Pearce v Charles Parletta Real Estate T/A LJ Hooker Glynde
[2011] SAEOT 1
•2 February 2011
EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
PEARCE v CHARLES PARLETTA REAL ESTATE T/A LJ HOOKER - GLYNDE
[2011] SAEOT 1
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
2 February 2011
HUMAN RIGHTS - DISCRIMINATION
Allegation of discrimination against real estate firm for not providing complainant with correspondence in large font as requested - complainant legally blind - whether respondent acted in contravention of the Equal Opportunity Act 1984 - claim not made out under Act.
Equal Opportunity Act 1984, referred to.
IW v City of Perth (1997) 191 CLR 1, considered.
PEARCE v CHARLES PARLETTA REAL ESTATE T/A LJ HOOKER - GLYNDE
[2011] SAEOT 1
Ms Pearce made a complaint to the Commissioner for Equal Opportunity (“the Commissioner”) on 14 May 2009 against Charles Parletta Real Estate trading as LJ Hooker Glynde (LJ Hooker).
On 10 March 2010, the Commissioner referred the complaint to this Tribunal. The matter was heard on 21 July 2010 and 22 September 2010. Mr Carroll represented Ms Pearce, and Mr Colgrave appeared on behalf of LJ Hooker. The witnesses who gave evidence in Ms Pearce’s case were Ms Pearce, Mr Clarke, Mr Bull, an optometrist, and Professor Crompton, an opthalmologist. The witnesses who gave evidence in the respondent’s case were Ms D’Ortensio, a property manager, and Ms Clothier, a member services assistant at the Blind Welfare Association.
Ms Pearce’s complaint will be described in detail below. In summary, it is a complaint that, in omitting to provide every piece of its correspondence with her in font which was size 18 or larger, LJ Hooker treated Ms Pearce unfavourably, or discriminated against her in such a way as to be in breach of the Equal Opportunity Act 1984 (“the Act”). Ms Pearce suffers from optic atrophy and nystalgia and is legally blind.
The Facts
The Blind Welfare Association (“the BWA”) owns a property at 1 Cameron Avenue, Gilles Plains (“the property”), which comprises 24 residential units, a social centre which contains a hall, toilets, a kitchen, offices and a craft room, and a common room which is accessible to residents and their visitors. Ms Pearce is a client of the BWA.
Ms Pearce took up residence in Unit 22 at the property shortly after 3 August 2006. At that time, Brock Harcourts, Payneham, were the managing agents for the BWA in respect of the property. In July 2007, the BWA changed managing agents, and engaged LJ Hooker, Glynde (“LJ Hooker”). It was Ms Pearce’s evidence that she first had dealings with LJ Hooker in August 2007 in relation to her tenancy.
Ms Pearce gave evidence that the term of the lease she had entered into in August 2006 expired, and that she held over on a periodic tenancy. A new lease was subsequently drawn up, and sent to her in the post by LJ Hooker. Ms Pearce said that she attended at the offices of LJ Hooker on 9 January 2009 in relation to her new lease and met Ms Palombo, an employee of LJ Hooker. In examination in chief, Ms Pearce said:
AI showed up at the office on the day to have her finalise the signing of the lease and that’s where she brought up ‘Did you read the lease’.
QAnd so you had said to her at that time –
AI said to her, yes, at that time – I had not read the lease as it wasn’t a large enough font and I required the 18-20 Arial font to be able to read correspondence.
Mr Colgrave raised some doubt about whether this meeting of 9 January 2009 actually took place. Ms Palombo was not called to give evidence. Initially, Ms Pearce was unable to produce a copy of the lease dated 9 January 2009. However, by the resumed hearing date in September 2010, Ms Pearce had found a copy of the lease and was able to tender it in evidence. We accept that Ms Pearce met with Ms Palombo on 9 January 2009, and we accept that part of their conversation was much as Ms Pearce described it in evidence. The fact that LJ Hooker provided correspondence to Ms Pearce in large print on 9 February 2009 corroborates it, to some extent.
The lease dated 9 January 2009 was superseded by a lease dated 19 January 2009, because the lease of 9 January 2009 contained an error.
Subsequent to the execution of the lease in January 2009, LJ Hooker and Ms Pearce corresponded on the following occasions:
1.By letter to Ms Pearce dated 9 February 2009, LJ Hooker informed Ms Pearce about the timing of an appliance safety check at the property. This letter was in large print.
2.By letter to Ms Pearce dated 19 February 2009, LJ Hooker reminded Ms Pearce that her lease provided that no pets were to be kept on the premises, and required “pets and rats” to be removed permanently. This letter was not in large print.
3.In a letter to LJ Hooker dated 21 February 2009, written on Ms Pearce’s behalf by Mr Clarke, her partner, and co-signed by Ms Pearce, Mr Clarke wrote:
I would greatly appreciate a prompt response in writing to be sent to both Ms Pearce and myself in a suitable format. This would entail all written material from the past and in the future to be in Braille accompanied by a printed copy.
This letter was not in large print.
4.By letter to Ms Pearce dated 13 March 2009, LJ Hooker addressed the issue of pets again with reference to birds this time, together with the need to keep the paths on the property clear. This letter was in large print.
5.By letter to Ms Pearce dated 3 April 2009, LJ Hooker gave notice of a routine inspection of the property. This letter was not in large print.
6.By letter to all tenants dated 9 April 2009, LJ Hooker gave notice of a new procedure for requesting repairs or maintenance of the premises. The new procedure required the faxing or emailing of a form to LJ Hookers’ office. The form was attached to the letter. This letter was not in large print. The form was one page long. Much of it was space for the tenant to fill in when making a request. Part of it was in large print and part of it was not.
7.In an email to Ms Palombo at LJ Hooker dated 16 April 2009, Ms Pearce said:
To Janet
As per our discussion on the 9th of January, I would like to remind you that I require any letters sent to me in large print so as I am able to read them independently as I am a person who is legally blind. The font size that I require is 18-20 size and Arial font for easiest reading.
Thank you.
8.By letter to Ms Pearce dated 29 April 2009, LJ Hooker served Ms Pearce with a notice to remedy a breach of the lease. A Form 2 pursuant to the Residential Tenancies Act 1995 was attached to the letter (“the Form 2”). The breach alleged was the keeping of animals in the premises. The remedy sought was the permanent removal of rats, birds and all other animals except for a hearing or guide dog. The letter was in large print. Some of the text on the form was in large print, and some of it was in capital letters, but some of the text was in small print.
9.By letter to Ms Pearce dated 15 July 2009, LJ Hooker gave notice of a routine inspection. This letter was in large print.
10.By letter to Ms Pearce dated 21 August 2009, LJ Hooker advised Ms Pearce:
During an annual test by Wormald it has been noted that some smoke detectors have been covered with plastic. This contravenes the building code and could result in disastrous consequences should there be a fire. The covers have been removed and are not to be replaced.
This letter was in large print.
11.By letter to Ms Pearce dated 19 October 2009, LJ Hooker gave notice of a routine inspection. This letter was in large print.
12.By letter to Ms Pearce dated 22 October, LJ Hooker reminded Ms Pearce that the terms of her lease required that there be no parking on the premises. This letter was in large print.
13.On 8 December 2009, LJ Hooker sent Ms Pearce two letters. One advised that her lease would not be renewed and requested vacant possession upon the expiry of the lease on 17 February 2010. The other gave notice of a final inspection and provided an inspection guide. Both letters and the inspection guide were in large print.
Ms Pearce is a student at TAFE. She is legally blind. She suffers from optic atrophy and nystagmus in both eyes. Professor Crompton provided a report and gave oral evidence. He said that he had examined Ms Pearce on 16 March 2000, in February 2003 and on 30 November 2005. Professor Crompton said that Ms Pearce’s condition leaves her with poor central vision. She has a full field of vision, but the middle section is very blurry. The field around the middle is clearer. Ms Pearce’s eyes tend to move from side to side involuntarily, which is an effect of nystagmus. Professor Crompton thought that Ms Pearce may have some difficulty reading size 18 font, but that she would be helped by appropriate magnifying aids. He believed that a closed circuit television (CCTV) or similar visual aid would assist Ms Pearce in reading print in size 18 font or smaller. The CCTV assists in the reading of a document by projecting an image of the document onto a television screen. The image can be magnified by the user. Professor Crompton said that in 2005, when he last saw her, Ms Pearce was able to read print smaller than size 18 with magnification. Professor Crompton’s evidence was that Ms Pearce’s condition was stable, so that if there had been any deterioration between 2010 and 2005, he would have expected it to be slight. In re-examination, the following exchange took place between Mr Carroll and Professor Crompton:
QJust referring to that, the closed circuit television, are you aware of any flashing effect that might take place when the user uses the closed circuit television.
AI think there are a series of mirrors and lenses inside it, so I presume at certain angles, there could be reflectances and glare from them.
QAre you in any position to speak to how that flashing effect, if we could call it that, might affect someone with Ms Pearce’s vision impairments.
AI think it would be more of a nuisance, and then by dodging around and getting a comfortable position, I think patients could generally minimise any problem from that.
Mr Bull, Ms Pearce’s optometrist, also provided a report and gave oral evidence. Where Mr Bull’s evidence about Ms Pearce’s condition differs from Professor Crompton’s we prefer Professor Crompton’s evidence, simply because Professor Crompton has more pertinent qualifications in relation to such matters.
Mr Bull agreed that Ms Pearce ought to be able to use a CCTV to read documents. He thought it may take some time and effort to position the document correctly, and said that Ms Pearce would need to be about 15 cms from the screen when reading, but those were the only difficulties he foresaw.
Ms Pearce gave evidence that she had attempted to use a CCTV in the common room at the premises about 6 months after she moved in. She said that she experienced a “flashing effect” from “the fluoro going through the camera”. Further, Ms Pearce said in evidence:
AWell aside the flashing effect which caused difficulty with concentration, it would require like for me to be looking down to put the piece of paper underneath, then up and then down and up to manoeuvre the piece of paper which to my narrow peripheral vision and despite even having the zoom at the most, I’d still have to be approximately 15 cm away from the screen to be able to focus in on it. Given the set up, it was just a very un-ergonomic way to sit.
The correspondence in issue in these proceedings is the letter of 19 February 2009, which is ten lines long (ie, less than a page), the letter of 3 April 2009, which is about half a page long, and the letter of 9 April 2009, which is also less than half a page long. The repair or maintenance request form is one page long, but contains less than half a page of text. The Form 2 is three pages long.
Ms Pearce did not say that she could not read the letters and forms using the CCTV. She said that she found it inconvenient and uncomfortable, and preferred to have large font letters and forms. We accept Professor Crompton and Mr Bull’s evidence (which was adduced in Ms Pearce’s case) that Ms Pearce could have read the letters using the CCTV without a great deal of difficulty or discomfort. We find that Ms Pearce, in evidence, exaggerated her difficulties with the CCTVs. We prefer the evidence of Professor Crompton and Mr Bull.
Ms Clothier, a member services assistant at the BWA, who uses an office on the property, gave evidence. Ms Clothier began as a volunteer with the BWA twelve years ago, and is now an employee. Ms Clothier has optic atrophy and is legally blind. Ms Clothier gave her evidence in a straightforward, careful manner and we accept her evidence in all respects.
Ms Clothier said that the office on the property was usually staffed from 8am to 5pm by at least one BWA employee and, on average, 5 volunteers. Ms Clothier said that the employees and volunteers frequently assist residents by reading their correspondence to them. She said that there was a CCTV in her office, which she used and was happy to use to read documents to residents. There was another CCTV in the social centre, which residents could use. Both of these were available throughout 2009. In addition, throughout 2009, two further CCTVs were available for the use of residents in the common room to which residents (including Ms Pearce) had access at all times, as they were provided with a key to the room.
Ms Pearce did not complain that the provision of the three letters and two forms to her in other than size 18 font had any practical adverse outcome. She did not complain that she had been unable to ascertain the content of the letters and forms, or to respond appropriately. Ms Pearce’s complaint was that she had been caused frustration and annoyance by the omission to comply with her request.
The Act
In her complaint (as amended at trial), Ms Pearce alleged that LJ Hooker had breached s 66(a), s 66(b), s 66(d) and s 76 of the Act. Ms Pearce pleaded that “in the alternative”, LJ Hooker had breached s 77(2)(a) and s 77(2)(d) of the Act.
The Act provides, in s 66(b) and s 66(d):
66 Criteria for establishing discrimination on ground of disability
For the purposes of this Act, a person discriminates on the ground of disability—
(a) if he or she treats another unfavourably because of the other’s disability, or a past disability or a disability that may exist in the future; or
(b) if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons who do not have such a disability complies, or is able to comply, with the requirement than of those persons who have such a disability; and
(ii)the requirement is not reasonable in the circumstances of the case; or
…
(d) if, in circumstances where it is unreasonable to do so—
(i)he or she fails to provide special assistance or equipment required by a person in consequence of the person's disability; or
(ii)he or she treats another unfavourably because the other requires special assistance or equipment as a consequence of the other's disability; or
Section 66 is essentially a provision dealing with interpretation. It does not, by itself, create rights or obligations. We will take it that Ms Pearce intended to rely on s 66(a), (b) and (d) as describing the type of discrimination to which she claimed that she had been subjected under s 76 and s 77 of the Act.
The Act provides, in s 76(1):
76 Discrimination in provision of goods and services
(1) It is unlawful for a person who offers or provides—
(a)goods; or
(b)services to which this Act applies,
(whether for payment or not) to discriminate against another on the ground of disability—
(c)by refusing or failing to supply the goods or perform the services; or
(d)in the terms or conditions on which or the manner in which the goods are supplied or the services are performed.
(1a) For the purposes of the application of subsection (1) to services comprised of access to or use of a place or facilities that members of the public are permitted to enter or use (see paragraph (a) of the definition of “services to which this Act applies”), the owner of the place or facilities and the occupier of the place or the place where the facilities are provided will each be taken to offer or provide the services.
(2) If the nature of a skill varies according to whether it is exercised in relation to persons who have a particular disability or to those who do not have such a disability, a person does not contravene subsection (1) by exercising the skill in relation to only those persons who have a particular disability, or only those who do not have such a disability, in accordance with the person's normal practice.
(3) This section does not apply to discrimination against a person on the ground of disability in relation to the performance of a service if, in consequence of the disability, that person requires the service to be performed in a special manner and the person performing the service—
(a)cannot reasonably be expected to perform the service in that manner; or
(b)cannot reasonably be expected to perform the service in that manner except on more onerous terms than would otherwise apply.
As we understand it, it was Ms Pearce’s case that LJ Hooker was providing a service to Ms Pearce, and, in providing her with that service, discriminated against her on the ground of her disability in the manner in which that service was performed, namely by omitting, in respect of the three letters and two forms, to provide documents in size 18 font or larger.
It was common ground that LJ Hooker was providing services to the BWA. In s 5, the Act defines “services to which this Act applies” to include “services of a profession or trade”. Both parties assumed that this would include services as a managing agent of real property, and we agree. Mr Colgrave argued that LJ Hooker were not, however, providing those services to Ms Pearce, or the other tenants of the property, but only to the BWA. We disagree. We bear in mind the rule of construction that beneficial and remedial legislation is to be given a liberal construction (see Brennan CJ and Mc Hugh J in IW v City of Perth[1]). It is not necessary for a person to be in a contractual relationship with another party in order for that party to be providing that person with services. We accept the evidence of Ms D’Ortenzio that LJ Hooker acted at all times on behalf of the BWA and on the BWA’s instructions. In doing so, however, LJ Hooker provided for Ms Pearce (and the other tenants of the property) a conduit for the passage of information, pertaining to her tenancy, to and from the BWA. On the basis of Ms D’Ortenzio’s evidence and the documentary records before us, it is apparent that LJ Hooker enforced the terms of all of the leases over the units at the property, which was generally to the benefit of all of the tenants and the BWA. LJ Hooker received the rental payments into its trust account. LJ Hooker attended to repair and maintenance requests. LJ Hooker negotiated new leases and attended to lease terminations. It seems to us that these activities constitute services to Ms Pearce within the meaning of the Act. We determine that, from July 2007, in the course of managing the property for the BWA, LJ Hooker was also providing Ms Pearce with services, incidentally to its contract with the BWA.
[1] (1997) 191 CLR 1
The question, then, is whether LJ Hooker discriminated against Ms Pearce on the ground of her disability in the manner in which those services were performed.
Mr Carroll did not put Ms Pearce’s case to the Tribunal very clearly. We have attempted to grasp Ms Pearce’s case from her pleadings and by inference from the evidence called.
No evidence was called in relation to the manner in which LJ Hooker corresponded with the other tenants of the BWA or with the tenants of any other landlord for whom LJ Hooker manages property. There was no evidence of LJ Hooker’s response to requests for special assistance from any other tenant. There was no evidence that LJ Hooker treated Ms Pearce unfavourably relative to any other tenant. Although Ms Pearce relies upon s 66(a) and (b) in her pleadings, no evidence was put forward in her case to support discrimination within the meaning of s 66(a) or (b). It seems to us, therefore, that Ms Pearce’s case in relation to s 76 relies on s 66(d) of the Act. Ms Pearce’s case, pursuant to s 76, seems to be that LJ Hooker discriminated against her in the provision of services, in circumstances where it was unreasonable to do so, by failing to provide special assistance, in the form of large print documents, required by Ms Pearce as a consequence of her sight impairment.
We accept that Ms Pearce requested that LJ Hooker provide her with special assistance in the form of letters and other documents in size 18 font or larger. She made that request on 9 January 2009, in a conversation with Ms Palombo, and by letter of 16 April 2009. Confusingly, she also co-signed a letter written on her behalf by Mr Clarke, asking for correspondence in Braille. We find that LJ Hooker complied with the request to provide large print in relation to all but three letters and two forms. We do not have any basis for thinking that the provision of those documents provided in smaller print was anything other than an oversight. Having regard to the terms of s 66(d), we must consider whether that oversight was unreasonable in the circumstances. Ms Pearce was a tenant and a client of the BWA. At all material times, the BWA provided staff and volunteers on the property to assist its tenants and clients by, among other things, reading documents to them. In addition, CCTVs were provided for the use of the tenants 24 hours a day on every day of the year. The evidence of Professor Crompton and Mr Bull was that Ms Pearce would have been able to read the documents using the CCTVs. Ms Pearce said that she preferred not to use the BWA staff and volunteers because of concerns about her privacy. The use of the CCTVs would have overcome that concern. In these circumstances, we do not consider that LJ Hooker’s oversight was “unreasonable”. Ms Pearce was not left in the situation where she could not readily gain access to the content of the documents. In addition, s 66(d) speaks of:
“…special assistance or equipment required by a person in consequence of the person’s disability.”
It seems to us that the special assistance must be required in the objective sense of being needed, not in the subjective sense of being the form of assistance preferred by the person with the disability, among other forms of assistance which would also achieve the same result. Several forms of special assistance were available to Ms Pearce on the property, namely employees and volunteers who would read to her, or CCTVs to which she had access at all times.
Ms Pearce’s complaint pursuant to s 76 fails.
The Act provides, in s 77:
77 Discrimination in relation to accommodation
(1) it is unlawful for a person to discriminate against another on the ground of disability—
(a)in terms or conditions on which accommodation is offered; or
(b)by refusing an application for accommodation; or
(c)by deferring such an application or according the applicant a lower order of precedence on a list of applicants for that accommodation.
(2) it is unlawful for a person to discriminate against a person for whom accommodation has been provided on the ground of disability—
(a)in the terms or conditions on which accommodation is provided; or
(b)by denying or limiting access to a benefit connected with the accommodation; or
(c)by evicting the person; or
(d)by subjecting the person to detriment.
(2a) This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.
As we understand it, Ms Pearce’s claim in relation to s 77 is that accommodation was provided to her in circumstances in which she did not have access to the information contained in the correspondence and forms emanating from LJ Hooker on behalf of the landlord. We infer that the allegation is that those circumstances constitute the discriminatory “terms and conditions”.
LJ Hooker’s conduct does not breach s 77(2)(a). Even if it can be said that LJ Hooker was “providing” accommodation to Ms Pearce, which is doubtful, there is no evidence that the terms and conditions upon which Ms Pearce was provided the accommodation were any less favourable to her than the terms and conditions upon which any other tenant was provided accommodation. There is no basis for saying that the terms and conditions of her tenancy were unfavourably affected on account of her disability in any way. If Ms Pearce’s claim under s 77(2)(a) relies upon s 66(d), then it fails for the reasons set out above in relation to s 76.
We infer that Ms Pearce’s claim pursuant to s 77(2)(d) involves an allegation that, in being provided with correspondence and forms in a font less than size 18, Ms Pearce was subjected to detriment. This claim suffers from the same defect as the claim under s 76 and s 77(2)(a), in that no discrimination has been proven, and no unfavourable treatment on the basis of Ms Pearce’s disability has been shown. In addition, on the facts, we do not think that Ms Pearce was subject to detriment. The content of the documents provided in font of less than size 18 was accessible to her, albeit not by her preferred method.
The claim under s 77(2)(a) and s 77(2)(d) fails.
The only effect of LJ Hooker’s provision of documents in print less than size 18 font on Ms Pearce was a degree of frustration and inconvenience to her. Even if we had determined that there had been a breach of the Act, damages would have been minimal.
The complaint will be dismissed.
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