Hillie v Henson Properties Group
[2012] NSWADT 194
•19 September 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Hillie v Henson Properties Group [2012] NSWADT 194 Hearing dates: 11 September 2012 Decision date: 19 September 2012 Jurisdiction: Equal Opportunity Division Before: G B Furness SC, Judicial Member Decision: Refused application for leave for declined anti-discrimination complaint to proceed
Catchwords: Leave, lacking in substance, residential tenancy, anti-discrimination Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Jones v Ekermawi [2009] NSWCA 388 Category: Principal judgment Parties: Vanessa Hillie (Applicant)
Henson Properties Group (First Respondent)
E and L Levi (Second Respondent)
Oaks Groups Pty Ltd (Third Respondent)Representation: V Hillie (Applicant in person)
R Chen (Agent for 1st and 2nd Respondents)
J Benfield (Agent for 3rd Respondent)
File Number(s): 121102, 121103, 121104
REASONS FOR DECISION
This is an application by Ms Hillie for leave for complaints of sex and marital status discrimination and victimisation to proceed after they were declined by the Anti-Discrimination Board (the Board).
When a complaint is declined by the Board as lacking in substance, s.96 of the Anti-Discrimination Act 1977 (the Act) requires the Tribunal to give leave before such a complaint can proceed. The Supreme Court and the Court of Appeal have determined the principles on which leave can be granted: Jones v Ekermawi [2009] NSWCA 388 with the effect that the Tribunal has an open discretion to grant or not grant leave for a complaint to proceed and is to be guided by what is fair and just in the circumstances.
Section 92(1)(a) of the Act provides criteria which are relevant and of assistance but not determinative of a leave application. The onus is on the applicant to persuade the Tribunal that leave should be granted.
Ms Hillie, the applicant, at the relevant time was a tenant in an apartment in the Goldsborough Apartment building in Pyrmont. Her complaint is against first, the owners of the apartment in which she was a tenant, Mr and Mrs Levi and secondly, Henson Properties Group (Henson) who the owners had engaged to manage the rental of their apartment. Finally, the complaint is against the Oaks Property Group (Oaks) which was contracted by the Owners Corporation to provide management services over common property including supervising the work done by sub-contractors of the Owners Corporation in the areas of security and the concierge services.
The first complaints were made to the Board on 6 March 2012. While they contained accounts of events which occurred over 4 years prior, the complaints were about incidents which occurred from 30 January 2012 to the date of the complaint.
On 6 March 2012, Ms Hillie complained that she had been discriminated against on the grounds of sex and marital status in the provision of services by Oaks in relation to the building concierge and security services.
On 6 March 2012, Ms Hillie complained against Henson and Mr and Mrs Levi that she had been discriminated against on the grounds of sex and marital status in the provision of services and by seeking to evict her. On 2 March 2012, the applicant received a notice from Henson to vacate the premises within 14 days.
On 29 March 2012, Ms Hillie alleged sex discrimination in the provision of services and victimisation against Oaks.
On 4 May 2012, Ms Hillie complained that Henson had victimised her because she had lodged a complaint of sex and marital status discrimination with the Board.
The relevant provisions of the Anti-Discrimination Act are as follows. Section 24 provides:
(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of sex if, on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of the opposite sex or who does not have such a relative or associate of that sex, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of the opposite sex, or who do not have such a relative or associate of that sex, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.
(1B) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is or may become pregnant is a characteristic that appertains generally to women.
(1C) For the purposes of this section, but without limiting the generality of this section, the fact that a woman is breastfeeding or may breastfeed is a characteristic that appertains generally to women. For the purposes of this Act, "breastfeeding" includes the act of expressing breast milk.
(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of the opposite sex are not materially different by reason of the fact that the persons between whom the discrimination occurs:
(a) are a woman who is pregnant and a man, or
(b) are not of the same marital or domestic status, or
(c) are a woman who is breastfeeding and a man.
Section 33 provides that:
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Where a skill is commonly exercised in a different way in relation to men and women, a person does not contravene subsection (1) by exercising the skill in relation to men only, or women only, in accordance with the person's normal practice.
Section 34 provides that:
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of sex:
(a) by refusing the person's application for accommodation,
(b) in the terms on which he or she offers the person accommodation, or
(c) by deferring the person's application for accommodation or according to the 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 on the ground of sex:
(a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or
(b) by evicting the person or subjecting the person to any other detriment.
(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b) theaccommodation provided in those premises is for no more than 6 persons.
Section 39 provides that:
(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of marital or domestic status if, on the ground of the aggrieved person's marital or domestic status or the marital or domestic status of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different marital or domestic status or who does not have such a relative or associate of that marital or domestic status, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons of a different marital or domestic status, or who do not have such a relative or associate of that marital or domestic status, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's marital or domestic status if it is done on the ground of the person's marital or domestic status, a characteristic that appertains generally to persons of that marital or domestic status or a characteristic that is generally imputed to persons of that marital or domestic status.
(2) For the purposes of subsection (1), the circumstances in which a person treats or would treat another person of a different marital or domestic status are not materially different by reason of the fact that the persons between whom the discrimination occurs are not of the same sex.
Section 47 provides that:
It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of marital or domestic status:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
Section 48 provides that:
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of marital or domestic status:
(a) by refusing the person's application for accommodation,
(b) in the terms on which he or she offers the person accommodation, or
(c) by deferring the person's application for accommodation or according the 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 on the ground of marital or domestic status:
(a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or
(b) by evicting the person or subjecting the person to any other detriment.
(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if:
(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and
(b) theaccommodation provided in those premises is for no more than 6 persons.
Complaints of discrimination against Henson and Mr and Mrs Levi
The Applicant complains that she was treated differently from her neighbour, who was male. She complains that her neighbour breached by-laws and nothing was done about those breaches. When she complained about those breaches, she was not listened to and was served with an eviction notice. The tenant next door was not evicted. She said she wanted equal treatment with the tenant next door. She complains that the occupants of other units who have breached by-laws have not been asked to vacate their apartments while she has.
She told the Tribunal of an incident in 2008 or 2009 when her neighbour tried to climb into her window, while naked. The applicant said that he then ran up and down common property brandishing a machete.
The incidents which occurred during the time covered by the complaint, that is 2012concerned the noise made by the neighbour including the playing of loud music.
She complains that she has told Henson of her recent complaints against the neighbour of noise and loud music and that no action was taken.
The complainant identified the services provided by the owners and Henson in relation to which she has claimed discriminatory conduct as responding to complaints she made about other tenants, notably the tenant next door to her. She said that the respondents failed to provide those services in that they did not respond to her complaints and allowed the tenant next door, and other tenants, to harass her and to breach the by-laws.
The complainant said that she was treated differently on the grounds of her sex and marital status because she was the only single female on her floor.
The applicant attached a series of emails between her and Henson which preceded her being required to vacate the unit. They reveal that the reason for her eviction included that she had thrown objects into the common property and had directed abusive language to a building concierge.
The applicant also attached a series of emails to, among others, Oaks, Henson and the owners dated 1 and 2 March 2012 complaining about noise from the neighbour.
Before the Tribunal, the agent for the owner and Henson accepted that each provided services in the form of referring complaints made by the tenant to the concierge, the building manager and the strata agent. They provided those services to the applicant and did not refuse to do so. The eviction notice was served because of arrears in rent.
To prove a complaint of discrimination concerning the provision of goods and services, Ms Hillie has to prove the following. First, she needs to identify the service that Henson and the owners provided to her and explain how that service was refused or provided on less favourable terms. Secondly, she needs to establish that they have treated her less favourably that they would have treated a person who was not single or female in the same or similar circumstances. Finally, she needs to prove that at least one of the reasons for that treatment was her marital status or her gender.
For the purposes of these proceedings, I accept that Henson and the owners provided services to Ms Hillie as a tenant and that those services included responding to complaints she made about conduct which affected her tenancy. Ms Hillie complains that those services were refused and the events on which she relies are that she did not receive any or any adequate response to her complaints, that the conduct of other tenants, in particular the tenant next door continued and, more particularly, the tenant next door was not evicted.
The respondents submit that their response to the complaints was to refer them to the concierge, building manager and or the strata manager.
The material Ms Hillie put before the Board supports only that she made complaints to the owners and Henson on 1 and 2 March 2012, a few days before she complained to the Board. However, it may be that after documents have been produced and the opportunity to examine and cross-examine witnesses in a hearing before the Tribunal, Ms Hillie may be successful in establishing that those services were refused to her.
There are, however, significant difficulties with the remaining matters she must prove.
To prove that a refusal of services or her notice to evict constitutes discrimination, Ms Hillie needs to identify a real or hypothetical comparator. The person she puts forward is the male tenant next door who, she claims was allowed to breach by-laws without sanction and, in particular, without being evicted. She said that she was treated by the respondents differently from the treatment they gave to the tenant next door.
While Ms Hillie asserts that the neighbour has not been evicted, there is no evidence of a male or a person of married status making complaints and being treated more favourably than the applicant. One of the difficulties faced by the applicant is that Henson and the owners of the unit in which she was a tenant did not manage or own any other unit in the building. They could not evict him nor could they be expected to receive any complaints he made and act on them or not.
In the absence of an actual comparator, the Tribunal must consider whether one of the reasons for her treatment, that is, not responding to complaints and ultimately seeking to have her evicted was her marital status or gender.
The reason given for her eviction was arrears of rent and breach of by-laws. There is no evidence before the Tribunal as to a failure to respond. As is evident from the findings below in relation to Oaks, there was action taken in respect of the each of the complaints made by Ms Hillie to security or the concierge services. There is no basis on which to conclude by way of inference or evidence that Ms Hillie was treated less favourably than any other person who was not female or single. Other than one reference by a person for whom Henson and the owners were not responsible, to another tenant being married, there is nothing upon which such a finding could be made.
Complaint of victimisation against Henson and Mr and Mrs Levi
Ms Hillie complained that Henson asked her for money on 16 April 2012 and then again on 30 April 2012. These two acts, she claimed were in response to her complaining of discrimination and were acts of victimisation.
In emails attached to her complaint, it appears that the requests for money were in relation to overdue rent and it was accepted by Ms Hillie that those requests were related to rent payments.
Henson advised the Board that Ms Hillie was behind in her rent and she was sent reminders that her rent was overdue.
I am not satisfied that Ms Hillie was subjected to a detriment on the ground that she had made a complaint about discrimination to the Board. The requests were related to overdue rent and were not subjecting her to any detriment.
Complaint against Oaks of discrimination
Ms Hillie complained on 6 March 2012 that she was treated differently from her neighbour, who was male. Her complaint is in similar terms to her complaint against Henson and Mr and Mrs Levi. She complains that her neighbour breached by-laws and nothing was done about those breaches.
She complains that the occupants of other units who have breached by- laws have not been asked to vacate while she has.
She complains that the building manager, employed by Oaks has knocked on her door without an appointment. She complained about this and afterwards was no longer comfortable taking other complaints to him. He did not treat men like he treated her.
She complains that she has made complaints to concierge staff about the noise in two apartments on her floor and nothing was done.
She complains that she told a person who is at the 'front desk' about a noise complaint and he responded that the person complained about was married, and her number was disconnected and they had no key to enter the property.
The complainant identified the services provided by Oaks as Oaks responding to complaints she made about other tenants, notably the tenant next door to her. She said that Oaks had failed to provide those services in that they did not respond to her complaints and allowed the tenant next door, and other tenants, to harass her and to breach the by-laws.
The applicant attached to her complaint a number of incident report forms. One concerned a complaint by a security officer against another tenant. Another was a noise complaint by the applicant made on 3 February 2012 about the tenant next door in which the security officer is recorded as having spoken to the tenant next door and that the music was turned down as a result of his intervention. Further noise complaints by the applicant on 23 January, 31 January and 2 February 2012 are recorded on incident forms and each indicates that security had taken action to resolve each complaint.
The complainant said that she was treated differently on the grounds of her sex and marital status because she was the only single female on her floor.
Oaks told the Board that concierge and security services providers had been engaged by the Owner's Corporation and those providers had no relationship with Oaks. The agent for Oaks at the hearing told the Tribunal that Oaks supervises those providers. Oaks accepted that it provided services to the applicant by supervising the concierge and security providers.
Oaks denied discriminating against the applicant and denied knowledge of her dealings with concierge or security staff.
One employee of Oaks was the subject of an allegation that he knocked at the applicant's door without an appointment. Oaks told the Board that that had occurred when the applicant had left her door open in circumstances that it is a fire door and must be kept closed. In response, the applicant said she was unaware of her door being a fire door.
For the purpose of this application for leave, I accept that Oaks provided services to the applicant. I am not satisfied that the relevant services claimed by the applicant were refused. The incident reports provided by the applicant support that action was taken in response to the complaints the subject of those incident reports.
In relation to her eviction, Oaks was contracted to provide management services with respect to common property. It made no decision in relation to the applicant's eviction.
The only services it provided which are capable of having been refused to be provided on a discriminatory basis are that of supervising the concierge and security services. It is not necessary to decide whether Oaks is responsible for the manner in which those services were provided by concierge and security, because there is no evidence which supports a finding that the applicant was treated less favourably than a male or a person of different marital status. There is no evidence that any treatment of the applicant was on the ground of her sex or marital status. Further, there is no basis to draw any inference to support a finding in favour of the applicant.
Complaint against Oaks of victimisation
Ms Hillies complained on 29 March 2012 that since her complaint of 6 March 2012 she had been victimised. In her written complaint she does not set out the detriment she claims to have suffered but repeats her claims of sex and marital status discrimination. Attached to the complaint to the Board are various emails to Oaks, among others, complaining on 24 March about rubbish outside her window which she believes was placed by a neighbour. An email with the same date and time refers to the rubbish having been removed. Additional emails dated after 7 March apparently sent to Oaks, among others, refer to noise complaints by Ms Hillie, complaints about building renovations on her level and concierge staff knocking on her door after she made a complaint to them about noise. In one email dated 23 March 2012, addressed to Oaks, among others, Ms Hillie refers to her 'ADB discrimination case'.
The complaint also attaches handwritten notes apparently recording advice Ms Hillie had received as well as detailing noise complaints. One of those notes appears to record a conversation in which Ms Hillie told 'Jonathon', a person who appears to work with concierge services that she had made a complaint to the Board.
Oaks was advised of both complaints, that is the complaint of discrimination on the grounds of sex and marital status as well as victimisation on 25 May 2012 and responded on 6 June 2012.
I am not satisfied that Ms Hillie suffered any detriment on the ground that she had made a complaint of discrimination against Oaks. The emails she attaches in support of her application concern the same conduct she complained of initially to the Board, that is, making noise complaints and a person knocking at her door. Ms Hillie has not identified a particular detriment from which she said she suffered and the evidence before the Tribunal is of Ms Hillie continuing to make the same complaints to the concierge as she had before 6 March 2012. The response to those complaints, to the extent that is revealed in the emails was unchanged.
Having read the material before the Board and listened to the submissions made by the applicant and those of each of the respondents I conclude that the complaints lacks substance. I do so because it is extremely unlikely that the applicant will be able to establish any connection between her sex or marital status and any conduct by the any of the respondents. It is equally unlikely that she will be able to establish that she was treated less favourably than any other person in the same or similar circumstances who is male or of a different marital status.
The application for leave for each of the complaints to proceed is declined.
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Decision last updated: 19 September 2012
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