Pribicevic v State of New South Wales (Department of Family and Community Services)

[2014] NSWCATAD 94

NSW Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Pribicevic v State of New South Wales (Department of Family and Community Services), [2014] NSWCATAD 94
Hearing dates:	25 February 2014
Decision date:	11 July 2014
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	Leave is refused for the applicant's complaint to proceed.
Catchwords:	ANTI-DISCRIMINATION - interlocutory application for leave for a complaint of discrimination to proceed when declined by the President of the Anti-Discrimination Board - whether fair or just to grant leave
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Jones and Anor v Ekermawi [2009] NSWCA 388
Category:	Interlocutory applications
Parties:	Nedeljko Pribicevic
Representation:	Applicant (self-represented) Housing NSW (Respondent)
File Number(s):	1410032

reasons for decision

Introduction

1. Mr Pribicevic complains that Housing NSW, which is part of the Department of Family and Community Services, has discriminated against him on the ground of his disability. Mr Pribicevic describes his disability has having an artificial arm. His complaint is that Housing NSW has not responded adequately to complaints he has made about another tenant.

1. The President of the Anti-Discrimination Board declined Mr Pribicevic's complaint as lacking in substance. Mr Pribicevic needs the Tribunal's permission before his complaint can proceed: Anti-Discrimination Act 1977 (NSW), s 96. The Tribunal has a discretion to grant or refuse leave for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1), including that the complaint lacks substance.

1. The onus is on Mr Pribicevic to persuade the Tribunal to grant leave. He appeared with a support person and an interpreter.

Factual allegations

1. The President of the Anti-Discrimination Board accepted the complaint for investigation in relation to the four year period from February 2009 to February 2013. The crux of Mr Pribicevic's complaint is that Housing NSW has discriminated against him because they have done nothing about the harassment from his neighbour. Mr Pribicevic provides a detailed account of the communications between himself and various housing officers since 2009.

1. Mr Pribicevic lives on the first floor of the building. The tenant, about whom he complains is a woman who also lives on the first floor. Mr Pribicevic alleges that she abuses and vilifies him because of his disability. He says he has been trying to resolve this problem with Housing NSW for years. He is frustrated because of the turnover in housing officers which means he has to continually explain the issues to a different person.

1. The complaint also concerns the failure of Housing NSW to transfer him to other accommodation. He was ultimately transferred in December 2013.

1. One of the allegations is that the tenant has placed notices on a notice board on the first floor which includes a drawing of an artificial hand. According to Mr Pribicevic, Housing NSW did not remove the drawing until 9 April 2013 after he had complained to the Anti-Discrimination Board.

1. Mr Pribicevic also says that the tenant calls him 'the one arm man". For example, on the morning of 22 December 2011 when introducing himself to the new housing officer, Mr Pribicevic says that the tenant came from her unit screaming, "Be carefully the one arm is a maniac." Mr Pribicevic asked the new housing officer to write a statement to support his application for an Apprehended Violence Order. Mr Pribicevic complains that she declined to attend court to be his witness in an application for an AVO. According to Mr Pribicevic, that is proof that Housing NSW does not want to do their job.

1. Housing NSW's version of this incident is that the housing officer had no recollection of the neighbour making the alleged comment. They also submitted that they have policies about tenant behaviour and that those policies have been applied. Each tenant signs a contract with Housing NSW agreeing that they will not harass other tenants. When neighbours are in dispute, they are encouraged to attend a Community Justice Centre to participate in a mediation process. For more serious matters Housing NSW seeks the assistance of other relevant agencies or the police if criminal allegations are involved.

Merits of the complaint

1. In order to substantiate his complaint, Mr Pribicevic would have to prove that Housing NSW has breached s 49M of the Act. That provision makes discrimination on the ground of disability unlawful in relation to the provision of services. Discrimination is defined in s 49B. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Mr Pribicevic is complaining of 'direct' discrimination.

1. The matters which Mr Pribicevic would have to prove to substantiate a complaint of direct disability discrimination in the provision of services are that:

(1) he has a 'disability' as defined in the AD Act ;

(2) Housing NSW has provided him with a service on unfavourable terms by engaging in the conduct summarised above;

(3) in providing services on unfavourable terms, Housing NSW treated him less favourably than it treated or would have treated a person who did not have his disability, in the same or similar circumstances; (differential treatment) and

(4) at least one of the reasons for that treatment was Mr Pribicevic's disability even if that reason was not the dominant or a substantial reason for the treatment: AD Act , s 4A (causation).

Disability

1. Mr Pribicevic describes his disability as having an artificial arm. That is likely to come within the definition of disability in s 4 of the Act which includes "total or partial loss of . . . a part of a person's body".

Does the conduct constitute the provision of services on unfavourable terms?

1. Mr Pribicevic does not identify with any precision, the services that Housing NSW has refused to provide him with or have provided on unfavourable terms. Nevertheless, we are satisfied, for the purpose of these proceedings, that Housing NSW provides certain services to tenants including advice on how to resolve complaints with other tenants and consideration of applications for transfer.

Differential treatment

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Pribicevic must be compared with the treatment that would have been afforded to a person without Mr Pribicevic's disability in the same or similar circumstances. Mr Pribicevic did not identify another person without an artificial limb who has been treated differently from the way he has been treated. There is nothing in the material he has presented to suggest that Housing NSW would have responded differently to a tenant who did not have his disability.

Causation

1. At least one of the reasons for being treated in the way he was treated must be Mr Pribicevic's disability.

1. While we appreciate that Mr Pribicevic is extremely dissatisfied with Housing NSW's response to his complaints, it is unlikely that a Tribunal hearing this matter would be satisfied that his disability was a reason for the way in which Housing NSW responded. Even if the other tenant was harassing Mr Pribicevic because of his disability that does not mean that any unresponsiveness on the part of Housing NSW was also because of his disability. It is not enough for Mr Pribicevic to prove that he has a disability and that he was treated in a way that he perceives to be unfavourable. He must be able to prove that there is a link between his disability and the treatment he received from Housing NSW. In the absence of any direct evidence of such a link or of evidence which would allow a link to be inferred, the complaint lacks substance and it would be unfair and unjust for it to proceed.

Order

1. Leave is refused for the applicant's complaint of disability discrimination in the provision of services to proceed.

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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: 11 July 2014