STICCA and HOUSING AUTHORITY - [2018] WASAT 67

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   STICCA and HOUSING AUTHORITY [2018] WASAT 67
MEMBER:   SENIOR MEMBER J MANSVELD
HEARD:   19 JUNE 2018
DELIVERED          :   25 JULY 2018
FILE NO/S:   EOA 28 of 2017
BETWEEN:   MARIO GUISEPPE STICCA
Applicant
AND
HOUSING AUTHORITY
Respondent

Catchwords:

Equal opportunity - Allegation of unlawful discrimination on the grounds of sex, race and age - Direct discrimination - Goods, services and facilities - Complaint dismissed

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 8(1), s 20, s 36(1), s 46, s 66V(1), s 66ZF, s 89, s 90(2), s 161
Freedom of Information Act 1992 (WA), s 16(1), s 16(1)(d)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr Simon Thackrah

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Edoo and Minister for Health [2010] WASAT 74
Laurent v Commissioner of Police [2009] WASAT 254
Williams and Commissioner of Police [2005] WASAT 349

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

These proceedings arise in the Tribunal's original jurisdiction under the Equal Opportunity Act 1984 (WA) (EO Act).
On 26 September 2017 Mr Mario Sticca lodged a complaint with the Equal Opportunity Commission (EOC) alleging unlawful discrimination on the grounds of sex, age and race in the area of goods, services and facilities. Mr Sticca's complaint was lodged against the Government of Western Australia's Housing Authority (Housing Authority).
On 17 October 2017 the EOC dismissed the complaint as lacking in substance (s 89 of the EO Act).
On 3 November 2017 Mr Sticca filed with the EOC written notice pursuant to s 90(2) of the EO Act requiring the Commissioner for Equal Opportunity to refer his complaint to this Tribunal.
On 23 November 2017, the referral from the EOC was filed with the Tribunal.
The complaint was referred to mediation in the Tribunal which took place on 10 January 2018. Mediation was not successful and the matter proceeded to a final hearing on 21 March 2018.
Mr Sticca attended the hearing in person. The Housing Authority was represented by counsel.

The EO Act

Section 4 defines age to mean the chronological age of the person.
Section 4 defines race to include colour, descent, ethnic or national origin or nationality and the fact that a race may comprise two or more distinct races does not prevent it being a race for the purposes of this Act.
Section 4 defines relevantly that services includes services of the kind provided by a government or public authority.
Section 8(1) provides that:
For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, on the ground of
(a)the sex of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the sex of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the sex of the aggrieved person,
the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.
Section 20 provides that:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or breast feeding
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 36(1) provides that:
For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
Section 46 provides that:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's race
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
Section 66V(1) provides that:
For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of age if, on the ground of
(a)the age of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the same age as the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the same age as the aggrieved person,
the discriminator treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person who is not of that age.
Section 66ZF provides that:
(1)It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's age
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
(2)Nothing in subsection (1) applies to or in respect of
(a)bona fide benefits, including concessions, provided to a person by reason of his or her age; or
(b)holiday tours offered or provided to persons who are of a particular age.
Section 161 provides that:
(1)Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent
(a)an act that would, if it were done by the person, be unlawful under this Act (whether or not the act done by the employee or agent is unlawful under this Act); or
(b)an act that is unlawful under this Act,
this Act applies in relation to that person as if that person had also done the act.
(2)Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (a) or (b) of that subsection done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

Documents before the Tribunal

Early in the proceeding Mr Sticca and the Housing Authority were required to file an agreed statement of issues and facts, identifying any material facts not agreed. Despite a number of attempts by the parties to comply, this was not successful.
On 28 February 2018 Mr Sticca filed a document titled 'Draft Agreed Statement of Issues Facts'. Whilst not an agreed statement of issues and facts I accepted the document as Mr Sticca's statement of issues facts and contentions (ASIFC). This was not opposed by the Housing Authority.
The Housing Authority filed its own statement of issues facts and contention (RSIFC) as well as witness statements for Vincent Holdsworth, Tessa Cox and Narelle Hurkala.
In addition to the material filed by Mr Sticca and the Housing Authority the Tribunal also relied on the referral material filed by the EOC (EOC documents).

The complaint made by Mr Sticca

The complaint made by Mr Sticca under the EO Act appears to relate to an ongoing dispute he has with the Housing Authority.
Unfortunately the precise nature of the dispute did not become wholly evident until Mr Sticca's closing submission.
Mr Sticca had on two occasions applied to the Housing Authority for access by way of a copy of the CCTV footage of a meeting held with Housing Authority officers on 16 January 2015 (January 2015 meeting).
The first application was dated 5 May 2015 and the second was dated 27 April 2017.
The applications were made and decided by the Housing Authority under the Freedom of Information Act 1992 (WA) (FOI Act).
Pamela Dell who was also a party to the January 2015 meeting had also made an application for access to the CCTV footage. Her application was dated 16 June 2016 and she also sought a copy of the CCTV footage.
The applications made by Mr Sticca and Ms Dell are not in dispute nor is the fact that the applications were denied except that Mr Sticca was given the opportunity to view the CCTV footage in the presence of Housing Authority officers.
As was required at the time, both Mr Sticca and Ms Dell paid the Housing Authority a fee of $30 when they made their applications under the FOI Act.
A contention of Mr Sticca and one which assumed a prominence in his complaint to the EOC was that Ms Dell was refunded her fee but he was not for either of his two applications.
The refund of the fee to Ms Dell and not to Mr Sticca is also not in dispute.
In the material filed with his complaint to the EOC Mr Sticca stated his view that he had suffered discrimination because he was charged a fee for both his applications under the FOI Act but that Ms Dell was not. He contended that he had been treated differently to Ms Dell even though they had wanted the same thing, a copy of the CCTV footage. He claimed that he had been discriminated against on four grounds when compared to Ms Dell, he is male (Ms Dell is female), he is older than Ms Dell by 'several years', he is a pensioner whilst Ms Dell is an 'independent retiree' and he was born in Italy and Ms Dell is Australian born (Letter to EOC dated 21 September 2017, EOC Documents).
When asked by the EOC for further information about his complaint, Mr Sticca responded with an undated letter in which he referred to the FOI Act and his contention that it had not been followed by the Housing Authority (undated letter).
In the undated letter Mr Sticca referred to a Housing Authority letter of 15 June 2015 (not before the Tribunal) purportedly advising of safety concerns for two Housing Authority officers that resulted in the 'document' (CCTV footage) not being released to him. He inferred that the Housing Authority had made a judgment that because he is an Italian he would be violent towards particular Housing Authority officers (EOC Documents).
In the undated letter Mr Sticca also referred to a Housing Authority letter dated 20 January 2015 addressed to him and Ms Dell at the same address. This letter which is before the Tribunal relevantly stated that their recent behaviour towards Departmental staff was unacceptable and of concern. Ms Sticca and Ms Dell were required to direct any further concerns in writing only to the Disruptive Behaviour Management Unit of the Housing Authority (EOC Documents).
In the undated letter Mr Sticca stated he received rebates from government departments without asking but he had been refused a fee refund by the Housing Authority even though he had ticked a box on his application form allowing him to request a reduction of fees. Mr Sticca took this as the Housing Authority having a 'grudge' against him (EOC Documents).
In the undated letter Mr Sticca described the alleged discrimination as 'systematic and personal'. He maintained that the Housing Authority assumed he was violent because he is a man, because of his ethnicity (his Italian heritage) and because of his age, the 'younger officers' believed him to be 'a silly old goat who will believe anything the department tells me, no matter how blatantly untrue it is' (EOC Documents).
In his ASIFC, Mr Sticca repeats the allegations already mentioned. He further contends that the Housing Authority discriminated against him in claiming the CCTV footage was exempt from release when an exemption certificate was not issued. He submits that the alleged discrimination is 'payback' for having the temerity to complain about the Housing Authority's lack of service to the public.
In crossexamination Mr Sticca states that he has recently reached 76 years of age. He believes Ms Dell to be 71 years of age. He confirms that he was born in Italy and that he identifies as Italian 'at different stages'. He believes Ms Dell to be Australian born. He accepts that the ultimate decision of the Housing Authority was to refuse his and Ms Dell's applications under the FOI Act (ts 10, 21 March 2018).
It is instructive to quote at length from Mr Sticca's closing submission because it appears to highlight a much broader basis on which he is seeking redress.
… It all stems from a meeting we had from to with the Housing Authority and particular officers regarding a complaint that we had made, but it was not acted upon. My reasoning would have been that it was 31 December 2014, was of New Year's Eve, that this application was supposed to be done.
So therefore, we went to Housing to have an to have the officers explain to us why it wasn't carried on. The officers accused us of making things up and, in doing so, one of the officers assaulted assaulted Ms Dell. And I say assaulted, and I feel responsible, because I took Ms Dell with me to the office because, as you can see, my English is not that good, but I needed somebody to aid me, a witness, and also somebody that understood the language a hell of a lot better than me.
I felt responsible of taking Ms Dell to a place where she had been assaulted, and I didn't do a thing about it. And therefore, I did everything in my power to write to Housing to ask for if there was any recordings or if there was anything at all. And while I would like copies of it and I would pay whatever the cost was. So a letter came back to me stating that the freedom of information, you will have to do a proper release application, and there will be a fee.
And here is copy of the fee of the application fee of the application, sorry. Nothing was enclosed. So I did the right thing and I put it in. My understanding is that when Housing receives freedom of information, they confer with the applicant on how to go about it. That did not happen. Did not happen. All they did was to say, "We need this from Mrs Dell, because you can't you can't see" by the way, at that time I didn't even know if there was any recordings.
The recording was done behind locked doors. We were not advised that there was CC footage. Now, I might be wrong, but I don't think that in this state that is illegal, regardless. I don't know. Now, Mr Holdsworth, after making a phone call to me that we made an agreement there, that if I get Ms Dell to put the application in, that she allowed me to the viewing of it, then he could let me have see the footage. Ms Dell did exactly that. Now, I regarded, at that time, that that was maybe a contract between two people, myself and Mr Holdsworth representing Housing.
I turned up at the Housing at a particular day, and I was shown four and maybe a half minute of the CC footage of the interview room that I considered and I considered it wasn't quite legal. But I don't know, I'm not a lawyer. When it stopped, I said, "Where's the rest of it?" The rest of it has been from the time we went there, 11 whatever time, 11.10 to 12.30 that we had been there, and we had been shown just and I had been just four minutes. Where's the rest of it? I was advised that by Mr Holdsworth that the tape had had been destroyed or taped over. The right word was "taped over". And I said, 'Well, that's not good enough; I want it.'
Now, he said okay. And I've got that all in letters. Mr Holdsworth said, "I will go and talk to them, to see whether there is any other thing, and then I will come back to you and I will come back to you, that you want to purchase the whatever whatever it is." He made his decision after he went there, he made a decision, and he spoke to the people at Housing, that they told that they would not release the footage because I was a what was it? I was a menace to society and it was I was an ethnic and I could hurt people if this was released. The true story is that it was they were hiding they were hiding that footage for their own discretion.
Now, I spent three years and Mrs Dell has spent three years also in gaining a copy of that footage. As you can see, I put a statutory declaration there to the Minister to the to the Premier, all to no avail. The Housing are concealing a crime and this is the reason this is the reason why they keep on refusing not only refusing my application, but not given me any anything at all. So if the courts and and this is all due to the fact that all of these officers and all of these applications that we've made over the period of time, they have all lied, told untruths and contradicted and contradicted the Act.
MANSVELD MR: What Act?
STICCA, MR: The Freedom of Information Act that they were supposed to administer by as we just heard, of unprofessional people. I don't know so much. So if this hearing here says that the only reason is because of the $30 that I was not refunded, it's a farce. Sorry, but the fact is that there is a crime there that has been covered up and it has been covered up right to the top of the Housing Commission of sorry, of the Housing Department. So regardless of what happens today, this is not the end of it.

The case of the Housing Authority

The Housing Authority called three witnesses. They were in turn:

Vincent Holdsworth

Mr Holdsworth was employed as FOI Coordinator in the Legal and Legislative Services Branch of the Housing Authority in the period 22 February 2015 to 21 September 2015.
As an FOI Coordinator Mr Holdsworth states that he had delegated authority from the Chief Executive Officer of the Housing Authority to make decisions under the FOI Act in response to applications made.
Mr Holdsworth states that he processed and determined the application made by Mr Sticca dated 5 May 2015 for access by way of a copy of the CCTV footage of the January 2015 meeting.
Mr Sticca had requested on the application form as he was entitled to do for a reduction in the fees and charges associated with the request. Mr Sticca had paid a fee of $30 with his application.

Mr Holdsworth states that under s 16(1)(d) of the FOI Act a charge cannot be levied for providing an applicant with access to personal information about the applicant.
Mr Holdsworth determined that Mr Sticca's request was for information that was not just personal to him as there were other parties involved. As a consequence the $30 fee paid by Mr Sticca was not refunded to him.
Mr Holdsworth states that on 17 June 2015, he wrote to Mr Sticca with the notice of his decision that the application for a copy of the CCTV footage had been refused.
In his oral evidence Mr Holdsworth states that although not given a copy of the CCTV footage, Mr Sticca was shown the footage at the office of the Housing Authority. Mr Holdsworth states that Mr Sticca was shown the full CCTV footage with no redactions and unedited.
Mr Holdsworth states that Mr Sticca's age, sex and race had no bearing on the decision that he made.

Tessa Cox

Ms Cox states that at the relevant times in June 2016 she was employed as FOI Coordinator in the Legal and Legislative Services Branch of the Housing Authority.
Ms Cox states that she processed and determined the application made by Ms Dell dated 16 June 2016 for access by way of a copy of the CCTV footage of the January 2015 meeting. Ms Dell paid a $30 fee with her application.
Ms Cox states that she determined that application made by Ms Dell was for personal information because Ms Dell was present at the January 2015 meeting. Accordingly she arranged for the fee paid by Ms Dell to be refunded to her pursuant to s 16(1)(d) of the FOI Act.
In crossexamination Ms Cox states that she used the Housing Authority's procedural manual to guide her in the decision as to whether Ms Dell's application was for personal information only or included nonpersonal information.
Ms Cox states that on 30 June 2016, she wrote to Ms Dell with the notice of her decision that the application for a copy of the CCTV footage had been refused.
Ms Cox states that given what she now knows about the FOI Act, she would deem Ms Dell's application as non-personal because other individuals were involved. As a consequence she would not have refunded the $30 fee.
When asked why her interpretation of what is personal information (and what is not) differed from that of Mr Holdsworth, Ms Cox says that perhaps inconsistencies occurred because of the differing levels of time (and experience) that FOI Coordinators had spent in the position.
Ms Cox states that she did not bring her personal views into the decision she made under the FOI Act and that her decision would not have been different had the applicant been a person of a younger age than Ms Dell at the time.

Narelle Hurkala

Ms Hurkala states that between 1 September 2012 and 5 January 2018 she was employed as FOI Coordinator in the Legal and Legislative Services Branch of the Housing Authority.
Ms Hurkala states that she processed and determined the application made by Mr Sticca dated 27 April 2017 for visual inspection of the CCTV footage of the January 2015 meeting.
Mr Sticca had requested on the application form as he was entitled to do for a reduction in the fees and charges associated with the request. Mr Sticca had paid a fee of $30 with his application.
Ms Hurkala states that under s 16(1)(d) of the FOI Act a charge cannot be levied for providing an applicant with access to personal information about the applicant.
Mr Hurkala determined that Mr Sticca's request was for information that was not merely personal to him. As a consequence the $30 fee paid by Mr Sticca was not refunded to him.
Mr Holdsworth states that on 15 June 2017, she wrote to Mr Sticca with the notice of her decision that his application had been refused.

Submissions of the Housing Authority

It is accepted by the Housing Authority that in responding to applications under the FOI Act, it is providing services within the relevant meaning given to services in the EO Act.
It is submitted that the appropriate comparator for the alleged discrimination in the areas of sex and race is Ms Dell as identified by Mr Sticca. Given that Mr Sticca is 76 years of age and Ms Dell is about 71 years of age, the Housing Authority questions whether Ms Dell is the appropriate comparator for the alleged age discrimination.
The Housing Authority concedes that inconsistent decisions were made by FOI Coordinators in respect of the charging and refunding of the $30 fee when applications were made by Mr Sticca and Ms Dell. Mr Sticca was treated less favourably than Ms Dell.
It is submitted that the reason for why Ms Cox refunded the $30 fee to Ms Dell and Mr Holdsworth and Ms Hurkala did not refund the $30 fee to Mr Sticca represents a bona fide difference of interpretation of s 16(1) of the FOI Act. In addition Ms Cox's evidence is that she would make the same decision as those of Mr Holdsworth and Ms Hurkala if she were to make the decision today.
The Housing Authority submits that Mr Sticca did not challenge Mr Holdsworth or Ms Hurkala on their motivations behind their decisions not to refund him the $30 fee. It was never put to them that they were motivated by racism, sexism or ageism.
The Housing Authority submits that Mr Sticca was not treated less favourably than Ms Dell in the decisions to refuse access to the CCTV footage of the January 2015 meeting as both were refused access.

Discussion of the issues

Mr Sticca bears the onus of proof in establishing his claim of discrimination (Edoo and Minister for Health [2010] WASAT 74 (Edoo) at [53]).
The standard of proof is the balance of probabilities but in cases of alleged discrimination the seriousness of the allegations requires the Tribunal to adopt the general approach to fact finding taken in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 when assessing the strength of the evidence. This can be characterised as the Tribunal needing to feel an 'actual persuasion' that the facts alleged in this case actually occurred and a reasonable satisfaction that the allegations of discriminations have been proved before a finding can be made (Edoo at [53]).
To sustain a complaint of what is commonly called 'direct discrimination', Mr Sticca has to show in the first place that because of his sex, age and/or race, he has been treated less favourably than the Housing Authority treats, or would treat, a person of a different sex, age and/or race in the same circumstances, or circumstances that are not materially different (s 8(1), s 36(1) and s 66V(1) of the EO Act).
The other elements to sustain a claim of direct discrimination are set out in Laurent v Commissioner of Police [2009] WASAT 254; (2009) 68 SR (WA) 165 and are:
(c)[t]here is a causal connection between the ground of discrimination alleged and the decision or act complained about;
•it is not necessary for [sex, race and/or age] to be the sole or a dominant or substantial ground[s] for the relevant conduct - it is enough if it is one of the grounds for the conduct; and
•proof of a deliberate intention to harm or discriminate against a person is not necessary, but the act which constitutes discrimination must nevertheless be advertent and done with the knowledge of [Mr Sticca's sex, race and/or age].
See also Williams and Commissioner of Police [2005] WASAT 349 at [35] - [38] and the cases cited therein, and see also Edoo at [78] [80].
In Edoo at [160] - [163] (internal citations omitted), the Tribunal said:
… The expression 'less favourably' … bears its ordinary meaning. It calls for the Tribunal to apply its judgment to the facts found to be proved in the particular case[.]
To determine whether a person has been treated 'less favourably' it is necessary to identify another person in 'circumstances' which are 'the same' or 'not materially different' from the aggrieved person (a comparator) and to determine whether the manner in which the aggrieved person was treated was less favourable than the manner in which the comparator was, or would be, treated[.]
It is not necessary to identify an actual person in comparison with whom a complainant is less favourably treated. It may be that the comparator is hypothetical … Nevertheless, the factual foundation for conclusions about the way in which the comparator is, or would be, treated, must be established.
It is not necessary that the comparator be in identical circumstances, but there must be a sufficient degree of similarity in the circumstances of the aggrieved person and the actual or hypothetical comparator to form the basis for an appropriate comparison … In considering whether circumstances are the same or not materially different, it is necessary to take into account all of the objective features surrounding the treatment which is said to have been less favourable[.]
It is clear from the evidence that Mr Sticca has a longstanding grievance with the Housing Authority. He is determined to right what he sees as a grievous wrong.
Mr Sticca is impassioned in his belief.
It appears that Mr Sticca will use different forums to express and test his grievance. The equal opportunity jurisdiction is one such place.
As stated above the EO Act requires a complainant to convince the Tribunal of a number of statutory requirements. Given the seriousness that attaches to an allegation of discrimination, the evidence of the complainant must be clear and cogent.
In my view the evidence provided by Mr Sticca to prove his allegations of discrimination do not rise above the level of mere assertions.
Mr Sticca has not provided any evidence of probative value to challenge the reasons given by Mr Holdsworth, Ms Cox and Ms Hurkala on behalf of the Housing Authority in the decisions that they made in their role as FOI Coordinators.
I accept the evidence of Mr Holdsworth, Ms Cox and Ms Hurkala in their explanation of their decision-making on the applications made by Mr Sticca and Ms Dell under the FOI Act.
Mr Sticca did not question their motivations. There is nothing in the totality of the evidence to dispute their account of the events surrounding their decisions.
It appears to me that the primary grievance of Mr Sticca is his allegation that officers of the Housing Authority have covered up a crime. This is evident from his closing submission.
On its face this has nothing to do with the equal opportunity jurisdiction.
Within the limits of the EO Act, I am satisfied on the evidence of the following.
Mr Sticca was treated less favourably than Ms Dell, whom I accept as the appropriate comparator for the allegations of sex and race discrimination, on the issue of the fee that applied to an application under the FOI Act. This is conceded by the Housing Authority.
However, there is no evidence to dispute the position of the Housing Authority that the difference in the way Ms Cox processed the fee as against that of Mr Holdsworth and Ms Hurkala was as a result of a good faith difference of interpretation of the relevant provisions of the FOI Act.
It is no different for the allegation of age discrimination.
I agree with the Housing Authority that given the closeness of their ages, Ms Dell is not an appropriate comparator. However, if I take a hypothetical comparator being an adult person who is a Housing Authority tenant and of an age significantly lower than that of Mr Sticca, there is no evidence that the relevant FOI Coordinators used age as a factor in their decisions.
In respect of the decisions of the FOI Coordinators to refuse both Mr Sticca and Ms Dell the particular access they were seeking of the CCTV footage of the January 2015 meeting, Mr Sticca clearly did not receive less favourable treatment.
Mr Sticca's complaint must therefore be dismissed.

Costs

The Housing Authority has made an application for costs against Mr Sticca. The Tribunal called for submissions from the parties which have been received.
The decision of the Tribunal on the costs application will be dealt with in a supplementary decision.

Order

For the reasons given, the Tribunal makes the following order:
1.The complaint in proceedings EOA 28/2017, between Mr Mario Giuseppe Sticca and the Housing Authority is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR J MANSVELD, SENIOR MEMBER
25 JULY 2018