Mulley v The Deaf Society of NSW

[2016] NSWCATAD 18

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Mulley v The Deaf Society of NSW [2016] NSWCATAD 18
Hearing dates:	2 November 2015
Date of orders:	29 January 2016
Decision date:	29 January 2016
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton - Principal Member
Decision:	Leave for the complaint to proceed before the Tribunal is refused.
Catchwords:	EQUAL OPPORTUNITY — leave required for complaint to proceed — principles applying to grant of leave
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Privacy and Personal Information Protection Act 1998 (NSW)
Cases Cited:	Alchin v Rail Corporation NSW [2012] NSWADT 142 Burns v Sunol [2015] NSWCATAD 178 Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Jones & Anor v Ekermawi [2009] NSWCA 388 Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 Stanborough v Woolworths Ltd [2005] NSWADT 203
Category:	Principal judgment
Parties:	Lorraine Mulley (Applicant) The Deaf Society of NSW (Respondent)
Representation:	Solicitors: L Mulley (Applicant in Person) Norton Rose Fulbright (Respondent)
File Number(s):	1510478

Judgment

1. Loraine Mulley lodged a complaint with the President of the Anti-Discrimination Board (the President) alleging that she had been discriminated against by The Deaf Society of NSW (the Society). The President decided to decline Ms Mulley’s complaint (the Complaint) on the ground that it was lacking in substance: s 92(1)(a)(i) of the Anti-Discrimination Act, 1977 (NSW) (the Act). As a consequence, the Complaint may not be the subject of proceedings before the Tribunal without leave of the Tribunal (s 96(1) of the Act).

2. For the reasons that follow I have decided to refuse to grant leave for the Complaint to proceed.

The complaint

3. The Complaint concerned Ms Mulley’s treatment by staff of the Society, in particular the use of her email address and the issuing of tickets to a forum held by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission).

Unauthorised use of Ms Mulley’s email address

4. The genesis of this part of the Complaint was an email sent by a member of the deaf community to the wife of (then) Prime Minister Abbott. A large number of people, including Ms Mulley were copied into this email. In replying to that email, the Society’s Chief Executive Officer (the CEO), selected “reply all”, which, according to Ms Mulley, resulted in her email address (the disputed email address) being revealed to all other recipients. According to Ms Mulley, the problem was exacerbated by the actions of the Society’s Event Coordinator who “without authority” copied and retained the disputed email address and used it to contact her. These actions, she contends, constitute a breach of the Privacy and Personal Information Protection Act 1998 (NSW) and “professional indemnity”. In addition, she claims that the Society’s unauthorised use of her email address placed her at “risk of harm”.

5. Ms Mulley made a complaint to the Society and the Office of the Australian Information Commissioner (the Commissioner) about the Society’s use of her email address. After reviewing the action taken by the Society to address Ms Mulley’s concerns, which included counselling the staff members involved, updating its policies and procedures and issuing Ms Mulley with an apology, the Commissioner decided that the matter had been adequately dealt with and to take no further action.

Issue of tickets to the Royal Commission forum

6. In August 2014 the Royal Commission held a forum and invited members of the deaf community of NSW to attend. Ticketing to the forum was coordinated by the Society, which used an on-line ticketing service, Eventbite.

7. Ms Mulley claimed that the Society refused to issue her tickets to the Forum and, to post them to her home as requested.

8. The Society disputes that allegation. In a letter to the President dated 23 February 2015, the CEO pointed to an email sent to Ms Mulley by the Society’s Event Coordinator on 4 July 2014 seeking clarification about the number of tickets she had requested. In that email the Event Coordinator asked whether Ms Mullley wished to register for two or four tickets and stated it was unclear as she had made two separate requests for tickets. The CEO claimed that an email sent to Ms Mulley on 14 July 2014 by the Event Coordinator had apparently bounced and that was the reason the Event Coordinator contacted Ms Mulley using FaceBook and the disputed email address. In an email to the Event Coordinator sent on 24 July 2014 Ms Mulley claimed that she had not authorised the Event Coordinator to contact her by these methods and by doing so, the Event Coordinator had acted unprofessionally and “abused her rights”.

9. A factual issue in dispute is whether the Society issued Ms Mulley with tickets to the Forum. She contends she was not issued with tickets by the Society; the Society disagrees, pointing to the closing line of an email sent by Ms Mulley to the Event Coordinator on 24 July 2014 — “Eventbrite has sent me two tickets hence no further communication is required from you”.

10. In her Complaint Ms Mulley pointed out that in 2005 she took the Society to the (then) Industrial Relations Commission where an agreement was reached that the Society would provide her with “no less favourable services” than were provided to other “deaf customers” of the Society.

Statutory framework and principles governing grant of leave

11. Headed "Complaints - the functions of the President", Division 2 of Part 9 of the Act deals with the making of complaints. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

12. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation the President is satisfied that the complaint is misconceived or lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or part: ss 92(1)(a)(i) and 92(1)(a)(ii).

13. Where the President has declined a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

14. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1).

15. Section 96 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25]. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Could some or all of the Complaint amount to a contravention of the Act?

16. In determining whether to grant leave for the Complaint to proceed I will evaluate whether the Complaint, or part of the Complaint could amount to a contravention of the Act. In making that evaluation, I will adopt the approach commonly followed by NCAT and one of its predecessor Tribunals, the Administrative Decisions Tribunal, in determining applications for summary dismissal brought under the Act, namely where there is a conflict between the factual allegations made by the parties I will accept Ms Mulley’s version of events: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]–[26]; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38]; Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]; Burns v Sunol [2015] NSWCATAD 178 at [8].

Unlawful disability discrimination

17. The Act makes it unlawful for a person to discriminate against another person on the ground of their disability in the area of services:

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.

18. Section 49B defines “discrimination on the ground of disability”:

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 the perpetrator:

(a) on the ground of the aggrieved person’s disability or the disability of a relative or associate of the aggrieved person, 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(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 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.

…

19. “Disability” is broadly defined and includes the total or partial loss of a person’s bodily functions, and the malfunction or malformation of a part of a person’s body: s 4 of the Act. It is not in issue that as a consequence of being deaf, Ms Mulley has a disability within the meaning of the Act.

Could the complaint succeed cast as a complaint of “direct discrimination”?

20. If cast as a complaint of direct discrimination, for the Complaint to succeed Ms Mulley must establish:

1. That the conduct the subject of her complaint (the offending conduct) constituted a refusal of services, or related to the terms on which the Society provided her with services;

2. That in refusing her services or in the terms in which it provided services, the Society treated her less favourably, in the same or similar circumstances, than it treated or would have treated a person who was not deaf, or not thought to be deaf (less favourable treatment);

3. That one of the reasons for any less favourable treatment was because Ms Mulley is deaf, a characteristic that appertains generally to deaf people or a characteristic that is generally imputed to deaf people (causation).

(i) Unauthorised use of Ms Mulley’s email address

21. For current purposes I will assume but not decide that: (i) the unauthorised use of Ms Mulley’s email address related to the terms on which the Society provided services to Ms Mulley, and (ii) as contended by Ms Mulley, that use constituted a contravention of the Privacy and Personal Information Protection Act 1998 (NSW).

22. There is no evidence and nor is suggested that:

1. By its unauthorised use of Ms Mulley’s email address the Society treated Ms Mulley less favourably than, in the same or similar circumstances, it treated, or would treat a person who was not deaf, or not thought to be deaf;

2. One of the reasons for that less favourable treatment was because Ms Mulley is deaf, or because of a characteristic that appertains generally or is generally imputed to deaf people.

(ii) Refusal to issue tickets

23. I will assume that as alleged the Society refused to issue Ms Mulley to the Forum.

24. Again there is no evidence and nor is it suggested that in refusing to issue tickets, the Society treated Ms Mulley less favourably than it treated a person who was not deaf, or not thought to be deaf, or that one of the reasons for any less favourable treatment was because Ms Mulley is deaf or because of a characteristic that appertains generally or is generally imputed to deaf people.

Summary

25. For the reasons outlined above, even if Ms Mulley’s account of events is accepted, the Complaint, if cast as a complaint of direct discrimination, would not disclose a contravention of s 49M of the Act.

Could the complaint succeed cast as a complaint of “indirect discrimination”?

26. While there has been no argument put on this basis, in the interest of completeness I will also consider whether the Complaint could succeed if cast as a complaint of indirect discrimination under s 49B(1)(b) of the Act. To succeed Ms Mulley must establish in respect of at least one of the allegations:

1. The Society imposed a requirement or condition; and

2. She was unable to comply with that requirement or condition; and

3. A substantially higher proportion of persons who are not deaf comply or are able to comply with the subject requirement or condition; and

4. The requirement or condition was not reasonable having regard to the circumstances of the case.

27. In my view the Complaint would fail at the first hurdle as there is no evidence to support a finding that in relation to the offending conduct the Society imposed a condition or requirement, or, that Ms Mulley was unable to comply with any purported condition or requirement.

Conclusion

28. I accept that Ms Mulley feels deeply aggrieved by her treatment by the Society, the subject of her Complaint to the President. The Society concedes that its staff acted inappropriately in using Ms Mulley’s email address without authorisation. It is plain that her dealings with the Society in relation to the issue of tickets to the Forum caused Ms Mulley great distress. The Forum dealt with matters of great concern and personal significance to Ms Mulley. Understandably her belief that because of ticketing problems her opportunity to attend the Forum might have been jeopardised, caused her distress.

29. The Act does not provide individuals with redress for all types of mistreatment or wrongdoings. Only certain types of conduct is made unlawful by the Act. For the reasons given, even if Ms Mulley’s version of events were to be accepted, the offending conduct would not constitute a contravention of the Act. It follows that no useful purpose would be served in allowing the Complaint to proceed. For that reason I have decided not to exercise the discretion to grant leave for the Complaint to proceeed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 29 January 2016