Neumann v Brisbane Housing Company Ltd
[2017] QCAT 213
•30 May 2017
CITATION: | Neumann v Brisbane Housing Company Ltd & Anor [2017] QCAT 213 |
PARTIES: | David Neumann |
| v | |
| Brisbane Housing Company Ltd (First Respondent) | |
APPLICATION NUMBER: | ADL011-16 |
| MATTER TYPE: | Anti-discrimination matters |
HEARING DATE: | 18 April 2017 |
HEARD AT: | Brisbane |
DECISION OF: | Member Traves |
DELIVERED ON: | 30 May 2017 |
DELIVERED AT: | Brisbane |
ORDERS MADE: | 1. The complaint is dismissed. 2. Each party bear its own costs. |
CATCHWORDS: | HUMAN RIGHTS – DISCRIMINATION – DIRECT DISCRIMINATION – where applicant alleged the first respondent had an “anti-male agenda” – where the applicant alleged the first respondent discriminated against him in the way it treated him following altercations or incidents with other tenants – where the applicant alleged that the first respondent discriminated against him because of his gender and/or because he suffered from a mental illness, in contravention of the Anti-Discrimination Act 1991 (Qld) – where s 10 of the Anti-Discrimination Act 1991 (Qld) requires a comparison between the treatment of a person with a protected attribute and a person without that attribute “in circumstances that are the same or not materially different” – where s 8 of the Anti-Discrimination Act 1991 (Qld) extends the definition of discrimination to include discrimination on the basis of a “characteristic” that is often imputed to a person with a protected attribute – identification of the appropriate comparator – whether difficulty in relating to other tenants a “characteristic” of a person with the applicant’s mental illness within the meaning of s 8 or a “circumstance” in which the comparison is to be made under s 10 Anti-Discrimination Act 1991 (Qld), s 6, s 7, s 8, s 10, s 83, s 103, s 106, s 133, s 138, s 175, s 210 Australia Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 |
APPEARANCES: | |
APPLICANT: | Mr David Neumann |
FIRST RESPONDENT: | Ms Alycia Meikle, Brisbane Housing Company Ltd |
SECOND RESPONDENT: | Ms Jodie Shay |
REASONS FOR DECISION
David Neumann is a tenant of Brisbane Housing Company Ltd (BHC) at a unit complex it owns and manages at Yeerongpilly. He has been a tenant there since 2008 but complains that during 2011 to 2015 a number of incidents occurred which constituted direct discrimination against him within the meaning of the Anti-Discrimination Act 1991 (Qld) (ADA). Mr Neumann claims he was discriminated against on the basis he was male and also on the basis he had a mental illness, in particular, anxiety and depression.
BHC is a non-profit social business organisation which owns and lets over 1300 properties and manages an additional 200 properties to tenants who qualify for affordable housing. It is a Tier 1 registered community housing provider under the National Regulatory System for community housing. BHC provides housing for people who have a low income and may otherwise experience significant barriers to gaining accommodation. Tenants often have a disability, including mental illness or a criminal history which has made finding and sustaining accommodation very difficult.
Mr Neumann made a complaint to the Discrimination Commissioner in relation to a number of incidents on 17 September 2015.[1] The complaint was subsequently referred by Mr Neumann to the Queensland Civil and Administrative Tribunal.[2] The Tribunal has the power to hear and decide complaints that the ADA has been contravened.[3]
[1]ADA, s 134.
[2]Ibid, s 166.
[3]Ibid, s 174A(a).
The incidents upon which Mr Neumann relies occurred more than one year before he made his complaint to the Anti-Discrimination Commissioner which would, ordinarily, make his complaint out of time.[4] The Commissioner however exercised its discretion under s 138(2) of the ADA to accept the complaint.
[4]Ibid, s 138(1).
Section 175 of the ADA provides that the Tribunal is not obliged to accept a complaint referred to it by the Commissioner unless the complaint was made within 1 year of the alleged contravention.[5] If the complaint was made more than 1 year after the alleged contravention, the Tribunal may deal with it if it considers, on the balance of fairness between the parties, that it would be reasonable to do so.[6]
[5]Ibid, s 175(1).
[6]Ibid, s 175(2).
The incidents alleged to have occurred from 2011 to 2014 were all more than one year before Mr Neumann filed his complaint with the Anti-Discrimination Commissioner on 14 September 2015. The Tribunal, in the context of determining an application brought by the respondents pursuant to s 47 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), refused to summarily dismiss the proceeding or those parts of the proceeding which were “out of time”.[7]
[7]Neumann v Brisbane Housing Company Ltd, 9 January 2017, [20] – [23].
I am required to assess whether, on the balance of fairness between the parties, it is reasonable to deal with the complaints notwithstanding that the complaint was brought outside the period permitted by s 175. Although the earlier alleged conduct was, in some cases more than two years out of time, Mr Neumann contends, and I accept, that they form part of a pattern of behaviour, whether discriminatory or not, which had their culmination in the events of 2014. I take into account the fact that Mr Neumann has a mental illness, namely anxiety and depression. Further, it is not contended by the respondents that there has been prejudice suffered by reason of the delay. While it is true that delay of itself may cause prejudice in litigation, the respondents have not contended that the delay has affected adversely the respondents’ conduct of the case.
In my opinion, on the balance of fairness, it would be reasonable to allow an extension of time in respect of those aspects of the complaint out of time.
At the commencement of the hearing Mr Neumann applied to join two former Housing Managers of the BHC, Ms Leute Tatiana and Mr Darren Harrison as respondents. I refused the application. The application was made very late, without notice to the respondent or proposed respondents and would likely have caused an adjournment of the proceedings.
The Anti-Discrimination Act 1991 (Qld)
One of the purposes of the ADA is to promote equality of opportunity for everyone by protecting them from unfair discrimination in certain areas of activity, including work, education and accommodation.[8] This is achieved by prohibiting discrimination that is on a prohibited ground (defined in Chapter 2, Part 2) of a certain type, namely direct and indirect discrimination (Part 3) and in an area of activity in which discrimination is prohibited (Part 4).[9]
[8]ADA, s 6(1).
[9]Ibid, s 6(2).
Section 83 prohibits, in certain circumstances, discrimination in the accommodation area. That section provides:
83 Discrimination in accommodation area
A person must not discriminate against another person-
(a)in any variation of the terms on which accommodation is supplied; or
(b)in denying or limiting access to any benefit associated with the accommodation; or
(c)in evicting the other person from the accommodation; or
(d)by treating the other person unfavourably in any way in connection with the accommodation.
Here, the relevant limb is s 83(1)(d).
The grounds on which it is unlawful to discriminate are defined by s 7 and s 8 of the Act. Section 7 contains a list of “attributes” on the basis of which discrimination is prohibited, which, relevantly include sex and impairment. Section 8 extends the meaning of discrimination on the basis of an attribute to include discrimination on the basis of a characteristic that a person with the attribute generally has or that is often imputed to a person with the attribute.[10]
[10]ADA, s 8(a)(b).
Mr Neumann alleges he was discriminated against on the basis of the “attribute” of sex and/or impairment.[11]
[11]Ibid, s 7(a) and (h).
In particular, that he was discriminated against because he was male and BHC had an “anti-male agenda” and on the basis he had a mental illness.
Impairment is defined to include, relevantly, a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.[12] Mr Neumann was diagnosed with anxiety and depression following a suicide attempt in 2008 and has been on a disability support pension for mental health issues since January 2010. He has been on anti-anxiety medication since at least October 2012.[13] I am satisfied that, at the time of the alleged incidents, Mr Neumann satisfied the test of impairment, having, at those times, a mental illness that impaired his thought processes, perception of reality, emotions or judgment.
[12]Ibid, Schedule, definition of “impairment”.
[13]Princess Alexandra Hospital Records dated 5 October 2012.
There was no evidence which showed that Mr Neumann had a “characteristic” that a person with the same mental illness generally has or is often imputed to have within the meaning of s 8. I find, therefore, that the relevant attribute is his sex and his mental illness.
Discrimination on the basis of an attribute can be direct or indirect.[14] Mr Neumann claims he was subject to direct discrimination. He made no claim of indirect discrimination at any stage of the proceeding.
[14]ADA, s 9.
Direct discrimination is defined as follows:
10 Meaning of direct discrimination
Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
In addressing whether there has been direct discrimination two questions must be resolved:
a) was the applicant treated less favourably than a hypothetical person without the attribute in the same circumstances; and, if so
b) was the attribute the basis for the less favourable treatment?
Section 10 requires comparison between the treatment the discriminator gives, or proposes to give, to the applicant and the treatment that the discriminator would give, or would propose to give, to a person without the applicant’s impairment in “circumstances that are the same or not materially different”.
There can be difficulty in identifying the relevant circumstances or context for the comparison. This is important because it can be determinative. The issue has arisen in the High Court in Purvis in relation to the equivalent Commonwealth statute. There the court determined that the manifestation of an attribute, in particular, disturbed behaviour resulting from a disability was a circumstance to be attributed to the comparator rather than an inherent characteristic of the attribute.[15]
[15]Purvis v State of New South Wales (2003) 217 CLR 92.
The issue arose recently in Woodforth v The State of Queensland where the Queensland Court of Appeal held that s 8 of the ADA meant that discrimination was extended to include discrimination on the basis of a characteristic that a person with the attribute generally possesses or which is often imputed to a person with the attribute.[16] This section, which does not appear in the Commonwealth statute, warranted a different approach to that taken by the High Court in Purvis. Under the Qld Act, any “characteristic” generally held by or often imputed to a person with that attribute will be considered part of the attribute. As a consequence, any discrimination on the basis of that characteristic will constitute discrimination.
[16]See also Lyons v The State of Queensland (2016) 90 ALJR 1107, 1109 [2].
If the comparison shows that the person with the impairment was treated less favourably, the further question must be asked as to whether the impairment was the “basis for” the less favourable treatment.[17]
[17]Purvis v State of New South Wales (2003) 217 CLR 92, 158.
The central question is therefore to ask why the aggrieved person was treated as he or she was? It is not necessary that the discriminator considers that the treatment is less favourable.[18] Nor is a person’s motive for discriminating relevant.[19] It is enough if the difference in treatment is based on the prohibited ground, notwithstanding an absence of motive or intention.
[18]ADA, s 10(2).
[19]Ibid, s 10(3).
The test is objective not subjective.[20] The mere assertion that an act was done because of a ground that was not, for example, impairment will not prevent the act from being discriminatory if the “true basis” for the act is in fact, impairment.
[20]Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165, 184 (Dawson J).
If there is more than one reason for treating a person less favourably than another, the less favourable treatment will be on the basis of the attribute only where the attribute is a substantial reason for the treatment.[21]
[21]ADA, s 10(4); Lyons v Queensland (2016) 90 ALJR 1107.
Responsibility for contravening conduct can extend to responsibility for the conduct of a worker or agent. Section 133 provides:
133 Vicarious liability
(1) If any of a person's workers or agents contravenes the Act in the course of work or while acting as agent, both the person and the worker or agent, as the case may be, are jointly and severally civilly liable for the contravention, and a proceeding under the Act may be taken against either or both.
(2) It is a defence to a proceeding for a contravention of the Act arising under subsection (1) if the respondent proves, on the balance of probabilities, that the respondent took reasonable steps to prevent the worker or agent contravening the Act.
Section 103 provides that it is not unlawful to discriminate with respect to a matter that is otherwise prohibited under part 4 if an exemption in section 104 to 113 applies. Section 106 exempts a person who does an act which is necessary to comply with or specifically authorised by another Act. This would include, for example, the issue by a lessor of a Notice to Remedy Breach for Objectionable Behaviour under the Residential Tenancies and Rooming Accommodation Act 2008 (Qld).
The issue is whether Mr Neumann has been treated less favourably in connection with his accommodation by the first respondent or its officers on the basis he was male or had a mental illness.
In order to succeed Mr Neumann is required to satisfy the Tribunal on the balance of probabilities that the elements of discrimination in connection with accommodation have been established.[22]
[22]ADA, s 204.
The complaints
Mr Neumann complained generally of what he described as “mismanagement” and “negligence” by BHC in the management of the property, the subject of his tenancy. He complained that a succession of Housing Managers employed by BHC during his tenancy were either corrupt, had conflicts of interest, were incompetent or negligent.
Mr Neumann raised a number of “complaints” in his application which he said constituted discrimination against him. The complaints were not formulated as discrimination complaints within the meaning of the ADA.
It was difficult to elicit from Mr Neumann in the Hearing precisely how, or on what basis, the events or circumstances complained of constituted discrimination. I have done the best I can to extract and summarise what I believe to be the substance of Mr Neumann’s complaints.
The tenant meetings: Mr Neumann said that between 10 November 2014 and 29 April 2015, Ms Shay (a former BHC Housing Manager) convened tenant meetings. The purpose of these meetings, Mr Neumann alleged, was to encourage tenants, many of whom were criminals, to “collude” and to “turn against him”. Mr Neumann also complained that a former tenant, Lisa Miller, was involved in the Yeronga Community Centre and that “BHC adopted this organisation in the tenant engagement strategy”. This community group was affiliated with the Anglican Church and so Mr Neumann argued that the BHC was imposing religion on him which it had no right to do.
It was clear that from Mr Neumann’s perspective the meetings were exclusionary. However this was not supported by the evidence. Two meetings were held, on 10 September 2014 and 29 April 2015. An invitation setting out a basic agenda was given to all tenants. The invitations were headed: “your invitation!” and described the event as a “tenant’s meeting and morning tea”. The invitation commenced “All tenants are invited to a residents meeting and morning tea” and encouraged residents to share morning tea with other residents and to discuss any issues they may have with the building or local community. The invitations concluded with: “All welcome!”[23]
[23]Invitations annexed to Statement of Alison Kemp dated 20 March 2017, AK1.
I do not find that the convening of tenant meetings in this manner was discrimination against Mr Neumann. He was invited to attend but chose not to. There was no basis for finding that, in relation to the meetings, he was treated less favourably than other tenants.
Mr Neumann took offence at the fact that representatives from the Yeronga Community Centre were invited to the meeting. His argument was not clear but it seemed that he was of the view that because the Centre was run by the Anglican Church that religion was being imposed upon him. I understood from statements made by Mr Neumann during the hearing that he had given evidence against the Anglican Church during the Royal Commission into Child Abuse. While I appreciate that any involvement with the Anglican Church may cause Mr Neumann distress I do not find that any discrimination against him has occurred due to the meetings that were held or the involvement of the Yeronga Community Centre.
The incident with Paul: Paul was a co-tenant who owned a dog which he let off the leash in the unit complex. This caused another dog, “Sooty” to bark. Mr Neumann was tired of the noise and called the Council. A Council inspector came to the unit complex to investigate and issued Paul with a fine. Paul, incensed, raced up to Mr Neumann’s unit, tried to get in his front door, tore off the flyscreen to a bathroom window, and then proceeded to dislodge and throw a glass louvre at Mr Neumann which caused a laceration to his left elbow requiring sutures.
Mr Neumann complains that the Housing Manager, Ms Shay was rude and insulting to him after this incident. He claims she blamed him for the incident when he was only standing up for his rights. When pressed, Mr Neumann said it constituted discrimination against him because Paul was not “breached” over it.
Mr Neumann had, without the consent of Ms Shay, taped their conversation. I was able to read a transcript of the conversation. While Ms Shay could, in my view, have been more sympathetic towards Mr Neumann there was no evidence that she treated him less favourably than she would have treated someone else in the same circumstances.
The incident with Chris: Chris was, Mr Neumann said, a convicted conman. When Mr Neumann discovered Chris’ criminal history on the internet, he made many complaints to the BHC seeking to have him evicted. There was clearly ongoing tension between them. Mr Neumann said that matters between them escalated to the point where he was forced to take a Peace and Good Behaviour Order out against him in the Magistrates Court. Mr Neumann emailed a copy of this Order to the BHC. The Housing Manager at the time, Leute Iva, emailed back saying “Thanks, David. I’ll file it”. Mr Neumann said this was unsatisfactory and constituted discrimination against him.
Mr Neumann also said that it was not until 3 months later, when Chris verbally abused another co-tenant who was a woman and pregnant, that processes were commenced by BHC to have Chris evicted. Mr Neumann said this was discrimination because it showed he had received less favourable treatment than his co-tenant.
Leute gave evidence by telephone during the hearing. She said that she would have treated any other tenant exactly the same. She said that Mr Neumann had wanted to know whether Chris had been breached but she told him she could not provide him with that information.
Leute gave evidence that, in fact, Chris was “breached” but due to being in arrears with his rent.
I am not satisfied, on the evidence, that Mr Neumann was treated less favourably in relation to his fall out with Chris. He referred to the fact that Chris left after he abused a female tenant but did not establish that this was related to his abuse of her or some other reason and further, that if it was related to his abuse of her, that it was not a cumulative situation. In particular, that because Chris had assaulted two tenants, he was “breached”.
The anti-male agenda: Mr Neumann relied on comments allegedly made by another female tenant, Lisa, that he was a ‘prick with a dick’ and that “I’m your snitch’. She was also supposedly to have indicated to another tenant that she had been assaulted by a male who caused her personal injury.
Comments made by one tenant to another cannot, without more, be attributable to a lessor. There is no evidence that BHC indorsed the comments or was in any way complicit in them. There is also doubt as to whether the conduct as it stands was sufficient to constitute “less favourable treatment” in the sense in which that phrase is used.
Comments made about him to a new tenant: Mr Neumann alleges that Ms Shay said to a new tenant that he should avoid contact with him because of “mental health issues he was going through”.[24]
[24]Statement of Dion Maticic dated 28 July 2015.
The person to whom the statement was allegedly made provided a very brief Statement and did not attend the hearing due to being in a correctional centre. There is some discrepancy in the evidence as to when the new tenant moved in and when Mr Neumann alleges the comments were made. The relevant tenant moved in on 18 December 2014 and yet, according to his Statement, the alleged conversation took place in November 2014.
Ms Shay did not attend the hearing. Ms Kemp, Strategy and Engagement Manager of BHC gave evidence that, while she could not comment upon whether the alleged statement was made, that Ms Shay had undertaken induction training as to how to perform her role without unlawful discrimination and had participated in ongoing training relating to the BHC Code of Conduct which included reference to anti-discrimination legislation, principles of social justice, natural justice and professional integrity in the provision of accommodation services.
I am presented therefore with unsworn evidence from a witness who was unavailable for cross-examination, that the conversation took place. I am unable to find, based on the available evidence, that the conversation took place.
The dogs in the complex: The barking of dogs in the complex clearly caused Mr Neumann stress. He had general complaints in relation to the management and policy surrounding pets at the complex but was unable to establish that the conduct of BHC in this regard was in any way discriminatory against him. There was no evidence, for example, as to the response given to other tenants, if any, who complained about the dogs at the complex.
I therefore find that conduct of BHC in relation to the dogs owned by tenants in the complex did not constitute discrimination against Mr Neumann.
Remedies
To award compensation I would need to be satisfied that any loss or damage claimed to have been suffered by Mr Neumann was caused by the contravention.[25] For the reasons given above I find that Mr Neumann did not suffer damage by reason of any contravention.
[25]ADA, s 209(b).
Conclusion
For the reasons set out in this Decision I order that the complaint by Mr Neumann be dismissed.
In view of section 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) I make no order as to costs.
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