principals of a company that took over strata management of the apartment complex in July 2021. In November 2021, the owners corporation at the complex commenced legal proceedings against the builder, PBS Building, seeking orders for rectification of a range of defects that had been noticed across the building, including those affecting the applicant’s apartment. PBS Building was subsequently wound up, leaving the owners corporation to take responsibility for addressing the defects.

5. In his complaint to the Commission, the applicant stated that despite raising his concerns with the…