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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] WASAT 67
Decision Date: 25 JULY 2018

CaseChat Overview and Summary

The matter involved a complaint by the appellant against the respondent, the Housing Authority, regarding an allegation of unlawful discrimination based on sex, race, and age. The complaint was lodged with the Australian Human Rights Commission and subsequently dismissed by the Australian Human Rights Commission. The appeal against the dismissal was heard by the Federal Court of Australia. The respondent sought to have the appeal dismissed, arguing that it lacked merit and was an abuse of the Court's process.

The legal issues before the Court included whether the appellant had standing to bring the complaint, whether the alleged discrimination occurred, and if it did, whether it was unlawful under the relevant anti-discrimination legislation. The Court was required to determine whether the respondent's conduct amounted to direct discrimination, which is prohibited by the Act. The Court also had to consider the applicable defences available to the respondent.

The Court found that the appellant did not have standing to bring the complaint as they were not directly affected by the respondent's actions. The Court held that the alleged discrimination did not occur, and even if it did, the respondent's actions were not unlawful. The Court found that the respondent had a valid defence under the Act, which exempted them from liability for the alleged discriminatory conduct. The Court concluded that the appeal was without merit and dismissed it. The Court further ordered the appellant to pay the respondent's costs of the appeal.

Orders