Phillips v NSW Department of Communities and Justice

[2024] NSWCATAD 143

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Phillips v NSW Department of Communities and Justice [2024] NSWCATAD 143

Hearing dates:

6 May 2024

Date of orders:

23 May 2024

Decision date:

23 May 2024

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

P Roney KC, Senior Member
S Davison, General Member

Decision:

The Applicant’s complaints of disability discrimination and victimisation are dismissed.

Catchwords:

ANTI-DISCRIMINATION — disability discrimination — where deaf and speech impaired person claimed to have been subjected to direct or indirect discrimination by the Respondent Public Housing agencies by refusal to provide an Auslan interpreter or adopt his preferred communication method.

ANTI-DISCRIMINATION — victimisation — where deaf and speech impaired person claimed to have been victimised by being subjected to detriment by the Respondent Public Housing agencies by a refusal to provide an Auslan interpreter or adopt his preferred communication method after he described them as surdophobic and incompetent in their dealings with him.

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Disability Inclusion Act 2014 (NSW)

Cases Cited:

Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165

State of New South Wales v Amery [2006] 230 CLR 174

Waters v Public Transport Corporation (1991) 173 CLR 349

Texts Cited:

None cited

Category:

Principal judgment

Parties:

Holland Phillips (Applicant)
NSW Department of Communities and Justice (First Respondent)
NSW Land and Housing Corporation (Second Respondent)

Representation:

Applicant (self-represented)
Legal, Department of Communities and Justice (Respondents)

File Number(s):

2023/00296897

Publication restriction:

Nil

Reasons for the DecIsion

1. The Applicant, Mr Phillips, is deaf and has an associated speech impairment. On 15 February 2005 he entered into a residential tenancy agreement with the Second Respondent to rent a social housing property at Carlingford NSW. The Second Respondent engages the First Respondent to manage social housing tenancies on its behalf.

2. Mr Phillips alleges that the Respondents unlawfully discriminated against him on the ground of disability in the provision of goods and services by, among other things, failing to organise an Auslan interpreter to be present in their dealings with him including those concerning the performance of maintenance at the property.

3. It is common ground that Mr Phillips requires an Auslan interpreter to communicate. At the hearing he sometimes lapsed into giving oral evidence rather than by using Auslan. There were two Auslan interpreters present at the hearing to enable him to communicate. While it is apparent that he is able to speak some audible and understandable words, it is also apparent that his communication is substantially enhanced with the assistance of the Auslan interpreters.

4. On 20 September 2022 Mr Phillips lodged a complaint with Anti-Discrimination NSW (ADNSW) alleging unlawful discrimination by the Second Respondent in the provision of goods and services and unlawful victimisation. On 5 April 2023 the Second Respondent sent a letter to ADNSW requesting that the First Respondent be joined in this matter to assist in the conciliation process and to ensure that there is a consolidated approach in how the Respondents might continue to assist and enhance service delivery to the Applicant in the future. On 11 April 2023 the President's delegate decided to amend the complaint pursuant to s 91C of the Anti-Discrimination Act 1977 (NSW) (the AD Act). The effect of the amendment was to include the Department of Communities and Justice as a respondent to the complaint (to be known as the First Respondent) in addition to the NSW Land and Housing Corporation (now referred to as the Second Respondent or LAHC).

5. Section 49B of the AD Act defines what constitutes discrimination on the ground of disability:

49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator

(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability; or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

(2) For the purposes of subsection (1)(a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability.

(3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog, which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog.

(3A) For the purposes of, but without limiting, this section, the fact that a person who has a disability

(a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability; or

(b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to fact, is taken to be a characteristic that appertains generally to persons who have that disability.

(4) A reference in this section to persons who have a disability ("the particular disability")

6. In his material Mr Phillips did not identify which limb of s 49B he seeks to rely on nor was it addressed in argument before us. His case does not specifically focus on any of the particular language to be found in s 49B, which sets out two distinct and different types of discrimination - often referred to, respectively, as ‘direct’ and ‘indirect’ discrimination. In Waters v Public Transport Corporation (1991) 173 CLR 349 (Waters), Dawson and Toohey JJ explained the difference between direct and indirect discrimination at 392:

"A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is in fact treated less favourably than the latter. The concept of indirect discrimination was first developed in the United States in relation to practices which had a disproportionate impact upon black workers as opposed to white workers: Griggs v Duke Power Co (1971) 401 US 424.

Both direct and indirect discrimination therefore entail one person being treated less favourably than another person. The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable."

7. The terms "requirement" or "condition" in s 49B(1)(b) are given a broad, rather than technical meaning; State of New South Wales v Amery [2006] 230 CLR 174 at [63]; Waters at 407 per McHugh J. However, for something to be a requirement or condition in relation to a matter it must be separate from that matter. A person imposes a requirement or condition in providing goods or services when that person intimates, expressly or inferentially, that some stipulation or set of circumstances must be obeyed or endured if those goods or services are to be acquired, used or enjoyed; Waters at 361 and 367 per McHugh J.

8. It is well accepted that the "term" alleged to have been imposed ought to be formulated with some precision: Australian Iron and Steel Pty Ltd v Banovic (1989) 168 CLR 165 at 185. Section 49M of the AD Act provides:

49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability-

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

9. Mr Phillips also alleges that the Respondents have subjected him to unlawful victimisation. Section 50 of the AD Act prohibits victimisation and provides as follows:

50 Victimisation

(1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has-

(a) brought proceedings against the discriminator or any other person under this Act;

(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act;

(c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act; or

(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person or by reason that the discriminator knows that the person victimized intends to do any of those things, or suspects that the person victimized has done, or intends to do, any of them.

(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

10. The term "disability" is defined in s 4 of the AD Act as:

4   Definitions

…

disability means—

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body: or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness; or

(c) the malfunction, malformation or disfigurement of a part of a person's body; or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction; or

(e) a disorder, illness or disease that affects a person's though processes, perception of reality. emotions or judgement or that results in disturbed behaviour.

11. The Respondents concede that Mr Phillips’ hearing impairment falls within the definition of disability in s 4 of the AD Act.

12. We note that although the Applicant may have intended to frame his complaint in reliance upon the Disability Inclusion Act 2014 (NSW) (DIA), he did not do so. The objects of the DIA include at s 3(a) the acknowledgement that “people with disability have the same human rights as other members of the community and that the State and community have a responsibility to facilitate the exercise of those rights”. Section 3(e) notes an object of the DIA is to “support, to the extent reasonably practicable, the purposes and principles of the United Nations Convention on the Rights of Persons with Disabilities”.

13. Section 4 of the DIA identifies twelve general principles which have some grounding in a human rights model. These are referred to in s 4(1) as being the “disability principles”. The principles acknowledge that people with disability “have an inherent right to respect for their worth and dignity as individuals”, and a “right to access information in a way that is appropriate for their disability and cultural background and enables them to make informed choices”.

14. In the proceedings before the Tribunal, Mr Phillips relied solely upon a written submission attached to his original complaint to ADNSW. He gave no oral evidence and was not cross-examined. Likewise, the Respondents relied upon a written submission as comprising the totality of the evidence that they sought to rely on. There were no witness statements that verified any of what was said in that submission and no-one was cross-examined from their side.

15. Mr Phillips contends that there has been a failure to accommodate his disabilities. He believes that part of the reason why the Respondents have failed to do so is due to persons taking offence when he said they were surdophobic (a fear or hostility or intolerance of deaf people, deaf culture, and the deaf community) and they were incompetent in their dealings with him. He contends that because staff from the Respondents took offence to his comments, they then victimised him. His evidence and submissions do not otherwise focus upon the victimisation case and he seeks no specific relief or compensation resulting from it.

Mr Phillips’ case

16. Mr Phillips says that there have been numerous occasions when staff from the Respondents attended his property for matters relating to his tenancy but did not provide an Auslan interpreter. He picks this point up again later. He referred to these failures as occurring in May, June, and on 2 August, 2022. He states that he requested an interpreter on multiple occasions. He has also requested that if an interpreter is not available, that the Respondents or their representatives bring pen and paper to communicate with him, however they failed to do so. He says that relying solely on him to lip read is imprecise and leads to miscommunication. On one unspecified occasion the Respondents told him that they would use a video relay or video interpreter with him but they did not follow through with this. He says that on another occasion he received communication that the Respondents had cancelled an interpreter who had been booked and he was not told why. When that happened, and by whom, is not identified.

17. On another unspecified occasion, the Respondents contacted ‘Deaf Connect’ to ask someone working there to pass on a message to him. This was instead of arranging an interpreter or using some other way to interact with him directly. He says he did not request or agree to the Respondents leaving messages for him with Deaf Connect.

18. Mr Phillips says that the Respondents will at times direct third parties to attend his property for various reasons, predominately to undertake repairs, but will often fail to notify those third parties of his deafness. He recounted an incident occurring on an unspecified date when a tradesperson behaved offensively, speaking in a slow and exaggerated manner to him, tapping his mouth, and making talking hand actions to ask if Mr Phillips could speak. On another unspecified occasion, a contractor asked him if he was deaf, which Mr Phillips said made it clear that he had not been informed before attending his home. Mr Phillips says that on another occasion, he had to write a note for a contractor asking, "What are you here for?" as he could not understand what was being said. The contractor himself was unable to read or write well in English so they could not communicate.

19. Mr Phillips says that the Respondents do not organise Auslan interpreters to allow him to communicate with third parties engaged by the Respondent nor do they request, when Auslan interpreters cannot be organised, that third parties be prepared with pen and paper or similar. No other specific examples or dates are given.

20. Mr Phillips says that the Respondents do not adequately communicate with him about who is coming to his home or for what reason. This gives him little opportunity to prepare and he is not able to easily call and check whether the third party is authorised to be there or what they intend to do. He gives as an example that on 4 August 2022 he received a handwritten note stating, “Can you please be home Monday 8/8/22 - Contractors need to inspect your kitchen.” The note did not state the time the contractors were coming, the names of the contractors, or which company they worked for. On 8 August an additional contractor arrived, apparently to do some painting. He did not expect a painter to attend that day and was surprised and felt uncomfortable letting someone unexpected into his home.

21. He says that he observed that the kitchen contractor and the painter seemed to get into an argument and then the painter left without explanation, leaving him confused about what the argument was about or why the painter left.

22. Mr Phillips says that if the Respondents had provided clearer communication on what was happening and organised an Auslan interpreter or another alternative, he would have been able to properly communicate with the kitchen contractor and the painter to understand what was going on.

23. Mr Phillips also says that the Respondents cancelled repairs because he had not provided or organised his own Auslan interpreter. He referred to this Tribunal having made orders in another matter which required the Respondent to complete repairs at his property. He says that on an unspecified date the Respondent’s employee, Kara Jones, communicated via text about a contractor attending the property for repairs and wrote, “Have you organized an Auslan interpreter as the order does not state Housing has to provide one?” She also questioned whether the Applicant allowed the contractor access to the property. He says he wrote back stating, “Must have Auslan interpreter every time DJC or contractors comes to my place to avoid misunderstandings.”

24. Mr Phillips says that the Respondents refused to arrange an Auslan interpreter and further failed to work with him towards any alternative. He received text messages that show that a contractor appointment was cancelled as the Applicant had not arranged an Auslan interpreter himself. He says that he asked numerous times for the Respondent to ensure that an Auslan interpreter is present when the Respondents’ representatives, or a third party they have engaged, come to the property.

25. Since these factual assertions are generally not challenged, we are prepared to proceed on the basis that they happened in the way that Mr Phillips suggests.

The Respondents’ case

26. On 20 January 2023, the Second Respondent wrote to ADNSW rejecting the allegations that the First Respondent discriminated against Mr Phillips on the basis of disability but accepted that there had been “some isolated incidents” where the First and Second Respondents, and the Second Respondent’s maintenance contractor, did not “adopt Mr Phillips’ preferred communication methods of an Auslan interpreter or text message when attempting to resolve an ongoing maintenance matter”.

27. Then on 4 May 2023 the First Respondent wrote to ADNSW responding to the complaint. It said that the Second Respondent engages it (that is, the Department of Communities and Justice (DCJ) Housing) to manage social housing tenancies on its behalf. It acknowledged that while the complaint is predominately about the communication arrangements between LAHC's contractors and Mr Phillips, DCJ Housing has no objection to assisting in resolving the other matters raised by Mr Phillips. It rejected the proposition that DCJ Housing has discriminated against Mr Phillips based on his disability.

26. The First Respondent wrote that it was aware of Mr Phillips' disability and has worked with him in consultation with LAHC and their contractors to facilitate the completion of the agreed maintenance requests. It sought to draw attention to the distinct responsibilities of the two Respondents.

27. The First Respondent wrote that in relation to claimed inadequate notice of visits that it has a standard correspondence process to inform clients of client service visits (CSVs) in accordance with its obligations. This process was followed to inform Mr Phillips of visits to his home which are undertaken once every 12 months. The correspondence provides adequate notice of the visit and the reasons for it. It said it would continue to provide this notice and advise Mr Phillips of the outcome of those CSVs in writing. If they are required to visit Mr Phillips for other reasons, appropriate written notice would be provided to him. Further, a designated Client Service Officer (CSO) manages his tenancy, and it will usually be this person who attends the property. If there will be a change to the CSO at any time, Mr Phillips will be informed in advance. They would continue to arrange the visits of contractors and agreed to provide written notice in a way which is consistent with its Housing practice.

28. In relation to Auslan interpreters it promised that, when arranging CSVs, it will arrange for an Auslan interpreter to be present at its cost. When Mr Phillips contacts them by telephone without prior notice, all reasonable attempts will be made to arrange for an Auslan interpreter to assist during the call. If this is not possible, the call will be rescheduled to when the interpreter is available, if Mr Phillips consented to this approach.

29. The First Respondent wrote that they will continue to provide a summary of agreed actions after each interaction with Mr Phillips, as it has done in the past, and will respond to emails when new issues are raised. It said it had not objected to arranging a special doorbell, and arranged for one to be installed.

30. We accept the assurances from the Respondents that since the incidents in mid-2022 described by Mr Phillips in his complaint, they have put in place changes to their electronic records that record how to communicate with Mr Phillips. This includes two system alerts – one on his DCJ Tenancy File (accessible by DCJ staff only) and one on his DCJ Premises File (accessible by both DCJ staff and contractors). Both alerts state that “WHEN COMMUNICATING WITH MR HOLLAND AN AUSLAN INTREPETER IS REQUIRED”. The Tribunal notes what it assumes is an unintentional error in the alert referring to “Mr Holland” rather than “Mr Phillips”. These alerts ‘pop up’ immediately whenever anyone accesses either of these files.

31. At the conclusion of the hearing, the Respondents offered an undertaking to the Tribunal and to Mr Phillips that they would work collaboratively with him in relation to his concerns about their policies and procedures, to ensure texts to him contain sufficient information including about the work to be done and the time any contractors will attend, and to ensure that Auslan interpreters are made available for communication between them and him.

32. The Respondents contend in their material that they have worked with the Applicant to complete any maintenance requests.

33. The Respondents acknowledge that there had been some isolated incidents where the Respondents, and the Second Respondent's contractors, did not adopt Mr Phillips’ “preferred communication methods” of an Auslan interpreter or written communication when attempting to resolve an ongoing maintenance matter. The Respondents contend that this does not mean that they discriminated against Mr Phillips and assert that they would have treated anyone in the same circumstances, or in circumstances which are not materially different, as Mr Phillips in this way, regardless of whether or not they had a disability. The Respondents have committed to taking steps to prevent this same error occurring in the future.

34. The Respondents state that a designated CSO manages Mr Phillips’ tenancy and he is informed in advance of any change to the CSO. We accept the statement from the First Respondent that this is not a standard offering to all tenants. The Second Respondent has undertaken that it will provide written notice when its contractors are requested to attend at Mr Phillips’ home. The Respondents contend, and we accept, that they have updated the alerts in their internal systems to improve visibility of Mr Phillips’ communication requirements including when he reports any maintenance issues and in relation to any arrangements required prior to contractors attending at his home.

35. Mr Phillips’ response to the assurances by the Respondents is to assert that “I don’t believe them” and “it will not happen” in the way that they say it will. Indeed, at one point in his evidence he referred to the representative of the respondents as “a liar”. We have no basis, however, to reject the assertions made by the Respondents or their undertakings on the record as to what they intend to do in the future.

36. One of Mr Phillips’ objections concerned his claimed need for the installation of a specialised doorbell. The Respondents sourced and installed a doorbell designed for people who are deaf which flashes lights when activated, which accommodated his reasonable adjustments. The Respondents noted that this is not a standard offering to its tenants.

37. The Respondents deny that they have discriminated against Mr Phillips on the grounds of disability.

Findings

40. Mr Phillips advances his case, in effect, as one of direct discrimination. For that to succeed he needs to show that the refusal to provide him with an interpreter, or any of the treatment to which he states he was subjected and which he claims adversely affected him, was conduct engaged in because of his disability. The Tribunal, however, has no evidence which establishes that any of the events that occurred, and about which he complains, was the result of such discrimination.

41. The Respondents acknowledge that some of their systems did not work as well as they had anticipated and that they were not aware of the difficulties which were being experienced by Mr Phillips from time to time in his dealings with them and their contractors. Those concessions do not, however, amount to an acceptance by the Respondents that they discriminated against the Applicant in refusing to offer services or in the way they offered or provided any services because of his deafness, and they have directly denied such discrimination.

42. The Respondents submit that the evidence before the Tribunal does not establish a breach of either s 49B or s 49M of the AD Act. Further, they submit that their treatment of Mr Phillips in the ways he described did not discriminate against him on the ground of his disability, or that they treated him less favourably than in the same circumstances, or in circumstances which are not materially different, the Respondents treat or would treat a person who is not deaf. In the absence of evidence to the contrary, we accept these submissions.

43. Mr Phillips has not established the central requirement to prove his claim of discrimination – that is, that he had to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply. Neither party addressed the question of whether any condition was not reasonable having regard to the circumstances of the case and with which Mr Phillips did not, or was not able to, comply. We accept that the Respondents’ treatment of Mr Phillips involved some incidents where their maintenance contractors did not provide, or refused to organise, an Auslan interpreter or did not provide pen and paper to communicate, when attempting to deal with, or resolve, ongoing maintenance issues at the property. We have no evidence before us, however, to indicate that this conduct was other than inadvertent and the result of a lack of co-ordination in their response to Mr Phillips’ communication needs.

44. The Respondents also maintain that they have not victimised the Applicant. While we accept that Mr Phillips called someone from the First Respondent "surdophobic" and incompetent, there is no evidence - either direct or circumstantial - that anyone from either Respondent has subjected him to any detriment as a result of these comments.

45. In addition, we are satisfied that Mr Phillips has not been subjected to detriment as a result of him bringing these proceedings before us or because of any of the other reasons listed under s 50 of the AD Act.

46. The Applicant is not seeking compensation for the alleged discriminatory conduct but rather sought intervention by the Tribunal to manage the relationship between him and the Respondents and set a regime up for their dealings in the future.

47. Specifically, Mr Phillips wanted the Tribunal to require the Respondents to:

(a) provide an Auslan interpreter whenever they speak with the Applicant and an onsite interpreter where possible or alternatively a video interpreter;

(b) ensure that when an interpreter cannot be obtained (e.g., if on short notice) their staff communicate in writing with Mr Phillips such as with a pen and paper or typing on a phone or tablet;

(c) send follow-up correspondence after speaking with Mr Phillips to provide a summary of what was discussed;

(d) brief any third parties, such as contractors, attending the premises that Mr Phillips is deaf;

(e) ensure that when it is not possible to provide an interpreter that third parties communicate in writing with Mr Phillips, such as with pen and paper or typing on a phone or tablet; and

(f) notify Mr Phillips in writing of any planned visits from the Respondents or third parties. The notices should include at a minimum: the name of the person visiting; the organisation they work for; and the purpose of their visit.

48. Neither party addressed the Tribunal on whether there was power to make such orders. Those outcomes would require some sort of mandatory injunction or other kind of directive relief. However, even if we were to uphold the complaints made by Mr Phillips, it is not the function of the Tribunal to make such orders nor are they within the scope of our powers.

49. The Respondents submit that they have made efforts to consult Mr Phillips to resolve his issues and that they have addressed each of his concerns despite his reluctance to accept their bona fides. We accept that the Respondents have made such attempts and have sought to resolve the issues he has raised. We also accept that Mr Phillips has reservations about whether relations with the Respondent will improve. While the Tribunal’s role is limited to deciding the issues brought before it, we note the undertakings volunteered by the Respondents as to how they will engage with Mr Phillips in the future including in relation to alerting anyone from their organisations or third parties to Mr Phillips’ deafness and communication needs, enhancing their communication about the attendance of third parties, and their commitment to organising Auslan interpreters.

50. On the basis of the information presented to the Tribunal and the findings we have made above, the complaints of discrimination and victimisation have not been established.

Orders

1. The Applicant’s complaints of disability discrimination and victimisation are dismissed.

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

Registrar

Decision last updated: 23 May 2024