VVR (a pseudonym) v Trustee for Ironfish Property Management Melbourne Unit Trust (ABN 73 299 113 275)
[2025] VSC 64
•27 February 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01717
| VVR (a pseudonym) | Applicant |
| v | |
| Trustee for Ironfish Property Management Melbourne Unit Trust (ABN 73 299 113 275) | Respondent |
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JUDGE: | Quigley J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 February 2025 |
DATE OF JUDGMENT: | 27 February 2025 |
CASE MAY BE CITED AS: | VVR (a pseudonym) v Trustee for Ironfish Property Management Melbourne Unit Trust |
MEDIUM NEUTRAL CITATION: | [2025] VSC 64 |
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ADMINISTRATIVE LAW — Appeal from the Victorian Civil and Administrative Tribunal — Victorian Civil and Administrative Tribunal Act 1998 (Vic) s 148 — Where residential rental provider addressed transgender renter by deadname in email correspondence — Where Tribunal found there to be no direct or indirect discrimination — Appeal against finding of no indirect discrimination — Consideration of whether ‘reasonable adjustment’ could be made — Whether Tribunal misapplied burden of proof — Whether finding open to Tribunal on the evidence — Leave to appeal granted — No error of law — Appeal refused — Equal Opportunity Act 2010 (Vic) s 9 — The Trust Company Limited v Blue Train Cafe Pty Ltd [2024] VSC 232; Owners Corporation OC1‑POS539033E v Black (2018) 56 VR 1, considered.
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr M. O’Haire | Maddocks Lawyers |
For the Respondent | Ms J. Zhou | Mustard Seed Lawyers |
TABLE OF CONTENTS
Introduction
Background
The applicant
VVR’s rental arrangements
Email correspondence
Tribunal’s decision
Prohibition of discrimination
Direct discrimination
Indirect discrimination
Requirement, condition or practice
Disadvantage
Reasonableness
Questions of law and grounds of review
Leave to appeal
The appeal
Did the Tribunal require the respondent to bear the burden of proving it was not possible to make a reasonable adjustment to its practice?
Was it open to the Tribunal on the evidence before it to conclude that it was not possible for the respondent to make a reasonable adjustment to its practice?
Finding 1: A reasonable adjustment was not possible
Finding 2: The pandemic made the reasonable adjustment harder to organise
Finding 3: The reasonable adjustment would have led to further loss
Was it open to the Tribunal on the evidence before it to conclude that the respondent’s practice was reasonable?
Conclusion
Orders
HER HONOUR:
INTRODUCTION
The applicant, VVR,[1] is a renter. The respondent, the Trustee for Ironfish Property Management Melbourne Unit Trust (‘Ironfish’), is a real estate agent which acted as property manager for VVR’s residential rental provider.
[1]The Victorian Civil and Administrative Tribunal made orders pursuant to the Open Courts Act 2013 (Vic) inter alia giving the applicant the anonymised name of ‘VVR’ to protect her privacy. On 15 April 2024, the Supreme Court of Victoria made orders that the applicant’s name be known by the pseudonym ‘VVR’ and that the Court file for the proceeding and each document within it be kept confidential pursuant to r 28.05 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic).
This proceeding concerns VVR’s complaint that the respondent repeatedly ‘deadnamed’[2] her in email correspondence which VVR claims discriminates against her in breach of the Equal Opportunity Act 2010 (Vic) (the ‘EO Act’).
[2]That is, addressed her by her previous non‑preferred male‑gender name. The Tribunal adopts this definition at [7] of its reasons which is consistent with the definition proffered in the applicant’s submissions to this Court, which refers to ‘addressing a transgender person by their former name (or deadname)’.
In late 2021, VVR applied to the Victorian Civil and Administrative Tribunal (the ‘Tribunal’) seeking a finding that the respondent’s conduct amounted to direct and indirect discrimination causing her loss and damage, including psychological harm and distress, and an order that the respondent pay her at least $100,000 in compensation.
On 13 March 2024, the Tribunal, having made no finding of direct or indirect discrimination, made orders refusing VVR’s application (the ‘Tribunal’s Orders’). The Tribunal’s Orders and reasons are recorded in the published decision of VVR v Trustee for Ironfish Property Management Melbourne Unit Trust 73299113275 [2024] VCAT 222 (the ‘Tribunal’s Decision’).
By way of her notice of appeal filed 10 April 2024, the applicant now applies to this Court for leave to appeal and, if leave is granted, to appeal the Tribunal’s Orders pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the ‘VCAT Act’).
On appeal to this Court, VVR only maintains her claim in respect of indirect discrimination and does not seek to agitate the Tribunal’s findings in respect of direct discrimination.
BACKGROUND
I set out below a brief summary of the background to this proceeding, noting that a more fulsome description of the factual context is set out in the Tribunal’s Decision.
The applicant
VVR is a transgender woman. She was assigned the sex of male at birth and was given the name she now refers to as her ‘deadname’. VVR identified as female from childhood but manifested her femininity only in secret. She experienced mental and physical trauma throughout her life as a result of her gender identity.
In October 2014, VVR decided to affirm her identity as female and begin living as a woman. Since then, VVR has progressively asked family, acquaintances and businesses to address her by her current female‑gender preferred name (which, consistently with the Tribunal’s decision, I refer to as her ‘name’ or ‘current name’).
VVR’s rental arrangements
Since April 2014, VVR had rented her home under the National Rental Affordability Scheme (‘NRAS’) and entered the residential rental agreement for that property under her deadname.[3]
[3]At trial, the applicant told the Court that she no longer lives at the property the subject of the dispute.
At the time of the Tribunal’s Decision, VVR had not sought to change her name on the residential rental agreement. Therefore, the name on the document was her deadname. VVR’s purported reason for doing so was to avoid complications with maintaining her entitlement to her NRAS funding.
In October 2019, VVR informed the residential rental provider’s previous property manager of her transgender status, her wish to be known by her current name and to be referred to as female. The Tribunal noted that VVR felt respected and visible when the property manager said that they had updated their systems and that VVR said all subsequent communications with that property manager used her current name.[4]
[4]Tribunal’s Decision, [13].
Email correspondence
On 27 November 2019, there was a change of property manager to the current manager, Ironfish. Ironfish addressed the applicant by her deadname on first contacting her and the applicant immediately requested that the respondent use her current name.
At the trial, the Court was referred to a chronology of email correspondence that had been before the Tribunal. It shows that VVR was deadnamed in at least 27 emails from November 2019 to December 2020.
While the precise number of emails was unknown, the nature and sequence of the respondent’s emails to VVR was found by the Tribunal to be as follows:
(a) On 29 November 2019, Ironfish sent VVR an initial email addressed to her deadname. This email was sent to her individually (i.e. it was not system‑generated). VVR responded to this email requesting that she be addressed by her current name in future correspondence.[5]
[5]Tribunal’s Decision, [35], [40], [66], [80].
(b) On 18 and 27 December 2019, an Ironfish employee sent two emails to VVR addressed to her deadname and current name in the format of ‘Hello [deadname] aka [current name]’. These emails were also found to be sent on an individual basis and were not system‑generated. This format of addressing VVR in email correspondence ceased after the first two instances upon VVR requesting that her current name be used.[6]
(c) From 26 December 2019 to May 2022, VVR was sent numerous system‑generated emails addressed to her deadname. VVR repeatedly requested that her current name be used. The fact that the respondent sent automated emails to VVR during this time addressing her by her deadname was not in dispute before the Tribunal.[7]
(d) All other emails sent after 27 December 2019 which were individually sent and not system‑generated were addressed to VVR’s current name.[8] The Tribunal found that after the applicant told the respondent of her transgender status and objection to being addressed by her previous name (or having it combined with her current name), the respondent used her preferred name in all individual correspondence to her (as opposed to system‑generated emails). These emails were (of course) not the subject of VVR’s complaint to the Tribunal but formed part of the factual matrix in which the Senior Member considered VVR’s discrimination claim.
[6]Tribunal’s Decision, [67], [68], [81], [89].
[7]Tribunal’s Decision, [14].
[8]Tribunal’s Decision, [13], [64].
In May 2022, the conduct of sending system‑generated emails to VVR addressed to her deadname ceased when Ms Tao, Ironfish’s managing director, used a functionality in Ironfish’s email system to cause emails to VVR to be addressed to her ‘contact name’ rather than the ‘lease name’, being the name as recorded on the residential rental agreement.
TRIBUNAL’S DECISION
In late 2021, VVR applied to the Tribunal seeking a finding that the respondent’s conduct amounted to direct and indirect discrimination under the EO Act. She claimed loss and damage, including psychological harm and distress, and an order that the respondent pay her at least $100,000 in compensation.
The matter was heard on 17 and 18 October 2023 and the Tribunal’s Order dismissing the application was handed down on 13 March 2024.
Prohibition of discrimination
In its reasons, the Tribunal correctly identified that the EO Act prohibits discrimination against a person in some areas of life on the grounds of any of the attributes listed in s 6, which includes ‘gender identity’.[9] The Tribunal found, and the parties do not dispute on appeal, that the applicant’s transgender identity, which includes the way in which she is referred to, is captured by the legislative concept of gender identity.[10]
[9]EO Act s 6(d). ‘Gender identity’ is defined in s 4 to mean ‘a person's gender‑related identity, which may or may not correspond with their designated sex at birth and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references’.
[10]Tribunal’s Decision, [17]–[18].
The Tribunal also found, and the parties do not dispute on appeal, that the respondent’s conduct fell within the prohibition against discrimination in ss 44(1)(c) and/or 53 of the EO Act, being the prohibition against discrimination in the provision of services and accommodation respectively.[11]
[11]Tribunal’s Decision, [25]–[27].
‘Discrimination’ is defined in s 7(1) of the EO Act to mean direct or indirect discrimination on the basis of an attribute.
The Tribunal then went on to consider whether the conduct complained of constituted direct or indirect discrimination.
Direct discrimination
As noted at [4] above, the Tribunal made no finding of direct discrimination. As the applicant does not agitate the Senior Member’s findings as to direct discrimination, it does not arise for consideration in this appeal.
Indirect discrimination
Upon finding no direct discrimination, the Senior Member then went on to consider whether the respondent’s conduct constituted indirect discrimination.
Indirect discrimination is defined in s 9(1) of the EO Act as follows:
Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice—
(a)that has, or is likely to have, the effect of disadvantaging persons with an attribute; and
(b)that is not reasonable.
Requirement, condition or practice
The Tribunal accepted that the respondent’s conduct constituted a practice of sending emails to renters addressed to the renters’ ‘lease name’, which is the name recorded in the residential rental agreement.[12] This was found to be a practice applying to all renters, not just transgender renters.[13] With the exception of the first three emails,[14] it was found to be a practice which applied only to system‑generated emails.[15]
[12]Tribunal’s Decision, [60]–[61].
[13]Tribunal’s Decision, [62].
[14]Described at [15(a)]–[15(b)] above.
[15]Tribunal’s Decision, [65].
Neither party challenges this framing on appeal.
Disadvantage
The Tribunal accepted that the use of the applicant’s deadname in email correspondence caused her disadvantage and that there is a possibility of disadvantage to others with VVR’s gender identity.[16]
[16]Tribunal’s Decision, [73]–[75].
Neither party challenges this finding on appeal.
Reasonableness
In accordance with s 9(1)(b), the Tribunal then turned to the question of whether the respondent’s practice was reasonable. This is the sole point of contention in this appeal.
In accordance with s 9(2), the Tribunal correctly identified that the respondent bore the burden of proving the reasonableness of the practice.[17] The applicant contends however that, in substance, the Tribunal reversed the onus of proof onto the applicant. I return to this issue at [46] below.
[17]Tribunal’s Decision, [77].
In finding that the respondent’s practice was reasonable, the Senior Member considered each of the factors listed in s 9(3) as well as other matters she considered relevant:
Whether a requirement, condition or practice is reasonable depends on all the relevant circumstances of the case, including the following—
(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;
(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;
(c) the cost of any alternative requirement, condition or practice;
(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;
(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.
The point agitated on appeal is the Tribunal’s findings in respect of the factor at s 9(3)(e), that a reasonable adjustment could not be made to the practice, the Senior Member stating at [117] that:
In all the circumstances, I am not satisfied a reasonable adjustment (such as an earlier change to sending VVR’s emails addressed to her contact name) was possible. Ms Tao did not know at the time that the functionality was available. Further, these events occurred during the pandemic when alterations to business systems would have been harder to organise. The relevant part of the business was losing money so that concentration of effort on one such issue would have led to further loss.
It is every sentence in this paragraph that is challenged by the applicant in this appeal.[18]
[18]Transcript of Proceedings, VVR (a pseudonym) v Trustee for Ironfish Property Management Melbourne Unit Trust (Supreme Court of Victoria, S ECI 2024 01717, Quigley J, 7 February 2025), 6.
QUESTIONS OF LAW AND GROUNDS OF REVIEW
The notice of appeal raises three questions of law. All three questions concern the Tribunal’s finding that the respondent’s practice was reasonable per s 9(1)(b), in light of the factor in s 9(3)(e), which concerns whether reasonable adjustments could be made to the practice to reduce the disadvantage to the applicant.
The first question concerns the Tribunal’s application of the burden of proof. The applicant contends that the Tribunal erred by requiring the applicant to bear the burden of proving that a reasonable adjustment was possible.
The second question concerns the evidence supporting the Tribunal’s findings. The applicant contends that the Tribunal erred as there was no evidence to support the making of the following findings at [117] of the Tribunal’s Decision:
(a) it was not possible for the respondent to make a reasonable adjustment in the form of an earlier change to the email system that would address emails to VVR to her contact name;
(b) it would have been harder to organise a reasonable adjustment in the form of a change to sending the applicant’s emails addressed to her contact name during the pandemic; and
(c) making a reasonable adjustment, in the form of an earlier change to sending the applicant’s emails addressed to her contact name, would have led the respondent to incur financial loss.
The third question concerns the consequences of the alleged errors identified above. The applicant submits that, in circumstances where the Tribunal made the errors alleged by the first two questions, the Tribunal erred in finding that the respondent’s practice of sending emails to the applicant in the name on her residential rental agreement was reasonable.
LEAVE TO APPEAL
Before turning to the substantive appeal, I first address the issue of leave to appeal. The appeal jurisdiction of this Court under s 148 of the VCAT Act is not automatic. The first step is for the Court to decide whether leave to appeal should be granted.
For leave to appeal to be granted, I must be satisfied that the application identifies a question (or questions) of law and that the question (or questions) has (or have) a real prospect of success.[19]
[19]VCAT Act s 148(2A).
I am satisfied that leave to appeal should be granted as the questions of law raised in the notice of appeal concern the proper interpretation and application of s 9 of the EO Act and have sufficiently reasonable prospects of success. It has been previously recognised by this Court that questions of law which go to the construction of the EO Act may be of general and public importance.[20] I consider the limited judicial consideration of s 9(3)(e) of the EO Act to justify such a finding in this proceeding.
[20]See Owners Corporation OC1‑POS539033E v Black (2018) 56 VR 1, 11–12 [31]–[33].
Accordingly, I will grant the applicant leave to appeal on all three questions raised in the notice of appeal.
THE APPEAL
Section 148 of the VCAT Act provides a legislative appeal right in the nature of judicial review. Having granted leave to appeal, the task before me is to determine whether the applicant has identified a vitiating error of law.
At the outset, it is important to observe that the Tribunal is not bound by the rules of evidence and is entitled to inform itself as it sees fit, subject to rules of natural justice.[21]
[21]VCAT Act s 98(1).
I also observe that it is well established that a tribunal’s reasons must be read in their entirety, should be construed fairly, in context and not read ‘minutely and with an eye keenly attuned to the perception of error.’[22]
Did the Tribunal require the respondent to bear the burden of proving it was not possible to make a reasonable adjustment to its practice?
[22]Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259, 272.
Section 9(2) provides that the ‘person who imposes, or proposes to impose, the requirement, condition or practice has the burden of proving that the requirement, condition or practice is reasonable.’ This section makes it clear that, as a matter of law, the respondent bore the burden of proving that its practice was reasonable.
The applicant submitted that the Tribunal correctly identified that the burden of proof lay with the respondent, but erroneously reversed the onus onto the applicant in respect of the Tribunal’s assessment of the s 9(3)(e) factor.
In support of this argument, the applicant relies on [117] of the Tribunal’s Decision where the Tribunal states ‘[i]n all the circumstances, I am not satisfied a reasonable adjustment … was possible’ (emphasis added).
The applicant submits that the Senior Member’s framing of her state of satisfaction reveals that the enquiry to which she directed herself was whether the evidence was sufficient to prove that a reasonable adjustment was possible. The applicant submits that because VVR was the party who advanced a position that a reasonable adjustment was possible, in considering the evidence by reference to this question, the Tribunal required VVR to bear the onus.
I disagree. The task before the Tribunal was to determine whether the respondent had proved that its practice was reasonable, depending on the relevant circumstances of the case, including whether reasonable adjustments could be made.
When viewed in context, it is clear that the statement in [117] expresses the Tribunal’s finding as to whether a reasonable adjustment could be made based on the following evidence of Ms Tao, the director of the respondent:
(a) it was not possible to turn off the automatic email functionality for one renter;[23]
[23]Tribunal’s Decision, [115].
(b) it was administratively complex to instruct 50 staff to treat one renter differently when performing multiple tasks which sent automated emails to multiple renters, especially in the context that formal documents had to identify the renter by the name on the lease;[24]
[24]Tribunal’s Decision, [116].
(c) Ms Tao did not know at the time that the functionality was available;[25]
(d) these events occurred during the pandemic when alterations to business systems would have been harder to organise;[26] and
(e) the relevant part of the business was losing money so that concentration of effort on one such issue would have led to further loss.[27]
[25]Tribunal’s Decision, [117].
[26]Tribunal’s Decision, [117].
[27]Tribunal’s Decision, [117].
As such, when read as a whole and construed fairly without an eye keenly attuned to error, the Tribunal’s Decision discloses that the Tribunal embarked on the correct course of enquiry: it determined whether the evidence led by the respondent satisfied it as to whether the respondent’s practice was reasonable in light of the respondent’s evidence as to whether a reasonable adjustment could be made.
I am not prepared to find error merely because of a slight derogation from an exact wording of s 9(3)(e) in a particular and singular phrase. The Senior Member’s choice of words, that she was ‘not satisfied’ that ‘a reasonable adjustment … was possible’, is understandable given the factor in s 9(3)(e) directed her to consider whether reasonable adjustments could be made. It does not, in substance, disclose a reversal of the onus of proof. The argument advanced by the applicant is one of semantics rather than substance.
Accordingly, I find that the first question is not made out.
Was it open to the Tribunal on the evidence before it to conclude that it was not possible for the respondent to make a reasonable adjustment to its practice?
The applicant further contends that the Tribunal erred in finding that it was not possible for the respondent to make a reasonable adjustment as there was no evidence to support it. In particular, the applicant contends that there was no evidence to support the following specific evidential findings at [117] of the Tribunal’s Decision:
(a) the reasonable adjustment was not possible;
(b) the relevant events occurred during the pandemic when alterations to business systems (such as the reasonable adjustment) would have been harder to organise; and
(c) the relevant part of the business was losing money, and concentration of effort on the reasonable adjustment would have led to further loss.
I record at the outset that this Court’s task on review is not one which empowers it to substitute the Tribunal’s factual findings with the Court’s own view of the evidence. That would be to stray into an impermissible merits review.[28]
[28]Hoskin v Greater Bendigo City Council (2015) 48 VR 715, 720 [10]; Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 59 [44].
The VCAT Act gives the Tribunal broad scope to determine matters of fact. Subject to the rules of natural justice, the rules of evidence do not apply at the Tribunal and the Tribunal can inform itself any way it deems fit.[29]
[29]VCAT Act s 98(1).
In order to succeed on this ground of review, the applicant must show that there is ‘no evidence’ from which the Tribunal could have drawn these findings. His Honour Justice Croft summarises the applicable principles of this ground of review in the recent decision of The Trust Company Limited v Blue Train Cafe Pty Ltd [2024] VSC 232 at [60]:
Whether there was no evidence to support the Tribunal’s factual finding … is a question of law.[30] It must be shown that the Tribunal made a finding that was ‘simply not open to it’, usually requiring a finding that ‘there was no evidence on the basis of which the Tribunal could reach that finding, not that there was some evidence tending to a different conclusion.’[31] A finding of fact by the Tribunal cannot be challenged on the ‘no evidence’ ground where there was some evidence to support it. Nor can a finding of fact be challenged by this Court simply because it forms the view that the finding was made in error or against the weight of the evidence.[32] The question is whether there was any, rather than sufficient, evidence for the Tribunal to arrive at a factual finding.[33] This question is to be determined by reference to the evidence and inferences most favourable to the Respondent.[34]
[30]Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418 [91]; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 260 CLR 1, 10 [33].
[31]Tanah Merah Vic Pty Ltd v Owners’ Corporation No 1 of PS631436T [2021] VSCA 72; Miller v Martin [2021] VSCA 108, [72].
[32]Director of Liquor Licensing v Kordister Pty Ltd [2011] VSC 207, [248]; Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, 185–6 [21]; Kyriackou v Law Institute of Victoria Ltd (2014) 45 VR 540, 544 [14]; Higgins Nine Group Pty Ltd v Ladro Greville St Pty Ltd [2016] VSC 244, [28], [31]; Turkey v Mackie Pty Ltd [2019] VSC 103, [22]; Tanah Merah Vic Pty Ltd v Owners’ Corporation No 1 of PS631436T [2021] VSCA 72, [198]; Weber v Carkeek [2020] VSC 366, [69].
[33]Ferris v Victoria [2018] VSCA 240, [5].
[34]Karakatsanis v Racing Victoria Ltd (2013) 42 VR 176, 186 [24].
The foregoing passage makes it clear that the ‘no evidence’ ground of review is ‘narrowly available’.[35] Indeed, the ground is one which ‘rarely succeed[s], especially in relation to a tribunal like VCAT, which, unlike a court, is not bound by the rules of evidence.’[36]
[35]Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48, 58 [37].
[36]Jetstar Airways Pty Ltd v Free (2008) 30 VAR 295, 345 [141].
Finding 1: A reasonable adjustment was not possible
The applicant contends that the only answer that was reasonably open on the evidence before the Tribunal was that Ironfish failed to satisfy the burden of proving that a reasonable adjustment was not possible. The applicant submitted that the only apparent basis for the Tribunal’s finding in [117] is that Ms Tao, Ironfish’s managing director and its only witness, ‘did not know’ that the functionality was available before she looked into it in May 2022.
I disagree. A ‘no evidence’ ground of review is not a question of whether a finding was reasonably open or whether the evidence is sufficient. The question is whether there was any evidence for the Tribunal to arrive at a factual finding.[37] Further, it is incorrect to say that Ms Tao’s evidence that she ‘did not know’ of the functionality was the only evidence relied on by the Senior Member.
[37]The Trust Company Limited v Blue Train Cafe Pty Ltd [2024] VSC 232, [60].
The factor in s 9(3)(e) required the Tribunal to consider whether an adjustment was both reasonable and could be made. The applicant’s submission imports an overly narrow, technical notion of what is possible onto the text in s 9(3)(e) and relies on hindsight to prove its point. In my view, through the use of the words ‘reasonable’ and ‘could be made’, the legislation is importing notions of both literal possibility, as well as the sense of an adjustment being reasonably possible in light of the circumstances, which includes the subjective knowledge and means of a respondent.
The process of statutory interpretation begins and ends with the text of the relevant statute. The primary object is to construe s 9(3)(e) so that its legal meaning is consistent with the language used and the legislative purpose of the statute.[38]
[38]Owners Corporation OC1‑POS539033E v Black (2018) 56 VR 1, 17 [54].
Turning to the language used, the Macquarie Dictionary defines ‘could’ to be the past tense of ‘can’. ‘Can’ is defined to include ‘to know how to’, ‘to be able to’ and to ‘have the strength, means, authority to’. ‘Reasonable’ is defined to include ‘endowed with reason.’ ‘Reason’ is defined to include ‘a statement in justification or explanation of belief or action’ and ‘sound judgement or good sense’.
In my view, the plain meaning of the words used in the legislation demonstrate that the Senior Member was correct in directing her enquiry to include not just the literal, technical possibility that the mechanism existed, but also to whether Ironfish was aware that the mechanism existed at the time the time of the conduct and, if so, whether there was anything inhibiting its ability to discover it. Such an interpretation is consistent with the open‑texture, multifactorial exercise prescribed by s 9(3) which directs the Tribunal Member to determine whether the practice was reasonable, depending on all the relevant circumstances of the case.
While I am mindful that the EO Act should generally be interpreted to give the widest possible effect to provisions that prohibit discrimination and promote equality, this is not a licence to strain the legislative language or disregard the balance struck between competing interests.[39] To interpret ‘reasonable’ and ‘could be made’ broadly is consistent with maintaining the balance between a complainant and respondent; it recognises that it may (depending on the circumstances) be unduly burdensome to require an adjustment be made where a respondent does not know how.
[39]Owners Corporation OC1‑POS539033E v Black (2018) 56 VR 1, 18 [57] citing Waters v Public Transport Corp (1991) 173 CLR 349, 372; Commonwealth v Human Rights and Equal Opportunity Commission (1998) 76 FCR 513, 520–1.
Indeed, Ms Tao’s evidence that she was unaware of the specific solution was only one of a number of pieces of evidence on which the Tribunal relied. That evidence is set out at [115]–[117] of the Tribunal’s Decision and is described at [51] above. It is clear that on a reading of [117] in context, it was the combination of Ironfish’s lack of awareness of a solution in addition to human resourcing and economic constraints in the context of the COVID‑19 pandemic that (collectively) led the Senior Member to the finding that she was ‘not satisfied’ that a ‘reasonable adjustment … was possible’. These are all relevant matters to be considered as part of the enquiry under s 9(3)(e) and are probative to the question of whether the proposed adjustment was reasonable and could be made at the time.
While reasonable minds might differ on the effect or persuasiveness of the evidence, the question before me is whether there was any (rather than sufficient) evidence for the Tribunal to arrive at its factual finding.[40] Having determined that the Senior Member’s course of enquiry in making her finding was correct and having determined there were multiple pieces of evidence which supported her finding, I am not satisfied that this ground is made out.
[40]Ferris v Victoria [2018] VSCA 240, [5].
Finding 2: The pandemic made the reasonable adjustment harder to organise
Secondly, the applicant referred me to the part of [117] where the Tribunal states ‘[f]urther, these events occurred during the pandemic when alterations to business systems would have been harder to organise.’
The applicant contends that this finding was not reasonably open on the evidence: first, the applicant contends that the finding was not open because VVR’s initial request to have her name used in email correspondence came four months before the pandemic and, as such, there was no basis for finding that ‘these events occurred during the pandemic’. I agree that the reference to the timeframe being prior to the accepted commencement of the pandemic in early 2020 is partially correct. However, the complaint relates to a course of conduct which spans a very short period beforehand and through the commencement of the pandemic. That is a sufficient basis for describing the events as occurring ‘during’ the COVID‑19 pandemic.
Second, the applicant contends that there was no evidence to support the finding that the adjustment required an alteration to business systems or that it required organisation. I disagree that this is a valid basis to impeach the finding. The question of whether there was evidence for the Senior Member’s finding that ‘during the pandemic when alterations to business systems would have been harder to organise’ is different to the question raised by the applicant of whether ‘the adjustment required an alteration to business systems or required organisation’. These are different propositions. The former concerns the fact as found by the Senior Member. The latter concerns the sufficiency of that fact in establishing her ultimate finding (that she was not satisfied a reasonable adjustment could be made). To substitute the Senior Member’s finding with my own finding based on the sufficiency of the evidence would be to stray into an impermissible merits review.
Third, the applicant argues that even if organisation was required, Ms Tao gave no evidence that Ironfish’s operations were impacted in such a way as to make that organisation more difficult and that the only evidence Ms Tao gave regarding the pandemic was that it caused Ironfish to suffer significant loss.[41] I disagree. Ms Tao’s evidence was that it was too costly and resource intensive to migrate to a different system and that during the COVID‑19 pandemic, when one third of property managers left the industry, property managers at Ironfish were required to hold two or three portfolios at times for months before they could find a replacement.[42] Ms Tao also gave evidence that there was a physical and mental strain on its employees due to the pandemic and that they needed to prioritise the needs other clients who were struggling financially and mentally during this time.[43] This is all evidence which is probative to the fact that the COVID‑19 pandemic made organisation more difficult for Ironfish.
[41]Transcript of Proceedings, VVR v Trustee for Ironfish Property Management Melbourne Unit Trust 73299113275 (Victorian Civil and Administrative Tribunal, H442/2021, Senior Member Steele, 17–18 October 2023), 60–70 (‘VCAT Transcript’).
[42]VCAT Transcript, 182.
[43]VCAT Transcript, 182–3.
Moreover, the Tribunal is entitled to inform itself as it sees fit[44] and it was entitled to draw the inference that the COVID‑19 pandemic would make organisation more difficult for a business, particularly in the Melbourne office, being the city of Australia most disrupted by outbreaks and lock‑down laws.
[44]VCAT Act s 98(1).
Finding 3: The reasonable adjustment would have led to further loss
Lastly, the applicant referred me to the following sentence at [117] of the Tribunal’s Reasons: ‘[t]he relevant part of the business was losing money so that concentration of effort on one such issue would have led to further loss’.
The applicant referred me to Ms Tao’s evidence that sending emails to a renter’s contact name did not require an alteration to the system but rather the use of an existing functionality in the system, and that she discovered this when she looked into it herself.[45]
[45]VCAT Transcript, 62–3.
The applicant’s submission was in summary that an easy solution was found in May 2022, it was thus possible to find and undertake that adjustment from December 2019 and, if it was possible, then it was possible and reasonable for it to have been done at an earlier time.
Hindsight provides a different perspective. In my view, the time at which the Tribunal must determine whether a reasonable adjustment could be made, is the time at which the conduct complained of was occurring. That it was found subsequently to be possible to reset the programming of the email addressee protocol is not the definitive answer to whether the adjustment was reasonable and could be made, taking into account all of the relevant circumstances of the case as required by the chapeaux of s 9(3). The evidence was that the business was running at a loss in respect of the NRAS housing,[46] that staff were spread thinly,[47] and that Ironfish was unaware of a solution at the time. While the functionality was ultimately found in May 2022, that does not necessarily mean it was available at the time of the conduct complained of. Moreover, the facts as found do provide support for the proposition that the search for a solution posed a risk of further financial loss by requiring the company to re‑direct its already strained resources. Again, while minds may differ as to the sufficiency of the evidence, this is not a case of no evidence.
[46]Tribunal’s Decision, [106].
[47]VCAT Transcript, 181–3.
Consequently, I find that question 2 is not made out.
Was it open to the Tribunal on the evidence before it to conclude that the respondent’s practice was reasonable?
The applicant contends that the Tribunal erred in finding that Ironfish’s practice was reasonable in circumstances where the Tribunal made the errors alleged under the first two questions of law.
Given I have found no error under these questions, I find that this third question is not made out.
I note for completeness that the Tribunal is required to consider all of the relevant circumstances of the case including the factors listed in s 9(3). This is a multifactorial exercise with a non‑exhaustive list and no weight prescribed for any factor. Even if I found legal error in respect of the Tribunal’s assessment of the factor in s 9(3)(e) (as is alleged by the applicant), it does not necessarily follow that the error was vitiating.
There were other factors that the Tribunal relied on to support its finding that Ironfish’s practice was reasonable, which included:
(a) VVR continued to use her deadname in the residential rental agreement, which was the fundamental document governing her relationship with the residential rental provider;[48]
(b) Ironfish was cautious to use the lease name in automated correspondence for proper record‑keeping and compliance with the Residential Tenancies Act 1997 (Vic) and the NRAS scheme;[49] and
(c) Ironfish was experiencing financial and human resourcing constraints which made it reasonable for it not to expend a high degree of time and cost solving the issue of the automated emails for one renter, particularly in relation to the part of the business receiving the NRAS subsidy which had been operating at a loss.[50]
[48]Tribunal’s Decision, [91]–[92], [120].
[49]Tribunal’s Decision, [93]–[103], [121].
[50]Tribunal’s Decision, [104]–[114].
Indeed, at [122] the Senior Member makes the following concluding remarks which demonstrate that in making her finding, she placed greater weight on factors not covered by s 9(3)(e):
Taking all these considerations into account, particularly that the applicant effectively sought that the respondent treat her as a person with two different names, that using an automated system was financially reasonable for the respondent and that after an initial hiccup all direct emails respectfully used the applicant’s current name, I consider the respondents [sic] practice of sending automated emails to the applicant in the name on her rental agreement was reasonable. It was not an ideal response, and the respondent has now improved its practice, but it was reasonable in all the circumstances.
CONCLUSION
I observe that the reasons furnished by the Tribunal are expressed in a thoughtful and empathetic manner befitting the sensitivity of the subject matter of the claim and sensitively recognising the subjective response of the applicant given her life’s journey and personal experience.
This application for review pursuant to s 148 of the VCAT Act, based as it must be on principles of judicial review, is not a merits review, nor a rehearing. I have found no error of law in the Tribunal’s approach or reasoning and unfortunately the appeal must fail.
ORDERS
In accordance with the above reasons, I will grant leave to appeal and refuse the appeal.
I will provide the parties with an opportunity to make submissions as to any application for costs.
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