Huemer v NSW Department of Housing
[2006] FMCA 1670
•17 November 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HUEMER v NSW DEPARTMENT OF HOUSING | [2006] FMCA 1670 |
| HUMAN RIGHTS – Disability and race discrimination − where applicant suffering from psychotic disorders − where tenancy agreement between the applicant and respondent terminated by the Consumer Trader and Tenancy Tribunal − whether any discrimination evident in the respondent’s eviction of the applicant from public housing − whether relevant comparator a person without the applicant’s disabilities. |
| Disability Discrimination Act 1992, ss.5, 6, 11, 24, 25, 123 Racial Discrimination Act 1975 Federal Magistrates Court Rules 2001, Schedule 1, Part 1 |
| Purvis v New South Wales (Department of Education and Training) [2003] HCA 62 Y v Human Rights and Equal Opportunity Commission and Australia Post [2004] FCA 184 Power v Aboriginal Hostels [2003] FCA 1475 Fetherston v Peninsula Health [2004] FCA 485 |
| Applicant: | HELMUT HUEMER |
| Respondent: | NSW DEPARTMENT OF HOUSING |
| File Number: | SYG1026 of 2006 |
| Judgment of: | Raphael FM |
| Hearing date: | 20 October 2006 |
| Date of Last Submission: | 20 October 2006 |
| Delivered at: | Sydney |
| Delivered on: | 17 November 2006 |
REPRESENTATION
| For the Applicant: | Applicant in person |
| Counsel for the Respondent: | Mr A. Jungwirth |
| Solicitors for the Respondent: | Mr M. Callen NSW Department of Housing |
ORDERS
Application dismissed.
Applicant to pay the respondent’s costs to be assessed in accordance with Schedule 1, Part 1 of the Federal Magistrates Court Rules 2001.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG1026 of 2006
| HELMUT HUEMER |
Applicant
And
| NSW DEPARTMENT OF HOUSING |
Respondent
REASONS FOR JUDGMENT
Mr Helmut Huemer is a New Zealand national of German or Austrian ancestry. He has been in Australia for a period in excess of 15 years and has previously admitted to having schizophrenia, grand mal epilepsy, blindness in the right eye, a poor liver and high cholesterol. In a document produced by the respondent as an annexure to the affidavit of Michael Callen sworn on 3 August 2006 it is suggested by the author of a Department of Housing (“DOH”) referral to Mental Health Services that in his housing application in 2001 the following health issues were noted:
“Delusional disorder, schizophrenia, Grand Mal Epilepsy, alcohol dependence, Paranoid Personality Disorder”.
At the hearing Mr Huemer accepted that he had grand mal epilepsy and alcohol dependence but denied the other disabilities.
On 11 November 2002 Mr Huemer became a tenant of the DOH of NSW. In May 2005 he was evicted from the unit he was occupying at 2/1 49 Wyee Place, Malabar. He claims that he was evicted from that home because of his disability and his race. The factual situation with regard to the termination of Mr Huemer’s tenancy is that a notice of termination dated 17 December 2004 was issued to him and on 23 May 2005 the Consumer Trader and Tenancy Tribunal (“CTTT”) ordered that the tenancy agreement be terminated. Mr Huemer was evicted some time thereafter.
In the interlocutory stages of this proceeding an effort was made to obtain from Mr Huemer a coherent account of the claims which he had against the DOH. Unfortunately, and probably due to his disabilities, Mr Huemer was unable to provide such an account. The documentation he did provide, and which is on the file, indicates that Mr Huemer sees himself as a general victim of a conspiracy by most of the persons and organisations with whom he comes into contact on a daily basis. These range from the police and publicans in his locality to persons he meets on the street, through government departments up to Ministers of the Crown. His resistance to this conspiracy manifests itself in xenophobic and anti-Semitic utterances and incessant disputations. As a tenant of the DOH Mr Huemer was the subject of a large number of complaints arising out of the way in which he reacted with his neighbours, the condition of his unit and the anti-social activities he adopted, such as the playing of loud music and the noisy return home in the early hours of the morning.
The DOH recognised that Mr Huemer was a person suffering from disabilities. Indeed, it took him on as a tenant in 2001 knowing full well that he claimed to be suffering from a delusional disorder, schizophrenia, grand mal epilepsy, alcohol dependence and paranoid personality disorder. The DOH has social workers and others whose job responsibility is to ensure, so far as is possible, that persons with disabilities such as those of Mr Huemer are managed within their accommodation in a manner that is satisfactory to the landlord, the tenant and his or her neighbours.
After a very marked series of complaints, details of which are provided in the affidavit of Mr Callen sworn on 3 August 2006, attempts were made to assist Mr Huemer. In 2004 he was counselled and in December 2004 an attempt was made to refer him to the acute care team of the State’s Mental Health Service. Mr Huemer was not co-operative with these approaches, although he says in regard to the latter that he could not attend the team because he had recently come out of hospital.
The police were called to the unit on a number of occasions and a report was prepared by Sergeant Hancock of the Redfern Police on
14 August 2004 for the Team Leader of the DOH, found on page 59 of the affidavit of Michael Callen sworn on 3 August 2006.
A particular object of Mr Huemer’s complaints is an officer from the Maroubra office of the respondent known as Rodney Land. Mr Huemer accepted that Mr Land had offered him the assistance of a social worker at some stage but stated that that offer was “only on paper”. Mr Huemer complained that Mr Land and all his team were “against me”. He complained the DOH did not offer him assistance when he needed it. In his complaint to HREOC Mr Huemer said that he was the subject of racist remarks from his neighbours. The DOH cannot be responsible vicariously for the remarks made by one tenant to another. But in any event a perusal of the complaints exhibited to the affidavit and described as “serious incident diaries” would indicate that there was a trading of racist insults between Mr Huemer and other tenants.
A housing estate run by a government housing department is not a closed community. The government department cannot be expected to be responsible for the activities of its tenants save to the extent that where activities have been complained about and are considered to be serious the DOH must assess the complaint and make some decision as to whether one party or another is more responsible, so that if necessary and for the good order of the community action might be taken. This is what the DOH did in the case of Mr Huemer.
At the hearing, Mr Huemer was asked by counsel for the DOH, whether any member of the DOH had ever made a racist remark to him. Mr Huemer said that they had not. It was asked whether anybody had made reference to his nationality or ethnic origin and he responded that a Frenchman had. The Frenchman had been called in to inspect damage done by a leaking roof in Mr Huemer’s apartment. Mr Huemer told the court that the officer said to him words to the effect
“Oh, you are a German are you”.
Mr Huemer told the court that they then went on to have a discussion about Europe and the benefits of living in Australia. I did not take Mr Huemer to be saying that this conversation constituted an act that was contrary to the Race Discrimination Act 1975 (“RDA”).
Insofar as the Department’s action, in having Mr Huemer evicted from his property is concerned, I will make these points. Firstly, the Department’s action was not done precipitously. There had been a series of complaints extending over many years and the evidence from the documents indicates that considerable effort was made to accommodate Mr Huemer and his disabilities. Secondly, the decision to evict Mr Huemer from the premises was taken by the CTTT.
After hearing evidence it concluded that Mr Huemer had breached his tenancy agreement. It was as a result of the Tribunal’s order that he was removed. Thirdly, to the extent that it could be argued that
Mr Huemer’s actions were the product of his disabilities and the Department had treated him less favourably than a person who did not have those disabilities would have been treated, such an argument is subject to the decision of the High Court in Purvis v New South Wales (Department of Education and Training) [2003] HCA 62. In Purvis the High Court considered whether the suspension and expulsion of a mentally disabled high school student who had repeatedly assaulted other students and teachers was discriminatory under the Disability Discrimination Act 1992 (“DDA”), where that behaviour was a consequence of the complainant’s disability. The majority (Kirby and McHugh JJ dissenting) determined the relevant comparison to be
“between the treatment offered to a disabled person and the treatment that would be given to a person without the disability”: as per Gummow, Hayne and Heydon JJ at [223].
Further, such consideration under s.5(1) of the DDA requires
“…that the circumstances attending the treatment given (or to be given) to the disabled person must be identified. What must then be examined is what would have been done in those circumstances if the person concerned was not disabled.”: as per Gummow, Hayne and Heydon JJ at [223].
The majority considered that the decision of the principal to suspend and expel the student did not constitute discriminatory treatment on the ground that the basis for the decision was not the student’s disability but rather a consideration of the safety of the applicant’s peers and teachers: as per Gleeson CJ at [13]. His Honour further noted at [14] in relation to a complainant whose disability manifested itself in anti-social behaviour:
“Even though functional disorders may constitute a disability, and disturbed behaviour may be an aspect of a disability, it is not contrary to the scheme and objects of the Act to permit a decision-maker to identify a threat to the safety of other persons for whose welfare the decision-maker is responsible, resulting from the conduct of a person suffering from a disorder, as the basis of a decision.”
Similarly Callinan J noted at [271]:
“…the Act cannot be sensibly read, in my opinion, as extending to behaviour which constitutes criminal or quasi-criminal conduct. If it were intended to include, as a disability behaviour which was criminal, itself a startling proposition, then the legislation would surely have said so in clear terms…The conduct in question here was of a criminal or quasi-criminal kind, including as it did, offensive language and assaults. The definition of disability is not to be read as covering criminal or quasi-criminal behaviour.”
In Y v Human Rights and Equal Opportunity Commission and Australia Post [2004] FCA 184 Finkelstein J considered alleged discrimination on the part of the respondent where the applicant Y was refused employment by Australia Post on several grounds, including behaviour apparently caused by Y’s mental illness. His Honour applied Purvis and noted the test to be as follows:
“To determine whether Y had been discriminated against two questions were required to be resolved: viz, (1) Having regard to the factual circumstances, how would Australia Post have treated a person without Y’s disability; and (2) If Y’s treatment was less favourable than the treatment that would be given to a person without that disability, was that because of Y’s disability. There will only be relevant discrimination if Y was treated less favourably than a person without his disability would have been treated if that other person had behaved in the same way as Y had behaved.” [28]
The Purvis test has been applied in similar circumstances by Selway J in Power v Aboriginal Hostels [2003] FCA 1475 at [6]; and Heerey J in Fetherston v Peninsula Health [2004] FCA 485 at [86] – [93].
At the hearing Mr Huemer did not deny the actions (or most of them) which caused the Tribunal to conclude that the tenancy should be terminated. He said,
“All these things come from anger, depression, isolation and stress.”
Mr Huemer showed considerable perception in that remark but regrettably not enough perception to appreciate that those things would appear to be symptoms of his underlying psychotic disorders which, the evidence reveals, he is reluctant to have treated. I am unable to be satisfied from the evidence put to me by Mr Huemer that the DOH breached the RDA in any matter. I am equally unable to be satisfied that it discriminated against him in a way to invoke ss.5, 6, 11, 24, 25 or 123 of the DDA. The course of action taken in dealing with the manifestation of Mr Heumer’s disabilities was taken for the protection of the other tenants of the estate and the staff of DOH. It was action of a type similar to that discussed in Purvis.
In the circumstances I must dismiss this application. I should also order that Mr Huemer pay the respondent’s costs of the proceedings to be assessed in accordance with Schedule 1, Part 1 of the Federal Magistrates Court Rules 2001.
I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Raphael FM.
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