Pedrotta v Communities@Work (Discrimination)
[2022] ACAT 84
•13 October 2022
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
PEDROTTA v COMMUNITIES@WORK (Discrimination) [2022] ACAT 84
DT 21/2022
Catchwords: DISCRIMINATION – sexual discrimination – whether advice and services not provided to the applicant because of his sex – no direct evidence of sexual discrimination – whether tribunal could decide by inference that advice and services not provided because of applicant’s sex – no evidence to support the inference – application struck out as lacking in substance –use of subpoenas to compel production of documents or attendance of witnesses an abuse of process where no reasonable prospect the prospective evidence could be relevant
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 32
Discrimination Act 1991 ss 7, 8, 20, 21
Human Rights Commission Act 2005 s 53CA
Cases cited:Applicant 202053 v Employers Mutual Limited [2022] ACAT 9
Casino Canberra Limited v Kidman [2022] ACAT 22
Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170
Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Dunstan v Highman & Ors [2010] ACTSC 133
Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47
Financial Integrity Group Pty Ltd v Scott Farmer and Bravium Pty Ltd [2009] ACTSC 143
Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120
Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320
Purvis v New South Wales 2003] HCA 62
Tribunal:Presidential Member G McCarthy
Date of Orders: 13 October 2022
Date of Reasons for Decision: 13 October 2022
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) DT 21/2022
BETWEEN:
STEPHEN PEDROTTA
Applicant
AND:
COMMUNITIES@WORK
Respondent
TRIBUNAL:Presidential Member G McCarthy
DATE:13 October 2022
ORDER
The Tribunal orders that:
The applicant’s application alleging unlawful discrimination is dismissed.
………………………………..
Presidential Member G McCarthy
REASONS FOR DECISION
In October 2021, Stephen Pedrotta (the applicant) made a complaint to the Human Rights Commission (the Commission) alleging that Communities@Work (the respondent) had discriminated against him in its provision of services to him, contrary to the Discrimination Act 1991 (the Act). The complaint was not resolved at the Commission. Consequently, at the applicant’s request, on 8 April 2022 the Commission referred the complaint to the tribunal for determination. In accordance with its practice, the tribunal treated the referral as an application for orders arising from the claimed breach of the Act (the application).
The applicant contended that the respondent directly discriminated against him by not providing him with services because of his sex (male) contrary to section 20(c) of the Act. In addition, he contended that the respondent directly discriminated against him by subjecting him to detriment in relation to his accommodation contrary to section 21(2)(c) of the Act.
After the parties had filed their documents in readiness for hearing, the respondent filed an application that the applicant’s application be struck out as frivolous and vexatious, lacking in substance or otherwise an abuse of process (the strikeout application). The tribunal has power to strike out an application for such reasons pursuant to section 32 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act).
I have concluded that the application should be struck out as lacking in substance.
Factual background
The respondent provides programs and facilities to persons in need. One of its programs is the Reach Property Program (the Program) through which it provides transitional accommodation for families at risk of, or experiencing, homelessness. In April 2019, the respondent let a property to the applicant and his then wife to accommodate them and their children (the property).
The relationship between the applicant and his wife was poor and volatile. I give some examples, as claimed by the applicant, among many.
In May 2019, he obtained assistance from Legal Aid ACT to place their children on the AFP Airport Watch List after his wife, who is Thai, threatened to take the children with her when she returned to Thailand at the expiry of her first 90-day Visitor Visa.[1] Later in 2019, he told his wife he would not agree to sponsor his wife’s Partner Visa application because of his doubts their relationship was genuine.[2] On 2 August 2019, he applied to the Federal Circuit Court of Australia for orders regarding parenting of his children and an order to restrain his wife from moving their children outside of the ACT/Queanbeyan region.[3] In June 2020, his wife made false family violence allegations against him to blackmail him into sponsoring her Partner Visa application.[4] In March 2021, he advised his wife of his intention to withdraw sponsorship of her Partner Visa application after concluding the relationship was not genuine.[5] He wrote a letter dated 26 March 2021[6] to the Department of Home Affairs informing the Department of his withdrawal of his sponsorship because the relationship was not genuine, but his wife took the letter to prevent him from sending it.[7]
[1] Applicant’s submission dated 30 July 2022 at [2]
[2] Applicant’s submission dated 30 July 2022 at [3]
[3] Applicant’s submission dated 30 July 2022, Annexure I
[4] Applicant’s submission dated 30 July 2022 at [5]
[5] Applicant’s submission dated 30 July 2022 at [8]
[6] Applicant’s submission dated 30 July 2022, Annexure B
[7] Applicant’s submission dated 30 July 2022 at [9]
The respondent maintained a Specialist Homelessness Information Platform (SHIP) that, among other things, contains (for each client) contemporaneous notes of events and conversations between staff of the respondent and the client. These records were referred to as ‘SHIP notes’.
The respondent provided the applicant with a copy of its SHIP notes concerning its dealings with him. The notes record a conversation on 26 March 2021[8] between the applicant and an employee of the respondent, Ms Cooper-Stanbury, in which the applicant spoke about his ongoing struggles with his relationship with his wife and his worry that his wife might feel “backed into a corner” by his threat not to support her Partner Visa application and “not have other choices other than to resort to violence”. The SHIP notes record Ms Cooper-Stanbury suggesting “that if he felt that violence was an issue in this case then he should call DVCS”, meaning the Domestic Violence Crisis Service (DVCS).
[8] Cooper-Stanbury’s witness statement, page 16, Attachment 1
The applicant’s concerns about his wife subjecting him to family violence were mutual. On 23 April 2021, the ACT Magistrates Court (the Court) heard and determined an application for a family violence order brought by the applicant’s wife against him. In response to the application, the Court made an interim family violence order (the Order) which prohibited the applicant from being on the property, except in certain circumstances. The application for a family violence order was otherwise adjourned for further hearing on 21 May 2021.
On 26 April 2021, police officers served a copy of the Order on the applicant. They required him to leave the property that day which he did. The applicant contends that from that point he was homeless.
The discrimination claim
Ms Cooper-Stanbury regularly visited the applicant and his wife in the property. There are different viewpoints about when the relationship deteriorated, the nature and extent of the volatility and what Ms Cooper-Stanbury and other employees of the respondent knew or believed about the problems in the relationship. However, for the purposes of the strikeout application, I proceeded on the assumption that the applicant’s version of events is true.
The applicant contended that Ms Cooper-Stanbury and/or other employees of the respondent assisted his wife to obtain the Order by discussing with her what constitutes family violence and by referring her to DVCS for advice, or itself contacting DVCS on her behalf, and that this led to her applying to the Court for the Order.
The applicant contended he now realises that he had been the subject of family violence since at least 2019 and that the respondent (in contrast to the assistance and advice given to his wife) never discussed with him what constitutes family violence or told him that he was experiencing family violence or referred him to DVCS for advice about what he should do. He contended that he did not know what family violence was until served with the Court Order.
The applicant contended that the respondent did not assist him or refer him to DVCS for advice because he is male. He contended that the respondent’s failure to provide him with these services, deliberate or otherwise, was discrimination on the grounds of his sex in breach of section 20(c)[9] of the Act. Section 20 states:
20 Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—
(a)by refusing to provide those goods or services or make those facilities available to the other person; or
(b)in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c)in the way in which the provider provides those goods or services or makes those facilities available to the other person.
[9] The applicant acknowledged that discrimination contrary to section 20(a) or (b) did not occur
The applicant contended that the respondent provides a crisis support service (the Service) to clients in a volatile relationship (such as himself). He contended that the respondent breached section 20(c) because it did not refer him to the Service and did not do so because of his sex.
The applicant also contended that the respondent’s failure to provide him with information or advice about family violence, who he could see for advice (i.e. DVCS) and actions he could take in response (i.e. apply for a family violence order) subjected him to a detriment in relation to his accommodation, namely loss of his accommodation in the property. The applicant contended that the respondent subjected him to this detriment because of his sex, in breach of section 21(2)(c) of the Act. Section 21(2) states:
(2) It is unlawful for a person (whether as principal or agent) to discriminate against another person—
…
(c)by subjecting the other person to any other detriment in relation to accommodation occupied by the other person.
The applicant contended that consequent upon the respondent’s unlawful discrimination he was made homeless, has lost contact with his children, has lost income consequent upon being medically unfit to work and incurred costs by way of legal costs, alternative accommodation costs and other miscellaneous costs. He seeks an order that the respondent take measures to address its practices so that all clients are treated equally in response to family violence and an order that the respondent pay him $25,000 by way of compensation for his economic loss and in general damages resulting from his physical and mental suffering.
The applicant’s submissions
The applicant said he did not have a “smoking gun”[10] to show that the respondent did not refer him to the Service or DVCS or did not give him advice about family violence because he was male but said that explanation (or inference) should be drawn from all the circumstances.
[10] Transcript of proceedings dated 14 September 2022, page 37, lines 4-22
In support of that explanation, in his submissions dated 17 June 2022, the applicant contended that at all relevant times there were only three “substantial differences”[11] between him and his wife – that he was a resident of Australia, and his wife was not; that he was an Australian citizen, and his wife was not; and that he is male, and his wife is not.
[11] Applicant’s submissions dated 17 June 2022, page 2
In his submissions dated 30 July 2022, the applicant contended that the “only different characteristics” between himself and his wife in relation to the respondent were that he was an Australian citizen and his wife was not; she was a visitor and later a temporary resident and he was not; he is Caucasian and she is Asian (Thai); and he is male and she is female.[12]
[12] Applicant’s submissions dated 30 July 2022, page 2 at [1]
The applicant ‘accepted’ that the differences of residency and citizenship did not play any part in the respondent’s actions and decisions to assist his wife, but not him, or to refer her to the Service and/or DVCS, but not him. I will infer the same submission about her being Asian and him being Caucasian. On that basis, he contended that the only remaining materially different characteristic between him and his wife is their sex – meaning an inference should be drawn that the respondent did not refer him to the Service or advise him about family violence or refer him to DVCS because he is male.
In support of his claim, the applicant relied on a telephone call to Ms Cooper-Stanbury on 29 April 2021, three days after he left the property, when (he said) he asked Ms Cooper-Stanbury why she referred his wife to DVCS but not him, and she answered, “I don’t know”.[13] The applicant contended that Ms Cooper-Stanbury answered his question in that way because she did not want to admit she did not assist him because he is male.
[13] Applicant’s submissions dated 17 June 2022, page 2
The applicant said that officers of the respondent had been aware of his volatile relationship with his wife since at least 2019. He relied on the absence of any advice to him prior to 26 March 2021 that he was the subject of family violence and the absence of any referral to the Service or to DVCS. He contended that his wife’s threat in 2019 to return to Thailand and take the children with her, leading to him placing her on the AFP Watch List, was “indisputably” an act of family violence.[14] He relied on a SHIP note dated 8 May 2019 that records Ms Cooper-Stanbury’s knowledge of the applicant’s worry that his wife would take his children back to Thailand and that, despite that knowledge, she did not refer the applicant to the Service or DVCS or acknowledge to him that he was “a victim of family violence”[15] or assist him in any way.
[14] Transcript of proceeding, 14 September 2022, page 22, line 6
[15] Transcript of proceedings, 14 September 2022, page 22, line 12
The applicant acknowledged the respondent’s provision of services regarding family violence on 26 March 2021 (by advising he should call DVCS) but contended that it had been “delayed for almost 2 years.”[16] He contended that the provision of services so late, and that it took so long, must constitute “a way in which” the respondent provided services to him for the purposes of section 20(c).
[16] Transcript of proceedings, 14 September 2022, page 22, lines 14-15
The applicant also relied on an informal transcript[17] of the proceeding in the Magistrates Court on 23 April 2021 concerning the grant of the Order. The transcript records his wife’s solicitor stating to the Court that the respondent is “[has] been made aware of the application for the Family Violence Order today as well as the exclusion being sought, and they have indicated to, um, the applicant[18] that they are in support of, of the exclusion [from the property] today.”[19] The applicant contended it was discriminatory of the respondent to support his wife’s application and his exclusion from the property by reason of family violence, yet never to have similarly recognised him as a victim of family violence and supported his wife’s exclusion from the property.
[17] I accept the transcript is accurate for the purposes of the strikeout application
[18] Meaning the applicant's wife
[19] Transcript of proceedings before the ACT Magistrates Court, dated 23 April 2021 at 10:04am
The applicant also relied on an inconsistency (he said) between the solicitor’s statement to the Court that the respondent supported his exclusion from the property, on the one hand, and, on the other, emails he received from Ms Zanker, an officer of the respondent, in which she said “at no point did the respondent make a decision to exclude him from the Program”[20] and that the respondent “was not aware of the specific actions being taken to exclude you from the property”.[21]
[20] Email from Ruth Zanker dated 17 January 2022
[21] Email from Ruth Zanker dated 14 April 2022
The applicant said he made his complaint to the Commission and was now pursuing it in the tribunal “to resolve this discrepancy”[22] about what role the respondent played in his wife obtaining support from DVCS and whether it supported his exclusion from the property.
[22] Applicant's submissions dated 17 June 2022, page 3
For the purpose of obtaining further information regarding the alleged discrepancy, the applicant sought to issue a subpoena requiring Ms Piefke, the respondent’s Crisis Support Program Co-ordinator, to attend the hearing of his application so that he could ask her questions about referral of his wife to DVCS and why he was not similarly referred.
The applicant also caused a subpoena to be issued to the respondent requiring production of the SHIP notes concerning events and conversations between the respondent and his wife during the period 16 April 2019 until 7 May 2021 and all other documents it held concerning his wife during that period. The applicant contended he needed the notes to obtain evidence about advice given to his wife about family violence and referral to the Service or DVCS, in contrast to the absence of such information or advice given to him. The respondent objected to production of the documents.
The strikeout application
The respondent denied that the alleged unfavourable treatment occurred and, if it did occur, denied any causal link between its conduct and the applicant’s sex. It also denied that any loss was caused by the respondent’s conduct.
The law regarding strikeout is well-settled. An applicant should not be denied the opportunity to have their case determined at hearing, unless the “lack of a cause of action … is clearly demonstrated”. The claim needs to be “so manifestly groundless that it does not admit of argument”.[23] If it appears there is a “real question” to be determined, a strikeout application must not succeed. Mere implausibility or improbability of success is not sufficient. Assessment of prospects of success must be assessed on the assumption that every fact asserted by the applicant is true.[24] If there is a conflict on matters of fact that have a bearing on whether the claim can succeed, it is inappropriate to strike out the application. The need for argument, even extensive argument, is not a bar to a strikeout application but as soon as it appears there is a “real question” to be determined the strikeout application must fail.[25] A high degree of certainty is required that the claim will not succeed if it were allowed to go to trial in the ordinary way.[26]
[23] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129, cited with approval by President Neate in Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47 at [15] – [17]
[24] Galovac Pty Ltd v Australian Capital Territory [2010] ACTSC 132 at [5], cited with approval by President Neate in Errington & Anor v ACT Planning and Land Authority [2019] ACAT 47 at [20]
[25] Financial Integrity Group Pty Ltd v Scott Farmer and Bravium Pty Ltd [2009] ACTSC 143 at [19], cited with approval in Dunstan v Highman & Ors [2010] ACTSC 133 at [8]
[26] Hamzy v Commissioner of Corrective Services (NSW) [2011] NSWSC 120 at [300] cited with approval in Choi v Secretary, Department of Justice and Communities [2022] NSWCA 170 at [199]
In my view, taking the applicant’s case at its highest on the evidence before me and allowing for the prospect of further evidence he seeks to obtain under subpoena, there is no realistic prospect that his claim of unlawful discrimination would succeed. My reasons follow.
Discrimination Act 1991
The starting point is the meaning of discrimination in section 8 of the Act:
8 Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.
(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
(3) For this section, a person indirectly discriminates against someone else if the person imposes, or proposes to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because the other person has 1 or more protected attributes.
The protected attributes are listed in section 7 and include sex.[27] In this case, the applicant alleges the respondent directly discriminated against him “because [he] has 1 or more protected attributes”, namely his sex.
[27] Discrimination Act 1991, section 7(u)
There was no suggestion that the respondent imposed a condition or requirement on him that had or is likely to have had the effect of disadvantaging him because of his sex, meaning indirect discrimination does not arise.
The word “discriminates” must be understood by reference to section 8(2) to mean, in this case, the respondent treated the applicant unfavourably because of his sex. Building that meaning into section 20(c) and accepting for present purposes that crisis support is a service the respondent provides, an assessment of whether the respondent unlawfully discriminated against the applicant falls to be determined by reference to the following question:
As a provider of services, did the respondent treat the applicant unfavourably because of his sex in the way it provided those services to the applicant?
For the purposes of the strikeout application, I accept it is arguable that the respondent treated him unfavourably. On the applicant’s assessment of the facts, he had been the subject of family violence since 2019. It is arguable that the respondent knew or should have known he was the subject of family violence and treated him unfavourably by not telling him he was the subject of family violence and by not advising him about what he could do.
Noting that ‘doing an act’ is defined in section 4A(1) of the Act to include “failing to do the act”, I also accept it is arguable that section 20(c), which addresses “the way in which the provider provides … services”, extends to a failure to provide services.
The real issue is whether it is arguable that the respondent did not provide its services to the applicant because of his sex, even if there were other reasons. Pursuant to section 4A(2) of the Act, if the respondent did not provide services to the applicant because of his sex, among other reasons, that is enough. The applicant’s sex need not be the dominant or substantial reason for not providing services.
At hearing, the applicant spoke about the difficulties he faced in proving that the respondent did not tell him about family violence or refer him to the Service or to DVCS because of his sex. He spoke about always feeling that the respondent’s officers did not treat him and his wife equally, and that they always took her point of view.[28] He spoke about the respondent’s unwillingness to engage with him in conciliation when the matter was before the Commission, at which time the respondent’s officers could have explained why they did not give him the same advice they gave his wife. He contended they did not explain their actions because they did not have a lawful reason for their actions.
[28] Transcript of proceeding, 14 September 2022, page 30, line 36
The applicant acknowledged he did not know “for a fact”[29] whether the respondent had discriminated against him. He contended that the “conflicting information”[30] about the respondent’s assistance of his wife, its knowledge about his wife’s application for the Order and its support for his exclusion from the property needed to be explained. He said that because of the conflicting information:
…there is the appearance that I may have been discriminated against and that if discrimination did occur, then it may have been due to gender, hence the basis of this complaint.[31]
[29] Applicant's submissions dated 17 June 2022, page 3
[30] Applicant's submissions dated 17 June 2022, page 3
[31] Applicant's submissions dated 17 June 2022, page 3
The applicant’s submission caused me to consider section 53CA of the Human Rights Commission Act 2005 (the HRC Act) which provides:
53CA Onus of establishing complaint about discrimination etc
(1) This section applies to a discrimination complaint, referred to the ACAT under this division, about discrimination by a person against another person by—
(a)treating, or proposing to treat, the other person unfavourably because of a protected attribute of the other person (direct discrimination); or
(b)imposing, or proposing to impose, a condition or requirement that has, or is likely to have, the effect of disadvantaging the other person because of a protected attribute of the other person (other than a condition or requirement that is reasonable in the circumstances) (indirect discrimination).
(2) It is a rebuttable presumption that discrimination has occurred if the complainant—
(a)establishes that—
(i)for a complaint about direct discrimination—the treatment or proposed treatment is unfavourable; and
(ii)for a complaint about indirect discrimination—the condition or requirement has, or is likely to have, an effect of disadvantaging the other person; and
(b)presents evidence that would enable the ACAT to decide, in the absence of any other explanation—
(i)for a complaint about direct discrimination—that the treatment or proposed treatment is because of a protected attribute of the other person; or
(ii)for a complaint about indirect discrimination—that the effect of disadvantaging the other person is because of a protected attribute of the other person.
Referring to sections 53CA(2)(a)(i) and 53CA(2)(b)(i), if the applicant can establish the respondent treated him unfavourably and can present at least some evidence “that would enable [the tribunal] to decide”, in the absence of any other explanation, that the unfavourable treatment was because of his sex, the presumption that discrimination has occurred is established. It follows that if the applicant can do so, which would place an obligation on the respondent to rebut that presumption, there is necessarily a conflict on matters of fact that have a bearing on whether the claim can succeed. In that case, the strikeout application must fail.
Referring first to section 53CA(2)(a)(i), in Casino Canberra Limited v Kidman (Casino Canberra),[32] the appeal tribunal, per President Neate and Member McGlynn, addressed the meaning of ‘unfavourably’ and ‘unfavourable treatment’. They determined that ‘unfavourable treatment’ is treatment that is disadvantageous or detrimental to the complainant. For the purposes of the HRC Act, whether a person was treated unfavourably is determined by reference to the effect of the treatment on that person, not by a comparison of the treatment of the person with the treatment of others.[33] As mentioned, I accept it is arguable that the applicant was treated unfavourably.
[32] [2022] ACAT 22
[33] Casino Canberra Limited v Kidman [2022] ACAT 22 at [81(c)]
The next issue, per section 53CA(2)(b)(i), is whether the applicant has presented evidence that would enable the tribunal “to decide, in the absence of any other explanation”, that the unfavourable treatment was “because of” his sex.
In Casino Canberra, the appeal tribunal commented on the meaning of ‘because of’ in its statutory context. It referred to a recent tribunal decision, Applicant 202053 v Employers Mutual Limited,[34] in which the tribunal noted the viewpoints of different courts and tribunals on this issue.[35] The appeal tribunal also referred to the majority judgment of the High Court in Purvis v New South Wales[36] (Purvis) in which the Court said:
For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed “because of” disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it “because of”, “by reason of”, that person’s disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression “because of”.[37]
[34] [2022] ACAT 9
[35] Applicant 202053 v Employers Mutual Limited [2022] ACAT 9 at [16]-[32]
[36] [2003] HCA 62
[37] Purvis at [236]
As noted in Casino Canberra,[38] referring to Purvis, the “central question” is why was the applicant treated as he was? The appeal tribunal noted, “Causation is a question of fact”. It also noted that the Act “imposes an objective test for causation. The applicant must establish a direct causal link between the unfavourable treatment and the [protected] attribute”, in this case his sex.[39]
[38] Casino Canberra Limited v Kidman [2022] ACAT 22 at [141]
[39] Casino Canberra Limited v Kidman [2022] ACAT 22 at [140]
Applying these principles, and returning to section 53CA(2)(b)(i), the question is whether the applicant has presented evidence that would enable the tribunal to decide – in the absence of any other explanation – that the respondent did not inform the applicant that he was the subject of family violence and/or did not provide him with services because of his sex, even if there were other reasons for it not doing so.
For the purposes of his application, in addition to the documents provided to the Commission that were forwarded to the tribunal, the applicant filed submissions by email to the tribunal dated 5 May 2022; submissions dated 17 June 2022; his wife’s application for a family violence order, the supporting documents and the Order; a submission dated 30 July 2022 and attachments A – V to the submission; the transcript of the proceeding before the Magistrates Court on 23 April 2021; the SHIP notes concerning dealings between himself and the respondent; and further submissions both dated 7 September 2022 said to be in response to my orders made on 5 September 2022. I treated the applicant’s submissions, where appropriate, as evidence he could give.
I have reviewed the applicant’s documents. In my view, none of the evidence presented by the applicant, separately or collectively, would enable a finding of fact to be made that the respondent did not advise him about family violence, or assist him to obtain advice about family violence, because of his sex.
In substance, the applicant contends that if the respondent understood his wife was the subject of family violence so it should also have understood that he was the subject of family violence. He refers or relies on the provision of advice and assistance to his wife, but not him, and contends that an inference should be drawn that it provided this advice and assistance to his wife, but not him, because she is a woman, and he is a man.
I cannot agree that that inference can be drawn.
First, there are innumerable differences between the applicant and his wife, in addition to he being a man and she a woman. The applicant refers to four differences but there are others, for example, their different ages and their different backgrounds. There are also innumerable subjective differences arising from, for example, their different personalities, skills, and circumstances.
The applicant accepted that none of the differences he noted in his submissions (apart from their genders) appear to have played a part in the respondent assisting his wife, but not him.[40] However, in my view, that acceptance is to take a position suited to his case. I agree there is nothing to suggest any of these differences played a part in the respondent assisting his wife, but not him, but it could equally be said that the applicant’s sex appears to have played no part in the respondent assisting his wife, but not him. There is no evidence to support one explanation any more than any other.
[40] Applicant’s submissions dated 17 June 2022, page 3
Second, the explanation for the respondent assisting his wife, but not him, might have nothing to do with any difference between them. It could simply be because she asked for assistance, but he did not. It could be because officers of the respondent thought she needed assistance but did not think or recognise that he needed assistance.
The applicant claimed the respondent’s staff should have recognised in 2019, or at least earlier than 26 March 2021, that he was the subject of family violence and therefore should have assisted and advised him about what he could or should do. For the purposes of the strikeout application, perhaps that is so, but that alleged failure does not mean they’re not advising him or assisting him was because of his sex.
The applicant contended that when he asked Ms Cooper-Stanbury why she assisted his wife but not him, she said “I don’t know”. The applicant contended the answer was because Ms Cooper-Stanbury did not want to admit why she did not assist him, but it could equally be said that her answer was true. People often answer questions in that way when no reason or explanation comes to mind for why they did not do something. In particular, the answer is not evidence that Ms Cooper-Stanbury did not assist the applicant because of his sex.
I am not suggesting why the respondent assisted the applicant’s wife but not him. I am highlighting that the applicant has not presented any evidence that would enable the Tribunal to decide that the respondent did not assist him because of his sex. At its highest, the applicant’s sex is no more than one of innumerable possibilities. I do not accept that the tribunal could decide that the respondent unlawfully discriminated against him contrary to section 20(c) or section 21(2)(c), based on a possibility unsupported by anything. To do so would be an error of law.
I add that that even if an inference could be drawn that the respondent unlawfully discriminated against him contrary to section 20(c) or 21(2)(c), I would not accept that its conduct caused loss. From 26 March 2021, on his own case, the applicant had been told that if he felt that violence was an issue, he should call DVCS. A month then passed before his wife applied to the Court for a family violence order, during which he could have sought advice and done likewise. The respondent’s advice should, at least, have caused him to doubt his claimed prior understanding (based on advice he said he received from a police officer) that family violence does not occur until there is a threat of an actual attack.
For the purpose of the strikeout application, I considered whether there is any reasonable prospect that the further documents and oral evidence which the applicant wished to obtain under subpoena could be evidence that the respondent did not assist him because of his sex. In my view, there is no such prospect.
I accept that the respondent’s SHIP notes concerning his wife might refer to advice the respondent gave the applicant’s wife about family violence and who she could see to obtain assistance. The notes might also record when that advice was given, who gave it and whether officers and/or employees of the respondent suggested to the applicant’s wife that she could contact DVCS, or should contact DVCS or the respondent did so on her behalf by means of a formal referral to DVCS. However, in my view, none of those scenarios would advance the applicant’s case that the respondent did not assist him because of his sex.
That the documents might contain information about why the respondent did not assist the applicant is entirely speculative. I do not agree that a subpoena for production of documents should issue in such a case. The observations of the NSW Court of Appeal in Lowery v Insurance Australia Ltd are apposite:
… it is not fishing to seek documents where there are reasonable grounds to think ‘that fish of the relevant type are in the pond’ [Liristis v Gadelrabb[2009] NSWSC 441 at [5]]. However, where there is no evidence, and no reason to suppose, that they would be any documents of the relevant category, a subpoena for such documents will be ‘nothing more than a fishing expedition to see whether any such documents are in existence’.[41]
[41] Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at [42]
I do not accept that the applicant should be able to use the tribunal’s processes to compel production of documents to him in circumstances where there is no reasonable prospect that the documents would be relevant to his case, especially where the documents contain personal and confidential information between the applicant’s wife and the respondent. To use the tribunal’s processes in such a manner is an abuse of process. If the application had proceeded, I would have set aside the subpoena.
I make a similar observation about the subpoenas that would compel Ms Cooper-Stanbury, Ms Zanker and Ms Piefke to attend a hearing and answer questions from the applicant under oath. The applicant said he wished to ask them questions to explain the apparent discrepancy between what his wife’s solicitor told the Court about his expulsion from the property and what Ms Cooper-Stanbury and Ms Zanker told him. The applicant referred to the “lack of explanation” from the respondent as to why they did not assist him in the way they assisted his wife and contended he should be able to obtain an explanation by asking them questions.[42]
[42] Transcript of proceeding, 14 September 2022, page 37, lines 18-32
I appreciate that the applicant wants to know more about what the respondent’s staff told his wife and, perhaps, wants to expose inconsistencies between different accounts of what was said to who. He seeks to use the tribunal’s process to resolve the “conflicting information”[43] about what his wife’s solicitor told the Court and what officers of the respondent told him. He contends that the conflicting information gives an appearance of discrimination which may be “due to gender”.[44] I disagree. Whatever may become known about the respondent’s assistance and/or support of his wife, there is no realistic prospect that the information or explanation for the alleged discrepancy could support a conclusion that the respondent did not assist the applicant because of his sex.
[43] Applicant’s submissions dated 17 June 2022, page 3
[44] See footnote 31 above
The applicant said he wished to ask questions of Ms Zanker, and perhaps other officers of the respondent about, for example, how many people supported under the Program are women, and how many men, and about the respondent’s experience in supporting men as victims of family violence. I do not agree that the tribunal should permit its process to be used in that manner. As the applicant acknowledged, he does not know what answers Ms Zanker, or others, might give. There is nothing to suggest it is ‘on the cards’ that any of the persons that the applicant wishes to cross examine could or would give evidence that would assist his case. He just hopes they might. To adopt the words of Jordan CJ in Commissioner for Railways v Small, the applicant is “endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all”.[45]
[45] Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 573
The tribunal should not compel persons to attend a hearing and give evidence under oath on matters where there is no realistic prospect of them giving relevant evidence. To permit the tribunal’s processes to be used in that circumstance is an abuse of process. Again, if the application had proceeded, I would have set aside the subpoenas or not issued them.
Where I am satisfied, on the evidence provided or that could be provided, that there is no reasonable prospect of the applicant establishing that the respondent did not assist him because of his sex, I am satisfied that the application lacks substance. I will therefore order it be dismissed pursuant to section 32 of the ACAT Act.
………………………………..
Presidential Member G McCarthy
| Date(s) of hearing: | 14 September 2022 | |
| Applicant: | In person | |
| Counsel for the Respondent: | Mr A Schofield | |
| Solicitors for the Respondent: | Mr D Yesildag, Bradley Allen Love | |
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