Edwards v State of New South Wales
[2015] FCCA 124
•17 February 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| EDWARDS v STATE OF NEW SOUTH WALES | [2015] FCCA 124 |
| Catchwords: HUMAN RIGHTS – Alleged racial discrimination in the provision of services – allocation of housing – offer of particular accommodation withdrawn – whether the reason for the withdrawal was race or behaviour considered. |
| Legislation: Racial Discrimination Act 1975 (Cth), ss.9, 10, 12, 13, 17, 18, 18A, 18B, 18C, 18E |
| AB v State of New South Wales (2005) 194 FLR 156 Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 McGlade v Lightfoot (2002) 124 FCR 106 Macedonian Teachers’ Association of Victoria Inc v Human Rights & Equal Secretary, Department of Veterans’ Affairs v P (1998) 79 FCR 594 |
| Applicant: | PATRICIA EDWARDS |
| Respondent: | STATE OF NEW SOUTH WALES - DEPARTMENT OF FAMILY & COMMUNITY SERVICES - HOUSING NEW SOUTH WALES - ABORIGINAL HOUSING OFFICE |
| File Number: | SYG 1488 of 2012 |
| Judgment of: | Judge Driver |
| Hearing dates: | 11, 12 February, 23, 24 September 2014 |
| Date of Last Submission: | 2 February 2015 |
| Delivered at: | Sydney, via telephone to Dubbo |
| Delivered on: | 17 February 2015 |
REPRESENTATION
The Applicant appeared in person, assisted by Ms J Bower
| Counsel for the Respondent: | Ms K Edwards |
| Solicitors for the Respondent: | NSW Housing |
ORDERS
The application filed on 6 July 2012 is dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 1488 of 2012
| PATRICIA EDWARDS |
Applicant
And
| STATE OF NEW SOUTH WALES - DEPARTMENT OF FAMILY & COMMUNITY SERVICES - HOUSING NEW SOUTH WALES - ABORIGINAL HOUSING OFFICE |
Respondent
REASONS FOR JUDGMENT
Introduction
On 13 October 2011, the applicant, Mrs Edwards, made a complaint to the Australian Human Rights Commission (Complaint) alleging discrimination on the ground of her race as an Australian Aboriginal[1]. A Notice of Termination was issued on 9 May 2012 and these proceedings commenced on 6 July 2012.
[1] Page 3/8 of the Complaint annexed to the Notice of Termination.
Mrs Edwards alleges breaches of ss.9, 10, 12, 13, 17, 18, 18A, 18C and 18E of the Racial Discrimination Act 1975 (Cth) (RDA) as a result of the decision by the respondent (Housing) not to enter into a tenancy agreement with her in relation to a property owned by the Aboriginal Housing Office (AHO) located at 2 Trinity Drive, Kelso (Trinity Property)[2].
[2] Page 6/8 of the Complaint annexed to the Notice of Termination.
Mrs Edwards relies upon her own evidence in support of her claim, as well as evidence from her friend, Ms Jillean Bower, and her mother, Ms Marjorie Rose. The claim is resisted by Housing, which relies upon evidence from three officials, Mr Graham Wright, Mr Mark Byrne and Mr Ted Wolinski.
Unfortunately, these proceedings have been protracted. There are several reasons for that. First, in August 2012 I ordered the parties to mediation in the hope that the dispute could be resolved by alternative dispute resolution. That proved not to be possible. Secondly, Mrs Edwards sought a hearing in Dubbo for the convenience of her and her witnesses. The Court accommodated that request. Thirdly, Mrs Edwards sought legal assistance. Regrettably, her attempts to obtain assistance were unsuccessful although Legal Aid apparently provided some limited initial assistance. It was obvious that Mrs Edwards was at a significant disadvantage in the absence of legal representation. She was supported throughout the proceedings by Ms Bower, who made numerous adjournment requests on behalf of Mrs Edwards. Most of those requests were granted. The Court initially heard Mrs Edwards’ case in Dubbo in February 2014. The matter was then adjourned so that Mrs Edwards could consider her position and obtain advice. She was given the opportunity to discontinue. Ultimately, there was no alternative but to complete the hearing in September 2014.
The Court made orders for the preparation of submissions after trial. Mrs Edwards was to provide written submissions by 31 October 2014, with Housing to provide written submissions by 21 November 2014 and Mrs Edwards to reply by 5 December 2014. The timetable was not met because no submissions were provided by Mrs Edwards. Nor was an extension of time requested from the Court, although there appear to have been some attempted communications between the parties. Eventually, because of the passage of time and the fact that Mrs Edwards had prepared no submissions, Housing sought to have the matter relisted for further directions. I took the view that, rather than make further fruitless directions, Mrs Edwards would probably be assisted by seeing the submissions from Housing and responding to them, so I called for submissions from Housing as soon as possible. Those submissions were filed on 15 December 2014. Subsequently, Mrs Edwards sought leave to appeal to the Federal Court on an interlocutory basis. The purpose of that application appears to have been to secure more time for the preparation of submissions. The leave application was not accepted for filing and the parties were advised that the Court would consider any further submissions filed on or before 29 January 2015. Submissions were filed on behalf of Mrs Edwards on 2 February 2015. I have proceeded to prepare judgment based on the application and response, the affidavit evidence, transcript and the written submissions prepared by the parties.
Mrs Edwards has made various applications for the release of information under relevant Freedom of Information (FOI) legislation related to the facts and matters giving rise to these proceedings. Housing has made disclosures to Mrs Edwards pursuant to orders made by the New South Wales Administrative Decisions Tribunal (ADT). Those disclosures allowed redaction of personal information, including some information identifying persons who had made complaints about Mrs Edwards. This was broadly consistent with Housing’s Privacy Policy[3]. Where Housing has relied on information provided under these requests as annexures to affidavits, the same information has been redacted from those annexures consistently with the orders made by the ADT.
[3] GW1 and [82m] of the Affidavit of Mr Graham Wright sworn on 6 June 2013 (“Wright Affidavit”).
Background
Housing and the AHO are agencies within the New South Wales Family and Community Services Department[4]. Housing provides tenancy management services for the AHO and properties owned by the NSW Land and Housing Corporation (LHC)[5]. The AHO and Housing are separate corporate entities sharing the same umbrella Department with the same Secretary as head of the Department[6].
[4] [12] of the Affidavit of Mr Mark Byrne sworn on 11 June 2013 (“Byrne Affidavit”).
[5] [13] of the Byrne Affidavit.
[6] [14] of the Byrne Affidavit. The CEO of the AHO was Mr Mike Allen until 8 April 2013 and now is Mr Paul Callaghan. Mr Allen is also no longer the CE of Housing NSW. As of September 2014, Housing NSW no longer has a Chief Executive and the direct head is now the secretary of FACS, Michael Coutts-Trotter.
Mrs Edwards first became a tenant of property managed by Housing in the Nyngan and Bourke areas in or about 1981[7]. She remained a tenant of Housing until in or about 1986[8]. There was a gap of about ten years before she again became a tenant of Housing in or about 1996 in a property located at 1 Hamley Street, South Bathurst[9]. About two years later on or about 28 December 1998, Mrs Edwards became a tenant of Housing located at another property, being 29 Bannerman Crescent, Kelso (Bannerman Property) (also in the Bathurst area)[10] until on or about 16 October 2011[11]. Mrs Edwards remains a tenant of Housing at 14 McMenamin Place, Kelso (from about 17 October 2011 to the present)[12].
[7] [12] of the Wright Affidavit.
[8] [12] of the Wright Affidavit.
[9] [13] of the Wright Affidavit.
[10] [14] of the Wright Affidavit.
[11] [19] of the Byrne Affidavit.
[12] [19] of the Byrne Affidavit.
As a result of state government policy aimed at improving social outcomes for tenants in concentrated social housing areas, the government implemented the Dubbo Transformation Strategy (DTS)[13] and the Building Stronger Communities initiative[14] (BCS)[15]. Over 220 households in the Dubbo area were relocated over four years under the DTS[16]. The Kelso Master Plan[17] (KMP) related to the Kelso area and was part of the DTS (and the BCS), accounting for eight [18] of the 220 households that were relocated. One of those eight households to be relocated was Mrs Edwards’ household, residing at 29 Bannerman Crescent, Kelso[19]. All of the identified eight residences were to be demolished under the KMP.
[13] [22] of the Byrne Affidavit.
[14] [23] of the Byrne Affidavit.
[15] [33] of the Byrne Affidavit.
[16] [29] of the Byrne Affidavit.
[17] MB9 and [33] of the Byrne Affidavit.
[18] [34] of the Byrne Affidavit.
[19] [26]-[31] of the Wright Affidavit.
In or about March 2010, Mr Wright, the Team Leader Housing, Bathurst, attended a meeting with Mrs Edwards and the tenants of the seven other Kelso properties affected by the KMP and advised that they would be required to relocate. All those tenants, except for Mrs Edwards, agreed to be relocated[20]. Mr Wright gave evidence that there were not less than five meetings with Mrs Edwards about the need to relocate and at least one phone call, during which Mrs Edwards said she would not move[21]. On those occasions, Mrs Edwards is alleged to have yelled and screamed abuse to Mr Wright saying words to the effect of[22]:
a)“white necked cunt”;
b)“Captain Cook land grabber”; and
c)“white land-grabbing cunt”.
[20] [26] and [27] of the Wright Affidavit.
[21] [38] of the Wright Affidavit and [47]-[50] of the Byrne Affidavit.
[22] [32] of the Wright Affidavit.
Mr Wright says he witnessed Mrs Edwards engaging in similar behaviour towards his colleagues[23].
[23] [33] of the Wright Affidavit.
Mrs Edwards denies the allegations. Housing alleges a pattern of bad behaviour. Mrs Edwards’s file disclosed by Housing shows a number of violent incidents from 1996 onwards, including altercations leading to apprehended violence orders taken out against her from neighbours and being abusive towards Housing’s employees[24].
[24] [17] of the Wright Affidavit and in particular subparagraphs “c” and “e”.
Mrs Edwards did not want to move from the Bannerman Property and on or about 21 April 2010, she provided a list of “conditions” on which she might consider relocation, including waiver of outstanding Rechargeable Repairs and quarantining of rental costs, among other things. Housing did not agree with the conditions, many of which were contrary to policy, but continued negotiations with Mrs Edwards [25]. During this period Mrs Edwards rejected[26]:
a)physical relocation of her existing house to vacant land; and
b)moving to another four-bedroom property in Kelso.
[25] [51]-[56] of the Byrne Affidavit.
[26] [47]-[50] of the Byrne Affidavit.
On not less than five occasions, Mrs Edwards made demands that Housing purchase her a new house[27]. The factual contest is over the detail rather than the substance. The demand was contrary to Housing’s practice and policy. Moreover, Housing did not have funds in budget to meet such a demand[28].
[27] [57] of the Byrne Affidavit.
[28] [51]-[57] of the Byrne Affidavit.
In circumstances of relocation, where a tenant, such as Mrs Edwards in this case, unreasonably refuses alternative offers of accommodation, Housing may take action to evict the tenant[29]. As at the end of April 2010, Mrs Edwards’ household included herself, her two sons born in 1976 and 1989, her daughter born 1993, and two granddaughters born in 2004 and 2008. Mrs Edwards was responsible for her grandchildren due to her daughter-in-law’s incarceration[30]. In this context, Housing did not instigate any formal termination process, which was available to it under the Residential Tenancies Act 1987 (NSW) (then in force)[31], to evict Mrs Edwards, not least because of the hardship it would have caused the household and the fact it would have placed the children in an acutely vulnerable position[32].
[29] MB12, MB13 and [65] of the Byrne Affidavit.
[30] GW2 of the Wright Affidavit and [116] of the Byrne Affidavit.
[31] [64]-[66] and [116]-[120] of the Byrne Affidavit.
[32] [118] of the Byrne Affidavit.
In these circumstances, with Mrs Edwards not wanting to relocate, the KMP’s civil and capital works being delayed[33] and Housing not wishing to make Mrs Edwards and her family homeless, in late May 2010, Housing made a request to the AHO[34] to see if it had any surplus funding that it could use to make a spot-acquisition of a property in the Bathurst area[35].
[33] [41] and [62] of the Byrne Affidavit.
[34] [12]-[16] of the affidavit of Mr Tadeusz Wolinski sworn on 6 June 2013 (Wolinski Affidavit).
[35] [58]-[62] of the Byrne Affidavit.
The AHO has its own policies, practices and funding distinct and separate from Housing[36]. The AHO located some unspent funding for the 2009/2010-year[37] and agreed to purchase a property and then transfer its allocation and tenant-management to Housing[38].
[36] [61] of the Byrne Affidavit.
[37] [37] of the Wright Affidavit and [12] of the Wolinski Affidavit.
[38] [60] of the Byrne Affidavit.
Housing consulted personally with Mrs Edwards about a suitable property[39]. In or about May and June, Mr Wright accompanied Mrs Edwards and Ms Lesa Dunn to look at properties[40]. Eventually, Mrs Edwards identified the Trinity Property and the AHO agreed it met the relevant criteria and decided to purchase that property. It was the case that the AHO purchased the property and was responsible for ensuring it was appropriately scoped and appropriate upgrades completed before Housing took possession for the purpose of leasing it to an Aboriginal public housing tenant[41].
[39] [68]-[69] of the Byrne Affidavit and [20]-[24] of the Wolinski Affidavit.
[40] [38] of the Wright Affidavit.
[41] [70] of the Byrne Affidavit.
The course followed was highly unusual. As Mr Byrne notes in his affidavit[42]:
I cannot recall any other instance that Housing NSW has engaged one of its officers one on one with a person for the identification of specific houses, moreover the purchase of one of them by AHO, as was done by Ms Dunn with Ms Edwards. It is my opinion this was over and above what Housing NSW and AHO was required by law, or by their own policies to do.
[42] [71] of the Byrne Affidavit.
Indeed, Mr Byrne says that even clients who have special needs arising from a disability do not have properties purchased for them. Rather, existing properties are retrofitted or modified to meet their needs[43]. On the face of these basic facts, it appears that Mrs Edwards was treated more favourably than other tenants in similar circumstances.
[43] [72] of the Byrne Affidavit.
The AHO settled the sale of the property on 20 August 2010[44] and work was commenced to bring the property in line with AHO policies in late August 2010. Mrs Edwards could not move in until this work was completed[45]. Mr Wolinski is a Program Manager employed by the AHO and is responsible for capital works including construction and acquisitions. He works in “Strategic Housing Operations and Programs[46]” and explains the process by which properties (such as the Trinity Property) are acquired and then leased. Mr Wolinski made it clear that the acquisition of the Trinity Property was out of the ordinary[47].
[44] [17] of the Wolinski Affidavit.
[45] [78] of the Byrne Affidavit.
[46] [5] of the Wolinski Affidavit.
[47] [10]-[27] of the Wolinski Affidavit.
Facts bearing on the dispute
Mr Wolinski gave evidence that “even though it was not part of my job”[48] he had telephone contact with Mrs Edwards. Initially this was cordial and positive[49]. However, around the time of the upgrade, Mr Wolinski deposed that her demeanour changed dramatically and for the worse[50]. He deposed that conversations from this time were abusive and rude and consisted of Ms Edwards swearing and saying words to the effect of[51]:
What’s going on? When are you going to finish upgrading Trinity Drive? Or is it all just bullshit? How long does it take to fix a place up and get a tenant in there?
[48] [28] of the Wolinski Affidavit.
[49] [29] of the Wolinski Affidavit.
[50] [31] of the Wolinski Affidavit.
[51] [32] of the Wolinski Affidavit.
Mrs Edwards denies being abusive. Mr Wolinski says that the situation became very stressful for him[52] and it escalated until every phone call to him and/or the AHO helpline was abusive[53].
[52] [33] of the Wolinski Affidavit.
[53] [36]-[39] and [41] of the Wolinski Affidavit.
Mr Byrne deposed that he also became aware in about September 2010 from conversations with Ms Dunn and Mr Wright that Mrs Edwards had been telephoning Housing’s staff and dropping in to Housing’s office to complain about the delay in being able to move into the new house[54].
[54] [79] of the Byrne Affidavit.
It is common ground that there was an incident concerning rose bushes at the Trinity Property. In the week commencing 6 September 2010, Mr Byrne says Ms Dunn told him Mrs Edwards called the Housing office and told Ms Dunn that Mrs Edwards had been regularly checking the Trinity Property and that someone had stolen roses from the garden. Mr Byrne deposes that Ms Dunn told her not to worry about it and told her on numerous occasions to stay away from the property until work was finished[55]. Ms Dunn apparently further told Mr Byrne that she told Mrs Edwards that Housing could buy new roses to replace those removed (as it ultimately transpired) by the vendor[56]. Mrs Edwards conceded this under cross-examination[57].
[55] [80] and [83] of the Byrne Affidavit.
[56] [82] of the Byrne Affidavit.
[57] Transcript, 11.2.14 at P-88 lines 37-38.
Mr Wolinski deposes that he also received a call from Mrs Edwards in which she said to him:[58]
Some thief has come and stolen the rose plants from the front of 2 Trinity Drive. They can’t do that! That’s stealing! You need to do something about it. They should be my roses.
[58] [34] Wolinski Affidavit.
The problem appears to have been that Mrs Edwards jumped to the conclusion that a neighbour had stolen the roses. Mr Wright deposes that from around early September 2010, Housing received a number of written complaints about Mrs Edwards’ behaviour in approaching residents in the street regarding the roses that had been in the front yard of the Trinity Property[59]. Specifically, there was concern that threats of violence had been made. Those complaints included:
a)“I have lived in this area for the past six years and have recently listed our house on the market due to great concern for the safety of my young family”[60];
b)“I would request as a matter of urgency that the Housing Commission give serious consideration to not allowing Lonnie Edwards to move into the street. … [we] would not wish to be fearful of living in or leaving our house each day”[61];
c)“Your potential tenant has already got several people living in fear after she approached them and started ranting and raving and using absolutely unacceptable language. Comments like ‘there will be so many of us living here we will be taking over this street’. She has threatened and accused people of stealing her roses and has already said that her family will deal with whoever it was…”[62];
d)“…at least four incidents of harassment and/or threat [sic] have occurred before the tenant has even moved in… we are both concerned and fearful that the proposed tenants may act on these threats and bring harm to us and our home…. I am concerned that if Housing NSW proceeds with installing this tenant and the extended family we may have no recourse but to sell and leave….The Housing NSW website points out that harassment of neighbours by tenants will not be tolerated and we are advising that this has already occurred. We hope that Housing NSW will immediately reconsider the advisability of placing this family in this neighbourhood and will let the house to a family who will fit in with such a peaceful area as this”[63];
e)“I feel our safety is of major concern. To think that a particular person can threaten, intimidate and basically state that trouble is about to hit is totally unbelievable. Because there is only one way in and out of…street I feel particularly vulnerable… considering the threats made to the neighbours”[64].
[59] GW7 and [39] of the Wright Affidavit.
[60] GW7 at page 73 of the Wright Affidavit.
[61] GW7 at page 74 of the Wright Affidavit.
[62] GW7 at page 76 of the Wright Affidavit.
[63] GW7 at page 79 of the Wright Affidavit.
[64] GW7 at page 80 of the Wright Affidavit.
The motivation for these complaints could not be tested in these proceedings because there was no evidence from the complainants directly. Housing is not and cannot be held liable for breaches of the RDA that may or may not be attributed to those making the above complaints. The issue which gave rise to problems with the neighbours was not included by Mrs Edwards in her original complaint to the AHRC.
Housing addressed the concerns of these neighbours in accordance with its policies. Mr Byrne responded to the complaints[65].
[65] MB16 and [87] of the Byrne Affidavit.
Around the same time as the complaints were received, Mr Wright asked for information regarding any incidents concerning Mrs Edwards under the memorandum of understanding (MOU) Housing has with the police, at the direction of Mr Byrne[66]. The report stated[67]:
The incident relates to a poi who is intending to move to the location [being 2 Trinity Place Kelso]. Whilst at the address she found that a number of roses had been removed from the front yard. The poi approached a neighbour at [redacted] Trinity Drive and accused the occupant of stealing the roses. A threat was made towards the occupant, which caused her some fear. Police were contacted and attended and a report of the incident was taken. The option of a Personal violence order was discussed. It was later established that the previous owner of 2 Trinity Drive Kelso had removed the roses when vacating the premises. At the request of the victim the matter was recorded only at this time….
[66] [40] of the Wright Affidavit.
[67] From GW8 of the Wright Affidavit.
Mr Wright says Housing told Mrs Edwards that it was the previous owner who took the roses[68].
[68] [82] of the Wright Affidavit.
On or about 7 October 2010, Mr Wright had a meeting with a couple and another woman who were residents of Trinity Drive. During that meeting they expressed their concerns for their safety if Mrs Edwards moved into the Trinity Property and they offered to buy that property to prevent Mrs Edwards moving into the area[69]. Mr Wright spoke with these neighbours at around this time and they claimed that they had also been abused by Mrs Edwards in their front yards or on the street[70]. Around the same time, Mrs Edwards advised Mr Wright that she considered the neighbours were picking on her and that they did not want her there, at which time Mr Wright asked Mrs Edwards to stay away from the house until the maintenance work was completed[71].
[69] GW12 and [47] of the Wright Affidavit.
[70] [82n] of the Wright Affidavit.
[71] [78] of the Wright Affidavit.
On or about 11 October 2010, Mr Wright received a phone call from the woman, part of the same couple who attended the meeting on 7 October 2010, advising Mrs Edwards had visited the Trinity Property three times on Saturday (being 9 October 2010) at which time the woman told Mrs Edwards that the children who were with her belonged to her daughter who was a police officer. Later that day when the woman was walking her grandchildren down Gilmour Street, Mrs Edwards allegedly did a U-turn, pulled up alongside her and threatened the woman. As a result the woman was very shaken and upset and was seeking legal advice[72]. Mrs Edwards denies the allegation.
[72] GW13 being a file note of this call and [48] of the Wright Affidavit.
Shortly after the above phone call, in or about mid-October 2010, Housing received a copy of an interim Apprehended Violence Order (AVO) granted by the Local Court and taken out by Chifley Police on behalf of a neighbour of the Trinity Property, against Mrs Edwards[73].
[73] GW9 and [42] of the Wright Affidavit.
Further information was then sought by Mr Wright on behalf of Housing under the MOU and the additional information provided included the following[74]:
[date of second incident 12 October 2010] relates to the same victim and sets out further threats and behaviour involving the poi towards the victim at … Trinity Drive Kelso, which occurred at the period around 11.9.2010. The threats included, “If my son finds them in your yard he rip the roses out and rip you head off (in reference to the above-mentioned roses). Further, the POI said, The department of housing have bought me this house but I am disappointed about the size because I will be moving about 30 people in the place, it will be like a cloud of black people. You better watch your white fucking land grabbing cunts”. Further threats were made with the POI driving past and yelling at the victim, “there she is I’m going to get that fucking cunt”. Neighbours in the street have approached the victim and further stated the poi yelled at them, “We are your new neighbours and we are going to rule the area.”
As a result of the above the victim… has considerable fears and has sought a protection order. A provisional order has been granted and has been served on the POI Event No E…. relates to the order.
[74] From G10 of the Wright Affidavit.
As a result of the matters outlined above, Housing adopted the following views[75]:
a)the conditions of the AVO may preclude the ability of Housing to transfer Mrs Edwards to the Trinity Property;
b)Housing did not have any right to try and alter the conditions of an AVO in which they were not a party;
c)Housing would have to wait until the AVO was removed before it could relocate Mrs Edwards (i.e. the interim AVO had the same effect as a final order); and
d)the Eligibility Policy requires applicants to have an ability to sustain a successful tenancy and that meant, in part, not creating a nuisance or disturbance to neighbours and Mrs Edwards’ actions in that regard were relevant matters to take into account.
[75] [97]-[103] of the Byrne Affidavit.
On 15 October 2010, Housing decided to withdraw the offer made to Mrs Edwards in relation to the Trinity Property. The decision focussed on Mrs Edwards’ inability to sustain the tenancy and her “contribution to the issues now prevailing”, “with particular focus on the children in her care and the impact that the volatile relationships might have on them”. I heard evidence that Housing often exercises its right to withdraw a formal or informal offer if it detects that a tenancy is not sustainable in the property. In those circumstances, the client is still entitled to further offers.
On 19 October 2010, Mr Wright, Mr Byrne and Ms Dunn attended a meeting with Mrs Edwards, her mother (Ms Rose) and Ms Bower at the Bathurst Women’s Housing Centre for the purpose of advising her that Housing had decided not to offer her the Trinity Property[76]. Mr Byrne was the person responsible for making that decision, although ultimately the CEO was required to approve that decision[77]. Housing notes that the first time there was any allegation that it was “implied” that the keys to the Trinity Property would be provided at this meeting was by Ms Bower in her opening oral submissions for Mrs Edwards. Housing submits that this is so inherently unlikely and unsupported by any earlier evidence that it ought be rejected outright[78].
[76] [49] of the Wright Affidavit.
[77] [101], [133] and [134] of the Byrne Affidavit.
[78] Transcript, 11.2.14 at P-9 line 10.
In general Ms Bower’s evidence supported that of Mr Byrne as to when the meeting started, “It was scheduled for 9:30. I think it started a bit earlier”[79]. Indeed, Ms Bower gave evidence that the meeting was already started when she arrived after dropping her children at school[80]. The evidence of Ms Rose is not of assistance to the Court in this regard in that she does not wear a watch and was unable to provide any useful estimate of time[81]. Ms Bower agreed that in addition to Mrs Edwards and her two grandchildren, Mr Wright, Mr Byrne, Ms Rose and Ms Dunn were present at this meeting[82].
[79] Transcript 11.2.14 at P-23 line 11.
[80] Transcript 11.2.14 at P-23 line 18.
[81] Transcript 23.9.14 at P-201 lines 47 to P-202 line 25.
[82] Transcript 11.2.14 at P-24 lines 1-8.
Central to the dispute between the parties is the question of Mrs Edwards’ behaviour at that meeting. Housing contends that it was unacceptable. Mr Wright deposes that Mrs Edwards:
a)talked over the top of Mr Byrne[83];
b)yelled, swore and used abusive language[84]; and
c)threatened to harm Mr Wright, Mr Byrne and Ms Dunn[85].
[83] [51] and [53]-[55] of the Wright Affidavit.
[84] [51] and [53] of the Wright Affidavit.
[85] [51] and [56] of the Wright Affidavit.
Mrs Edwards, Ms Rose and Ms Bower all contested those assertions, based upon their recollection of what occurred. Mr Byrne made a file note of this meeting on the same day, which he forwarded to Mr Wright to ask if there was anything missing. Mr Wright made no further amendments[86]. Some of the matters Mr Byrne records in this file note include Mrs Edwards[87]:
a)threatening to destroy the Trinity Property;
b)threatening to find out where Mr Byrne lived and burn his house down;
c)making a fist and moving as if to punch Mr Byrne; and
d)pushing Ms Dunn in the shoulder.
[86] [63]-[64] and GW14 of the Wright Affidavit.
[87] GW14 pages 98 to 102 of the Wright Affidavit, being the email file note written by Mr Byrne.
As a result of this meeting, Housing determined that its staff should not interact with Mrs Edwards individually but in pairs. This was said to be aimed at dealing with the threats made during the meeting[88]. Mrs Edwards denies making any threats.
[88] [59] of the Wright Affidavit.
Immediately after the meeting there was a further conversation with Mrs Edwards on the street outside the Bathurst Women’s Housing Centre. Mr Wright deposes that he again heard Mrs Edwards engage in abusive behaviour towards Ms Dunn and threaten, “I’m gonna get my son to get you as he does gaol on his head and when he gets out you’re dead”[89].
[89] [61] of the Wright Affidavit.
Later on 19 October 2010, Mr Wright agreed to meet with Mrs Edwards, without prior arrangement when she attended his offices. He deposes that at that time Mrs Edwards apologised for her behaviour earlier in the day and said words to the effect of, “If I or one of my family don’t get that property [Trinity Property] no one else will”, commenting that the house would be destroyed[90]. She also said she was going to take Mr Byrne to court because he spoke down to her[91].
[90] GW15 and [65] of the Wright Affidavit.
[91] GW14 of the Wright Affidavit being the email file note of the meeting from Mr Byrne at the top of page 100.
Still later on 19 October, or shortly thereafter, Mr Wright received a call from Ms Sue Laskey from Bathurst Women’s Housing Centre who told him, “When Lonnie left the meeting I overheard [sic] say that she was going to get a screwdriver and someone was going to get killed”[92]. Despite the seriousness of Mrs Edwards’ alleged behaviour, Mr Wright did not to apply for an AVO, apparently because he thought that might escalate the situation and he was conscious that Housing still required staff able to deal with Mrs Edwards as an eligible tenant[93].
[92] [51] and [56] of the Wright Affidavit.
[93] [68] of the Wright Affidavit.
Shortly after the 19 October 2010 meeting Housing wrote a letter to Mrs Edwards informing her that it could not offer the Trinity Property to her[94] on the basis that she did not satisfy Housing’s eligibility criterion of ability to sustain a successful tenancy[95].
[94] [193] and [216]-[219] of the Byrne Affidavit. [82] of the Wright Affidavit.
[95] [217] of the Byrne Affidavit.
Mrs Edwards allegedly continued to behave in an abusive and/or aggressive manner towards Housing staff[96]. Mrs Edwards and her family continued to reside at 29 Bannerman Crescent throughout 2010.
[96] GW16, GW 17 and [72]-[73] of the Wright Affidavit.
On or about 2 December 2010 the AHO attended the Trinity Property for a final inspection and hand-over to Housing to manage the property[97]. On or about 20 December 2010 Housing allocated the tenancy of the Trinity Property to another Aboriginal family[98] who moved in and have maintained the tenancy[99].
[97] [9] of the Wolinski Affidavit.
[98] [214]-[215] of the Byrne Affidavit.
[99] [80] of the Wright Affidavit.
In or about January 2011, Housing wrote to Mrs Edwards explaining again the reasons why her household needed to be re-located, the formal re-location process, re-location entitlements and enclosing a Re-Housing Needs Survey[100]. At or about this same time Mrs Edwards made an appeal to the Housing Appeals Committee regarding Housing’s decision not to offer her the Trinity Property[101]. That appeal was declined.
[100] [197] of the Byrne Affidavit.
[101] [199] of the Byrne Affidavit.
During 2011, Mr Wright was involved in trying to find suitable housing for Mrs Edwards and her family. He deposed that three four bedroom properties were offered to Mrs Edwards and she rejected those offers (two during February and one in April 2011)[102].
[102] [77] of the Wright Affidavit.
Mr Wright deposed that due to Mrs Edwards’ behaviour, in or about March 2011, Mr Brodie Druett, General Manager of the Southern and Western Regions of Housing determined that Mrs Edwards was not allowed to attend the offices of Housing nor telephone Housing’s offices. She was instead required to appoint an advocate on her behalf. A letter was sent to Mrs Edwards from Mr Druett explaining this arrangement to her[103].
[103] GW19 and [75] of the Wright Affidavit.
The AVO brought by one of the neighbours was ultimately withdrawn (on or about 2 May 2011[104]). By that time it was known that Mrs Edwards had not been allocated the property.
[104] [93] and [94] of the Byrne Affidavit.
The actions of Housing and Mrs Edwards, directly or indirectly, were referred to the Minister, the Local Member of Parliament and the Mayor.
Finally, in September 2011, Mrs Edwards accepted an offer of a house at 14 McMenamin Place, Kelso[105]. The offer also included upgrades to the property, beyond standard vacant restoration[106]. Mrs Edwards regards the property as inadequate as it has only three bedrooms. She contends that she was promised eventual transfer to a four bedroom property. The property accepted by Mrs Edwards was the fourth offer of housing made to Mrs Edwards by Housing, in addition to those offered before the Trinity Property was purchased by the AHO. Housing points out that this occurred despite Housing’s “two offer policy”[107]. Thus, while Housing is only required to make two reasonable offers of accommodation to a relocating tenant (and only one offer in some circumstances); Housing claims it went well above and beyond its policy in this case.
[105] [78] of the Wright Affidavit.
[106] [212] of the Byrne Affidavit.
[107] GW20 and [79] of the Wright Affidavit.
Evidence under cross-examination and submissions
Housing made numerous objections to the affidavit evidence filed on behalf of Mrs Edwards and submits in any event that the Court ought accord little weight to those parts of that evidence. I received all of the evidence subject to relevance, and the allocation of weight. Except as otherwise specified in these reasons, I have treated all of the evidence referred to in these reasons as relevant. I indicate below my assessment of the weight of the evidence.
Ms Bower put Mrs Edwards’ case as one in which Housing showed a lack of respect for Mrs Edwards[108]. A key difficulty is that, even if the Court was to find that to be the case (which Housing submits it should not and I do not so find) that does not of itself amount to a breach of the RDA.
[108] Transcript 11.2.14 at P-8 lines 39-47.
Likewise, Mrs Edwards’ argument that the residents of Trinity Drive were racist because they allegedly sold their houses when the house looked like it was being allocated to Mrs Edwards[109] is not an argument relevant to the issues to be determined in this case against Housing. Indeed, to make any finding about the interactions between Mrs Edwards and the neighbours at Trinity Drive would be an error not least due to the fact that I have no direct evidence from the persons against whom those allegations were made. The issue in this case is whether Housing discriminated against Mrs Edwards in circumstances where an AVO was taken out against her, regardless of the truth or otherwise of the allegations giving rise to that fact. In this context, it is important to note that there is no dispute that:
a)Mrs Edwards visited the Trinity Property on numerous occasions[110];
b)an AVO was taken out against Mrs Edwards by a neighbour living close to the Trinity Property[111];
c)neighbours (including the one taking out the AVO) had alleged Mrs Edwards engaged in aggressive behaviour towards the neighbour[112] (although it is in dispute that this occurred on more than one occasion towards the person taking out the AVO);
d)Mrs Edwards was served with the AVO on about 12 October 2010[113];
e)Mrs Edwards attended Court in relation to the AVO on 18 October 2010[114]; and
f)the AVO was not withdrawn until 2 May 2011[115], many months after Housing had to determine to whom AHO would allocate the Trinity Property.
[109] Transcript 11.2.14 at P-10 lines 39-47.
[110] [50], [53], [60], [62], [65], [71], [72], [74],[79] and [84]-[85] First Edwards Affidavit.
[111] [94] First Edwards Affidavit.
[112] [95] and [116] First Edwards Affidavit.
[113] [93] First Edwards Affidavit.
[114] [96] First Edwards Affidavit.
[115] [97] First Edwards Affidavit.
Contrary to Mrs Edwards’ assertions[116], this case, must be determined in this context, on the basis of the information available to Housing, not whether the AVO was properly sought (by parties over whom Housing had no control), or made on an interim or other basis (by an arm of government over which it also had no control). This case must be determined on the basis of what Housing did with the information available to it and whether in fact Mrs Edwards acted in a manner that was aggressive towards Housing and its staff. In that context, Housing submits that the Court must find that there is simply no evidence of any adverse treatment amounting to discrimination against Mrs Edwards by Housing in this case. Indeed, Housing submits that it acted in a fair and reasonable fashion towards Mrs Edwards at all times. Housing sought to support and advise Mrs Edwards in a way that allowed her to take possession of the property (including advising her not to visit the property until it had been allocated to her formally and that it would buy her more roses) until it became clear that Mrs Edwards was not able to control her behaviour towards Housing’s staff giving rise to a reasonable apprehension that she would similarly not be able to control herself in relation to neighbours of Trinity Drive. Housing further submits that Mrs Edwards’ evidence shows that she continues to hold a very low level of trust towards those living near the Trinity Property and that she attributes their behaviour to racism, even though the Trinity Property was later allocated to another Aboriginal family who have been living in the property without incidents of the kind experienced by Mrs Edwards (i.e. complaints of aggressive behaviour and AVOs) [117].
[116] [136] First Edwards Affidavit.
[117] [80]-[81] of the Wright Affidavit.
Even Ms Bower accepted that Mrs Edwards became upset during the meeting held on 19 October 2010. Having said that, she sought to blame Housing for not telling Mrs Edwards she was not getting the house at the beginning of the meeting[118]. The fact that Housing did not say Mrs Edwards was not getting the house at the outset of the meeting is consistent with Mr Byrne’s evidence that he could have made a different decision based upon the reaction of Mrs Edwards, but that he decided to confirm the decision, when Mrs Edwards demonstrated to him precisely the type of behaviour that he was aware had been alleged by other staff and prospective neighbours of the Trinity Property[119].
[118] Transcript 11.2.14 at P-9 lines 3-29.
[119] Transcript 24.9.14 at P-28 lines 1-46.
In so far as Mrs Edwards raised new complaints, including claiming damages, about which there was no evidence (such as the claim made for the first time at the hearing about personal property being lost due to water damage because she could not store them in a smaller house[120]) I accept that they must be rejected as they are beyond the jurisdiction of the Court[121].
[120] Transcript 11.2.14 at P-12 lines 17-21.
[121] See for example Charles v Fuji Xerox Australia Pty Ltd) (2000) 105 FCR 573. See also Travers v New South Wales [2000] FCA 1565. Also referred to further below.
Mrs Patricia Edwards
Mrs Edwards presented as a strong and dignified Aboriginal woman with limited education, and with a high sensitivity to perceived slights and injustice. Mrs Edwards swore two affidavits, one dated 24 January 2013, the other dated 30 August 2013 (referred to as the First and Second Edwards Affidavits respectively). At the start of her cross-examination, she deposed that an unnamed friend wrote her affidavit for her[122].
[122] Transcript 11.2.14 at P-69 lines 11-14.
Mrs Edwards' evidence suffered from inconsistency. For example, she at first disagreed she was first told she might have to move from 29 Bannerman Crescent in about March 2010 (as set out in Housing’s evidence) and then testified to the opposite after further cross-examination[123]. Her difficulty in recalling past events with precision means that, to the extent that her testimony in relation to the conversations she had with Mr Wright and Ms Dunn[124] conflicts with the testimony of Mr Wright in his affidavit and under cross-examination, I prefer the latter.
[123] Transcript 11.2.14 at P-70 line 18 to P-71 line 3.
[124] Transcript 11.2.14 at P-71 line1 to P-72 line 13.
Mrs Edwards agreed with Housing’s evidence that she told Housing from a very early stage that she was not going to move from Bannerman Crescent[125]. In so far as Mrs Edwards denies Housing’s witnesses’ version of events Housing submits that the Court ought have regard to Housing’s witnesses’ version and not Mrs Edwards’. I find that Mrs Edwards’ evidence was flawed by inconsistency and attempts to tailor a version of events she believed would assist her case. Examples of this include the following evidence provided under cross-examination.
[125] Transcript 12 11.2.14 at P-73 line 16-20.
a)Mrs Edwards denying there was an offer to physically move her house to another block of land[126];
[126] For example, Transcript 11.2.14 at P-74 line 38 to P-75 line 3.
b)Mrs Edwards denying there was an offer to move her household to another four-bedroom house, while at the same time agreeing she kept saying words to the effect of, “I am not interested in moving anywhere”[127];
[127] For example, Transcript 11.2.14 at P-75 lines 35 to 43.
c)Mrs Edwards’ ongoing refusal to agree that she acted in an aggressive manner[128] as alleged by Housing when the weight of Housing’s evidence shows that to be true and Ms Bower corroborated that evidence in relation to parts of the meeting held on 19 October 2014 (see Annexure A). It is also contrary to her own evidence (when pressed) that “[W]hen I get fiery I just go off” and that she saw that as a problem[129]. Further it was a problem prior to October 2010 and between June 2010 to October 2010, at least, as Mrs Edwards put it, “at a certain extent”[130];
[128] For example, Transcript 11.2.14 at P-75 lines 45-48, Transcript 12.2.14 at P-101 lines 7-21, Transcript 12.2.14 at P-102 lines 1-45, Transcript 12.2.14 at P-107 lines 1-22, Transcript 12.2.14 at P-134 lines 16-46.
[129] Transcript 11.2.14 at P-136 lines 26-29.
[130] Transcript 11.2.14 at P-137 lines 3-25.
d)while Mrs Edwards agreed calling Mr Wright a “Captain Cook land grabber”, she denied calling anyone else at Housing that term[131], contrary to the evidence given by Ms Bower under cross-examination[132].
e)Mrs Edwards initially agreed that she had issued a list of demands to be met before she would agree to moving from Bannerman Crescent including that her rent would not be increased[133], only to change that evidence in later cross-examination[134];
f)Mrs Edwards would not agree that she should be liable for debts already owing to Housing in respect of the Bannerman Property, contrary to Housing’s clear policies[135];
g)it stretches credulity for Mrs Edwards to deny accusing neighbours of stealing the roses when Mrs Edwards agreed under cross-examination she called Ms Dunn and told her someone had stolen the roses[136];
h)it stretches credulity for Mrs Edwards to deny she had words with a neighbour on the Saturday around 11 October 2010 when she agreed that she saw her prospective neighbour walking with her grandchildren, as she drove past on the Saturday around 11 October 2010, saying, “Yes, I did see, because I was going to a bank with my mother and my niece”[137]. Further the way in which she failed to engage in any reasonable responses to cross-examination at this time means the evidence she gave must be treated with caution and cannot be accepted in the absence of corroborating evidence (and noting she says she was sharing the car with someone at the relevant time) [138];
i)Mrs Edwards’ evidence that she could not recall whether she told the Court at the hearing for the AVO on 18 October 2010 that she was moving into the Trinity Property was unsatisfactory, noting her acknowledgement that as at that date she had not signed a lease[139]. Likewise her evidence that she did not recall when she started anti-depressants, when that was relevant to whether and when she might have told Ms Dunn that she was taking anti-depressants[140];
j)Mrs Edwards’ evidence that she did not understand the questions being put by Housing’s counsel “because you are saying all these little words … that Aboriginal people can’t understand”, when they were clear and she was able to answer a similar question from me[141]. This complaint was made twice by Mrs Edwards, the second time in a similar fashion to the first[142];
k)Mrs Edwards’ evidence that she was confused as to what meeting she was being questioned about when it was clear that she was being asked about the meeting held on 19 October 2010[143];
l)Mrs Edwards gave conflicting evidence when she disagreed she called anyone other than Mr Wright a “land grabber”[144] but on a later day agreed that she called Mr Byrne a “land grabber” [145];
m)under cross-examination Ms Bower noted that at the meeting held on 19 October 2010, Mr Byrne told Mrs Edwards and her about a petition that had been taken up by other residents of Trinity Drive[146]. Mrs Edwards denied this in her First Affidavit[147]. This also reflects poorly on her credibility.
[131] Transcript 11.2.14 at P-79 lines 3-8.
[132] Transcript 11.2.14 at P-34 lines 17-20.
[133] Transcript 11.2.14 at P-79 lines 10-14 and lines 42-44.
[134] Transcript 11.2.14 at P-82 lines 21-32.
[135] Transcript 11.2.14 at P-80 lines 20-38.
[136] Transcript 11.2.14 at P-88 lines 29-30.
[137] Transcript 12.2.14 at P-100 lines 11-13.
[138] Transcript 12.2.14 at P-100 lines 1-42.
[139] Transcript 12.2.14 at P-103 lines 12-23.
[140] Transcript 12.2.14 at P-108 lines 15-35.
[141] See Transcript 12.2.14 at P-105 line 20 to P-106 line 22.
[142] Transcript 12.2.14 at P-113 line 30 to P-114 line 19.
[143] See clear introduction of topic at Transcript 12.2.14 at P-109 lines 23-26 and Mrs Edwards’ assertions at Transcript 12.2.14 at P-110 lines 30-35 and at P-111 lines 1-12.
[144] Transcript 11.2.14 at P-79 lines 3-8 and Transcript 12.2.14 at P-115 lines 39-42.
[145] Transcript 12.2.14 at P-119 lines 25-26.
[146] Transcript 11.2.14 at P-27 lines 1-3.
[147] [124]-[125] of the First Edwards Affidavit.
Where Mrs Edwards gave evidence that she did not recollect parts of conversations[148], I prefer the evidence of the other parties to those conversations.
[148] For example, Transcript 11.2.14 at P-73 lines 35-46.
I reject Mrs Edwards’ evidence that she was not offered at least five properties to rent between March and May 2010[149], and prefer Housing’s witnesses’ evidence.
[149] Transcript 11.2.14 at P-85 lines 1-5.
Mrs Edwards agreed that Ms Dunn told her that the AHO had made money available to purchase a property that could be allocated to Mrs Edwards and that she could assist with identifying a suitable property[150]. Mrs Edwards’ evidence with regard to whether or not Ms Dunn sent her to look at properties and how many[151], was unconvincing and unreliable. I prefer the evidence given by Mr Byrne as to this matter (set out further below). Likewise the answers in relation to whether Mr Wright attended some of these property views[152].
[150] Transcript 11.2.14 at P-85 lines 17-20.
[151] Transcript 11.2.14 at P-85 line 25 to P-86 line 5.
[152] Transcript 11.2.14 at P-86 lines 7-27.
Mrs Edwards agreed Ms Dunn told her that the AHO would purchase the Trinity Property, that there was work to be done before she would move in, that once the work was done it would be handed over to Housing to lease and manage and Mrs Edwards could not move in before the AHO gave the keys to Housing[153]. In this context, Mrs Edwards agreed that she complained to Ms Dunn[154] and Mr Wolinski[155] (the latter at least twice) about not being able to move in around September 2010, but did not agree she also complained to Mr Wright[156].
[153] Transcript 11.2.14 at P-85 lines 3-38.
[154] Saying “maybe” at Transcript 11.2.14 at P-87 line 45 to P-88 line 7.
[155] Transcript 11.2.14 at P-87 line 45 top P-88 line 7.
[156] Transcript 11.2.14 at P-88 lines 9-10.
As noted in relation to Ms Bower’s evidence, the fact that the former owner of the Trinity Property showed Mrs Edwards how to prune roses did not necessarily mean he was leaving them for her to look after, although that was a reasonable presumption on Mrs Edwards’ part. In my view, the vendor should not have removed the roses without the consent of the AHO. Having said that, it was not reasonable for Mrs Edwards to then accuse neighbours of stealing roses, if that is what she did, or even be aggressive towards them in trying to find out what happened. This is especially so when on Mrs Edwards’ own evidence[157] (supported by that of Housing[158]) she was promised they would be replaced.
[157] [77] of the First Edwards Affidavit.
[158] [82] of the Byrne Affidavit.
Mrs Edwards denied accusing neighbours of stealing the roses under cross-examination[159]. However, whether she expressly accused them or not, she agreed that she asked neighbours about the roses and whether they had seen anything. The weight of the evidence points to a conclusion that she did so in an aggressive manner. It was not unreasonable for those people to have seen that line of questioning as accusatory or intimidating. In any event, this case must be decided on the basis of the information available to Housing and what Housing did with that information. It is Housing’s submission that the information available to it at the time was that Mrs Edwards was dealing with her neighbours in a way that was damaging to their ongoing relationship; and, it ought be noted, completely unrelated to her race. Housing tried to discuss those concerns with Mrs Edwards on numerous occasions, including warning her not to attend the property before it was allocated to her, ending with the threats made to Housing’s staff on 19 October 2014. Housing submits that the latter confirm Mrs Edwards’ inability to control her own aggressive behaviour towards people who were in fact going above and beyond what they would usually do to try and place any other tenant in Mrs Edwards’ position.
[159] Transcript 11.2.14 at P-88 lines 26-27.
Mrs Edwards’ denied that she was warned by Housing staff not to attend the Trinity Property[160]. I prefer the evidence of Housing. I note in particular her flat refusal on the first day of cross-examination (i.e. “No she never”) compared to the “I do not recall” provided on the second day of hearing[161]. I also note that Ms Bower says she gave the same warning and it was ignored (set out in Annexure A).
[160] Transcript 11.2.14 at P-88 line 40 to P-89 line 25.
[161] Transcript 11.2.14 at P-88 line 35 and 12.2.14 at P-99 lines 24-34 respectively.
Likewise Mrs Edwards’ denial on the first day of hearing that she never had any interaction with the real estate agents Raine and Horne “whatsoever”, which was then changed to “we met him [being the writer of the relevant letter from Raine and Horne] out there [being the Trinity Property]”[162], I reject in favour of the relevant document[163]. This evidence was different again on the following day when Mrs Edwards said she went to their offices[164].
[162] Transcript 11.2.14 at P-98 lines 4-11.
[163] Page 183 of Mr Byrne’s Exhibit MB-15 at page 137-138.
[164] Transcript 12.2.14 at P-99 lines 1-16.
Mrs Edwards’ evidence that she was always accompanied by someone when she visited Trinity Drive[165] is unreliable to the extent it purports to include people other than Ms Bower. In that regard, Mrs Edwards could have lead evidence from these other people if she wished to rely on the truth of what she asserts. In any event, for the reasons already set out above, Housing submits and I accept that the truth of these allegations is not a fact in issue in these proceedings; it is what Housing did in relation to that information (i.e. complaints about aggression and an AVO -facts which are not in dispute) that is a fact in issue in these proceedings.
[165] [80] of the First Edwards Affidavit.
Mrs Edwards denies the matters set out in the application for an AVO attached to the First Edwards Affidavit. I note that the person bringing the application for an AVO also says Mrs Edwards said words to the effect of “You better watch your white fucking land grabbing white cunts.” According to that application, this was also the subject of police record on the relevant day. This bears a striking similarity to what Mr Wright says Mrs Edwards said to him and other employees of Housing[166]. That is, the evidence of what was said to the neighbour is corroborated by what was said to Mr Wright. Housing made submissions in relation to this issue based on the evidence from Ms Bower. The evidence is persuasive that Mrs Edwards said words to this effect on more than one occasion to those employed by Housing.
[166] [32]-[34] and [53] of the First Edwards Affidavit.
It is Mrs Edwards’ case in relation to causation that the documents she received under FOI legislation showed that the decision had been made not to allocate the Trinity Property to her on 15 October 2010 and so there was no truth to Housing’s assertion that it met with her to discuss its decision on 19 October 2010. That is, there was no reason to meet because the decision was already made. However, as Mr Byrne stated in his affidavit and under cross-examination, at the meeting held on 19 October 2014, Mr Byrne was not then aware that Mr Allen had endorsed Mr Byrne’s recommendation not to proceed with the allocation. Further, Mr Allen could have overturned the 15 October 2010 decision on Mr Byrne’s further recommendation and would have done so if Mr Byrne made a different recommendation after that meeting[167]. Housing submits that the only proper finding in this context, is that Housing provided Mrs Edwards every opportunity to convince it she was able to control her behaviour, including the meeting held on 19 October 2010 and Housing made a reasonable assessment that Mrs Edwards was unable to do so, taking into account not only the complaints and the AVO but the threats made by Mrs Edwards against Housing’s staff prior to, on 19 October 2010 and after 19 October 2010 (noting that for a time Mrs Edwards was unable to liaise directly with Housing due to her excessively aggressive behaviour).
[167] Transcript 24.9.14 at P-28 lines 1-46.
It was also Mrs Edwards’ case that Housing never provided her with a chance to respond to the allegations made by neighbours of Trinity Property. Housing submits that it was not under any obligation to do so. Housing was under an obligation to allow Mrs Edwards to respond to Housing’s concerns arising from the complaints and the AVO. That is, the potential neighbours’ concerns were not necessarily the same as the concerns of Housing. Housing’s concerns were whether Mrs Edwards could maintain a successful tenancy in the context of the allegations made about her behaviour and specifically whether she could develop harmonious relationships with the people living near the Trinity Property. Housing put those concerns to Mrs Edwards at the meeting held on 19 October 2010 (as set out in the affidavits of Mr Wright[168] and Mr Byrne[169]). Housing also raised the concerns as and when they arose, such as when letters were received[170].
[168] [49]-[57] of the Wright Affidavit.
[169] [129], [219b] and [221k] of the Byrne Affidavit.
[170] As set out in [82m] of the Wright Affidavit.
I draw no adverse inference against Housing from the fact that Mrs Edwards was not called to attend any meetings with Housing and those living near the Trinity Property who had made complaints about Mrs Edwards’ behaviour. Indeed, to do so would have been contrary to Housing’s own privacy obligations and its own policies and procedures[171]. It would also probably have been counter productive.
[171] [5] and exhibit MB-1 of the Byrne Affidavit.
In relation to Mrs Edwards’ submissions in her second affidavit[172] that she did not give preference to other properties, Housing submits that the contemporaneous documents speak for themselves. Similarly in relation to her submissions that she was never offered community justice mediation, the issue for Housing is and was always at the relevant time whether to allocate a specific property. It was not about supporting a tenancy that had been successful in the past and in relation to which issues requiring mediation had arisen. There is no proper basis to assert that mediation was necessary when none of Housing’s policies require mediation to be offered to those who are not yet tenants. This approach was consistent with Mr Byrne’s evidence[173]:
Mediating with the community was not seen, at that time – given what the community was representing – as a way forward, or something that Housing would normally get involved with, for an allocation that hadn’t even occurred at this stage. [Emphasis added.]
[172] At [4] and [5] of the Second Edwards’ Affidavit.
[173] Transcript 24.9.14 at P-29 lines 8-17.
Under cross-examination, Mrs Edwards denied calling Mr Wright “tomato face” in or about October 2010[174]. Given her own affidavit evidence that she called him that name because it was “his nickname[175]” and her later evidence under re-examination that she in fact called him that[176], the first answer was disingenuous and goes to credit. Further it is clear from the cross-examination, that this was not a “nickname” in the sense that people may be affectionately known, but one in the sense that he was called that by those in the Aboriginal community[177]. Mr Wright made it clear under cross-examination that he had heard Mrs Edwards call him that in the past and that he was not aware of others using that name[178].
[174] Transcript 12.1.14 at P-154 lines 32-33.
[175] At [60] of the Second Edwards’ Affidavit.
[176] Transcript 12.1.14 at P-164 lines 42-45.
[177] Transcript 12.1.14 at P-165 lines 1-3.
[178] Transcript 23.9.14 at P-229 lines 9-32.
I accept the submission of counsel for Housing that the evidence Mrs Edwards under cross-examination about what occurred on 19 October 2010 was significantly different to the evidence given by Ms Bower as set out at Annexure A.
The substantial discrepancies between Mrs Edwards’ and Ms Bower’s evidence as set out in that table in relation to the 19 October 2010 meeting, reflect badly on Mrs Edwards as a witness of truth and I cannot rely upon her evidence about the meeting.
[297] Transcript 12.2.14 at P-109 lines 30 to 45.
[298] Transcript 11.2.14 at P-23 line 45 to P-24 line 5.
[299] Transcript 12.2.14 at P-119 lines 29-45.
[300] Transcript 11.2.14 at P-24 lines 5-10.
[301] Transcript 12.2.14 at P-110 lines 1-7.
[302] Transcript 11.2.14 at P-24 lines 17-22.
[303] Transcript 12.2.14 at P-110 lines 13-16.
[304] Transcript 11.2.14 at P-24 lines 24-34.
[305] Transcript 11.2.14 at P-24 lines 18-22.
[306] Transcript 11.2.14 at P-24 lines 44-45.
[307] Transcript 11.2.14 at P-25 lines 1-23.
[308] Transcript 11.2.14 at P-25 lines 32-34.
[309] Transcript 12.2.14 at P-110 line 24-25.
[310] Transcript 11.2.14 at P-25 line 42.
[311] Transcript 12.2.14 at P-110 line 30 to P-111 line 37.
[312] Transcript 11.2.14 at P-25 line 44 to P-26 line 20.
[313] Transcript 12.2.14 at P-112 line 7-9.
[314] Transcript 11.2.14 at P-26 lines 22-24.
[315] Transcript 12.2.14 at P-112 line 11-12.
[316] Transcript 11.2.14 at P-26 line 26.
[317] Transcript 12.2.14 at P-112 line 13-15.
[318] Transcript 11.2.14 at P-26 lines 28-30.
[319] Transcript 12.2.14 at P-112 line 17-18.
[320] Transcript 11.2.14 at P-26 lines 32-34.
[321] Transcript 12.2.14 at P-112 line 20-46.
[322] Transcript 11.2.14 at P-26 lines 36-37.
[323] Transcript 11.2.14 at P-26 lines 39-40.
[324] Transcript 12.2.14 at P-113 line 12-14.
[325] Transcript 11.2.14 at P-26 lines 46-47.
[326] [124]-[125] of the First Edwards Affidavit.
[327] Transcript 11.2.14 at P-27 lines 1-3.
[328] Transcript 12.2.14 at P-113 line 12-14.
[329] Transcript 11.2.14 at P-27 lines 32-33.
[330] Transcript 11.2.14 at P-27 lines 35-36.
[331] Transcript 12.2.14 at P-113 lines 27-28.
[332] Transcript 12.2.14 at P-113 line 30.
[333] Transcript 12.2.14 at P-113 lines 21-25.
[334] Transcript 11.2.14 at P-29 lines 16-19.
[335] Transcript 11.2.14 at P-29 lines 23-24.
[336] Transcript 11.2.14 at P-29 lines 32-34.
[337] Transcript 11.2.14 at P-30 lines 5-10.
[338] Transcript 11.2.14 at P-30 lines 21-22.
[339] Transcript 11.2.14 at P-30 lines 37-40.
[340] Transcript 11.2.14 at P-31 lines 1-2.
[341] Transcript 11.2.14 at P-31 lines 1-47.
[342] Transcript 11.2.14 at P-31 lines 1-34.
[343] Transcript 11.2.14 at P-33 lines 20-26.
[344] Transcript 12.2.14 at P-115 line 20.
[345] Transcript 12.2.14 at P-115 lines 22-26.
[346] Transcript 11.2.14 at P-33 lines 33-39.
[347] Transcript 11.2.14 at P-33 lines 46-47.
[348] Transcript 11.2.14 at P-34 lines 3-4.
[349] Transcript 12.2.14 at P-115 lines 32-34.
[350] Transcript 11.2.14 at P-34 lines 10-15.
[351] Transcript 11.2.14 at P-79 lines 3-8 and P-115 lines 39-42.
[352] Transcript 12.2.14 at P-119 lines 25-26.
[353] Transcript 11.2.14 at P-34 lines 17-20.
[354] Transcript 12.2.14 at P-114 line 46 to P-115 line 15.
[355] Transcript 12.2.14 at P-119 lines 21-22.
[356] Transcript 11.2.14 at P-35 lines 6-7.
[357] Transcript 11.2.14 at P-35 lines 6-12.
[358] Transcript 12.2.14 at P-115 lines 44-46.
[359] Transcript 11.2.14 at P-35 lines 31-36.
[360] Transcript 12.2.14 at P-116 lines 1-4.
[361] Transcript 11.2.14 at P-36 lines 35-37.
[362] Transcript 12.2.14 at P-116 lines 1-4.
[363] Transcript 12.2.14 at P-116 lines 22-24.
[364] Transcript 11.2.14 at P-37 lines 18-19.
[365] Transcript 11.2.14 at P-37 lines 21-23.
[366] Transcript 12.2.14 at P-116 lines 26-27.
[367] Transcript 11.2.14 at P-37 lines 28-36.
[368] Transcript 12.2.14 at P-116 lines 30-31.
[369] Transcript 11.2.14 at P-37 lines 38-39.
[370] Transcript 12.2.14 at P-116 lines 33-36.
[371] Transcript 11.2.14 at P-38 lines 7-8.
[372] Transcript 12.2.14 at P-116 lines 38-39.
[373] Transcript 11.2.14 at P-38 lines 14-16.
[374] Transcript 12.2.14 at P-116 line 45 to P-117 line 2.
[375] Transcript 11.2.14 at P-38 lines 27-40.
[376] Transcript 11.2.14 at P-38 lines 46-47.
[377] Transcript 12.2.14 at P-117 lines 4-7.
[378] Transcript 11.2.14 at P-38 lines 46-47.
[379] Transcript 11.2.14 at P-39 lines 4-6.
[380] Transcript 12.2.14 at P-117 lines 12-16.
[381] Transcript 11.2.14 at P-39 lines 8-9.
[382] Transcript 11.2.14 at P-39 lines 22-27.
[383] Transcript 12.2.14 at P-117 lines 32-33.
[384] Transcript 12.2.14 at P-117 lines 39-43.
[385] Transcript 11.2.14 at P-39 lines 29-32.
[386] Transcript 11.2.14 at P-39 line 41 to P-40 line 2.
[387] Transcript 12.2.14 at P-118 lines 1-3.
[388] Transcript 12.2.14 at P-118 lines 5-7.
[389] Transcript 11.2.14 at P-39 line 41 lines 16-21.
[390] Transcript 11.2.14 at P-39 line 41 lines 31-33.
[391] Transcript 12.2.14 at P-118 lines 10-31.
[392] Transcript 11.2.14 at P-39 line 41 line 44 to P-42 line 9.
[393] Transcript 12.2.14 at P-118 lines 33-47.
[394] Transcript 12.2.14 at P-119 lines 5-19.
[395] Transcript 11.2.14 at P-42 line 36.
[396] Transcript 11.2.14 at P-42 lines 38-39.
[397] Transcript 11.2.14 at P-42 lines 41-42.
[398] Transcript 11.2.14 at P-43 lines 1-7.
[399] Transcript 11.2.14 at P-42 lines 44-46.
[400] Transcript 12.2.14 at P-120 lines 1-15.
[401] Transcript 12.2.14 at P-120 lines 7-24.
[402] Transcript 12.2.14 at P-120 lines 26-41.
[403] Transcript 11.2.14 at P-43 lines 15-23.
[404] Transcript 11.2.14 at P-43 lines 28-29.
[405] Transcript 11.2.14 at P-43 lines 33-36.
[406] Transcript 11.2.14 at P-43 lines 38-46.
[407] Transcript 11.2.14 at P-44 lines 1-7.
[408] Transcript 12.2.14 at P-120 lines 43-47.
[409] Transcript 12.2.14 at P-120 lines 4-11.
[410] Transcript 11.2.14 at P-44 lines 11-24.
[411] Transcript 11.2.14 at P-44 lines 30-33.
[412] Transcript 12.2.14 at P-121 lines 19-20.
[413] Transcript 11.2.14 at P-44 line 42 to P-44 line 17.
[414] Transcript 12.2.14 at P-121 lines 22-23.
[415] Transcript 12.2.14 at P-121 lines 31-35.
[416] Transcript 12.2.14 at P-121 lines 39-43.
[417] Transcript 11.2.14 at P-45 lines 19-45.
[418] Transcript 12.2.14 at P-121 line 45 to P-122 line 9.
[419] Transcript 12.2.14 at P-122 lines 14-25.
[420] Transcript 11.2.14 at P-46 lines 1-5.
[421] Transcript 11.2.14 at P-45 lines 11-33.
[422] Transcript 11.2.14 at P-48 lines 29-33.
[423] Transcript 12.2.14 at P-122 lines 14-25.
[424] Transcript 11.2.14 at P-48 lines 22-23.
[425] Transcript 11.2.14 at P-48 lines 34-37.
[426] Transcript 12.2.14 at P-123 lines 11-19.
[427] Transcript 11.2.14 at P-48 line 45 to P-49 line 14.
[428] Transcript 12.2.14 at P-123 lines 30-33.
[429] Transcript 12.2.14 at P-123 lines 41-42.
[430] Transcript 11.2.14 at P-50 lines 35-38.
[431] Transcript 11.2.14 at P-50 line 40 to P-51 line 2.
[432] Transcript 12.2.14 at P-124 lines 1-3.
[433] Transcript 12.2.14 at P-124 lines 5-16.
[434] Transcript 12.2.14 at P-124 lines 5-16.
[435] Transcript 12.2.14 at P-125 lines 1-6.
[436] Transcript 12.2.14 at P-124 lines 41-45.
[437] Transcript 12.2.14 at P-124 lines 8-14.
[438] Transcript 11.2.14 at P-51 lines 4-9.
[439] Transcript 11.2.14 at P-51 lines 11-15.
[440] Transcript 11.2.14 at P-52 lines 1-2.
[441] Transcript 11.2.14 at P-52 lines 10-14.
[442] Transcript 11.2.14 at P-52 lines 19-27.
[443] Transcript 11.2.14 at P-52 lines 24-27.
[444] Transcript 11.2.14 at P-52 lines 4-5.
[445] Transcript 11.2.14 at P-52 lines 16-17.
[446] Transcript 12.2.14 at P-125 lines 16-18.
[447] Transcript 11.2.14 at P-52 line 41 to P-53 line 1.
[448] Transcript 12.2.14 at P-115 lines 17-18.
[449] Transcript 11.2.14 at P-54 lines 15-16.
[450] Transcript 12.2.14 at P-125 lines 28-30.
[451] Transcript 12.2.14 at P-125 lines 34-38.
[452] Transcript 12.2.14 at P-125 lines 46-47.
[453] Transcript 11.2.14 at P-54 lines 18-27 – and line 41.
[454] Transcript 11.2.14 at P-54 lines 29-30 – and line 41.
[455] Transcript 11.2.14 at P-54 lines 43-47.
[456] Transcript 11.2.14 at P-54 lines 32-39.
[457] Transcript 11.2.14 at P-55 lines 4-10.
[458] Transcript 12.2.14 at P-126 line 7.
[459] Transcript 11.2.14 at P-55 lines 12-16.
[460] Transcript 12.2.14 at P-125 lines 20-23.
[461] Transcript 12.2.14 at P-126 lines 22-24.
[462] Transcript 12.2.14 at P-126 lines 26-27.
[463] Transcript 12.2.14 at P-126 lines 29-34.
[464] Transcript 12.2.14 at P-126 lines 43-44.
[465] Transcript 11.2.14 at P-55 lines 26-29.
[466] Transcript 11.2.14 at P-55 lines 33-35.
[467] Transcript 11.2.14 at P-55 lines 41-46.
[468] Transcript 11.2.14 at P-56 lines 1-9.
[469] Transcript 12.2.14 at P-127 lines 7-13.
[470] Transcript 11.2.14 at P-56 lines 23-30.
[471] Transcript 11.2.14 at P-56 lines 39-47.
[472] Transcript 11.2.14 at P-57 line 1.
[473] Transcript 12.2.14 at P-127 lines 4-5.
[474] Transcript 11.2.14 at P-59 lines 40-45.
[475] Transcript 11.2.14 at P-60 lines 46 to P-61 line 2.
Key Legal Topics
Areas of Law
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Administrative Law
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Negligence & Tort
Legal Concepts
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Judicial Review
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Duty of Care
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Negligence
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Standing
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Procedural Fairness
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2
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