Hales v Commissioner for Social Housing in the Act - [2014] ACAT 46

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

HALES v COMMISSIONER FOR SOCIAL HOUSING IN THE ACT
(Discrimination) [2014] ACAT 46

DT 13/04

Catchwords: DISCRIMINATION – complaint of unfavourable treatment because of disability in relation to accommodation, access to premises and provision of goods or services – application to dismiss complaint as lacking in substance – failure of applicant to appear at hearing – procedure in absence of applicant – many adjournments – procedural fairness to be afforded to both parties – further delay in absence of evidence justifying applicant’s failure to attend not procedurally fair to respondent – hearing to proceed – application lacking in substance – lack of evidence of essential elements – complaint dismissed

Legislation:ACT Civil and Administrative Tribunal Act 2008 ss 32, 44
Human Rights Commission Act 2005 ss 53, 78
Discrimination Act 1991 ss 5AA, 7, 8, 19, 21
Housing Assistance Act 2007 ss 24, 25

Cases:Allesch v Maunz [2000] 203 CLR 172
Council of the Law Society of the ACT v Legal Practitioner [2011] ACAT 49
Burton v President of the Shire of Bairnsdale [1908] 7 CLR 76

Tribunal:Ms E. Symons - Presidential Member

Date of Orders: 13 June 2014

Date of Reasons for Decision: 25 July 2014

ACT CIVIL & ADMINISTRATIVE TRIBUNAL DT 13/04

BETWEEN:
COLIN HALES
Applicant

AND:

COMMISSIONER FOR
SOCIAL HOUSING IN THE ACT

Respondent

TRIBUNAL: Ms E. Symons - Presidential Member

DATE: 13 June 2014

ORDER

The Tribunal Orders that:

1. Pursuant to section 44(2)(d) of the ACT Civil and Administrative Tribunal Act 2008 the Tribunal on 13 June 2014 decided to proceed with the respondent’s application for interim orders filed on 24 January 2014.

2. The respondent’s application filed on 24 January 2013 is granted, pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008.

3. The application for discrimination filed on 11 April 2013 is dismissed pursuant to section 32(2)(b) of the ACT Civil and Administrative Tribunal Act 2008.

Signed………………..
Ms E. Symons

Presidential Member

REASONS FOR DECISION

On 13 June 2014 the tribunal heard the respondent’s Application for Interim and Other Orders (the section 32 application) filed on 24 January 2014, seeking an order that application DT 13/04 be dismissed because it is frivolous and vexatious.
The grounds relied on by the respondent for the section 32 application were:
(i)the applicant’s statement of facts and contentions and attached evidence do not substantiate his complaint of unlawful discrimination under the Discrimination Act 1991;
(ii)the applicant’s application lacks one or more of the essential elements to establish his complaint; and
(iii)the applicant’s application has no reasonable prospects of success.
The applicant did not appear at the time scheduled for the hearing and the tribunal decided that it should proceed in his absence. At the end of the hearing orders were made as sought. These reasons explain why the orders were made.

Background

The Complaint to the Human Rights Commission

On 13 April 2012 the applicant made a complaint to the ACT Human Rights Commission (the Commission) against the respondent.
The applicant did not complete section 1 of the complaint form headed- “Personal Attribute” or section 2 - “Why do you think the personal attribute marked above was the reason you were treated unfavourably?”. In section 3 - “Area of Discrimination” he identified ‘Access to Premises’, ‘In the provision of goods, services or facilities’ and ‘Accommodation’, as the areas of public life in relation to which he had experienced discrimination. In the section of the complaint form that asked for details, the applicant stated ‘Please see emails previously sent’. In section 6, under the heading- “What effect did the conduct you are complaining about have on you?”, the applicant stated ‘Loss of Income and Increased Expenses; Loss of care of children; Stress, Health Effects and Inability to undertake normal activities’ and he stated that, in order to resolve his complaint, he would like ‘My transfer to safe, appropriate premises where my children can rejoin my life more fully should be expedited. The floodlight should be removed.’
The Commissioner wrote to the applicant on 18 December 2012 advising him that the Commissioner had decided to close his complaint in accordance with section 78(1)(f) of the Human Rights Commission Act 2005 (the HRC Act) as the Commissioner considered that conciliation was unlikely to succeed. This letter advised the applicant he had 60 days (until 18 February 2013) to write to the Commissioner requesting that his complaint be referred to the ACT Civil and Administrative Tribunal (the tribunal) for determination.
The Commissioner wrote to the applicant on 6 March 2013 and advised him that the 60 days had expired and he would need to apply directly to the tribunal for leave to pursue his discrimination complaint.

The Tribunal proceedings

On 11 April 2013 the applicant filed, at the tribunal, a late application for his discrimination complaint to be heard out of time. On 23 April 2013 the applicant filed written submissions (the 23 April 2013 Submissions) in support of his application. The respondent did not oppose the application.
A hearing was held on 26 April 2013, the tribunal accepted the application for the discrimination complaint to be dealt with out of time and the applicant was directed to file, by close of business 31 May 2013, written confirmation of the complaint grounds he was relying on, a statement of facts and contentions, witness statements, copies of other material and a list of the orders he sought pursuant to section 53E of the HRC Act. The Directions Hearing was otherwise adjourned to 7 June 2013.
The applicant did not comply with the Orders of 26 April 2013.
On 7 June 2013 the applicant was given further time to comply with the Orders made on 26 April 2013 and the directions hearing was adjourned to 13 September 2013.
On 13 June 2013 the tribunal received four emails from the applicant which, among other things, sought advice from the tribunal as to what evidence was required, as he had “no idea how to provide that or even what it might be”; and which of 17 orders he had set out in the email would be possible for the tribunal to issue. These orders included orders variously “to force” named and unnamed people, Housing, and First Point to do specific things. He also stated in a subsequent email[1] that he wanted two further orders:
“19: And I want every copy of the ‘information’ which I was unsuccessful in my complaint to Centrelink about and which the HRC convinced me to make available to Housing destroyed.
20:And an apology from whoever it was at Housing who wrote that the bits that Kezlee Gray chose to blank out were blanked out by me because of concern about substance use…”
[1] Email dated 13 June 2013 4.34 PM from Colin Hales to Colin Hales, JACS, AdminReview; Tribunal, [email protected]; [email protected] Subject Fwd: Orders
By email dated 18 June 2013 the tribunal responded to the applicant’s 13 June 2013 emails, copying the respondent’s legal representative into this email, and informed him:
“The Tribunal is acting on the basis that your complaint of discrimination is made against Housing ACT and that your complaint is that Housing ACT has treated you unfavourably because of your disability in relation to (i) access to premises; (ii) the provision of services or facilities and (iii) accommodation.
The first direction made in your case on 26 April 2013 asked you to confirm this in writing because it is not clear from your complaint form. The tribunal considers the same complaint that you made to the ACT Human Rights Commission.
If your case is about Housing ACT the tribunal cannot make orders about individuals or people from other places or agencies. So for example orders could not be made about CANFACS or First Point, or anyone from ACT Health. Orders could only be made about Housing ACT.
The tribunal may be able to make the orders you ask about in relation to Housing ACT depending on the findings that are made in your case. We can’t predict what the findings will be.
In your second email you refer to the evidence required. What you need to do is to provide a statement that sets out the things that Housing ACT has done or not done in relation to you that you say is discriminatory. The document you sent to the tribunal to support your “late application” [the 23 April 2013 Submissions] already includes some of that information. If there are any letters, emails, file notes, photographs that you have that support your claim you should send these documents to the tribunal.
I am not certain what you are asking about your PTSD but it might help if Housing ACT’s legal representative let us know, if the respondent agrees that you have a disability and whether the respondent says that you need to provide evidence so that the tribunal can make specific findings about the disability.
Can the respondent’s representative please let us know its position in relation to that?”

The applicant sent further emails to the tribunal on 25 and 27 June 2013. In the second email he stated, among other things:
“…Before I can write evidence statements, I need to find out why employed Australians have a general tendency to completely fail to comprehend the content and intent of my statements or to report and purvey them without falsehood (deliberate or otherwise).
Did anyone get around to forwarding the statements I made to the other side’s legal representative? It is gobsmackingly typical of a Territorian staffer to respond to a request with only further demands. They must teach you people that in government worker school!
Let’s be clear:
I was discriminated against by the Territory.
I am no longer a Territorian for two main reasons:
- decades of service failure, discrimination and contempt
- my earnest desire not to live under the Territory’s mockery of human rights laws.”

On 13 August 2013 the applicant emailed the Local Court in Queanbeyan, the Minister for Immigration, the Tribunal and the Human Rights Commission asking for an adjournment “until such time as I am well enough to proceed…”. The email contained references that appeared to relate to NSW proceedings.
By email dated 26 August 2013 the tribunal advised the applicant that his discrimination case was listed for a directions hearing on 13 September 2013 at 9.30am, requested he confirm if he wanted the matter adjourned and requested a date “you believe you could be available?” The applicant replied by email sent that day stating that he remained unable to progress the matter and he had no date in sight.
By email dated 6 September 2013, the respondent advised the tribunal that it opposed an indefinite adjournment of the Directions Hearing but would agree to an adjournment for one month.
The tribunal then adjourned the Directions Hearing to 11 October 2013.
On 13 September 2013 the respondent’s lawyers wrote a letter to the tribunal indicating that they were unable to consent to a finding that the applicant had PTSD at the relevant time.
On 20 September 2013 the applicant emailed the tribunal and the respondent and indicated that he was unwilling or unable to provide further evidence about his PTSD. On 7 October 2013 the applicant wrote another email to the tribunal and the respondent stating that “the attribute on which my discrimination complaint is based acts directly against my ability to present this case”.
On 11 October 2013 the tribunal reissued the Order made on 26 April 2013 requiring the applicant to file, by close of business 11 December 2013, written confirmation of the complaint grounds he was relying on, a statement of facts and contentions, witness statements, copies of other material and a list of the orders he sought pursuant to section 53E of the HRC Act. The tribunal ordered the respondent by close of business 22 January 2014 to file a statement of facts and contentions, witness statements and any other material in response and inform the Registry of suitable hearing dates in February and March 2014.
On 14 October 2013 the applicant emailed the respondent and the tribunal to indicate, essentially, that he would not be able to comply with the tribunal directions or take any further action in respect of the complaint until certain conditions were met[2].
[2] Respondent’s Submissions in support of section 32 Application at [18]
On 22 October 2013 the applicant lodged a letter with the tribunal articulating further complaints against the respondent and indicating that, in the context of seeking accurate medical information to support his case, his attempts to obtain secure credible information in a clinical setting had been unsuccessful[3].
[3] Respondent’s Submissions in support of section 32 Application at [19]
On 5 December 2013 the applicant emailed the tribunal and the respondent and indicated that he had engaged a clinician to obtain ‘paperwork’ required by the tribunal. The email indicated that, after reading the Code of Conduct for Expert Witnesses, the applicant was unwilling to use the clinician’s services to advance his case[4].
[4] Respondent’s Submissions in support of section 32 Application at [20]
On 11 December 2013 the applicant filed a document (the 11 December 2013 Submissions) in which he set out the grounds he was relying on when he made the discrimination complaint and to which he annexed documents marked A through to P. He also set out his contentions and the orders he sought. At its hearing on 13 June 2014 the tribunal treated this document and the 23 April 2013 Submissions as the applicant’s Statement of Facts and Contentions.
The respondent, by email dated 19 December 2013, requested the tribunal relist the matter in January 2014 as the applicant had not filed and served his Statement of Facts and Contentions and his evidence by 11 December 2013. The respondent foreshadowed in that email that it was considering making an application to have the Application struck out pursuant to section 32 of the ACAT Act.
On 23 January 2014 the applicant emailed the tribunal asking how to address his complaint and the respondent’s Response.
The respondent filed its Statement of Facts and Contentions on 24 January 2014.
On 24 January 2014 the respondent also filed an application for interim or other orders seeking an order pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) dismissing the application on the ground that it was frivolous and vexatious. The respondent submitted that the application lacked substance in respect of an essential element which the applicant must prove and has no reasonable prospect of success.
On 28 January 2014 the tribunal responded to the email from the applicant dated 23 January 2014 answering the applicant’s questions in that email.
The respondent’s interim application was listed for hearing on 14 February 2014.
The applicant emailed the tribunal on 29 January 2014 in response to an email from the tribunal to both parties seeking their confirmation that they could attend the hearing on 14 February 2014, stating that he had nothing else on and planned to attend.
The applicant subsequently emailed the tribunal on 12 February 2014 and stated that he was unaware that the section 32 hearing was to take place on 14 February 2014; that he was unprepared for such and would not be able to appear unless he could find someone to represent him. He requested a stay.
The respondent informed the tribunal on 13 February 2014 that it did not oppose an adjournment of the hearing for six weeks. On 14 February 2014 the tribunal ordered that the hearing of the Interim Application be adjourned and relisted for 4 April 2014.
On 4 April 2014 both parties attended the hearing. The applicant was accompanied by a support person. It became apparent that there were further documents that could be made available to the tribunal that might help the applicant explain his case. The tribunal adjourned the hearing of the section 32 application to 13 June 2014 so that the documents could be filed and sent to the applicant, subject to the respondent confirming, once those documents had been obtained, that it wanted to proceed with the section 32 application by 23 May 2014. Orders were made requiring the respondent to file and serve a copy of any correspondence or other documents sent by the respondent to the ACT Human Rights Commissioner in response to the applicant’s complaint as well as a copy of all the documents held by the respondent in relation to the applicant’s tenancy. The documents were filed and served as ordered.
On 23 May 2014 the respondent’s solicitor sent an email to the tribunal and to the applicant confirming that it wished to proceed with the section 32 application and that the respondent understood that the hearing would resume on 13 June 2014.
By email dated 24 May 2014 the applicant emailed the tribunal and the respondent’s solicitor and, inter alia, stated “I won’t be able to attend.”
By email dated 10 June 2014 the tribunal emailed the applicant and the respondent’s solicitor and stated “The resumed section 32 application listed for Friday 13 June 2014 at 10.00am will resume as previously advised to you. Please note if that if you do not attend the hearing the matter may continue in your absence and orders could be made.”
By email to the tribunal also dated 10 June 2014 the applicant stated “Yeah, I’ll have to find someone to explain that for me when I’m well enough. Any suggestions whom might do so?”
On 12 June 2014 the applicant hand delivered a parcel to the tribunal which contained the documents sent to him by the respondent and which included a Medical Certificate (the Medical Certificate) from Dr Shaikh Wahab dated 7 June 2014 which stated:
To whom it may concern:
This is to certify that I have examined Colin Hales today, and he appeared to be stressed and suffering from dental pain and at present not in a very stable state to concentratet [sic] his issues with Housing and tribunal. He may need extention for for [sic] tribunal hearing. A sympathetic considerations will be appraeciated[sic].
(sgd)
Dr Shaikh Wahab
M.B.B.S.,

On 13 June 2014 at 4.00am the applicant sent an email to the tribunal in which he stated, among other things, “Have fun today. Quite glad I won’t be there though. Oddly enough, although the PTSD symptoms arising from my neck injury have subsided somewhat during composition, the actual injury has been aggravated by poor posture during! Tee hee hee… C:”

The Tribunal hearing

When the matter was called at 10.00am on 13 June 2014 the applicant did not appear and no-one appeared on his behalf. Ms Tarbet, Solicitor with the ACT Government Solicitor, appeared on behalf of the respondent.

The Applicant’s Non Appearance at the hearing

Section 44 of the ACAT Act sets out the procedure in the absence of a party. It states:
44Procedure in absence of party
(1)This section applies if, at the time set for the hearing of an application, a party fails to appear either personally or by a representative.
(2)The tribunal may—
(a)order that the application be set down for hearing at another time; or
(b)order that stated other steps be taken before the hearing proceeds as the tribunal directs; or
(c)adjourn the hearing; or
(d)proceed with the hearing in the absence of the party either generally or in relation to any relief claimed in the application; or
(e)if the party is the applicant—dismiss the application; or
(f)if the party is not the applicant or respondent—remove the party from the application.

When the applicant failed to attend the hearing, the tribunal spoke by telephone with Dr Wahab, at the Ginninderra Medical Centre.
Dr Wahab said that he had not seen the applicant as a patient before 7 June 2014. The applicant had, according to the practice’s records, previously attended in 2008 and 2009.

Dr Wahab said the applicant had dental caries and a gum infection and he prescribed antibiotics for him. He said the applicant had wanted to see a dentist. He also wanted a medical certificate for his upcoming tribunal hearing on 13 June 2014.
Dr Wahab said that while he observed that the applicant was a bit anxious and a bit fearful, he was able to concentrate when speaking with the doctor. He did not feel that the applicant was unfit to attend the tribunal hearing. Instead of giving the medical certificate he had requested, Dr Wahab said he would write a “Consideration Request” asking that the tribunal give the applicant a sympathetic consideration.

Consideration

The applicant did not appear at the hearing, nor did anyone represent him. The tribunal is satisfied that section 44(1) of the ACAT Act is established.
The tribunal now turns to the options in section 44(2) of the ACAT Act.
Details of the many adjournments given since this matter was first listed before the tribunal on 26 April 2013 are set out above. The tribunal is satisfied, from the material before the tribunal at the hearing, that the applicant was aware of the hearing date of 13 June 2014. The tribunal is further satisfied that the applicant knew how to formally seek and, in fact, did seek adjournments from the tribunal after he filed his application. He did not file a formal request for an adjournment of the hearing this time; instead, he elected to simply lodge Dr Wahab’s Medical Certificate. The tribunal has interpreted the applicant’s recent actions as seeking another adjournment.
While the Medical Certificate said that the applicant “may need extention for for[sic] the tribunal hearing” it did not give any indication of the length of any incapacity caused by the dental caries which could have assisted the tribunal weighing up whether or not to grant another adjournment. Nor did the tribunal have the opportunity, given the applicant’s absence, to seek this information from the applicant himself. The tribunal found Dr Wahab’s statement that, in his opinion, the applicant was not unfit to warrant him writing a Medical Certificate, compelling.
Having considered Dr Wahab’s Medical Certificate as well as the information he provided to the tribunal by telephone on 13 June 2014 and the material which the applicant had filed in this matter, the tribunal is satisfied and finds that the applicant was not unfit to attend the hearing. Further, in the absence of any other expert evidence relating to the applicant’s fitness or otherwise to prepare for the hearing, having considered the material before it, including the applicant’s material, the tribunal is satisfied and finds that the applicant was not unfit to prepare his response to the respondent’s interim application.
In considering the options in section 44(2) of the ACAT Act, the tribunal is also mindful of the objects and principles of the ACAT Act. The objects are set out in section 6, namely:
6Objects of Act
The objects of this Act are—
(a)to provide for a wide range of matters arising under legislation to be resolved by the ACT Civil and Administrative Tribunal; and
(b)to ensure that access to the tribunal is simple and inexpensive, for all people who need to deal with the tribunal; and
(c)to ensure that applications to the tribunal are resolved as quickly as is consistent with achieving justice; and
(d)to ensure that decisions of the tribunal are fair; and
(e)to enhance the quality of decision making under legislation; and
(f)to encourage, and bring about, compliance in decision making under legislation; and
(g)to encourage tribunal members to act in a way that promotes the collegiate nature of the tribunal; and
NoteUnless otherwise provided by this Act, the tribunal for the exercise of functions, other than functions in relation to applications, is made up of the presidential members (see s 93).
(h)to identify and bring to the Attorney-General’s attention systemic problems in relation to the operation of authorising laws.

The principles applying to the ACAT Act are set out in section 7, and state:
7Principles applying to Act
In exercising its functions under this Act, the tribunal must—
(a)ensure the procedures of the tribunal are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(b)observe natural justice and procedural fairness.

It is incumbent on the tribunal to observe these objects and principles in exercising its functions under the ACAT Act. It is apparent from the numerous adjournments to date that the tribunal has endeavoured to accommodate the applicant’s many requests for delaying the hearing. However, the tribunal is required to ensure that applications are resolved as quickly as is consistent with achieving justice, to observe natural justice and afford procedural fairness to both parties.
In the High Court decision of Allesch v Maunz[5] Kirby J stated the following principle in relation to affording a party a hearing:
The principle to afford a hearing
35. It is a principle of justice that a decision-maker, at least one exercising public power, must ordinarily afford a person whose interests may be adversely affected by a decision an opportunity to present material information and submissions relevant to such a decision before it is made. The principle lies deep in the common law. It has long been expressed as one of the maxims which the common law observes as "an indispensable requirement of justice". It is a rule of natural justice or "procedural fairness". It will usually be imputed into statutes creating courts and adjudicative tribunals. Indeed, it long preceded the common and statute law. Even the Almighty reportedly afforded Adam such an opportunity before his banishment from Eden.
[5] Allesch v Maunz [2000] 203 CLR 172 at [35]
The tribunal is satisfied that the applicant has had ample opportunity to present material information and submissions relevant to his application and to the respondent’s interim application. Natural justice does not extend to delaying hearings indefinitely because one party fails to appear in person, or fails to arrange for another person to represent them. The respondent has consented to adjournments for over a year. There is a cost to the tribunal and to the respondent with each adjournment.
The respondent is entitled to be afforded natural justice as well as the applicant and to further delay the hearing, in the absence of any credible expert evidence justifying the applicant’s failure to attend the hearing, would no longer be procedurally fair or just to the respondent.

Decision

Pursuant to section 44(2) of the ACAT Act the tribunal decided to proceed with the hearing of the section 32 application in the absence of the applicant.

The Respondent’s Section 32 Application

On 2 April 2014 section 32 of the ACAT Act was amended. Section 32, in so far as it is relevant, now states:
32Dismissing or striking out applications
(1)This section applies if the tribunal considers that an application, or part of an application is––
(a)frivolous or vexatious; or
(b)lacking in substance; or
(c)otherwise an abuse of process; or
(d)made by a person who has been dealt with by a court or tribunal in Australia as frivolous or vexatious.
(2)The tribunal may, by order, do 1 or more of the following:
(a)refuse to hear the application or part of the application;
(b)dismiss the application or part of the application;
(c)direct that the person who made the application not make a subsequent application to the tribunal of the kind stated in the direction—
(i) within a stated period of time; or
(ii)without the leave of the tribunal.
…
(3)The tribunal may make an order under subsection (2) on its own initiative or on application by a party.
…
On 12 May 2014, pursuant to the orders dated 4 April 2014, the respondent filed an Index to the material filed by the applicant which related to his application and the section 32 application, comprising 53 documents. The respondent also filed seven volumes containing a copy of the documents held by the respondent in relation to the applicant’s tenancy. These volumes were identified as follows:
a.     Volume 1: Response to Human Rights Complaint file
b.     Volume 2: Response to FOI request by Colin Hales
c.     Volume 3: Response to FOI request by Colin Hales
d.     Volume 4: Citizen file HN 20965555 (Part 1)
e.     Volume 5: Citizen file HN 20965555 (Part 2)
f.      Volume 6: Client file HN – 91278
g.      Volume 7: Application file (Part 2)

The tribunal noted that the respondent’s solicitor had informed the tribunal that some documents (which are identified in the index to Volume 6) had been excluded from production as they are subject to a claim of legal professional privilege. Some other documents had also been excluded from Attachment H to the respondent’s response to the Human Rights Commission (Volume 1) as they contain confidential or sensitive information in relation to another tenant who is not a party to the matter before the tribunal. Sealed copies of the documents were mailed to the applicant. On 12 June 2014 (the day before the hearing), the applicant personally returned his copy of all the documents to the tribunal’s Registry.
As stated above under Background, on 11 December 2013 the applicant filed a document in which he set out the grounds he was relying on when he made the discrimination complaint and to which he annexed a number of attachments. He also set out his contentions and the orders he sought. The tribunal has treated this document, and the 23 April 2013 Submissions, as the applicant’s Statement of Facts and Contentions. The tribunal has considered these documents in determining the section 32 application.

The Applicant’s primary contentions

The applicant contends that he has a disability, namely PTSD, within the meaning of section 5AA of the Discrimination Act 1991 (the Discrimination Act); that the disability is manifested by an inability to interact with bureaucracies; and that this disability was affected by the respondent’s actions[6]; namely, by failing to accept that his PTSD existed or that his need/desire for a transfer to other accommodation was health related; failing to expedite his transfer to another property and, impliedly, by requiring him to remain in the property. The applicant contends that these circumstances aggravated his PTSD.
[6] Index to Material received by Applicant page 110 (attachment c) – page 2 which the Applicant filed with the tribunal on 11 December 2013
In the 23 April 2013 Submission the applicant identified[7] ‘instances of discrimination’. The first instance was the respondent’s insistence that his request for a transfer was about neighbourhood conflict when rather, it was brought about because he had come to his limit of living in a public housing complex where other tenants make no effort to abide by their tenancy agreement; where there is such regular police attendance that he does not feel safe either for himself or his children. He asserted that he had been so traumatised at the premises that his recovery from pre-existing PTSD had been set back by years and that it had been so aggravated by remaining at those premises that it “forced him to abandon his normal activities and adversely affected his ability to provide parenting for his children.”
[7] Applicant’s Statement of Facts and Contentions dated 23 April at pages 2 and 3
The second instance of discrimination was described in this way: “Housing’s refusal to accept any statement made by myself unless I can get someone with employment that Housing respects has definitely caused me disadvantage and is quite clearly discriminatory – based on membership/nonmembership of a group and employment status” and the applicant alleged “Housing has also discriminated against my self … based on whatever disability(s) it is that prevents me from successfully acquiring paperwork or making myself clear to you Australians. Disadvantage has occurred even though Housing chooses to remain unaware of this disability. [8]”
[8] Applicant’s Statement of Facts and Contentions dated 23 April at page 4
The third instance of discrimination was “Under Housing policy, it is a requirement that one’s tenancy is maintained while awaiting transfer or one is removed from the list….These conditions imposed by Housing have caused me significant and ongoing disadvantage, resulting from my disability, as I was forced to stay in the premises long after remaining at those premises had become damaging to my wellbeing and had aggravated preexisting PTSD[9].”
[9] Applicant’s Statement of Facts and Contentions dated 23 April at page 5
The fourth instance of discrimination was that the respondent allowed unqualified people to make comments about his mental health and include them in a permanent record[10].
[10] Applicant’s Statement of Facts and Contentions dated 23 April at page 6
The fifth instance of discrimination relied on a document prepared by Ms Nicholas, Housing Manager, after a visit to the applicant at the rental property. The applicant stated he found Ms Nicholas’ “fabrication to be both deeply offensive and highly discriminatory[11]”.
[11] Applicant’s Statement of Facts and Contentions dated 23 April at page 7
The sixth instance of discrimination was the respondent’s repeated mention that it wanted the applicant to “engage” with “supports” adding “I do not want to have to interact with Housing staff more. I find it, them and their statements and commentary offensive and unpleasant – I want less of it! ….. This is yet another instance where Housing have been ignoring my needs, rights and desires in favour of their processes[12]”.
[12] Applicant’s Statement of Facts and Contentions dated 23 April at pages 7 and 8
The seventh instance of discrimination was that “Housing, late in the game, began insisting that I needed to engage with another ‘service provider’ because they were, in my opinion, trying to pretend that the issues between Housing and myself are my fault, not theirs. Apparently, being forced to discuss personal matters with more and more people is not a breach of my privacy. [13]”

The Respondent’s section 32 Contentions
[13] Applicant’s Statement of Facts and Contentions dated 23 April 2013 at page 8

The respondent submits the applicant’s application has no reasonable prospects of success as it lacks substance in respect of an essential element[14].
[14] Respondent’s submissions in support of section 32 application at [32]
The respondent contends[15] that “an essential element to establish a complaint of unlawful discrimination is that the unfavourable treatment alleged by the applicant occurred because of a particular relevant attribute”.
[15] Respondent’s submissions in support of section 32 application at [33]
The respondent submits[16] that there is no objective evidence before the tribunal to support the applicant’s contentions in the previous paragraphs. Therefore, ‘without objective evidence of the applicant’s contended disability, it is not open to the Tribunal to make a finding of fact that the applicant has the contended disability or that it is affected in the way contended by the respondent’s action’. The applicant’s application, it was said, therefore has no reasonable prospects of success.

Relevant Law
[16] Respondent’s submissions in support of section 32 application at [36] and [37]

Section 8 of the Discrimination Act defines discrimination:
8What constitutes discrimination
(1)For this Act, a person discriminates against another person if—
(a)the person treats or proposes to treat the other person unfavourably because the other person has an attribute referred to in section 7; or
(b)the person imposes or proposes to impose a condition or requirement that has, or is likely to have, the effect of disadvantaging people because they have an attribute referred to in section 7.
(2)Subsection (1) (b) does not apply to a condition or requirement that is reasonable in the circumstances.
(3)In deciding whether a condition or requirement is reasonable in the circumstances, the matters to be taken into account include—
(a)the nature and extent of the resultant disadvantage; and
(b)the feasibility of overcoming or mitigating the disadvantage; and
(c)whether the disadvantage is disproportionate to the result sought by the person who imposes or proposes to impose the condition or requirement.

Subsection 7(1)(j) of the Discrimination Act lists ‘disability’ as a relevant attribute.
Section 5AA of the Discrimination Act defines ‘disability’ for the purposes of the Act as follows:
5AAMeaning of disability
(1)In this Act:
disability means—
(a)total or partial loss of a bodily function; or
(b)total or partial loss of a part of the body; or
(c)malfunction of a part of the body; or
(d)malformation or disfigurement of a part of the body; or
(e)the presence in the body of organisms that cause or are capable of causing disease; or
(f)an illness or condition which impairs a person’s thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour; or
(g)an intellectual disability or developmental delay.
(2)Except in section 49 (Work related discrimination) and section 50 (Discrimination by qualifying bodies etc), disability includes a disability—
(a)that the person has, or is thought to have (whether or not the person in fact has the disability); or
(b)that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability); or
(c)that the person will have in the future, or is thought will have in the future (whether or not the person in fact will have the disability).

Sections 19 and 21 of the Discrimination Act, which are set out at the end of these Reasons, provide for unlawful discrimination in access to premises and accommodation. ‘Premises’ is defined in the dictionary to the Discrimination Act.

Consideration

(i)Does the Applicant’s application lack substance or an essential element?

The applicant relied on PTSD as his contended disability. In support of this claim he relied on his personal knowledge of PTSD and a “PTSD check list” he had completed and provided to the tribunal as evidence. Apart from a heavily redacted medical report by a psychologist, Dr Otilia Rodrigues, dated 5 March 2014, which the tribunal will return to below, the applicant did not provide any objective evidence of his contended disability. He was given numerous adjournments to do so.
The applicant variously alleged that he was the best placed person to assess and diagnose his own mental state; that there were some issues within the medical profession in relation to the standards and diagnostic tools they use to assess PTSD; that he had provided a self-completed check list for PTSD; and that being asked to provide objective medical evidence of his contended disability, PTSD, exacerbated his PTSD. He, again, relied on his personal knowledge of his reaction to requests to provide objective evidence and further information about his contended disability as well as his personal knowledge of the effect of waiting for a transfer on his PTSD.
The tribunal considered the documentation provided by the applicant and Volume 1 to and including Volume 7 provided by the respondent on 12 May 2014 to ascertain if there was objective evidence of the applicant’s contended disability in that documentation.
The tribunal considered a letter from a Ms Evans, Manager, Supportive Tenancy Service[17] dated 1 June 2012. That letter sets out what the applicant told Ms Evans about his ‘multiple mild disabilities with complex effects’ and that the ‘disabilities mean he has difficulty dealing with bureaucracy and process...in dealing with Housing ACT’. This support letter does not refer to or confirm a diagnosis of PTSD.
[17] Volume 6 pages 87 - 88

The tribunal also considered Ms Maglasis’ “Letter of Support for Priority Housing” dated 10 January 2014[18] in these documents. In that letter Ms Maglasis stated that she was a friend of the applicant’s and that “he was diagnosed with Post-Traumatic Stress Disorder (PTSD)”. Ms Maglasis does not state her occupation and on what information she based her statement, therefore, the tribunal is unable to place any weight on her statement.
[18] Volume 6 page 22
The tribunal then considered the two Job Capacity Assessment (“JCA”) Reports in these documents. Both reports had redactions. Monika Kraljevic, a Registered Psychologist, who had assessed the applicant on 16 April 2008, reported[19] that the applicant had a permanent Psycho/Psychiatric Disorder which was fully diagnosed, treated and stabilised. Her source for the applicant’s condition was only identified as “Specialist Report”. The information under ‘Treatment details’ was heavily redacted. Of the three other Medical Conditions two were completed redacted and the third was “Brain Injury – Traumatic – Client Reported” and partially redacted.
[19] Volume 6 pages 74 - 79
The tribunal noted that under “Assessment Summary”, which was also partially redacted, Ms Kraljevic referred to a:
“Discussion with treating psychiatrist Dr Robert Tym on phone (1/5/08)” and “….psychiatrist reported that … Hales is likely to have ……… Posttraumatic Stress Disorder (PTSD)………” and
“Specialist Assessment – Personality Assessment Inventory (PAI)
This assessment revealed that … Hales scored in the clinical range for every personality scale (somatic complaints, anxiety, anxiety-related disorders, depression, mania, paranoia, schizophrenia, borderline personality disorder, anti-social personality disorder, alcohol problems, drug problems, aggression, suicidity, stress and non-support) A result like this indicates a client who is experiencing severe distress. … Hales results are unlikely to mean that he would be diagnosed with each of the disorders listed……… Hales PAI results indicate that……….. ongoing assessments (such as psychiatric, ……… neuropsychological, and medical assessments – including head/brain scans). However the results on the PAI indicate that … Hales is experiencing severely distressing psychological symptoms and that he would have difficulty functional (sic) in normal paid employment……….”

The tribunal was not provided with any report from Dr Tym, notwithstanding it appears that the applicant had, apparently, attended that specialist before 1 May 2008. The weight that the tribunal is able to attach to this JCA is, therefore, very limited.
In the second JCA[20] on 17 June 2008 the contributing assessor’s Professional Discipline and Secondary discipline have been redacted. The reference to Post Traumatic Stress Disorder is described as ‘client reported’ and states that client also reported ‘nil current treatment’ and that the reported disorder was ‘not verified by medical evidence and not fully diagnosed, treated and stabilised’.
[20] Respondent’s submissions Volume 6 pages 80 – 86
The tribunal considered a medical report from Dr Maged Khalil dated 22 November 2012[21] which referred to the impact of the applicant’s homelessness on the management of a medical condition which was not PTSD.
[21] Respondent’s submissions Volume 6 page 105
The tribunal also considered two medical reports from Dr Saba Javed. The first report is dated 10 August 2012[22] and states that the applicant “experiences significant mental health issues .. significant issues in regards to his current accommodation. He has reported significant verbal abuse by his neighbours, which is having a negative impact on his mental health.”
[22] Respondent’s submissions Volume 2 page 180
The second report is The Canberra Hospital Patient Progress record completed 1 March 2013[23] in which Dr Saba Javed states:

“?psychosis – however in light of such heavy THC abuse difficult to clarify if true axis 1 diagnosis” and
“?delusional disorder – however difficult to diagnose in the light of such heavy THC use”

[23] Respondent’s Index to Material received by Applicant

There is no reference to PTSD in either medical report.
The tribunal also considered part of a letter which the applicant provided to the tribunal. While it was undated and unsigned, it appeared to have been sent to the applicant from the Health Services Commissioner. As the applicant did not appear at the hearing, the tribunal was unable to more specifically identify the author of that letter. It was addressed ‘Dear Colin” and, inter alia, states:

“Firstly, you were seeking a service from Dr Bonner i.e. a letter from him to Housing ACT noting that you have PTSD, and thus supporting your need to be move from your current housing situation. From the records it appears that Dr Bonner did not concur with a diagnosis of PTSD, that he reached an alternative diagnosis, and that he did not write the requested letter to Housing ACT. As you would appreciate, neither I nor my staff can possibly be qualified in every aspect of the health system or the specialties of health professionals. We rely on seeking expert opinions when there are disputes between the parties about diagnoses, treatment etc. Unfortunately, in your case, we do not appear to have alternative evidence from a health professional that supports a diagnosis of PTSD, and which we could use as a basis for challenging Dr Bonner’s conclusions….”

In relation to what weight, if any, the tribunal could safely give to this excerpt from the letter, the tribunal only notes that that author, like the tribunal did not appear to have alternative evidence from a health professional that supports a diagnosis for the applicant of PTSD.
The tribunal considered a report dated 5 March 2014[24] from Dr Otilia Rodrigues, a psychologist, whom the applicant had attended for an initial consultation on 22 December 2013. This report was heavily redacted which severely compromised the weight the tribunal could safely give to it. The unredacted parts of the report stated that “The PTSD questionnaire revealed that Mr Hales is experiencing symptoms of PTSD”. It concluded that “I am of the opinion that Mr Hales is suffering (redacted)…….. are symptomatic of trauma. This appears to be secondary to Posttraumatic Stress Disorder as set out by the DSM-V under Trauma-and-Stressor Related Disorders, (309.81), (F43.10)”. It was unclear from the unredacted parts of this report when the applicant’s symptoms commenced; the report did not specify a date of onset of his symptoms or whether he was suffering from PTSD when he applied for the housing transfer on 15 August 2011 and/or during the period between 15 August 2011 and 2 November 2012 when he vacated the rented property
[24] Respondent’s Index to Material received by Applicant –page 172
As the applicant did not attend the hearing on 13 June 2014, neither the tribunal nor the respondent’s legal representative, were able to ask the applicant about this report and those parts that had been redacted. In these circumstances the tribunal was unable to safely give any weight to the report.
After considering the available evidence and doing the best it could with that evidence, it appeared to the tribunal that the applicant was hoping that it would accept his own evidence without any expert evidence and find that the applicant’s behaviour related to his contended disability, PTSD. There is no doubt, and the respondent accepts the applicant’s statement, that his current situation is highly distressing. However, the reality is that the applicant has not provided objective expert evidence, that is from a suitability qualified medical practitioner or health practitioner, that he has a particular disability and that that disability has been exacerbated as asserted by the applicant in his complaint to the HRC and his subsequent application to the tribunal.

Conclusion

The evidence, as a whole, does not support the applicant’s claim that he has a disability. The tribunal finds that the applicant has not established that he has a particular relevant attribute as required by section 7 of the Discrimination Act. The tribunal is satisfied that the complaint does not have substance, is lacking this essential element and should be therefore be dismissed pursuant to section 32(2)(b) of the ACAT Act.

Other matters

Notwithstanding the tribunal’s findings and conclusion above, for completeness the tribunal also considered, on the available material, whether the applicant’s application has reasonable prospects of success.
In its Submissions[25] the respondent referred the tribunal to the following case law –
(i) Council of the Law Society v Legal Practitioner[26] where that tribunal noted, in considering the exercise of section 32(2)(b) the question before it was whether -
“…the material filed by the Society on its face, and without testing or evaluation through cross-examination of the witnesses, could constitute a case as described in its Application. If no such case is disclosed by the material, then the application to strike out should be granted.”
and
(ii) Burton v President of the Shire of Bairnsdale[27] in which the O’Connor J of the High Court held –
“Primâ facie, every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals, and the inherent jurisdiction of the Court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious in point of law will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed”.
[25] Respondent’s Submissions in Support of section 32 Application at [42] and [43]
[26] [2011] ACAT 49 at [15]
[27] [1908] 7 CLR 76 at [92]
The respondent submitted[28] that, in this case, where there is no objective evidence to support the applicant’s application, “the Tribunal may draw inferences from the surrounding facts to inform itself as to whether to make a finding that a respondent unlawfully discriminated against the applicant”; “that in the present matter, there are no surrounding facts from which the Tribunal could draw an inference to support the allegations made by the applicant, such that his complaint of unlawful discrimination would be unlikely to succeed.”
[28] Respondent’s Submissions in Support of section 32 Application at [44] and [45]
The respondent set out in its Statement of Facts and Contentions (Paragraphs 2 to 11) the progress of the applicant’s application, which the respondent received on 15 August 2011, to be transferred from the property he had been renting from the respondent from 9 May 2007. The tribunal noted that the respondent completed its assessment of the transfer application on 28 November 2011 and the applicant’s name was then placed on the ‘High Needs’ transfer waiting list for a 2 bedroom property in the Belconnen region. The tribunal is satisfied and finds that in assessing the application for transfer the applicant was not subjected to any detriment; the application was granted and the applicant was placed on the ‘High Needs’ waiting list.
It appears that in March 2013, the applicant completed a Statutory Declaration indicating he intended to vacate the property he was currently renting as the premises were, he claimed, impacting on his PTSD. Two further meetings were held with the applicant and he was asked to provide further supporting documentation in support of his wish to be transferred to the ‘Priority’ waiting list rather than the ‘High Needs’ waiting list. The applicant did not provide additional supporting documentation.
The second instance of discrimination relied on by the applicant (see paragraph 66 above) was the respondent’s request for this additional information.
The applicant vacated the property on 2 November 2012 and returned the keys to the respondent. The applicant’s application for housing assistance remains on foot in the ‘High Needs’ category,[29] although this is not his category of choice.
[29] Respondent’s Statement of Facts and Contentions at [12]
While the applicant’s name is not on the ‘Priority’ waiting list it is the case that the applicant has not provided the additional supporting documentation the respondent asked him to provide on 28 March 2012 and, again, on 23 April 2012 in order for his placement on the ‘Priority’ list to be reassessed.
The tribunal is satisfied and finds, having considered all of the available evidence, that the respondent’s request for information which the applicant had not provided with the original application, was a lawful request pursuant to sections 24 and 25 of the Housing Assistance Act 2007 (which are set out at the end of the Reasons).
The tribunal is unable to be satisfied, from the material before it, that the respondent treated the applicant unfavourably or that the reason for that ‘treatment’ was the applicant’s contended disability.
The respondent contends[30] that the tribunal should find, in relation to the applicant’s allegations of indirect discrimination, that there are no facts from which a reasonable inference may be drawn that the respondent subjected the applicant to any detriment in the way it assessed and processed his application for transfer. The applicant complained that he was not in his preferred category on the waiting list, and that the respondent imposed a condition on him that he remain in his original rented property while awaiting his transfer, which the respondent submits, implies that the respondent failed to expedite the transfer.
[30] Respondent’s Submissions in support of section 32 Application at [50]
From the available evidence it appears that the applicant’s position on the ‘High Needs’ waiting list continues in the same place notwithstanding that the applicant chose to leave the rental property and surrender the keys to the respondent in November 2012. The respondent permitted the applicant to leave the property; the respondent did not compel or oblige the applicant to remain in that property. The tribunal concurs with the respondent’s contention in the previous paragraph.
In considering the question posed by the tribunal in Council of the Law Society v Legal Practitioner, the tribunal has carefully considered the material filed by the applicant and all other material filed in the proceedings, and is not satisfied that there is material that can support a case as asserted by the applicant.
In coming to this finding, the tribunal considered the instances of discrimination relied on by the applicant in the 23 April 2013 Submissions and the 11 December 2013 Submissions. The tribunal was satisfied and finds that there was no objective evidence to suggest that the applicant was treated unfavourably by the respondent in considering his transfer application and/or in requiring him to provide the additional information or that the request for that information caused a detriment to him. In these circumstances, the section 32 application for an order dismissing the complaint should be granted.

………………………………………….
Ms L. Crebbin – General President
For Ms E. Symons
Presidential Member

LEGISLATION

DISCRIMINATION ACT 1991

Access to premises

It is unlawful for a person to discriminate against another person—
(a) by refusing to allow the other person access to, or the use of, any premises ( public premises ) that the public or a section of the public is entitled or allowed to enter or use (whether for payment or not); or
(b) in the terms or conditions on which the discriminator is prepared to allow the other person access to, or the use of, public premises; or
(c) in relation to the provision of means of access to public premises; or
(d) by refusing to allow the other person the use of any facilities ( public facilities ) in public premises that the public or a section of the public is entitled or allowed to use (whether for payment or not); or
(e) in the terms or conditions on which the discriminator is prepared to allow the other person the use of public facilities; or
(f) by requiring the other person to leave public premises or cease to use such facilities.
(1) In this Act:
"disability" means—
(a) total or partial loss of a bodily function; or
(b) total or partial loss of a part of the body; or
(c) malfunction of a part of the body; or
(d) malformation or disfigurement of a part of the body; or
(e) the presence in the body of organisms that cause or are capable of causing disease; or
(f) an illness or condition which impairs a person's thought processes, perception of reality, emotions or judgment or which results in disturbed behaviour; or
(g) an intellectual disability or developmental delay.
(2) Except in section 49 (Work related discrimination) and section 50 (Discrimination by qualifying bodies etc), "disability" includes a disability—
(a) that the person has, or is thought to have (whether or not the person in fact has the disability); or
(b) that the person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability); or
(c) that the person will have in the future, or is thought will have in the future (whether or not the person in fact will have the disability).

….

Accommodation

(1) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a) by refusing the other person's application for accommodation; or
(b) in the terms or conditions on which accommodation is offered to the other person; or
(c) by deferring the other person's application for accommodation or according to the other person a lower order of precedence in any list of applicants for that accommodation.
(2) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
(a) by denying the other person access, or limiting the other person's access, to any benefit associated with accommodation occupied by the other person; or
(b) by evicting the other person from accommodation occupied by the other person; or
(c) by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.

…..

"premises" includes—

(a) a structure, building, aircraft, vehicle or vessel; and

(b) a place (whether enclosed or built on or not); and

HOUSING ASSISTANCE ACT 2007

Housing assistance applicants—requirement for further information

(1) This section applies if an entity applies for housing assistance.
(2) The housing commissioner may require the entity to give the commissioner further stated information that the commissioner reasonably needs to decide the application.
Note Information includes a document—see the dictionary.
(3) The housing commissioner may, by written notice to the entity, refuse the application if—
(a) the requirement is made in writing; and
(b) the requirement states a reasonable time (of at least 7 days after the day the requirement is given to the entity) for providing the information; and
(c) the entity does not provide the information in accordance with the requirement.

Housing assistance recipients—requirement for information

(1) This section applies if an entity is receiving housing assistance.
(2) The housing commissioner may, at any time, require the entity to give the commissioner stated information that the commissioner reasonably needs—
(a) to review the housing assistance being provided to the entity; or

(b) to provide housing assistance to the entity; or
(c) for the good management of an approved housing assistance program or of assets held by the commissioner; or
(d) to otherwise exercise the commissioner's functions under this Act.
Note Information includes a document—see the dictionary.
(3) The housing commissioner may suspend or cancel all or part of the entity's housing assistance if—
(a) the requirement is made in writing; and
(b) the requirement states a reasonable time (of at least 7 days after the day the requirement is given to the entity) for giving the information; and
(c) the entity does not give the information in accordance with the requirement.
Note The decision to suspend or cancel all or part of an entity's housing assistance is a reviewable decision (see s 31A), and the housing commissioner must give a reviewable decision notice to the entity (see s 31B).
(4) The reviewable decision notice given to the entity must include—
(a) a statement that the housing assistance is suspended or cancelled; and
(b) when the suspension or cancellation begins; and
(c) if housing assistance is suspended—when the suspension ends.