Lawson v State of New South Wales (Housing NSW) (EOD)
[2013] NSWADTAP 5
•23 January 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Lawson v State of New South Wales (Housing NSW) (EOD) [2013] NSWADTAP 5 Hearing dates: 21 September 2012 Decision date: 23 January 2013 Jurisdiction: Appeal Panel - Internal Before: M Chesterman, Deputy President
C Huntsman, Judicial Member
P Smith, Non-judicial MemberDecision: 1. Leave is granted for the appeal to extend to the merits
2. The appeal is allowed.
3. The decision of the Tribunal made on 8 June 2012 is set aside and the following decision is substituted:
The following provisions of an Agreement (identified as 'Attachment A' to a Deed of Release) forming part of a Conciliation Agreement signed by or on behalf of each party on 11 October 2011 are registered as orders of the Tribunal: clauses 2, 3 (first and third sentences), 5, 6 (first and third sentences), 7, 8, 9, 9a, 10, 13 and 14.
Catchwords: Anti-Discrimination Act 1977 - conditions applying to the registration of terms of a conciliation agreement as orders of the Tribunal - whether the terms of an agreement could have been the subject of orders under this Act Legislation Cited: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Work Health and Safety Regulation 2011Cases Cited: Collier v Sunol [2008] NSWADT 339
Gardiner v Aquasun Pty Ltd trading as Asher Coastwise Real Estate & anor (No 3) [2006] NSWADT 196
Lawson v State of New South Wales (Housing NSW) [2012] NSWADT 112
Mahfoud v Engineers Australia [2008] NSWADT 124Texts Cited: NSW Law Reform Commission, Review of the Anti-Discrimination Act 1977 (NSW) (Report 92, 1999) Category: Principal judgment Parties: Janet Lawson (Appellant)
State of New South Wales (Housing NSW) (Respondent)Representation: B Fogarty (Appellant)
S Gardiner (Respondent)
Australian Centre for Disability Law (Appellant)
File Number(s): 129017 Decision under appeal
- Citation:
- Lawson v State of New South Wales (Housing NSW) [2012] NSWADT 112
- Date of Decision:
- 2012-06-08 00:00:00
- Before:
- Equal Opportunity Division
- File Number(s):
- 121045
reasons for decision
Introduction
This is an appeal against a decision of the Equal Opportunity Division (Lawson v State of New South Wales (Housing NSW) [2012] NSWADT 112) refusing an application by the Appellant, Ms Janet Lawson, for the registration, pursuant to section 91A(8) of the Anti-Discrimination Act 1977 ('the Act'), of the terms of a conciliation agreement made between her and the Respondent.
In formal terms, the Respondent is the State of New South Wales. The entity that entered into the conciliation agreement (hereafter 'the Agreement') on behalf of this State was the New South Wales Land and Housing Corporation. Pursuant to the Housing Act 2001, it is entitled to act under the name Housing NSW.
The Agreement was concluded following a complaint that Ms Lawson made to the Anti-Discrimination Board ('the ADB') under the Act. Her complaint, lodged on 14 May 2010, was to the effect that Housing NSW, in breach of this Act, had engaged in indirect discrimination against her, relating to the provision of accommodation and/or services, on the ground of disability.
Background
In its decision at [2 - 5], the Tribunal gave the following summary of the events leading to the signing of the Agreement:-
2 Ms Lawson has a medical condition knows as "Multiple Chemical Sensitivity" (MCS) and vision impairment which affects her ability to read. MCS is a severe sensitivity to solvents, volatile organic compounds, perfumes, smoke and chemicals. It is a chronic condition.
3 On 17 January 2008 Ms Lawson signed a Residential Tenancy Agreement with Housing NSW. Some time later Housing NSW attempted to enter her premises to perform maintenance work. She refused to allow entry until she could establish, from her doctor, whether the chemicals likely to be used would pose an unacceptable risk to her health. She asked for certain documents to be prepared, namely a "Scope of Work" setting out the tasks to be undertaken in the course of the maintenance and "Material Safety Data Sheets" setting out the products that would be used and their chemical composition.
4 Ms Lawson asked to be given these two documents before any maintenance work was performed so that she could show them to her doctor. If her doctor says that the chemicals constitute an unacceptable risk to her health she may either ask for alternative chemicals to be used or ask to be relocated until the maintenance has been completed. When she was dissatisfied with Housing NSW's response to her requests, she lodged a complaint of disability discrimination with the President of the ADB.
5 The ADB conducted a conciliation conference. Following further negotiations after that conference, the parties signed a deed of release settling the complaint on agreed terms. The deed of release annexed an agreement setting out the terms on which Ms Lawson's complaint had been resolved.
What we have called 'the Agreement' was in fact the agreement annexed to the deed of release (hereafter 'the Deed') that the parties signed.
Subsequently, Ms Lawson formed the view that Housing NSW had not complied with all the terms of the Agreement. On 5 April 2012, she accordingly filed in the Tribunal an Application for Registration of a Conciliation Agreement as a Tribunal Order (hereafter 'Application for Registration').
In this Application, she identified, as the 'conciliation agreement' that she wished to have registered, both the Deed and the Agreement. In a section of the form of application requiring her to state her reasons for believing that Housing NSW had not complied with the 'terms of agreement', she made allegations of non-compliance with two clauses (clause 3 and clause 9) of the Agreement. She did not refer in this section to the Deed.
The hearing before the Tribunal took place on 5 June 2012. Ms Lawson attended by telephone. The Tribunal admitted an affidavit affirmed on 31 May 2012 by her and an affidavit affirmed on 4 June 2012 by Mr Nathan Cureton, who was a solicitor employed in the Legal Services Branch of Housing NSW. Neither deponent was required for cross-examination.
The Tribunal's decision, dismissing the Application for Registration, was delivered on 8 June.
Ms Lawson lodged a Notice of Appeal on 3 July. The hearing of her appeal took place before us on 21 September. Mr Fogarty of counsel appeared for her and Mr Gardiner of counsel appeared for Housing NSW.
The Deed and the Agreement
The Deed and the annexed Agreement were executed on 11 October 2011.
The Deed provided, in a relatively familiar manner, that Ms Lawson ('the Releasor') agreed to release Housing NSW ('the Releasee') from all claims connected with her complaint to the ADB, 'subject to the Agreement' and to payment (as provided within the Agreement) of $3,000 by Housing NSW to Ms Lawson.
It is convenient to record here that this payment of $3,000, for which clause 12 of the Agreement made specific provision, was made by Housing NSW on 30 December 2011.
We will now set out the terms of the Agreement, except for the execution clauses. In reproducing clauses 3 and 9, which were of particular significance in the Tribunal proceedings, we will replicate a format that the Tribunal adopted in its decision (at [22]), whereby each of these clauses was divided into 'parts' comprising one or two sentences:-
1. Within 21 days of the date of this agreement, Housing NSW is to arrange with Vision Australia for Janet Lawson's tenancy agreement to be transcribed into an electronic format that is accessible to her. This arrangement is to specify delivery within 4 weeks of the date of this agreement. Housing NSW is to provide Janet Lawson with written evidence with it has made this arrangement with Vision Australia within 21days of the date of this agreement.
2. Housing NSW agrees to communicate with Janet Lawson by email and to ensure that any electronic documents related to or impacting upon Janet Lawson's tenancy are transcribed by Vision Australia. Housing NSW agrees that any action required by Janet Lawson in response to its correspondence will not be required to be completed less than 21 days following Janet Lawson's receipt of a transcribed copy of the correspondence.
3. (1) Housing NSW agrees to provide Janet Lawson with a Scope of Work and Material Safety Data Sheets in relation to all work to be performed on her property as soon as possible, but in any event, not less than 6 weeks (30 working days) in advance of the date that work is scheduled to be performed. (2) Housing NSW agrees that this period of time is necessary in order for Janet Lawson to obtain and attend an appointment with her treating doctor. (3) In the event that Janet Lawson, despite her best endeavours, is unable to obtain an appointment with her treating doctor within 30 days of Housing NSW providing her with a Scope of Work and Material Safety Data Sheets, Housing NSW agrees to provide Janet Lawson with reasonable additional time in which to consult her treating doctor. (4) Janet Lawson agrees not to unreasonably prevent access to her property once the Material Safety Data Sheets have been provided and reasonable time to consult her doctor has passed.
4. Janet Lawson agrees to notify Housing NSW as soon as possible, and in any event, within 5 working days of seeing her treating doctor, if any substance disclosed on the Scope of Work and Material Safety Data Sheet presents a risk to her health and safety as assessed by her treating doctor.
5. lf Janet Lawson notifies Housing NSW that any substance disclosed on the Scope of Work or Material Safety Data Sheet presents a personal health and safety risk to her, Housing NSW agrees that it will direct and require that this substance not be used, and that a safe alternative substance or process, as assessed by her treating doctor, is used instead.
6. Housing NSW agrees that Janet Lawson may refuse entry to her property to any person engaged by Housing NSW to undertake work on her property if:
she has not received a Scope of Work and Material Safety Data Sheets in relation to this work and had these assessed by her doctor, and
in circumstances where Janet Lawson has reasonable grounds for concern that substances may be used that have not previously been disclosed on the Material Safety Data Sheet she has received. Within 21 days of the date of this agreement, Housing NSW agrees to provide Janet Lawson with a letter of authority to this effect in the terms set out in Appendix A to this agreement, which she can produce to maintenance workers if required.
Subject to clause 14, Housing NSW agrees that it will not take detrimental action of any kind whatsoever against Janet Lawson where she refuses entry to her property in accordance with this agreement. This clause will not apply where Janet Lawson refuses entry to her property contrary to the terms of this agreement. Janet Lawson agrees not to unreasonably prevent access to her property where revised Scope of Work and Material Safety Data Sheets have been provided on a second occasion, and these disclose no unacceptable risk to Janet Lawson's health and safety as assessed by her treating doctor.
7. Housing NSW agrees that:
if it is compelled to undertake work on Janet Lawson's property that utilises chemicals that are assessed as unsafe for Janet Lawson by Janet Lawson's treating doctor; or
if it is compelled to undertake work on Janet Lawson's property that utilises chemicals that have not been assessed by Janet Lawson's treating doctor; or
if work is performed on Janet Lawson's property that utilises chemicals that are assessed as unsafe for Janet Lawson by Janet Lawson's treating doctor. in spite of Housing NSW's contrary direction to a contractor, or for any other reason whatsoever:
Housing NSW will:
immediately arrange and pay for safe alternative accommodation for Janet Lawson until such risk is effectively eliminated from her property; and
if possible, immediately arrange for the safe cleaning of Janet Lawson's property to eliminate this risk, in accordance with the advice of Janet Lawson's treating doctor.
8. Housing NSW agrees that it will institute a tenancy and client file management procedure that will ensure that all its staff who interact with or make decisions that impact upon Janet Lawson's tenancy are familiar with the adjustments required by Janet Lawson due to her Multiple Chemical Sensitivity and vision impairment. This procedure is to ensure that:
information about Janet Lawson's disability and the adjustments she requires are maintained on her current file at all times;
Email communications between Janet Lawson and other persons on her behalf (such as her treating doctor) and Housing NSW are appended to her client file so as to be immediately accessible to Housing NSW staff.
Housing NSW will allocate this conciliation agreement, the document that records the adjustments Housing NSW will make to accommodate Janet Lawson's disability and its contract with Vision Australia in relation to the transcription of its correspondence and other documents for Janet Lawson TRIM numbers and will provide these to Janet Lawson as soon as possible. Housing NSW agrees to provide Janet Lawson with the TRIM numbers of any other key documents related to her tenancy with Housing NSW to facilitate Janet Lawson's effective communication with Housing NSW staff.
9. (1) Within 21 days of the date of this agreement, Housing NSW agrees to nominate a specific Client Service Officer, and an alternate 'back-up' officer, as a contact person for Janet Lawson with whom she can discuss her disability related adjustments. (2) Housing NSW will provide Janet Lawson with the direct telephone number and email contact information for these staff to facilitate her communication with them. These officers are to be responsible for providing Janet Lawson with Scope of Work and Material Safety Data Sheets and for coordinating any changes that may be required to proposed maintenance work. (3) Housing NSW further agrees that it will ensure that these officers are fully briefed about Janet Lawson's disability related adjustment requirements. (4) Housing NSW further agrees that it will as soon as practicable inform Janet Lawson of any change to the person holding these positions. Housing NSW further agrees that it will ensure there is a comprehensive handover briefing in relation to Janet Lawson's circumstances when her nominated Client Service Officer changes.
9a. Housing NSW agrees that, where practicable, the nominated Client Service Officer or back up person shall be responsible for all liaison with Housing NSW's maintenance section and maintenance contractors and sub-contractors. This does not mean that the nominated Client Service Officer or back up person will communicate directly with the contractors subcontractors or tradespeople attending Ms Lawson's premises. Information about Janet Lawson's disability shall be disclosed to maintenance contractors and sub-contractors on a strictly need-to-know basis. Where such information is disclosed to a contractor or sub-contractor Housing NSW will stress the confidentiality of that information to ensure against any unnecessary further disclose. Any disclosure of Janet Lawson's disability to a contractor or sub-contractor will be noted on her TRIM file.
10. Housing NSW agrees to consider including Multiple Chemical Sensitivity in its training programs.
11. Housing NSW agrees to provide a letter of regret to Janet Lawson (in an electronic, fully transcribed format) in the terms set out at Appendix B to this agreement. Housing NSW agrees to provide a copy of this letter to the Consumer, Trader and Tenancy Tribunal the (CTTT) with a request that it be placed on the CTTT file of the proceedings brought by Housing NSW against Janet Lawson seeking access to her property (CTTT File No: SH10/11959 Lodgement No: 20001480910). Housing NSW agrees to provide Janet Lawson with a copy of its correspondence with the CTTT within 21 days of the date of this agreement and with any reply from the CTTT it receives.
12. Within 21days of the date of this agreement, Housing NSW agrees to pay Janet Lawson $3,000.00 in compensation for the economic loss, hurt, humiliation and stress that has resulted from its conduct.
13. The parties acknowledge that the above measures are not infallible and that, while Housing NSW will make its best endeavours to abide by the terms of this agreement, both parties undertake to communicate and work together to resolve any oversight or to agree to a viable alternative in the circumstances, rather than unreasonably assert breach of this agreement, or in Janet Lawson's case, immediately seeking redress under discrimination legislation (State or Commonwealth). lt will not be unreasonable for either party to assert their rights in circumstances where the other party has been given proper notice of an issue and a reasonable time has elapsed without that issue being resolved.
14. The procedures set out at paragraphs 3 to 5 of this agreement will not apply in emergency situations which include threat to the life or health of residents of the complex including but not limited to fire, gas leaks and water leaks and structural damage to the building. With respect to emergency situations, Housing NSW agrees to negotiate reasonable adjustments with Janet Lawson to ensure, to the extent that it is possible to do so, and on an equal basis with others, her health and safety and to include these in the record of such adjustments on Housing NSW's TRIM file in relation to Janet Lawson. To the extent that it is possible to do so, these adjustments will be planned and documented in advance in consultation with Janet Lawson.
15. The terms of this agreement do not form part of the residential tenancy agreement between the parties.
16. The parties may provide a copy of this agreement and discuss its contents with Vision Australia and the Consumer Trader and Tenancy Tribunal in spite of the confidentiality undertakings otherwise agreed to in this agreement.
Relevant provisions of the Act
Ms Lawson's complaint to the ADB of indirect discrimination by Housing NSW was based on sections 49B, 49M and 49N of the Act. So far as relevant here, these state:-
49B What constitutes discrimination on the ground of disability
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:...
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, 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.
49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(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.
49N Accommodation
(2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability:
(a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or...
(c) by subjecting the person to any other detriment.
Section 91A of the Act is headed 'Resolution of complaint by conciliation'. For present purposes, the relevant subsections are (1), (5), (6), (8) and (9). They are as follows:-
(1) If the President is of the opinion that a complaint, other than a complaint that the President has declined under section 92, may be resolved by conciliation, the President may, at his or her discretion, at any stage after acceptance of the complaint endeavour to resolve the complaint by conciliation.
(5) A written record is to be prepared by the parties, and signed by or on behalf of each of them, of any agreement reached, following conciliation, with respect to the subject-matter of the complaint if any party requests the making of such a record within 28 days after the agreement is reached.
(6) If a party to a recorded agreement is of the opinion that any other party has not complied with the terms of the agreement, the party may, not later than 6 months after the date of the agreement, apply to the Tribunal to have the agreement registered.
(8) If the member of the Tribunal who hears the application is satisfied that a party to the agreement has not complied with the terms of the agreement, the member is to register those provisions of the agreement (if any) that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint.
(9) The provisions of an agreement that are registered in accordance with this section are taken to be an order of the Tribunal and may be enforced accordingly.
Except in relation to costs (which are not in issue here), the types of order that the Tribunal may make in the exercise of its jurisdiction under the Act are set out in section 108(2). For the purpose of these proceedings, it is sufficient to quote the opening words of this subsection, along with paragraphs (b) and (c):-
(2) If the Tribunal finds the complaint substantiated in whole or in part, it may do any one or more of the following:...
(b) make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act or the regulations,
(c) except in respect of a representative complaint or a matter referred to the Tribunal under section 95 (2), order the respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by the complainant...
The Tribunal's decision
In its decision at [6], the Tribunal observed that initially Ms Lawson applied for registration of clauses 3 and 9 of the Agreement, but that at the hearing her application was expanded to include all of the Agreement except clauses 1, 11 and 12. It added that Ms Lawson's representative accepted that Housing NSW had complied with these three clauses. At [22], the Tribunal explained further that registration of clauses 3 and 9 only was sought by Ms Lawson as an 'alternative submission'.
At no point in the hearing did the parties raise the issue of registration of the Deed, or of any of its terms, even though (as mentioned above) Ms Lawson's Application for Registration had included the Deed as a component of the conciliation agreement that she sought to have registered. This issue was similarly not given consideration in the Tribunal's decision.
At [7], the Tribunal explained the issues to be resolved in the following terms:-
The first issue is whether the agreement as a whole (apart from clauses 1, 11 and 12) could have been the subject of an order of the Tribunal. If not, could clauses 3 and 9 have been the subject of such an order? If one or more of the clauses, or parts of clauses, of the agreement meets that test, the second issue is whether Housing NSW has complied with those terms of the agreement. These issues arise from s 91A(8) of the AD Act:
If the member of the Tribunal who hears the application is satisfied that a party to the agreement has not complied with the clauses of the agreement, the member is to register those clauses of the agreement (if any) that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint.
It may be observed, though little would appear to turn on this, that in this version of section 91A(8) the words 'terms' and 'provisions' have been replaced in each case by the word 'clauses'.
The Tribunal then gave consideration to the question whether the Agreement, or any term or terms within it, could have been the subject of a Tribunal order. At [8 - 9], it referred to the Tribunal's powers to make orders under paragraph (b) or (c) of section 108(2) of the Act, drawing attention to the limitations on these powers. It stated (at [10]) that a conciliation agreement cannot be the subject of an order by the Tribunal if its terms are not 'sufficiently certain or definite to be understood and enforced'. It then outlined (at [11 - 17]) the nature of each of the 17 clauses of the Agreement, except for clauses 15 and 16 and the three clauses (nos. 1, 11 and 12) that Ms Lawson did not seek to register.
At [18], it summarised in the following terms the arguments put by Ms Lawson's representative to justify registration of the whole Agreement except for clauses 1, 11 and 12:-
(1) The provisions in the Act must be interpreted liberally and beneficially.
(2) The conciliation agreement must be read as a whole to give it any meaningful effect.
(3) Ms Lawson's complaint is a complaint of disability discrimination either relating to accommodation or the provision of services. The provisions which have allegedly been breached are s 49M(1)(a) (refusal of services), 49M(1)(b) (the terms on which services are provided), s 49N(2)(a) (denying access to a benefit associated with accommodation) and s 49N(2)(c) (subjecting Ms Lawson to any other detriment in relation to the provision of accommodation).
(4) The complaints are that Housing NSW discriminated "indirectly" against Ms Lawson as defined in s 49B(1)(b).
(5) The combined effect of the agreement is to ensure that policies and processes which on their face are neutral do not result in disproportionate and discriminatory outcomes for Ms Lawson on the ground of her disability
(6) The effect of registering the clauses of the conciliation agreement would be tantamount to making an order under s 108(2)(b) enjoining NSW Housing from continuing the alleged unlawful conduct.
(7) The effect of registering the clauses of the conciliation agreement would be tantamount to making an order under s 108(2)(c) that Housing NSW perform any reasonable act or course of conduct to redress any loss of damage suffered by Ms Lawson.
(8) The Tribunal has power to regulate future conduct.
At [19], having observed that the Act is indeed remedial legislation, the Tribunal added that nonetheless 'not every provision is open to be construed beneficially as distinct from strictly' and that 'Provisions must be interpreted by analysing their language and purpose'. At [20], it stated as follows:-
20... In order to be enforced as an order of the Tribunal, the order must have, at least, the following features:
(1) it must relate to the respondent;
(2) it must be sufficiently certain to allow the person to whom it is directed to comply with it: Spry Equitable Remedies, 7th ed, Lawbook Co 2007 at 374-376;
(3) an order enjoining or prohibiting a respondent from certain conduct can only relate to conduct that is rendered unlawful by the AD Act;
(4) a mandatory order must be for the purpose of redressing any loss or damage suffered by the applicant.
At [21], the Tribunal gave the following reasons for rejecting Ms Lawson's claim that the Tribunal could register all the terms of the Agreement except for clauses 1, 11 and 12:-
21 Several clauses in the agreement impose positive or negative obligations on Ms Lawson. Under s 108, the Tribunal does not have power to make orders against an applicant. Some of the terms, such as clause 7 and 9a contain words such as "where practicable" or "if possible" which make them too uncertain to be understood and enforced. Clause 10 merely requires Housing NSW to "consider" including MCS in its training programs. Finally, some of the terms, including clause 13, seek to regulate the circumstances in which the terms of the agreement will be enforced, rather than imposing any positive or negative obligation...
The Tribunal then went on to consider Ms Lawson's alternative claim, namely, that clauses 3 and 9 of the Agreement could and should be registered. Its conclusion was that only the first and third parts of clause 3 were registrable. It explained this conclusion as follows (at [23 - 27]):-
23 The first part of clause 3 imposes a positive obligation on Housing NSW to provide Ms Lawson with certain documents prior to carrying out any work on her property. Those documents must be provided not less than 30 working days in advance of the date that the work is scheduled to be performed. The term is in the nature of a mandatory injunction. It requires Housing NSW to perform certain acts which, I accept, are reasonable. My understanding is that the purpose of this term is to redress loss and damage suffered by Ms Lawson on a previous occasion when maintenance work was sought to be carried out without those documents having been provided. The first part of the clause is sufficiently certain for Housing NSW to understand and implement. The Tribunal could have made an order to that effect if it had found the complaint to have been substantiated at a hearing.
24 The second part of clause 3 does not impose any positive or negative obligation on Housing NSW.
25 The third part of clause 3 applies in circumstances where the 30 day notice period is insufficient for Ms Lawson to consult with her doctor. It places a positive obligation on Housing NSW to give Ms Lawson extra time. Phrases such as "best endeavours" and "reasonable additional time' are imprecise. Nevertheless, the obligations on the parties are sufficiently clear for this term to be a term that the Tribunal could order.
26 The third part of clause 3 places an obligation on Ms Lawson. It is not the kind of term that could have been the subject of an order by the Tribunal.
27 The first part of clause 9 imposes a positive obligation on Housing NSW. However, it is not a requirement which seeks to redress loss or damage suffered by Ms Lawson. It is an administrative arrangement to facilitate communication between the parties. It is not the kind of term that could have been the subject of an order in proceedings relating to a complaint. The same conclusion applies to the remainder of clause 9.
We note in passing that paragraph [26] would appear to relate to the fourth, not (as stated) the third, part of clause 3.
In the next section of its decision, the Tribunal considered whether, according to the evidence before it, Housing NSW had complied with the terms of the Agreement that it had held to be registrable: i.e., the first and third parts of clause 3. It described this question (at [28]) as 'the remaining issue'.
At [29 - 32], the Tribunal set out the following reasons for concluding (at [33]) that Ms Lawson had failed to prove non-compliance by Housing NSW with the two terms of the Agreement that could be registered and that her application should therefore be refused:-
29 Ms Lawson gave evidence that on 7 May 2011 her hot water system failed. She contacted the Housing Contact Centre to request that it be repaired. She indicated that prior to repair she would need to obtain a Scope of Work and Material Safety Data Sheet in relation to the work to be undertaken. Despite her repeated requests, she says that to date, Housing NSW has failed to provide her with a Scope of Work and Material Safety Data Sheet in relation the repair of her hot water system.
30 Evidence from Mr Cureton, the solicitor from Housing NSW with carriage of this matter, is inconsistent with Ms Lawson's evidence. He produced an internal email which stated that the team leader, Kim Simpson, forwarded Ms Lawson the documents in November 2011 and that she then forwarded them to her doctor. As of 10 November, the email suggested that Housing NSW was waiting on the response from Ms Lawson so they could proceed to install a hot water system. This second hand evidence is insufficient to satisfy me that the term in Clause 3 was complied with at that time.
31 Mr Cureton also provided a copy of an email dated 29 February 2012, apparently to Ms Lawson's email address. The email refers to two documents which Mr Cureton says are the Material Data Safety Sheets for the hot water system and the Scope of Works. The email asks Ms Lawson to consult with her doctor.
32 Neither Ms Lawson nor Mr Cureton gave evidence. In circumstances where the 29 February 2012 email to Ms Lawson apparently attaches the relevant documents, the Applicant has failed to discharge her onus of proof that Housing NSW has not complied with the first part of clause 3. If I had been satisfied that the term had not been complied with, I would have registered that term of the agreement.
The grounds of appeal
At the appeal hearing, Mr Fogarty indicated that the orders sought by Ms Lawson were (a) that the appeal be allowed and (b) that clauses 2, 3 (first and third sentences), 5, 6 (first three sentences), 7, 8, and 9 of the Agreement be registered.
The Notice of Appeal stated that the appeal was based on errors of law allegedly made by the Tribunal and that leave was sought to extend the appeal to the merits of the Tribunal's decision. It claimed that the Tribunal erred in the following ways:-
1. It held that clauses 7 and 9 of the Agreement could not be registered solely on the ground that some part of each of these clauses could not be registered. It should instead have concluded that any registrable part(s) of any of these clauses could be registered so long as it was capable of operating independently of any non-registrable part(s).
2. It held that clauses 2, 5, 6, 8 and 9 could not have been the subject of an order under section 108(2)(b) or section 108(2)(c) of the Act and therefore could not be registered.
3. Additionally, or in the alternative, it failed to give any or any adequate reasons for refusing to register clauses 2, 5, 6, 7, 9 and 9a.
4. It determined that Ms Lawson had failed to discharge her onus of proving non-compliance by Housing NSW with the first part of clause 3. This was an error because there was no evidence demonstrating that Housing NSW had provided Scope of Work and Material Data Safety Sheets to Ms Lawson as required by this clause.
5 Additionally, or in the alternative, the Tribunal failed to give any or any adequate reasons for its determination on this matter.
6. In various ways, the Tribunal did not afford procedural fairness to Ms Lawson.
Near the commencement of the appeal hearing, however, we stated that in our opinion the Tribunal's decision contained an error of law that was not mentioned in the Notice of Appeal, nor in the submissions filed by the parties before the hearing. Mr Fogarty then indicated that in pursuing the appeal he wished to rely also on this aspect of the decision.
This error of law relates to the Tribunal's interpretation and application of subsection (8) of section 91A of the Act. In reproducing again the terms of this subsection, we will emphasise the words of particular significance in the present context:-
(8) If the member of the Tribunal who hears the application is satisfied that a party to the agreement has not complied with the terms of the agreement, the member is to register those provisions of the agreement (if any) that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint.
According to its clear terms, the subsection requires the Tribunal to determine, as a pre-condition to registering any provision(s) of a conciliation agreement, whether a party to the agreement has failed to comply with 'the terms of the agreement'. In our opinion, a failure to comply with any term of a conciliation agreement must constitute a failure to comply with 'the terms of the agreement', thereby giving grounds for a ruling that this pre-condition has been met. There is nothing in the subsection to indicate that non-compliance with some terms only, but not with others, will be sufficient in this regard. If the pre-condition is met, the Tribunal will be obliged to register 'those provisions of the agreement (if any) that... could have been the subject of an order in proceedings relating to a complaint'.
The Tribunal's observations about the effect of the subsection - at [7], [28] and [33] - were, however, as follows (again, we emphasise the key words):-
7 The first issue is whether the agreement as a whole (apart from clauses 1, 11 and 12) could have been the subject of an order of the Tribunal. If not, could clauses 3 and 9 have been the subject of such an order? If one or more of the clauses, or parts of clauses, of the agreement meets that test, the second issue is whether Housing NSW has complied with those terms of the agreement.
28 As the first and third parts of clause 3 are the only terms contained in either clause 3 or clause 9 that could be registered, the remaining issue is whether Housing NSW has complied with those terms.
33... I am not satisfied that Housing NSW has not complied with the terms that could be registered.
In summary, the error made by the Tribunal was in confining its investigation of non-compliance on the part of Housing NSW to non-compliance with those terms of the Agreement that could have been the subject of an order by the Tribunal (under section 108(2)) and therefore were potentially registrable. This not what section 91A(8) called for. In these proceedings, its effect was to require the Tribunal to decide whether or not it was satisfied that Housing NSW had not complied with 'the terms of the agreement'. Proof by Ms Lawson that Housing NSW had failed to comply with any term of the Agreement was sufficient, on a proper reading of the subsection, to meet this pre-condition and to impose a duty on the Tribunal to register any term or terms that could be the subject of an order by the Tribunal, having regard to section 108.
In his oral submissions on behalf of Housing NSW, Mr Gardiner appeared to acknowledge that the approach taken by the Tribunal was erroneous in this respect. He argued, however, that this was not fatal to its decision because it did deal with the two issues raised by section 91A(8), namely (a) non-compliance and (b) registrability, having regard to the limits imposed on Tribunal orders by section 108(2).
We do not accept this argument. In our judgment, the Tribunal's error, coupled with the fact that section 91A(8) confers on the Tribunal a duty, not merely a discretionary power, to order the registration of one or more provisions of a conciliation agreement if the stipulated conditions are satisfied, calls for a grant of leave, as sought by Ms Lawson, for this appeal to extend to the merits.
We grant this leave pursuant to section 113(2)(b) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). In consequence, our approach to the appeal is determined by section 115 of this Act. This section requires us to 'decide what the correct and preferable decision is' having regard to the material before us, including 'any relevant factual material' and 'any applicable written or unwritten law'.
With this requirement in mind, we will now consider in detail the questions raised in the Notice of Appeal, alongside the 'relevant factual material' put before us and the 'applicable law'.
The question of non-compliance
The foregoing analysis of section 91A(8) shows that logically the first question for consideration is whether the evidence shows that Housing NSW failed to comply with any term or terms of the Agreement. Only if this question is answered in the affirmative does the second of the two substantial questions in these proceedings arise for determination: namely whether any, and if so which, of these terms could be the subject of an order by the Tribunal.
At first instance and in the appeal, Ms Lawson alleged that Housing NSW failed to comply with two clauses of the Agreement: clause 3 and clause 9. We will deal with the alleged contraventions of these two clauses separately.
Clause 3. The obligation imposed by this clause that, according to Ms Lawson, was contravened by Housing NSW was formulated in the first part of the clause as follows:-
... to provide Janet Lawson with a Scope of Work and Material Safety Data Sheets in relation to all work to be performed on her property as soon as possible, but in any event, not less than 6 weeks (30 working days) in advance of the date that work is scheduled to be performed.
Mr Fogarty claimed that Housing NSW breached this obligation in two different ways.
First, he argued that some of the documents provided to Ms Lawson and purporting to be Material Safety Data Sheets did not comply with subclauses 330(3) and 330(4) of the Work Health and Safety Regulation 2011 and therefore were not in fact Material Data Safety Sheets.
For present purposes, the relevant parts of clause 330 of this Regulation are as follows:-
330 Manufacturer or importer to prepare and provide safety data sheets
(1) A manufacturer or importer of a hazardous chemical must prepare a safety data sheet for the hazardous chemical:
(a) before first manufacturing or importing the hazardous chemical, or
(b) if that is not practicable-as soon as practicable after first manufacturing or importing the hazardous chemical and before first supplying it to a workplace.
Maximum penalty:...
(3) The manufacturer or importer of the hazardous chemical must:
(a) review the safety data sheet at least once every 5 years, and
(b) amend the safety data sheet whenever necessary to ensure that it contains correct, current information.
Maximum penalty:...
(4) The manufacturer or importer of the hazardous chemical must provide the current safety data sheet for the hazardous chemical to any person, if the person:
(a) is likely to be affected by the hazardous chemical, and
(b) asks for the safety data sheet.
Seven documents purporting to be Material Safety Data Sheets were sent to Ms Lawson. The copies of them annexed to Mr Cureton's affidavit indicate that one of them was revised on 22 March 2000, another was issued on 7 April 2000, a third was issued or revised on 1 January 2006 and a fourth was revised in March 2006. The dates shown on two more were in 2007 and the remaining Sheet was undated.
Mr Gardiner's submissions did not address this matter of compliance with clause 330.
We agree with two points made by Mr Fogarty: (i) that by implication, the phrase 'Material Safety Data Sheets' in the Agreement meant documents so entitled that fell within the scope of the Work Health and Safety Regulation 2011; and (ii) that four of the documents provided to Ms Lawson had not been reviewed as required by subclause 330(3)(a) of this Regulation.
It does not follow, however, that these four documents, albeit that they were not prepared in accordance with subclause 330(3)(a), were not 'Material Safety Data Sheets' within the meaning of the Agreement. To establish this, further facts would need to be established.
If, for example, Housing NSW had been responsible under the Work Health and Safety Regulation 2011 for preparing and disseminating these data sheets and ensuring that they were reviewed at least every five years in accordance with subclause 330(3)(a), the delivery to Ms Lawson of data sheets that were defective because they had not been so reviewed might not constitute compliance with the Agreement. But as subclause 330(1) states, the person responsible for preparing a data sheet for a hazardous chemical is the manufacturer or importer of the chemical, not a landlord of premises on which the chemical is used.
Similarly, if any of the data sheets that Housing NSW provided to Ms Lawson were not the 'current' sheets, within the meaning of subclause (4), it could again be argued that Housing NSW had not complied with the Agreement. But there was no evidence to show this. The four defective data sheets may well have been the current sheets, even though the manufacturer or importer that prepared them had not reviewed them as required by subclause 330(3).
We accordingly conclude that the fact that four of the Material Safety Data Sheets provided by Housing NSW to Ms Lawson had not been reviewed by the manufacturer or importer as required by subclause 330(3) of the Work Health and Safety Regulation 2011 does not provide grounds for holding that Housing NSW failed to comply with the first part of clause 3 of the Agreement.
Secondly, Mr Fogarty argued that Housing NSW did not provide any documents purporting to be a 'Scope of Work' or 'Material Safety Data Sheets' within the time required - i.e., 'as soon as possible'. In this connection, he pointed out that the Agreement was executed and became operative on 11 October 2011. He relied also on findings of the Tribunal (at [29] - [32]) to the following effect: (i) Ms Lawson's hot water system failed some five months earlier than this (on 7 May 2011); (ii) she then asked the Housing Contact Centre to arrange for it to be repaired; (iii) she indicated that prior to repair she would need a Scope of Work and Material Safety Data Sheets; (iv) despite a claim by Housing NSW to the contrary, no such documents were provided to her during November 2011; and (v) these documents were instead provided on 29 February 2012.
Mr Fogarty argued that in assessing whether the documents were provided 'as soon as possible', time should be taken to have run from the date of commencement of the Agreement. He maintained that provision of them more than four months later than this, and indeed some nine months after Ms Lawson had requested them, clearly did not constitute provision 'as soon as possible'.
Mr Gardiner submitted that for the purpose of determining whether this part of clause 3 had been contravened, time should not be measured from the date of commencement of the Agreement, but from the date when a schedule for carrying out the requested work had been prepared.
In our opinion, this part of clause 3 should be interpreted in a manner similar to that urged by Mr Gardiner. The requirements imposed on Housing NSW to provide (i) a 'Scope of Work' and (ii) one or more Material Safety Data Sheets relating to 'work to be performed' on Ms Lawson's property cannot become operative until the entity responsible for its performance is in a position to determine, in the case of (i), what is the 'scope' of the work and, in the case of (ii), what hazardous chemicals, if any, will be used in performing it. It is from the dates of these occurrences that time will run. They will inevitably be later than the date of any request (whether made by Ms Lawson or by any anyone else on her behalf) for the relevant work to be undertaken. Only if they preceded the date of commencement of the Agreement would that date become relevant.
In the present proceedings, there is no evidence as to these precise dates. But as the Tribunal stated at [30] and we have verified by considering the evidence, the date when it became known what hazardous chemicals would be used must have been earlier than 10 November 2011. On that date, according to an internal email annexed to Mr Cureton's affidavit, relevant staff of Housing NSW were under the impression that Material Safety Data sheets had by then been sent by the 'team leader', Kim Simpson, to Ms Lawson.
We agree with the Tribunal's finding that the Material Safety Data Sheets (and apparently also the Scope of Works) were actually not provided to Ms Lawson until 29 February 2012. Two items of evidence, forming parts of the material annexed to Mr Cureton's affidavit, support this finding.
First, on 23 December 2011, Mr Cureton sent an email to Ms Lawson containing the following paragraph (in which some typographical errors have been corrected):-
As anticipated there [are] going to be some teething problems which caused them to send the documents directly to your doctor. I will email those to you shortly.
Secondly, in the email dated 29 February 2012 to Ms Lawson to which the Tribunal referred at [31], Mr Cureton wrote:-
According to our records the Material Data Safety Sheets (sic) for the hot water work [were] sent to you in October 2011.
I note that you haven't received them. I've attached them to this email, as well as a scope of works...
To summarise our findings on this matter, Material Safety Data Sheets could have been, and in fact were, obtained before 10 November 2011, but they were not sent to Ms Lawson until a date (29 February 2012) more than three months later.
In the light of this delay in sending these documents, we cannot agree with the Tribunal's conclusion (at [32]) that Ms Lawson 'failed to discharge her onus of proof that Housing NSW has not complied with the first part of clause 3'. This conclusion appears to us to take no account of the requirement in clause 3 that the documents be sent 'as soon as possible'.
The failure by Housing NSW to comply with this requirement would appear to have been inadvertent only. There is nothing to suggest that Housing NSW acted deliberately in failing to send the Material Safety Data Sheets to Ms Lawson until the end of February 2012.
In this connection, Mr Gardiner drew our attention to clause 13 of the Agreement. We agree with him that the evident intent of this clause is to prevent inadvertent breaches becoming in every instance the source of legal proceedings between the parties. But it does not, on our interpretation of it, debar Ms Lawson from asserting in proceedings such as these that a breach of the Agreement did occur. As required by the last sentence of the clause, she gave 'proper notice' of the issue, and a period of some five months elapsed before she sought to assert her rights. This was the period from 10 November 2011, by which time the Material Safety Data Sheets were in the possession of Housing NSW, until 5 April 2012, when she filed her Application for Registration in the Tribunal. Because of the six-month time limit stipulated in section 91A(6) of the Act, she was in fact bound to file this Application by 11 April 2012.
We find accordingly that Housing NSW failed to comply with the requirement in the first part of clause 3 of the Agreement that Material Safety Data Sheets for work to be performed on Ms Lawson's property be provided 'as soon as possible'.
Clause 9. The obligation imposed by this clause that, according to Ms Lawson, was contravened by Housing NSW was formulated in the first part of the clause as follows:-
Within 21 days of the date of this agreement, Housing NSW agrees to nominate a specific Client Service Officer, and an alternate 'back-up' officer, as a contact person for Janet Lawson with whom she can discuss her disability related adjustments.
For reasons already set out, the Tribunal at first instance made no finding on this claim by Ms Lawson.
The evidence relating to this claim principally comprised the following five extracts from emails between Mr Cureton and Ms Lawson:-
Mr Cureton to Ms Lawson, 1 November 2011: 'I note at this stage there is only one contact person for subcontractors and yourself, that is Kim Simpson, the Team Leader for team 804. There will be a senior client service officer appointed in the next couple of weeks. Staff recruitment has prevented the nomination of a back-up person for a couple of weeks. I will reissue the notice to subcontractors once staff placements have settled in a fortnight's time.'
Mr Cureton to Ms Lawson, 29 February 2012: 'In relation to your direct liaison with the local team, due to staff turnaround and recent recruitment, a permanent officer/liaison (plus back-up officer) has not been allocated as yet but I should know in a couple of days who that will be as I have asked them to appoint an officer to you asap.'
Ms Lawson to Mr Cureton, 29 February 2012: 'I look forward to the appointment of a contact officer.'
Ms Lawson to Mr Cureton, 1 March 2012: 'I look forward to receiving the name, email address and phone of the contact officer.'
Ms Lawson to Mr Cureton, 20 May 2012: 'No email address or contact person. The local officer, Bertrum Stephens, has been replaced by Nestor Ortiona. Bertrum was not the contact person but at least I had an email address...
Please give me the name and contact details of the nominated contact officer for me - as I have requested on a number of previous occasions.'
In addition, Mr Cureton stated in paragraph 6 of his affidavit of 4 June 2012 (a typographical error has been corrected):-
The above email [referring to his email of 1 November 2011 to Ms Lawson] also included notification to Ms Lawson that Team Leader Kim Simpson was Ms Lawson's specific contact point. This has not been superseded due to staff recent fluctuations as a result of recent recruitment drives...
Mr Fogarty argued that Housing NSW's performance of its obligations under the first part of clause 9 of the Agreement was defective in two respects: (a) Kim Simpson, who was the only person appointed pursuant to the clause, was not a client service officer as required by the clause; and (b) at no stage was an alternate 'back-up' officer appointed.
Beyond making reference to the appointment of Kim Simpson and drawing our attention to clause 13 of the Agreement, Mr Gardiner did not address this issue.
Our conclusion is that, as Mr Fogarty argued, Housing NSW failed in two respects to comply with the first part of clause 9. It was open to Mr Gardiner to seek to refute Mr Fogarty's assertion that Kim Simpson was not a 'client service officer' such as the clause required, but he did not do so. There was no challenge to the assertion that a 'back-up' officer was not appointed.
For these reasons, we conclude that Housing NSW failed to comply with the first part of clause 9 of the Agreement.
The criterion for determining whether a term of a conciliation agreement may be registered
Having found that the 'pre-condition', as we have labelled it, of non-compliance with the Agreement has been satisfied, we will now consider the criterion set out in section 91A(8) of the Act for the registration of a provision of a conciliation agreement: namely, that the provision is one 'that, in the exercise of the Tribunal's jurisdiction, could have been the subject of an order in proceedings relating to a complaint'.
This criterion is difficult to interpret and apply. It was not given close consideration in the two earlier Tribunal decisions on section 91A that are known to us, namely, Mahfoud v Engineers Australia [2008] NSWADT 124 and Collier v Sunol [2008] NSWADT 339. The insertion (in 2004) of section 91A into the Act implemented a recommendation of the NSW Law Reform Commission in its Review of the Anti-Discrimination Act 1977 (NSW) (Report 92, 1999), but the specific terminology of subsection (8) was not suggested by the Commission in its discussion of the topic of registration (see paras 8.125 - 8.128) and its observations on this topic do not assist in the interpretation of this subsection.
The phrase 'the subject of an order' poses particular difficulties. It could mean that the provision in question must be in a strict form such as would be appropriate, without amendment, to operate as an order by the Tribunal. An implication to this effect arises from subsection (9) of section 91A. But if this was Parliament's intention, one would not have expected it to use the words 'the subject of' in subsection (8). These words may well suggest instead, as Mr Fogarty submitted, that Parliament took account of the fact that 'informal or co-operative dispute resolution' has the advantage of being 'inherently... more flexible, open-textured and... fine-grained than dispute resolution by adjudication'.
Although one could not say for certain that Parliament had this consideration in mind, it is noteworthy that the Tribunal, in the exercise of a power conferred on it by its own governing legislation (the ADT Act), regularly makes consent orders in terms that precisely replicate, or at least resemble, the detailed provisions of settlement agreements that are put before it after a hearing has commenced. The Tribunal does this in proceedings brought under the Anti-Discrimination Act (see for example Gardiner v Aquasun Pty Ltd trading as Asher Coastwise Real Estate & anor (No 3) [2006] NSWADT 196) as well as in the exercise of its jurisdiction under other statutes. The relevant provision within the ADT Act is section 86(1), which states:-
(1) The Tribunal may, at any stage of proceedings before it, make such orders (including an order dismissing the application that is the subject of the proceedings) as it thinks fit to give effect to any agreed settlement reached by the parties to the proceedings if:
(a) the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the Tribunal, and
(b) the Tribunal is satisfied that it would have the power to make a decision in the terms of the agreed settlement or in terms that are consistent with the terms of the agreed settlement.
A further element of uncertainty in section 91A(8) of the Act stems from the words 'could have been'. No indication is given as to the range of hypothetical circumstances in which the provision being considered 'could have been' the subject of a Tribunal order. But we regard the hypothetical circumstance of the Tribunal making a detailed consent order in anti-discrimination proceedings, pursuant to section 86(1) of the ADT Act, as being within that range.
We observe also that, according to its literal terms, the criterion in section 91A(8) does not require that a provision, in order to be registered, could have been 'the subject of an order' by the Tribunal in proceedings relating to the particular complaint to which the conciliation agreement relates. It is apparently sufficient that the provision could have been 'the subject of an order' in proceedings relating to a complaint - i.e., it would seem, to any complaint. This opens up an indeterminate range of possible orders, so long (as both parties acknowledged) as the orders being envisaged fall within the categories listed in paragraphs (a) to (f) of section 108(2) of the Act.
In our opinion, and in line with submissions made by Mr Fogarty, the interpretation of subsection (8) of section 91A must be guided to a significant degree by the context in which it operates. This context may be explained by listing the events that must occur before the subsection can be invoked. They are as follows:-
(a) A complaint alleging conduct contravening the Act has been lodged with the ADB.
(b) The President has determined that the complaint should not be declined under section 92(1) of the Act, on the ground (for instance) that the conduct alleged would not contravene the Act or that the complaint is 'frivolous, vexatious, misconceived or lacking in substance'.
(c) The President has also determined under section 91A(1) that resolution of the complaint by conciliation should be attempted.
(d) The complainant has decided that, rather than seeking to have the complaint adjudicated by the Tribunal and one or more orders by way of remedy granted under section 108(2), fulfilment of the obligations assumed by the respondent in the conciliation agreement will constitute a sufficient remedy.
(e) The respondent has decided to undertake to fulfil these obligations, in preference to contesting at a Tribunal hearing the complainant's claim of entitlement to relief.
The determinations made by the President, notably under section 92, indicate that in his or her opinion the complaint is not without merit. The decisions by the parties to enter into the conciliation agreement evince a desire by both of them to avoid spending the time and money and experiencing the stress associated with litigating the complaint in the Tribunal.
These considerations are sufficient to demonstrate that in determining under section 91A(8) whether a provision of a conciliation agreement is one that 'could have been the subject of an order', the Tribunal need not, and indeed should not, decide whether the complaint, if brought before it for adjudication, would have been upheld and would have resulted in its making an order in the same terms as the provision or along similar lines. To do this would engage the parties in a form of litigation that they have decided to avoid.
In making this determination, however, the Tribunal must adopt the hypothesis that the complaint was one that would, if brought to trial, would have been 'substantiated in whole or in part'. The reason for this is that a finding to this effect is a pre-requisite, stipulated in section 108(2), that must be satisfied if any order 'in the exercise of the Tribunal's jurisdiction' is be made 'in proceedings relating to a complaint' (these quoted phrases are drawn, it will be observed, from section 91A(8)). The description, in paragraphs (a) to (f) of section 108(2), of the orders that may be made is predicated on the assumption that the Tribunal has held the respondent to have engaged in conduct declared unlawful by the Act.
The terms of paragraph (b), in particular, make this point clear. The Tribunal cannot 'make an order enjoining the respondent from continuing or repeating any conduct rendered unlawful by this Act' unless it has found that the respondent has already engaged in such conduct.
A question posed earlier in this discussion (at [79]) was as follows: what are the hypothetical circumstances in which a provision being considered for registration 'could have been' the subject of a Tribunal order? The reasoning just outlined suggests that one of these hypothetical circumstances is that conduct of the respondent that was alleged to have been unlawful under the Act was indeed unlawful in this way. In fact, the full range of orders that 'could have been made' can only be ascertained if it is assumed that all of this alleged conduct was unlawful under the Act.
We will conclude this general discussion by making clear our concurrence with the proposition, accepted by both parties, that the limitations imposed in section 108(2) on each of the different types of order listed in paragraphs (a) to (f) apply equally to the range of provisions within conciliation agreements that may be registered. Accordingly, to give a simple illustration, a provision requiring the respondent to pay damages totalling $200,000 could not be registered because the maximum amount by way of damages that the Tribunal can award under section 108(2) is limited by paragraph (a) to $100,000.
Two limitations that are of greater significance in the present context are as follows. First, an order, in the nature of a prohibitory injunction, enjoining a respondent from engaging in any conduct rendered unlawful by the Act, must be limited to the 'continuing' or 'repeating' of any such conduct (see paragraph (b)). Secondly, an order, in the nature of a mandatory injunction, requiring a respondent to perform any act or course of conduct can only stipulate an act or course of conduct that is 'reasonable' and can only be made 'to redress any loss or damage suffered by the complainant (see paragraph (c)).
The terms of the Agreement that should be registered
The parties' submissions. Mr Fogarty's arguments, at first instance and on appeal, that clauses 2, 3 (first and third sentences), 5, 6 (first three sentences), 7, 8 and 9 of the Agreement all satisfied the criterion of registration stipulated in section 91A(8) of the Act sought in a number of different ways to take account of the limitations, which we have just discussed, imposed by paragraphs (b) and (c) of section 108(2) on the types of order described in them.
We have found the following propositions advanced by him to be of particular assistance:-
1. Ms Lawson's complaint of indirect discrimination was based on allegations that Housing NSW had discriminated against her (i) by refusing services, (ii) in the terms on which it provided services, (iii) by denying her access to benefits associated with accommodation and (iv) by subjecting her to 'any other detriment' in relation to accommodation (see sections 49M(1)(a), 49M(1)(b), 49N(2)(a) and 49N(2)(c) of the Act).
2. This indirect discrimination by Housing NSW took the form of requiring her to comply with a number of 'requirements or conditions' with which a substantially higher proportion of persons who do not have her disability comply or are able to comply, being requirements which were not reasonable having regard to the circumstances of the case and with which she was not able to comply (see section 49B(2)(b)).
3. The relevant 'requirements or conditions', each of which is referred to expressly or by implication in one or more clauses of the Agreement, were these:-
(i) that she be able to read tenancy related materials in a conventional format (see clauses 1, 2, 8 and 9); and
(ii) that she be able to tolerate methods of work and chemicals used generally in maintenance procedures conducted (see clauses 3 and 5 to 10 inclusive).
4. The obligations imposed on Housing NSW by the provisions of the Agreement that Ms Lawson wished to be registered (i.e. clauses 2, 3 (first and third sentences) 5, 6 (first three sentences), 7, 8 and 9) 'enjoin' Housing NSW from 'repeating or continuing' the unlawful indirect discrimination in which (according to her complaint) it had engaged (cf section 108(2)(b) of the Act).
5. These obligations also require Housing NSW to perform a 'reasonable... course of conduct' to 'redress loss or damage' that she suffered as a result of this alleged discrimination (cf section 108(2)(c)). The fact that she suffered some damage of this nature was in fact acknowledged by Housing NSW in clause 12 of the Agreement.
6. The 'loss or damage' that would be redressed through the performance by Housing NSW of this 'reasonable act or course of conduct' would include the following:
(i) the pain and suffering caused to her when Housing NSW sought to carry out maintenance work in the premises leased to her without providing Material Safety Data Sheets (as to this, see paragraph [23] of the Tribunal's decision, quoted above at [26]);
(ii) the stress and frustration caused to her by the delay, outlined above, in providing these Sheets, together with a Scope of Works, in accordance with clause 3, so as to make possible the repairs to her hot water system; and
(iii) the humiliation experienced by her (which Housing NSW acknowledged in a letter to her dated 1 November 2011) through having to explain the nature of her disabilities to a number of different employees of Housing NSW, instead of to a single client services officer and/or a 'back-up' officer, as contemplated in clause 9.
6. No phrase within the clauses sought to be registered is unduly uncertain. There was in fact no complaint on this score by Housing NSW.
In his submissions on this aspect of the case, Mr Gardiner emphasised that the 'loss or damage' for which redress may be ordered under section 108(2)(c) of the Act is confined to past 'loss or damage' only. He contended also that by virtue of clause 13 the other clauses of the Agreement could not be construed strictly against Housing NSW and that an the provisions of an agreement which required only that the parties use their 'best endeavours' to abide by it was not appropriate for registration.
Our conclusions. Subject to some qualifications, we agree with the propositions, distilled from Mr Fogarty's submissions, that we have just set out.
In our judgment, all the provisions of the Agreement that Ms Lawson wishes to have registered - i.e., clauses 2, 3 (first and third sentences), 5, 6 (first three sentences), 7, 8 and 9 - are provisions that 'could have been the subject of an order' by the Tribunal in the hypothetical circumstances envisaged, by implication, in section 91A(8). For reasons explained earlier, those circumstances include a (hypothetical) prior finding that Housing NSW engaged in unlawful indirect discrimination of the nature alleged by Ms Lawson in her complaint to the ADB. On this footing, the Tribunal 'could have' made an order under section 108(2)(b) of the Act in the terms of these provisions of the Agreement. It would have been an order 'enjoining' Housing NSW from 'repeating or continuing' its prior conduct amounting to indirect discrimination and stipulating that this was to be done by complying with the provisions in question.
We are less sure about Mr Fogarty's alternative submission that performance of all the obligations imposed by these provisions on Housing NSW could be characterised as a 'reasonable... course of conduct' to 'redress' past 'loss or damage' and accordingly 'could have been the subject of an order' under section 108(2)(c). No doubt, the performance of some of these obligations would answer this description, but this cannot be said in relation to all of them because what is required of Housing NSW is compliance for a future period of uncertain duration. We do not need to decide this matter because Ms Lawson's case based on section 108(2)(b) is, we think, made out.
We agree with Mr Fogarty that, despite doubts raised by the Tribunal at [21], none of the terms used in the Agreement are uncertain to the extent that they cannot be understood and enforced.
In the view that we have taken of this case, it is unnecessary for us to deal with Mr Fogarty's submissions that the Tribunal erred through failing to give adequate reasons for some of its rulings and through denying procedural fairness to Ms Lawson.
One final matter with which we must deal, however, is whether the provisions of the Agreement that should be registered under section 91A(8) should be confined to the list furnished by Mr Fogarty. For two separate reasons, we have concluded that the following provisions should be added to this list: clauses 9a, 10, 13 and 14.
The first of our reasons is that two of these additional provisions - clauses 13 and 14 - mitigate significantly the scope and impact of the obligations within the other registered provisions that, by virtue of section 91A(9), will now be imposed on Housing NSW as orders of the Tribunal. Clause 13, as Mr Gardiner pointed out, dilutes significantly the strictness of these obligations. The first sentence of clause 14 creates a significant exception to the scope of clauses 3, 4, 5 and 6.
Our second reason is that, as already pointed out, section 91A(8) imposes an obligation on the Tribunal, following a finding of non-compliance, to register all the provisions of a conciliation agreement that 'could have been the subject of an order'. It does not appear to provide leeway to the complainant, or indeed the Tribunal, to select some only of these provisions for registration and omit others. We agree with Mr Fogarty that registration of clauses 1, 11 and 12 should not take place because they have been fully complied with. The same may be said of the provisions of the Deed. But the obligations imposed on Housing NSW by clauses 9a and 10 and the second and third sentences of clause 14 remain on foot and are registrable, and should therefore be registered.
Our orders
For the foregoing reasons, our orders are as follows:-
1. Leave is granted for the appeal to extend to the merits
2. The appeal is allowed.
3. The decision of the Tribunal made on 8 June 2012 is set aside and the following decision is substituted:
The following provisions of an Agreement (identified as 'Attachment A' to a Deed of Release) forming part of a conciliation agreement signed by or on behalf of each party on 11 October 2011 are registered as orders of the Tribunal: clauses 2, 3 (first and third sentences), 5, 6 (first and third sentences), 7, 8, 9, 9a, 10, 13 and 14.
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Decision last updated: 23 January 2013
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