Harry Wood For Elsie Lynne Neilson v Andrew Mark Lee-Joe
[2013] FCCA 1665
•22 October 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARRY WOOD FOR ELSIE LYNNE NEILSON v ANDREW MARK LEE-JOE | [2013] FCCA 1665 |
| Catchwords: HUMAN RIGHTS – Application for interim injunction under s.46PP of the Australian Human Rights Commission Act1986 based on alleged contravention of s.25(2)(b) of the Disability Discrimination Act 1999 - grounds on which injunction under s.44PP of the Australian Human Rights Commission Act1986 may be granted – whether prima facie case of unlawful discrimination based on contravention of s.25(2)(b) of the Disability Discrimination Act 1999 made out – whether balance of convenience favours the granting of injunction – interim injunction granted subject to conditions. |
| Legislation: Australian Human Rights Commission Act (Cth) 1986, ss.4(1) 46PH, 46PO, 46PP Disability Discrimination Act (Cth) 1999, ss.4, 5, 25(2)(b) |
| Beck v Leichhardt Municipal Council [2002] FMCA 331 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 Lee v Procter & Gamble Australia Pty Ltd & Anor [2012] FMCA 1000 Li v Minister for Immigration & Multicultural Affairs[2001] FCA 141 Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6 |
| Applicant: | HARRY WOOD FOR ELSIE LYNNE NEILSON |
| Respondent: | ANDREW MARK LEE-JOE |
| File Number: | SYG 2348 of 2013 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 17 October 2013 |
| Delivered at: | Sydney |
| Delivered on: | 22 October 2013 |
REPRESENTATION
| Applicant: | In Person |
| Solicitors for the Respondent: | Mrs P A Keith |
ORDERS
Subject to the matters contained in paragraphs 3, 4, 5, and 6, pursuant to s.46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act) Andrew Mark Lee-Joe (the respondent) by himself and by his agents is restrained for the period specified in paragraph 2 from taking any step, action, or proceeding to evict Harry Wood (the applicant) from Unit 9, 11-13 Pittwater Road, Manly (Unit).
The period for the purpose of paragraph 1 is the period commencing on the making of these orders and ending on the day the complaint the applicant and Elsie Lynne Neilson have made with the Australian Human Rights Commission (Commission) against the respondent is terminated by the President of the Commission under s.46PH of the Act.
The order made in paragraph 1 is subject to the following conditions:
(a)The applicant must pay to the respondent by 5 pm on 31 October 2013 all rent the respondent claims is outstanding on the Unit for the period up to and including 31 October 2013 without deduction on account of the amount the applicant has paid by way of bond.
(b)The applicant must continue to pay rent in connection with his occupation of the Unit monthly in advance, each such payment to be made on the first day of each month or, if the first day of a month falls on a weekend, the first Monday of that month.
(c)The applicant must pay all other amounts he is obliged to pay in connection with his occupation of the Unit as and when each such obligation accrues.
(d)Subject to paragraph 4 below, the injunction ordered in paragraph 1 is not intended to restrain the respondent from exercising rights he has as owner of the Unit.
Should the respondent desire to evict the applicant from the Unit for reasons which do not include as a reason Ms Neilson’s claim that she suffers from a disability, the respondent has liberty to apply to the Court on giving seven days’ notice to the applicant for an order that the injunction granted in paragraph 1 be discharged or modified to permit the respondent to evict the applicant, such application to be supported by evidence that the reason the respondent desires to evict the applicant does not include as a reason Ms Neilson’s claim that she suffers from a disability.
The respondent also has liberty to apply to the Court on giving seven days’ notice to the applicant for an order that the injunction granted in paragraph 1 be discharged on the ground that the applicant has substantially failed to comply with the conditions specified in paragraphs 3(a), (b) or (c) of these orders, such application to be supported by evidence of the applicant’s substantial failure to comply with those conditions.
The parties may by consent apply to the Court to discharge or vary the injunction granted in paragraph 1.
The parties otherwise have liberty to apply to the Court on three days’ notice if either party wishes to apply to the Court to vary these orders or for any other reason relating to the operation of these orders.
Subject to paragraph 9, each party is to bear his own costs.
If any party wishes to claim a costs order different from that made in paragraph 8, he may apply to relist the matter before Judge Manousaridis, such application to relist the matter to be made through the Associate to Judge Manousaridis by no later than 4.00 pm on 29 October 2013.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 2348 of 2013
| HARRY WOOD FOR ELSIE LYNNE NEILSON |
Applicant
And
| ANDREW MARK LEE-JOE |
Respondent
REASONS FOR JUDGMENT
Introduction
The applicant currently occupies Unit 9, 11-13 Pittwater Road, Manly (Unit) together with Ms Neilson. Until 10 September 2013 the applicant occupied the Unit under a periodical tenancy.
By letter dated 6 August 2012, the respondent, the owner of the Unit, gave the applicant thirty days’ notice to vacate the Unit. The applicant disputed the respondent’s entitlement to obtain possession of the Unit. That resulted in the respondent issuing a further notice and commencing proceedings in the Consumer, Trader and Tenancy Tribunal of New South Wales (CTTT).
On 10 September 2013, the CTTT ordered that the tenancy agreement under which the applicant occupied the Unit is terminated, and further ordered that by 4 October 2013 the applicant give possession of the Unit to the respondent.
On or shortly after 30 September 2013, the applicant, on behalf of himself and Ms Neilson, lodged a complaint (Complaint) with the Australian Human Rights Commission (Commission). In the Complaint, the applicant alleges that the respondent wished to evict the applicant and Ms Neilson from the Unit, and obtained the order for their eviction, because Ms Neilson suffers from a disability and, for that reason, the respondent has contravened s.25(2)(b) of the Disability Discrimination Act 1992 (Cth) (DDA). As a consequence, the applicant claims he and Ms Neilson are entitled to an order for compensation. In the Complaint, the applicant also claims an “urgent interim injunction . . . for the time being, maintaining the status quo”.
On 2 October 2013 the applicant, in his capacity as carer of Ms Neilson, filed an application with this Court for an interim injunction to restrain the respondent from acting on the orders the CTTT made on 10 September 2013 to obtain possession of the Unit. That application was filed pursuant to s.46PP(1) of the Australian Human Rights Commission Act 1986 (Cth) (Act).
In these reasons for judgment, I consider whether the applicant is entitled to an interim injunction. That requires me to first identify the principles that govern the exercise of the power conferred by s.46PP of the Act.
Principles governing exercise of power under s.46PP
Subsection 46PP(1) of the Act provides:
At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit Court may grant an interim injunction to maintain:
(a)the status quo, as it existed immediately before the complaint was lodged; or
(b)the rights of any complainant, respondent or affected person.
Subsection 46PP(2) of the Act permits a “complainant” to apply for an interim injunction under s.46PP(1). The word “complainant” is defined in s.4(1) of the Act to mean a person who lodged the complaint with the Commission, whether on the person’s own behalf or on behalf of another person.
It has been held that the principles governing the granting of interlocutory injunctions under the general law are a useful guide for the exercise of the power to grant interim injunctions under s.46PP of the Act.[1] Under those principles, a court will grant an interlocutory injunction if it is satisfied of the following three matters:[2]
a)there “is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief”;
b)the plaintiff “will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted”; and
c)the “balance of convenience favours the granting of an injunction”.
[1] See, for example, the useful discussion of some of the authorities by Barnes FM (as her Honour then was) in Lee v Procter & Gamble Australia Pty Ltd & Anor [2012] FMCA 1000 at [24] – [27]
[2] Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason ACJ).
The formulation of the first of these matters may need to be modified to take into account the rights in aid of which an interim injunction under s.46PP may be sought. These rights have been identified by Emmett J in Li v Minister for Immigration & Multicultural Affairs:[3]
The power or jurisdiction conferred by s 46PP . . . is limited to the orders necessary to ensure the effective exercise of the powers of the Commission and the jurisdiction of the Court in the event of an application being made to the Court under the HREOC Act following the determination of a complaint.
[3] [2001] FCA 1414 at [36]
In Beck v Leichhardt Municipal Council, Raphael FM (as his Honour then was) formulated the first requirement as follows: [4]
It is my view that the usual requirement of an interim injunction that there is a “genuine issue to be tried” means in the context of this section of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (HREOC Act), that a dispute exists which is capable of being conciliated by the Commission under the jurisdiction given to it and that the dispute itself is not fanciful or so lacking in merit that no reasonable commission invested with the powers of the Human Rights & Equal Opportunity Commission would decline to entertain it.
[4] [2002] FMCA 331 at [16]
This formulation, however, may be too narrow. What must also be considered, and what, in my opinion, is a critical element when considering whether a court will grant relief under s.46PP of the Act, is whether, in the complaint lodged with the Commission, the applicant has stated a prima facie case of unlawful discrimination and an entitlement to a remedy under s.46PO of the Act. That is so because an application for relief under s.46PO must be based on the same (or in substance the same as) the claim of unlawful discrimination that was made before the Commission or must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.[5]
[5] Section 46PO(3)
The second of the three matters to which I refer in paragraph 9 of these reasons “involves an assessment by the Court as to whether the claimant would, in all material respects, be in as good a position if he were confined to his damages remedy, as he would be in if an injunction were granted”.[6]
[6] Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6 at [26] (Foster J)
The third of the three matters to which I refer in paragraph 9 of these reasons “requires the Court to exercise a discretion”.[7] That is:[8]
In exercising that discretion, the Court is required to assess and compare the prejudice and hardship likely to be suffered by the defendant, third persons and the public generally if an injunction is granted, with that which is likely to be suffered by the claimant if no injunction is granted. In determining this question, the Court must make an assessment of the likelihood that the final relief (if granted) will adequately compensate the claimant for the continuing breaches which will have occurred between the date of the interlocutory hearing and the date when final relief might be expected to be granted.
[7] Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6 at [27] (Foster J)
[8] Sebel Furniture Limited v Acoustic & Felts Pty Limited [2009] FCA 6 at [28] (Foster J)
Finally, it is important to note the purpose for which the power under s.46PP to grant an interim injunction may be exercised. The purpose is not simply to maintain the status quo; its purpose is to maintain the status quo only in so far as that is required to ensure that the Commission and this Court or the Federal Court may effectively exercise their powers under the Act.
First element: has the applicant made out a prima facie case?
Whether the applicant has a prima facie case that the respondent engaged in unlawful discrimination, or whether there is a serious question to be tried about whether the respondent has engaged in unlawful discrimination, requires me to first identify the elements of the unlawful discrimination proscribed by s.25(2)(b) of the DDA. (In the remainder of these reasons, I will use the expression “prima facie case” of unlawful discrimination to also include the raising of a serious question to be tried about whether there has been unlawful discrimination.)
Elements of unlawful discrimination under s.25(2)(b) of DDA
Section 25(2)(b) of the DDA provides:
It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of the other person’s disability:
. . .
(b)by evicting the other person from accommodation occupied by the other person . . .
There are three elements to the unlawful discrimination proscribed by s.25(2)(b). First, there must be a person who has a “disability”. “Disability” is defined in s.4 of the DDA to include, among other things, a total or partial loss of a person's bodily functions.
Second, there must be a person (discriminator) who discriminates against the person with a disability on the ground of that other person’s disability. Under s 5 of the DDA, a discriminator so discriminates “if, because of the disability, the discriminator treats, or proposes to treat, the aggrieved person less favourably than the discriminator would treat a person without the disability in circumstances that are not materially different”.
Third, the discrimination must take a particular form, namely, eviction of the person who has the disability.
A person, then, will contravene s.25(2)(b) of the DDA if that person evicts a person with a disability because of that person’s disability.
Whether Complaint discloses prima facie case of contravention of s 25(2)(b)
Next, I must consider whether the Complaint discloses a prima facie case of unlawful discrimination based on the respondent’s alleged contravention of s.25(2)(b).
Although the Complaint is a lengthy document, the following essential allegations can be detected:
a)The applicant and Ms Neilson are occupants of the Unit, and the respondent is the registered proprietor of the Unit.
b)Ms Neilson suffers from a chronic respiratory condition.
c)On 25 June 2012, at the annual general meeting of the Owners Corporation of the strata scheme of which the Unit forms part, the respondent “attempted to evict” the applicants from the Unit “on the grounds, according to [the respondent’s] acts and omissions, at the time, of Ms Nielson’s chronic respiratory condition”.
d)The respondent falsely stated to the applicant that he desired to obtain vacant possession to sell the unit, but this reason was a fabrication to hide his real reason, namely, to evict the applicant and Ms Neilson because of Ms Nielsen’s disability.
e)The respondent took action to evict the applicant and Ms Neilson by applying to the CTTT.
In my opinion, these allegations, if proved, would constitute a contravention by the respondent of s.25(2)(b) of the DDA and, therefore, of the respondent’s having engaged in unlawful discrimination.
If established, Ms Neilson may be entitled to one or more of the remedies identified in s.46PO(4) of the Act. In my opinion, it is at least reasonably arguable that this could include an order under s.46PO(4)(a) of the Act requiring the respondent not to take steps to evict Ms Neilson for the reason or a reason that Ms Neilson suffers from a disability.
Whether evidence shows a prima facie case of contravention of s.25(2)(b) of DDA
I now must consider whether there is evidence to show Ms Neilson has a prima facie case of unlawful discrimination; that is, evidence which, if it remains as it is there is a probability that at the trial of a claim pursuant to s.46PO the applicant will be held entitled to relief. I first turn to the claimed disability.
Evidence of disability
The applicant claims Ms Neilson suffers from a “chronic respiratory condition”. There is annexed to an affidavit sworn by the applicant two letters written by medical practitioners. The first is a letter dated 4 June 2010 written by Professor A W Steinbeck, a “consultant physician general medicine, endocrinology & diabetes”. Professor Steinbeck states:
The above [that is, Ms Neilson] has been my patient for some years and her medical history is well known to me.
It has become evident that her lung health is being adversely affected by cigarette smoke originating in a nearby apartment in the block.
The smoke invades her apartment and its air in which she lives. It impairs her sleeping because of the effect upon her breathing. It is sufficient to induce laryngeal irritation at times.
Her lung health had recovered after exposure to irritant fumes in medical work of some years ago and it can be understood that a smoke irritant may have grave consequences.
The second letter is one written by Dr Michael Bishop dated 18 April 2013. Dr Bishop states:
Ms. “Lynne” Elsie Neilson aged 64 yrs, of Unit 9, 11-13 Pittwater Rd. Manly, has been a patient of this clinic since it commenced practicing [sic] in 1993, due to her exposure to irritant fumes in her medical career in the 1980’s. Lynne has subsequently suffered from major physical and mental medical conditions. In January 2012 she had a serious setback in her health due to a lift being out of service in the building she resides in. The lift was not functioning for a prolonged period of time putting a lot of physical and mental stress on Lynne in her everyday activities. She was making a steady recovery until late last year when eviction proceedings arose and the associated stress caused her severe anxiety.
Lynne has an expert carer and needs to be in expert care at all times as she can have sudden mood swings. In recent years at least one of these episodes has been a near fatal experience for her.
I have been Lynne’s general practitioner since 2003.
After the hearing of his application, the applicant provided to the Court a transcript of a hearing under the Mental Health Act1990 (NSW) before a Magistrate held on 18 September 2001. The applicant did this in an attempt to meet the condition under which I ruled I would read paragraph 7 of his affidavit. The transcript the applicant provided, however, records the attendance of a Lynne Cousens and of a Mr Thurgood, and of the Magistrate ordering Ms Cousens be released into the care of Mr Thurgood.
From the bar table, the applicant informed the Court he was also known by the name of Thurgood. The applicant also sent to the Court a copy of what appears to be a statutory declaration made by Ms Neilson in which it is stated that Ms Neilson’s married name was Lynne Cousens. The statutory declaration also states that Ms Cousens has been released “into Harold’s care”.
I cannot receive the statutory declaration into evidence, because I did not give the applicant leave to provide such evidence. I have nothing apart from the applicant’s say-so from the bar table that he used the name of Thurgood. I therefore cannot accept the transcript as evidence of that which it purports to record. That is not to say, however, that I have any doubt that the Ms Cousens referred to in the transcript is Ms Neilson, and that the Mr Thurgood referred to in the transcript is the applicant. However, my being unable to rely on the transcript has no bearing on the outcome of the application before me.
The evidence in support of Ms Neilson suffering from a “chronic respiratory condition”, and the nature of that condition is scant. In my opinion, however, there is, nevertheless, some evidence. In particular, there is the letter from Professor Steinbeck in which he states that Ms Neilson’s “lung health had recovered after exposure to irritant fumes in medical work of some years ago and it can be understood that a smoke irritant may have grave consequences”. From this statement, it can reasonably be inferred that Ms Neilson at one time suffered from a condition that affected the functioning of her lungs; that condition had been caused by exposure to irritant fumes; as of the date of the letter, Ms Neilson had recovered from the condition; however, that condition was likely to recur if Ms Neilson were to be exposed to cigarette smoke. In my opinion, it is reasonably arguable that the condition identified by Professor Steinbeck arises or is liable to arise out of Ms Neilson’s having an ongoing defect in the functioning of her lungs. For that reason, it is reasonably arguable that this defect constitutes a partial loss of Ms Neilson’s bodily function and hence is a “disability” within the definition of “disability” given in s.4(1) of the DDA.
Alternatively, it can reasonably be inferred that Ms Neilson suffered in the past from a defect in the functioning of her lungs from which she does not now suffer. That too, however, would fall within the definition of “disability”. That definition includes a disability that “previously existed but no longer exists” and a disability that “may exist in the future (including because of a genetic predisposition to that disability)”.
Evidence in support of eviction because of disability
The evidence on which the applicant relies in support of Ms Neilson’s claim that the respondent sought to evict the applicant from the Unit because of Ms Neilson’s disability is contained in paragraphs 43, 44, and 45 of his affidavit sworn on 11 October 2013.
The applicant there says that on 25 June 2012 he was present at the annual general meeting of the Owners Corporation of which the Unit formed part. The meeting was held at a club near the Unit. The applicant says he overheard a conversation between the occupant of unit 8, Mr Lavac, and the respondent concerning a motion Mr Lavac was proposing to put to the meeting banning the smoking of cigarettes anywhere in the building. The applicant says:
I heard Mr Lavac say to Mr Lee-Joe during that discussion words to the effect of “Lynne doesn’t have to go to the CTTT to get relief from the cigarette smoke coming into her bedroom, she can go to the Federal Circuit Court to get it under disability discrimination laws, which I understand she intends to do, if it doesn’t stop”.
Mr Andrew Lee-Joe then turned to face me and in a low utterance said to me “If that’s the case, she can move on”.
According to the applicant, on the following day he telephoned the respondent’s mother to “ensure that I had not erred in construing [the respondent’s] direct eviction notice of Lynne, on the grounds of her chronic respiratory condition, at the aforementioned meeting”. In that telephone conversation, the respondent’s mother said: “You and Lynne need to realise that people are not going to change their habits for her. Where she (Lynne) is, isn’t a nursing home and there still isn’t a smoking ban there. Like Andrew [the respondent], I can’t see how Lynne can stay there now”.
The respondent has put on an affidavit in which he denies making the statement the applicant attributes to him. The respondent says that he said to the applicant that he was thinking of selling the unit in the next couple of months and that he had not been working for the last month. As corroboration of that evidence, the respondent annexed to his affidavit an email from a real estate agent sent to the respondent on 3 May 2012. That email thanks the respondent for “the opportunity to discuss your property in Manly yesterday”, and attaches a “Market Analysis” which the real estate agent stressed was “not a market appraisal just a snapshot of what’s happening at the moment”. The email concludes that if the respondent wished, the real estate agent would “inspect the property and provide you with an accurate market value for both sale and for rent at a time that is convenient with you”. The respondent has not put on any evidence which responds to the applicant’s evidence of his conversation with the respondent’s mother.
In my opinion, if the applicant’s evidence of his conversations with the respondent and the respondent’s mother is accepted, there is a probability that at the trial of an action under s.46PO it will be found that the respondent decided to take steps to evict the applicant because of Ms Neilson’s disability.
Evidence of eviction
The third element of unlawful discrimination proscribed by s.25(2)(b) is that there must be conduct which amounts to “evicting”. In my opinion, this word, in the context of s.25(2)(b) of the DDA, means the setting in motion and pursuit of legal or other process for the removal of a person from premises. In my opinion, there is no doubt that the respondent has engaged in conduct that amounts to the “evicting” of the applicant.
Conclusion on prima facie case
In my opinion, the applicant does have a prima facie case that the respondent engaged in unlawful discrimination by engaging in the conduct prohibited by s.25(2)(b) of the DDA. I must repeat, however, that the respondent denies he engaged in any such conduct. And my conclusion does not reflect a view on my part that, at any hearing of a claim for relief under s.46PO, the applicant’s evidence of the conversations on which the applicant relies will or is more likely to be preferred over the evidence on which the respondent relies to deny the applicant’s evidence. My conclusion as to the existence of a prima facie case is based on no more than the assumption that the applicant’s evidence will stand.
Second element: position of applicant if confined to damages
The second issue I must consider is whether the applicant and Ms Neilson would, in all material respects, be in as good a position if the applicant and Ms Neilson were confined to the remedies prescribed by s.46PO of the Act, on the assumption the injunction is not granted, as they would be if an injunction were granted, and, if not, whether damages would be an adequate remedy to overcome Ms Neilson’s not being in as good a position. That requires me first to compare the position Ms Neilson would be in if, on the one hand, an injunction is granted and Ms Neilson succeeds before the Court in establishing unlawful discrimination with, on the other hand, the position she would be in if no injunction is granted yet she succeeds before the Court in establishing unlawful discrimination.
In my opinion, in the first of these two scenarios, Ms Neilson would have reasonable grounds for claiming an order under s.46PO(4)(a) of the Act that the respondent take no action to evict Ms Neilson for a reason that includes her disability assuming, in the meantime, the respondent had no occasion for lawfully evicting Ms Nielsen. In the second of these scenarios, if no injunction is granted, that potential remedy will not be available.
The next question is whether, if Ms Neilson is restricted to her damages remedy, that would place Ms Neilson in as good a position as she would be if she were to have available to her the potential remedy of an order preventing the respondent from evicting her for other than a lawful reason. In my opinion, it would not. The applicant has been in possession of the Unit since 11 September 2007 and I infer that Ms Neilson moved into the Unit at around the same time. In my opinion, that was a sufficient time for Ms Neilson to form an attachment to the Unit the loss of which cannot be adequately compensated by an award for damages. It may well be that the applicant would be unable to prove any recoverable damages if she were to vacate the Unit now.
The potential remedy of an order preventing the respondent from evicting the applicant assumes that no occasion has arisen or will arise where the respondent would have reason to evict the applicant other than because Ms Neilson suffers from a disability. The respondent has submitted however, that he has such a reason. It was submitted that the respondent desires to sell the Unit. In my opinion, the evidence before me does not support that submission. The most recent item of evidence before me which bears on this question is a letter dated 24 September 2012 from the respondent to the applicant which states that “[a]s already mentioned in my previous letter from 3 August 2012, I have plans to sell or move into above property myself”.
Third element: balance of convenience
The third and final matter I must consider is the balance of convenience.
If no injunction is granted, but at the end of the day the applicant and Ms Neilson succeed in establishing that the respondent evicted the applicant because Ms Neilson suffers from a disability, the applicant and Ms Neilson will suffer the detriment to which I refer in paragraph 43 of these reasons. On the other hand, if an interim injunction is granted the respondent will suffer no detriment provided the applicant continues to pay the rent and any other payment he may be obliged to make and the respondent is not inhibited from exercising such rights as he otherwise has as owner of the Unit.
In that regard, the evidence reveals a dispute about the payment of rent. The respondent claims that the applicant has paid rent only up to the period ending 5 August 2013 whereas the applicant claims he has paid rent up to 3 September 2013. The difference between the parties, however, relates to the applicant’s claim that an amount of $1,400 which he paid by way of bond should be credited against his liability to pay rent. I need not resolve that dispute for the purposes of this application. If the applicant pays the amount the respondent claims is owing and the applicant continues to pay the rent until the determination of the applicant’s and Ms Neilson’s claims of unlawful discrimination or until such time as the respondent may lawfully evict the applicant, the respondent will suffer no detriment if an interim injunction is granted.
Conclusion and disposition
For the reasons set out above, I am of the opinion that, provided the respondent receives the rent payable by the applicant and the respondent is otherwise not inhibited from exercising his rights as owner of the Unit, the applicant has made out a case for the granting of an interim injunction under s.46PP of the Act, and an injunction should be granted. The injunction, however, must be framed to ensure it goes no further than is necessary to protect the asserted rights Ms Neilson has for relief under the Act. It must not be framed in a way which otherwise interferes with the rights the respondent has as owner of the Unit.
In order to ensure it achieves these purposes, the injunction must be made conditional on four things. First, the applicant must pay all rent the respondent claims is outstanding. Second, the applicant must continue to promptly pay rent as and when it accrues. The evidence suggests a rather loose pattern of rent payment. In my opinion, to avoid future dispute, the granting of the injunction should be conditional on the applicant paying rent monthly in advance. Third, the respondent should be at liberty to exercise such rights as he otherwise may have as an owner of the Unit. Fourth, the respondent should have liberty to apply to the Court to discharge the interim injunction if he intends to evict the applicant on proof that he does not propose to do so for reasons that include as a reason Ms Neilson’s claim to have a disability. And finally, the parties should have liberty to apply to discharge or vary the injunction if they so consent.
Accordingly, I propose to make an order granting an injunction subject to these conditions.
I also propose to order that each party bears his own costs, but reserve to the parties liberty to apply to relist the matter should they wish to apply for a different costs order, such application to be made through my associate by 4.00 pm on 29 October 2013.
I certify that the preceding fifty-one (51) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 22 October 2013
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