Tendek v Anglicare Sydney

[2021] NSWCATAD 235

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Tendek v Anglicare Sydney [2021] NSWCATAD 235

Hearing dates:

7 July 2021

Date of orders:

13 August 2021

Decision date:

13 August 2021

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

C Mulvey, Senior Member

Decision:

Leave for the complaint against Anglicare Sydney to proceed is refused.

Catchwords:

HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave

Legislation Cited:

Anti-Discrimination Act 1977 (NSW)

Cases Cited:

Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143

Jones & Anor v Ekermawi [2009] NSWCA 388

Category:

Principal judgment

Parties:

Alexander Tendek (Applicant)
Anglicare Sydney (Respondent)

Representation:

Alexander Tendek (Self-Represented)
Respondent (No appearance)

File Number(s):

2021/00167060

Publication restriction:

None

REASONS FOR DECISION

1. Mr Alexander Tendek has been a resident at The Cecil in Katoomba since 2018. The Cecil is accommodation provided by Anglicare (the Respondent). Mr Tendek alleges that the use of pesticides at the property by the Respondent exacerbates his disabilities and that the Respondent has failed to consider his condition. Mr Tendek contends that this constitutes discrimination on the basis of disability in respect of his accommodation.

2. The complaint received by the President at Anti-Discrimination New South Wales (‘the President’) received a complaint on 16 December 2020 from Mr Tendek. The complaint alleges that pesticides sprayed at ground level around the building and the use of boxes of rat poison placed around the building exacerbates his health condition. It includes the use of an electric fragrance dispenser in the corridor near the foyer of the building which Mr Tendek alleges ‘this stuff goes straight to my head’. As a result of the use of these chemicals Mr Tendek submits that residents are living in an unnatural and poisonous environment and his and other residents’ health deteriorates as a result.

Statutory framework and principles governing the grant of leave

3. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If at any stage during the investigation of a complaint, the President is satisfied that it is lacking in substance, the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint (s 92(1)(a)(i)). It is this decision which I have jurisdiction to review.

4. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

5. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

6. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawiat [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawiat [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Background facts 

7. Mr Tendek contends for the matters which are set out above. In his application he provided a written statement setting out that he suffers from Chronic Fatigue Syndrome, multiple chemical sensitivities, electromagnetic sensitivity and a number of related disorders which he has had for most of his life. He submits that he rented an apartment operated by Anglicare Housing in early 2019. Boxes of rat poison were placed around the building and he was informed that the gardener uses certain chemicals in and about the property. Despite giving a doctor’s statement to the Respondent and information concerning the particular pesticide treatments used which aggravate his condition, the Respondent has refused to desist in the use of these chemicals.

8. In a letter to Anti-Discrimination NSW on 29 January 2021, the Head of Tenancy Management, Ms Sheryl Plunkett, denies that the Respondent has discriminated against Mr Tendek. Ms Plunkett confirms Mr Tendek’s tenancy at the premises in Katoomba and recites a history of interview with Mr Tendek prior to his accommodation placement with Anglicare. Mr Tendek in oral submissions refuted some of those aspects which I have considered.

9. The Respondent contends the accommodation service uses preventative pest maintenance cycles every quarter which has commenced since January 2018. The use of preventative pest maintenance meets all NSW EPA legislative requirements and is necessary to ensure management of pests, vermin and other related matters at the property.

My consideration

10. It is worth noting that discrimination on the basis of disability under s49B of the Act provides:

(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 that 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") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

11. Relevantly, discrimination on the ground of disability in relation to accommodation is prescribed by s49N as:

(1) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability-- 

(a) by refusing the person's application for accommodation, or 

(b) in the terms on which the person is offered accommodation, or 

(c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. 

(2) It is unlawful for a person, whether as principal or agent, to discriminate against a person on the ground of disability-- 

(a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or 

(b) by evicting the person, or 

(c) by subjecting the person to any other detriment. 

(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if-- 

(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and 

(b) the accommodation provided in those premises is for no more than 6 persons. 

(4) Nothing in this section applies to the provision of accommodation in premises where special services or facilities would be required by the person with a disability and the provision of such special services or facilities would impose unjustifiable hardship on the person providing or proposing to provide the accommodation whether as principal or agent. 

(5) Nothing in this section applies to the provision of accommodation to persons who have a particular disability by a charitable body or other body that does not distribute its profits to members. 

(6) Nothing in subsection (2) (a) renders it unlawful to discriminate against a person on the ground of disability where, because of the person's disability, the person requires the benefit to be provided in a special manner and the benefit cannot without unjustifiable hardship be so provided by the person who provides the accommodation.

12. In my view the claim and the available evidence is lacking in substance. It does not establish that Mr Tendek has an arguable case to prove that the use of the chemicals and other preventative pest management consumables would amount to discrimination against Mr Tendek on the ground of disability in terms of the accommodation which is afforded to him by the Respondent. The relevant provisions of s 49B of the Act do not impose a positive obligation on the Respondent to treat a person with a disability more favourably than one who does not.

13. I consider it fair and just to refuse leave because the claim is lacking in substance.

14. Leave to proceed is refused.

Order

15. Leave for the complaint against Anglicare Sydney to proceed is refused.

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

Registrar

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: 13 August 2021