Betty Dong v Strata Committee for Strata Plan 9859

Statutory framework for seeking leave Section 92 of the Anti-Discrimination Act 1977 (referred to here as 'the Act') provides (relevantly) that: 92 President may decline complaint during investigation (1) If at any stage of the President's investigation of a complaint-- (a) the President is satisfied that-- (i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance…… the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.

1. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is "not reasonably arguable": Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22]. The Tribunal is obliged to consider the complainant's evidence at its highest.
2. Having received the declination and reasons for it, on 11 March 2021 the complainant sought that his matter be referred to the Tribunal under s93A of the Act.
3. Section 96 of the Act provides that a complaint referred pursuant to section 93A is not permitted to proceed without the leave of the Tribunal.
4. The Tribunal has considered whether, whether the Tribunal should permit leave for the complainant to proceed with the claim.
5. Section 96(1) of the Anti-Discrimination Act 1977 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors [2009] NSWSC 143 at para 25. 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 & Anor v Ekermawi [2009] NSWCA 388 at 57 and Ekermawi v ADT & Ors [2009] NSWSC 143 at [32].
6. The question of leave involves evaluating whether it is fair or just to grant or refuse leave in the particular circumstances of the case. Again, again those two cases Jones & Anor v Ekermawi [2009] NSWCA 388 at 58; Ekermawi v ADT & Ors [2009] NSWSC 143 are cited in support of that proposition.
7. In deciding whether or not 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, and as stated in Jones v Ekermawi [2009] NSWCA 388 at [60].

What would the applicant have to prove if the claim were permitted to proceed?

Racial discrimination in provision of goods and services

1. Section 7 of the Act makes it unlawful to discriminate against a person on the grounds of race. It provides that:

7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator-- a) on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or ... (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race. 2. In relation to racial discrimination in the provision of goods and services, Section 19 of the Act provides that:

19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race-- (a) by refusing to provide the person with those goods or services, or (b) in the terms on which the other person is provided with those goods or services.

What is required in order to establish discrimination? 3. In order to establish a claim of discrimination, the applicant needs to establish that at least one of the reasons he was treated less favourably than others in the same or similar position (sometimes referred to as 'differential treatment') was "on the grounds of" his race (sometimes referred to as 'the causation question'). 4. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [60] - [65], the Tribunal discusses how the question of whether or not there has been "less favourable treatment" of the applicant "than others in the same or similar position" where the comparator is a hypothetical comparator, as it is in this case. This case is similar to Dutt in that, as stated in Dutt: "The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently." 5. The words "on the grounds of" have been paraphrased as "because of", "due to," "a real" reason, a "genuine" reason or "true reason" for the treatment alleged to have been discriminatory (Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28]). 6. A person may also experience indirect racial discrimination if a requirement operates differentially on a person of a different race. That will also constitute indirect racial discrimination. That was not alleged in this case. 7. The applicant bears the onus of proof that he was treated less favourably "on the grounds of", "because of" or "due" (at least in part) to his race (Hubbard v Roads and Traffic Authority of NSW [2010] NSW ADT 99 at [56]). 8. If there is no actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered (Dutt v Central Coast Area Health Service [2002] NSW ADT 133 at [59] - [65]; Commission of Corrective Services v Aldridge [2000] NSWADTAP5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].) 9. It is not the case that because a person is of a particular race and experiences something he or she perceives as "adverse" to him/herself, that the conduct is discriminatory simply because the person is of that race. The person needs to prove on the civil standard that the conduct impugned occurred "on the ground of", "due to" or "because of" the race of the person or that was one of the reasons for the conduct. To put it another way, the applicant is required to prove that a real reason, or the real reason, for the conduct impugned is the race of the person.

What if an allegedly discriminatory act is done for more than one reason? 10. Section 4A of the ADA provides that: If - (a) an act is done for 2 or more reasons, and (b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.

Victimisation 11. Section 50 of the Act provides as follows: (1) It is unlawful for a person ("the discriminator") to subject another person ("the person victimised") to any detriment in any circumstances on the ground that the person victimised has-- (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.

What is required in order to prove victimisation? 12. In Grass v Voyager Tennis Pty Ltd [2023] NSWCATAP 168, the Appeal Panel of NCAT considered what is required to prove victimisation and, at [32], cited Deputy President Hennessy ADCJ in Najmitdinov v Woolworths Group Ltd [2019] NSWCATAD 51 at [9], where she stated that: "There are three elements of s.50(1). First, the applicant must have been subjected to a detriment. Secondly, the applicant must have done one of the things listed in s.50(1)(a)-(d) or the discriminant knows or suspects that the person has done or intends to do any of those things. Thirdly, the detriment must be "on the ground" that the applicant has done, or intends to do, one of those things." 13. In Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [234 - [244], the Tribunal discussed what is required in order to prove victimisation as follows: 234 If an applicant has no direct evidence that their conduct under s50(1) was a ground for their being subjected to a detriment, they can rely only on inference. 235 The approach taken by this Tribunal to assessing evidence in victimisation complaints is set out in Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 at p 78,986 (see D -v- Berkeley Challenge and the decisions cited there at para 99). We see the steps as logically proceeding in this order: a Tribunal will ask whether an applicant did or was suspected of doing one of the acts in s50(1), and whether the respondent did anything which caused detriment to the applicant. If the answer to both is yes', the Tribunal will then ask whether there is a causal link between the two: did respondent do that thing on the ground that the applicant did or was suspected of doing one of the acts in s50(1)? "on the ground" 236 There is in our view an issue to be resolved as to how the term, "on the ground" should be read in s50(1). The approach taken by the Tribunal has been to ask whether the applicant's assertion of a right under the ADA was a real' or operative' ground (see D v Berkeley Challenge at para 103, and Sivananthan at para 40, both citing Clarke JA in Waterhouse v Bell (1991) 25 NSWLR 99, at pp 105-6). 237 In University of Ballarat v Bridges & Anor (1995) EOC 92-681 Justice Ormiston of the Victorian Supreme Court spent some time reviewing authorities and analysing the term "on the ground of" in relation to direct discrimination. He said at p78,175, that it is not sufficient merely to find a causal relationship between and alleged discriminatory' act and the ultimate act or decision which is claimed to constitute unlawful discrimination . . . ground' or reason' connote a basis which actuates or moves a person to decide a matter or to act in a particular way . . ." 238 His Honour quoted Deane and Gaudron JJ in Australian Iron and Steel Pty Ltd v Banovic [1989] HCA 56; (1989) 168 CLR 165 saying, at p 176: "Genuinely assigned reasons for an act may, in fact, mask the true basis for that act or decision" (Ormiston J's emphasis). 239 It seems that in describing the Tribunal's exercise as an inquiry to find a real' or operative' ground, or true basis, for conduct, the authorities do no more than emphasise the need for the applicant to identify a ground which has a direct causal link to the conduct: "a proximate bearing . . . a causally operative effect" (Street CJ in Director General of Education v Breen at page 75,429), and to distinguish the reason for conduct - the real' ground - from the intention or motive for the conduct: cf Browne-Wilkinson VC in James v Eastleigh Council cited by Ormiston J in University of Ballarat. 240 In summary, once a ground for conduct is identified, that ground is a real or operative ground, and the need to describe it as such can be seen as redundant. 241 A further issue is how, in the absence of s4A, to deal with a situation when there is more than one ground for the detriment. In Waterhouse, after discussing the need for the Tribunal to find "the real ground" for conduct (p106A-F), Clarke JA anticipated an occasion when the Tribunal "decides that there are two grounds for the action or decision one which does and one which does not fall within [the proscription of the ADA]". In that circumstance, he said, a contravention of the Act "will have been made out. That is because [the conduct] was accorded on the ground, amongst others, of [a proscribed consideration]". 242 His Honour accepted that each was an operative' and real' ground for the conduct, in that there was direct causal link, and that for a finding of a breach of the ADA it was sufficient that only one of the grounds was unlawful under the Act. This reasoning seems to result in very nearly if not the same effect as s4A. 243 We do not therefore, in this decision, ask whether Dr Dutt's allegation of race discrimination was a real' or operative' ground, but only whether it was a ground', for any detriment. 244The term `detriment' means "loss, damage or injury" to the applicant (Sivananthan v NSW Police Service [2001] NSWADT 44 at para 40; …..and that "the applicant has been placed under a disadvantage as to a matter of substance as distinct from a trivial matter" (Bogie v The University of Western Sydney EOC 92-313 (1990) at 78,146). We respectfully adopt that analysis.

Why did Anti-Discrimination NSW decline the Complaint?

1. The reasons set out in the Report of the President of Anti-Discrimination NSW for the declining of the complaint on 10 March 2021 pursuant to s 92(1)(a)(i) as "lacking in substance" are stated as follows: 1. The complainant has not established that she was subjected to any less favourable treatment by the respondent on the grounds of her race, or at all; 2. The complainant has not established that she has been denied a service or provided with a service on less favourable terms because of her race. 3. The respondent has established that it has taken positive action to understand the complainant's grievances and take remedial action.
2. On 11 March 2021 the complainant sought referral of his complaint to the NSW Civil and Administrative Tribunal.

Consideration of whether the complaint is lacking in substance.

1. Anti-Discrimination NSW has accepted the complaint for investigation as it relates to conduct between 1 January 2022 to 23 April 2023.
2. In hearing this application for leave to proceed with a complaint of racial discrimination and victimisation, the Tribunal has reviewed the report of the President of Anti-Discrimination NSW (referred to here as "the President's Report") which contains all of the written material from both parties that was before Anti-Discrimination NSW when it made its decision. It has also heard oral argument from each of the parties at the leave hearing.

Consideration

1. The Tribunal is not satisfied that the failure to vote onto the Strata Committee Ms Dong and one other owner of Asian background or another owner of South American or Latin American background, who Ms Dong claims is an 'associate' for the purposes of s7 of the Act, occurred on a racially discriminatory basis.
2. There is no evidence of that apart from the ethnic background of those owners that is alleged. That is not sufficient in itself to indicate that the reason, or a reason for the failure of those owners to be elected to the Strata Committee was due to or on the ground of their race.
3. This is so even though Ms Dong alleges a degree of canvassing on the part of some owners to secure proxy votes, which were exercised against herself, the one other Asian owner and the person alleged to be their "associate", of South American or Latin American background.
4. As to the repairs, the Strata Committee have demonstrated that they undertook repairs to Ms Dong's unit as well as to other units and they have a plausible explanation for different repairs taking different times.
5. The respondent claims that between August - December 2022, the Strata Committee "issued tens of work orders for minor repairs, got an engineer's report, made adjustments to roof repairs and issued a by-law violation notice in an effort to eliminate Ms Dong's noise issue in her apartment." The applicant does not dispute that. They state further that "As no source of the noise that she complained about could be identified by the engineer, or the three plumbers we had engaged to investigate, nor had any other tenant or owner complained" the strata could not justify further expenditure of funds without all owners' approval. "Instead Ms Dong broke off communication and proceeded with NCAT case #1".
6. The Tribunal is not satisfied that there is a racially-based or racially discriminatory response to requests for repairs on the basis of a few examples selected by Ms Dong to support her argument to the contrary.
7. Nor has Ms Dong shown that she has prospects of establishing that she has been treated less favourably than others in relation to repairs due to, or because of her race, or that her race was one of the reasons for the responses she received.
8. The Strata Committee has acknowledged that the notice of breach of by-law that Ms Dong received was issued in error, as no warning letter had been issued beforehand.
9. In relation to the claim of victimisation, in Najmitdinov v Woolworths Group Ltd [2019] NSWCATAD 51 at [9], set out above, (then) Deputy President Hennessy set out in summary what a complainant needs to prove to establish the claim. In this case, the applicant has had substantial investigations of complaints she has raised about noise to her unit and significant investigations have been undertaken.
10. The Tribunal is not satisfied that she has suffered a detriment for making a claim of discrimination or that any detriment was "on the ground of" or "due to her making a claim of discrimination.
11. There appears to be conflict between the applicant and the Strata Committee or members of it, and conflict between the applicant and other lot owners, but the conflict or conflicts are in relation to issues of management of the block rather than race discrimination in the provision of goods and services, as alleged.
12. The applicant, Mr Jack and Mr Thornton on behalf of the respondent, all state that their health has been adversely affected by the conflict that these issues have generated. The question for the Tribunal though is whether or not it would be fair and just, and therefore appropriate, to grant leave to proceed with this complaint.
13. For the reasons set out above, the Tribunal finds that it would not be fair or just to permit this claim to proceed in the Tribunal. Leave to proceed with the complaint in the Tribunal is accordingly refused.

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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2023