NZ v NSW Land and Housing Corporation

[2006] NSWADT 126

CITATION:	NZ v NSW Land and Housing Corporation [2006] NSWADT 126
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT NZ RESPONDENT NSW Land and Housing Corporation
FILE NUMBER:	051030
HEARING DATES:	23/03/06
SUBMISSIONS CLOSED:	03/23/2006
EXTEMPORE DECISION DATE:	03/23/2006
DATE OF DECISION:	04/28/2006
BEFORE:	Layton R - Judicial Member
CATCHWORDS:	Interim Order
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:	Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 Cardile v LED Builders Pty Ltd [1999] HCA (6 May 1999 Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
REPRESENTATION:	APPLICANT In person RESPONDENT D Loewenstein
ORDERS:	That the landing on the applicant’s floor of her building be kept clear of all items pending final determination by the Tribunal of the Applicant’s claims in this matter.

1 On 16 September 2004 and on 24 November 2004, the applicant, NZ lodged claims with the President of the Anti-Discrimination Board (respectively the ‘President’ and the ‘Board’) alleging disability discrimination in accommodation and the provision of goods and services. By letter dated 3 March 2005, the President forwarded the complaints to the Administrative Decisions Tribunal (the ‘Tribunal’).

2 On 15 December 2005, the Tribunal held a hearing to clarify the existence and nature of NZ’s alleged disability. At that hearing evidence was given by NZ, her general practitioner, and her psychologist that NZ suffered from agoraphobia and social phobia and this was due to and/or exacerbated by ‘clutter’ on the common landing between her and her neighbour across the landing. NZ and her psychologist gave evidence that although at the time of the hearing all that remained on the said landing was a pot plant and plant stand, nevertheless, over a considerable period before the hearing, the amount of objects on the said landing had increased and decreased unpredictably, and this had led to deterioration of NZ’s condition. The psychologist gave evidence that if the landing was cleared, NZ would be able to start therapy. At the conclusion of the hearing, the Respondent and Tribunal indicated they were satisfied that NZ suffered from a disability within the definition of Section 4 of the Anti-Discrimination Act 1977 (the Act).

3 The matter is set down for hearing as to the merits of NZ’s claims of unlawful discrimination for three days on 23, 24 and 25 May 2006.

4 By letter dated 17 February 2006, NZ applied to the Tribunal for an interim order for ‘removal of the clutter’. In response to this application, the Tribunal held a hearing on 23 March 2006. The Tribunal notes that the said letter also requested an interim order ‘for consideration taking into account letter 16 February 2006’ but since this referred to a letter from the Tribunal to NZ discussing issue by the Tribunal of summonses, this was not the subject of the proceedings on 23 March 2006.

5 On 23 March 2006, NZ gave evidence by telephone. NZ stated that as of 22 March 2006 and at the hearing, the landing was empty, but she was fearful that if an interim order was not made to maintain this state, the clutter would return and that she couldn’t start her therapy without the landing remaining clear.

6 The Respondent’s legal representative, Mr Loewenstein, made submissions opposing the making of an interim order in favour of NZ. Mr Loewenstein stated that the reason the common area outside NZ’s unit was clear at the date of the hearing on 23 March 2006 was because the Respondent’s solicitor had persuaded the neighbour to do more than she, or other residents in the building, were required to do under the current policy of the respondent, as ‘an act of good faith in order to keep the peace to some large extent’. He submitted that to grant the interim order sought may lead to other problems if the neighbour’s rights are ‘restricted relative to other people in the complex’. Further, he said that the ‘orders sought on an interim basis are effectively the orders ultimately sought in the proceedings, save for some compensation’. He added that the ‘evidence hasn’t been properly adduced’ to entitle the Applicant to the interim order sought.

7 The Tribunal suggested that the Respondent may wish to agree to a consent order making no admissions. Mr Loewenstein opposed this suggestion, indicating that if the Tribunal considered an order was warranted, the Tribunal should take the responsibility for this order.

8 At the conclusion of the hearing on 23 March 2006, the Tribunal made an ex tempore decision, noting that the interim order made was not an order as to the merits of NZ’s claims which merits would be determined after the hearing on 23, 24 and 25 May 2005, but rather was an interim order made to preserve the status quo before that said May hearing. This decision formally sets out the order and reasons for the interim order made on 23 March 2006.

9 The power to make an interim order is set out in the Anti-Discrimination Act 1977 Section 105 which states:

‘(1) The Tribunal may, on the application of the President after a complaint is made and before the complaint is declined, terminated or otherwise resolved by the President, or referred to the Tribunal, or on the application of a complainant or respondent at any time, make an interim order:
a. to preserve the status quo between the parties to the complaint, or

b. to preserve the rights of the parties to the complaint, or

c. to return the parties to the complaint to the circumstances they were in before the contravention of this Act or the regulations alleged in the complaint occurred, pending determination of the matter the subject of the complaint. ‘

10 The power of the Tribunal to make interim orders is similar to the power of courts to make interlocutory orders.

11 A court in granting interlocutory relief, should generally grant the minimum relief necessary to do justice between the parties and it should specify the circumstances in which the order will cease to operate: Cardile v LED Builders Pty Ltd [1999] HCA 18, per Gaudron, McHugh, Gummow and Callinan JJ at para 70.

12 In Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 , Mason CJ at para 11, set out the test for granting of interlocutory orders as follows:

‘ The principles governing the grant or refusal of interlocutory injunctions in private law litigation have been applied in public law cases, including constitutional cases, notwithstanding that different factors arise for consideration. In order to secure such an injunction the plaintiff must show (1) that there is a serious question to be tried or that the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief; (2) that he will suffer irreparable injury for which damages will not be an adequate compensation unless an injunction is granted; and (3) that the balance of convenience favours the granting of an injunction.’

13 The Tribunal notes that there is no inflexible rule that a prima facie case for final relief must be made out by the applicant for an interlocutory relief in the Courts: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63, per Gleeson CJ at para 18 (‘The extent to which it is necessary, or appropriate, to examine the legal merits of a plaintiff's claim for final relief, in determining whether to grant an interlocutory injunction, will depend upon the circumstances of the case. There is no inflexible rule..’); per Kirby J at para 156 to 160 (at para 160 ‘In my view the primary judge and Slicer J in the Full Court erred, in so far as they suggested that establishment of a cause of action was, as a matter of law, a universal fixed requirement for the grant of an interlocutory injunction at the time such injunction issued.’); and per Callinan J at para 246 (‘…Just what measure of success an applicant for an interlocutory injunction must establish is not completely settled…’).

14 The Tribunal notes that the principles as to injunctive remedies are still developing: In Cardile v LED Builders Pty Ltd [1999] HCA 18, the High Court, Gaudron, McHugh, Gummow and Callinan JJ, stated at para 30 ‘…[The] injunctive remedy is still the subject of development in courts exercising equitable jurisdiction...’

15 Further, the power of a statutory court to grant interim injunctive relief should be viewed in the light of the enabling statute: Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd [2001] HCA 63 per Gummow and Hayne JJ at para 89,’Where interlocutory injunctive relief is sought in some special statutory jurisdiction which uses the term "injunction" to identify a remedy for which it provides, that term takes its colour from the statutory regime in question…’.

16 Moreover, where the power to grant interim injunctive relief derives from statute, as does the power of the Tribunal to grant interim orders, the statutory power is not to be limited by any limitation which is not strictly required by the language and purpose of the statute conferring the power to make interim orders: In Cardile v LED Builders Pty Ltd [1999] HCA 18, Kirby J observed in relation to the statutory power of the Federal Court to make orders,

‘110. There is a further consideration which extends even more widely the powers of the Federal Court to make orders "appropriate" in relation to matters before it. This is the general principle that statutory provisions, conferring jurisdiction or power on a court, are not construed as subject to any limitation which is not strictly required by their language and purpose[172] Where a court is endowed with a particular jurisdiction, it enjoys the powers necessary to enable it to act effectively within that jurisdiction. Its powers are not ordinarily construed as restricted to defined and closed categories[173] This is because of the infinite variety of circumstances which may come before a court and require "appropriate" orders[174]. This well established general principle provides a warning against attempts by judges to state closed categories derived from the history of Chancery courts or from recent court decisions in their jurisdiction. To do this would amount to an impermissible gloss on the broad language by which the Parliament of Australia has conferred the power. It would, moreover, shackle the implications which follow from the very nature of the body receiving that power.

111. …[S]tatutory courts should never stray far from their statutory mandate. Nor should they forget the general principles which repeatedly emphasise the broad scope of the power conferred on a court and the need to avoid rigid, restrictive categories. In a particular case, such rigidities could prevent the proper exercise of the court's powers, as the Parliament has provided.

17 Accordingly, the Tribunal finds that the limits of its power to grant an interim order are found in the purpose of the Anti-Discrimination Act 1977 and in the wording of Section 105 of the Act itself.

18 The purpose of the Act is to protect people from prejudice and discrimination in areas of public life, such as the provision of goods, services and accommodation: Attorney General and Minister for the Environment, The Hon Bob Debus, in the Second Reading Speech, Anti-Discrimination Amendment (Miscellaneous Provisions) Bill, Hansard, 16 September 2004, page 11039) described the purpose of the Act as follows:

‘The New South Wales Anti-Discrimination Act 1977 is a vital plank in the Government's commitment to the protection of the human rights of members of our community. It was introduced in 1977 by the Wran Labor Government and has continued to evolve over the past 27 years into an increasingly important regime for protecting members of our community from prejudice and discrimination in key areas of public life, such as employment, education, the provision of goods and services and the provision of accommodation...’

19 The purpose of Section 105 of the Act is to empower the Tribunal to make interim orders which preserve the status quo between the parties to the complaint, preserve the rights of the parties to the complaint or return the parties to the circumstances they were in before the alleged discrimination occurred, pending the determination of the complaint: ibid.

20 The status quo is ‘The state of affairs existing now or at some given date’: Butterworths Legal Dictionary, eds. Peter E Nygh and Peter Butt, Butterworths, Sydney, 1997, at page 1111. In this case, the Tribunal finds that the status quo is the situation as it stood at the time of the hearing, that is, the landing outside NZ’s door was cleared of clutter.

21 The Tribunal has considered Mr Loewenstein’s submission that to grant an interim order to preserve the status quo at the time of the hearing on 23 March 2006, that is, clear of all items, is to grant NZ the ultimate orders she seeks, apart from damages. The Tribunal finds this is not the case since the orders sought are wider than the interim order sought, including not only damages but other orders such as to car parking and a different bath.

22 The Tribunal accepts that to grant the interim order sought would place NZ in a better position than she was in at the date she made the complaint to the Board and than she will be in if she does not succeed at the final hearing since the present policy in her building permits tenants to have outside their units ‘small pot plants …on the provision that they do not obstruct the pathway of residents and visitors’: Letter dated 24 February 2004, from the Respondent to tenants of NZ’s building, at page 50 of the President’s Report.

23 Nevertheless, in respect of whether the evidence warrants an interim order being granted, the Tribunal notes the evidence from NZ and her psychologist at the hearing on 15 December 2005 that over a considerable period before the hearing, the amount of objects on the said landing had increased and decreased unpredictably. The Tribunal notes too that the evidence given by NZ and her psychologist, and not disputed by the Respondent, at the hearing on 15 December 2005, also indicated that the neighbour has in the past had furniture and the like on the common landing of the building contrary to the Respondent’s policy as stated in the letter dated 24 February 2004 referred to in paragraph 16 above. Further, the Tribunal notes Mr Loewenstein stated at the hearing on 23 March 2006 that the clearing of the landing was completed on 21 March 2006 only pursuant to the intervention of Ms Eccleston.

24 In all the circumstances before the Tribunal as at 23 March 2006, having considered all the evidence, the Tribunal is satisfied that if the interim order restraining items being placed on the common landing is not granted, there is a substantial risk that the landing will return to any one of its previous, cluttered, states. The Tribunal is also satisfied that the uncertainty of whether the neighbour would once again place some or many items on the shared landing would first, lead more probably than not to a substantial worsening of NZ’s present condition, and secondly, would adversely affect any therapy she commenced before the full hearing in May 2006.

25 The Tribunal has considered whether making an interim order as to preservation of the status quo of the present clear common landing between NZ and her neighbour would present an undue or unfair burden or inconvenience on the Respondent. The Respondent did not submit to the Tribunal that an interim order that the landing on NZ’s floor be maintained clear until the case is finally determined would incur it undue (or any) cost or inconvenience. Also, it is apparent from the letter referred to above (President’s report, page 50) that in the past the Respondent has monitored the building lived in by NZ for fire safety reasons. After considering all the evidence, the Tribunal considers that grant of an interim order to maintain the landing in the clear state it was in at the hearing on 23 March 2006 would not cause the Respondent an undue and/or unfair burden or inconvenience when balanced against the detriment the applicant will suffer if the interim order is not made.

26 Having regard to the purpose of the Act and of the power within the Act to grant interim orders, and to the evidence as to NZ’s disability and as to the past history of material coming and going on the common landing between NZ and her neighbour, the Tribunal is satisfied that in this case, an interim order to preserve the status quo is just and convenient.

27 Having considered all the evidence and circumstances, to preserve the status quo of the parties, the Tribunal grants an interim order to keep the common landing between NZ and the neighbour clear of all items until the Tribunal makes its final decision in this matter.

Decision

That the landing on the applicant’s floor of her building be kept clear of all items pending final determination by the Tribunal of the Applicant’s claims in this matter.