Carroll v Department of Family and Community Services

NCAT Administrative and Equal Opportunity|2015-02-24|Before: Schmidt J

Introduction

The President of the Anti-Discrimination Board declined two complaints made by Mr Carroll against the Department of Family and Community Services. The complaints were declined as lacking in substance: Anti-Discrimination Act, 92(1)(a)(i). Mr Carroll is required to obtain leave from the Tribunal before the complaints can proceed. I have decided to refuse leave because it is not fair and just for the complaints to proceed in circumstances where they lack substance.

Principles for granting leave - whether "fair and just"

The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143. In that case Schmidt J:

emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights": [32];
found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint: [28];
concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted . . ." and went on to say, that: "Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates": [38].

Alleged conduct

The factual and legal parameters of the complaint are those set out in the President's report: Anti-Discrimination Act, s 93C and 94A. The President referred two complaints to the Tribunal, the first covering the period from 16 May 2011 to 12 September 2013 and the second from 15 October 2013 to 2 March 2014. The first complaint has two parts. The first part is a complaint of "aiding and abetting" in relation to alleged homosexual vilification by Sarah and Arif Tokdogan and Mr Akkbary. The second part is a complaint of homosexual discrimination in accommodation in relation to the alleged failure by the Department to act on a complaint of ongoing harassment by his neighbours, the Tokdogans (unit 24) and Mr Akkbary (unit 19). Because the two parts of the first complaint relate to separate provisions of the Anti-Discrimination Act, I have treated them as two separate complaints. The third complaint is a complaint of victimisation.
Mr Carroll is the only complainant despite the fact that he shares the property with Mr Benton who is the tenant of the unit. Mr Carroll is the approved additional occupant.

First complaint - aiding and abetting homosexual vilification

The heading to s 52 of the Anti-Discrimination Act is 'aiding and abetting etc'. Section 52 provides that: It is unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.
The effect of s 52 is that a person who contributes to an act of unlawful discrimination becomes jointly liable for the conduct. Rees, Lindsay and Rice refer to this kind of liability as "contributory liability": Australian Anti-Discrimination Law, (2nd ed 2014, The Federation Press) at 12.8.32. There are very few cases where contributory liability has been found. It has, on rare occasions, been applied to the actions of third parties such as unions (Horne v Press Clough Joint Venture (1994) EOC 92-556), employment agencies (Elliott v Nanda (2001) 11 FCR 240) and companies other than the employer (Molony v Golden Ponds Corporation Pty Ltd (1995) EOC 92-674).
The alleged acts of homosexual vilification to which the Department has allegedly contributed are that: 1. in June 2012 Sarah and Arif Tokdogan were talking in the stairwell to Mr Akkbary when they referred to Mr Carroll as a "faggot"; 2. on 17 July 2012, Sarah Tokdogan, in a conversation with Mr Akkbary, used the word "faggot" on three occasions and said to Mr Akkbary, referring to Mr Carroll, that "I will knock on your door if anything else occurs and you can come up to smash their face in"; 3. on 25 October 2012 Mr Carroll overheard Sarah Tokdogan speaking with Mr Akkbary and saying the word "poofter"; 4. on 8 December 2012 Arif Tokdogan stopped Mr Carroll outside his unit, swore at him, referred to him as a "fucking poofter" and slapped him on the right check saying "fuck you or I will fuck you up"; 5. in March 2013, Arif Tokdogan came to Mr Carroll's front door, hit the door and said "fucking poofters I will get you when you come outside near the stairs" and said he and his partner were "not real men"; and 6. Sarah Tokdogan deliberately banged her front door against Mr Carroll's front door in an attempt to scare him.
Before a person can be liable as a contributor, there must be a finding of an unlawful act by another person: Dixon v RNJ Sicame Pty Ltd [2002] NSWADT 154 at [42]. . No finding has been made that any of Mr Carroll's neighbours breached the homosexual vilification provisions of the Anti-Discrimination Act and those allegations are not part of this complaint. Separate complaints have been made against the neighbours for homosexual vilification.
A complaint against the Department of contributory liability cannot be substantiated unless a finding is made that the neighbours are liable for homosexual vilification. Because no such finding has been made, this complaint lacks substance and it is not fair or just for it to proceed.
If Mr Carroll wishes to continue with this complaint, the appropriate course is for him to apply for an amendment to the complaint of homosexual vilification against the neighbours to add a complaint of contributory liability against the Department. It is not appropriate for me to express a view as to the merits of such an application.

Second complaint - discrimination on the ground of homosexuality

The second complaint is that the Department discriminated against Mr Carroll on the ground of his homosexuality by failing to act on a complaint of ongoing harassment by Mr Akkbary and other neighbours. The conduct which Mr Carroll says the Department failed to address included: 1. calling Mr Carroll a "poofter", "faggot" and "dog"; 2. threatening to bash Mr Carroll; 3. writing "fuck off gays" on common property on three occasions; and 4. chasing Mr Carroll down the street with a piece of wood.
The Department's response to the allegations that they failed to act on the complaints about these matters was that all the complaints have been considered and investigated in accordance with policy. According to the Department, Mr Carroll has been interviewed more than once and information has been sought from the NSW Police Force. The Department was not satisfied on the basis of those inquiries that there had been any breach by Mr Carroll's neighbours of the tenancy agreement. The Department also asserted that offers have been made to transfer both sets of neighbours and Mr Carroll but no-one has accepted those offers. The Department says that it has discussed the option of participating in a mediation with the Community Justice Centre but Ms Tokdogan has declined that offer.
Mr Carroll disputes these claims.
We understand Mr Carroll's complaint to be a complaint of direct homosexuality discrimination in the provision of accommodation. The word "accommodation" is defined in s 4 to include "residential or business accommodation". I have assumed, for the purpose of these proceedings, that Mr Carroll would be able to prove that the Department has not investigated his complaints.
The Department does not deny that Mr Carroll is homosexual. Consequently, in order to substantiate the complaint, Mr Carroll would have to prove that: 1. the Department denied or limited his access to a benefit associated with accommodation or subjected him to any other detriment in relation to that accommodation; (s 49ZQ(2)(a) or (b); 2. that that treatment was less favourable treatment than that which would have been afforded to a person who was not homosexual in the same circumstances or in circumstances which are not materially different; s 49ZG(1)(a); and 3. that a reason for the treatment was Mr Carroll's homosexuality: s 49ZG(1)(a) and s 4A.
In this case the so-called benefit which has been denied or the detriment to which he has been subjected is the failure to investigate his complaints about the neighbours. The benefit or detriment must be associated with the accommodation.
There is a tenancy agreement between the Department and Mr Benton. Mr Carroll is not a tenant. He is an "approved additional occupant". The right to "quiet enjoyment" is one of the rights conferred on the tenant under a residential tenancy agreement. A landlord has a duty to take all reasonable action to preserve the tenant's quiet enjoyment: Aussie Traveller Pty Ltd v Marklea Pty Ltd (1997) QConvR 54-485. While the right to quiet enjoyment and other rights under the tenancy agreement are arguably a benefit associated with Mr Carroll's occupancy of the property, it is not clear that Mr Carroll is entitled to a 'benefit' of having a complaint about a neighbour investigated or, conversely that he has been subjected to a detriment if it is not investigated.
Even if it was a relevant benefit or detriment it is unlikely to constitute discrimination on the ground of homosexuality. The two elements which must be proved to substantiate a complaint of direct discrimination are "differential treatment" and "causation": Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In relation to the differential treatment part of the test, there is no reference in the President's Report to a person who could serve as an actual comparator. The Tribunal would have to imagine a hypothetical person, who was not homosexual, and identify the circumstances to be taken into account when comparing how the Department treated Mr Carroll and how it would have treated such a hypothetical person.
In relation to the "causation' part of the test for direct discrimination, there is no direct evidence that Mr Carroll's homosexuality was a reason for the Department not investigating his complaints. As with the vast majority of complaints of discrimination, a causal link between Mr Carroll's homosexuality and the conduct of the Department would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: ". . . (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence."
There is a dispute as to the facts. The Department asserts that it has investigated the complaints. Assuming for the purposes of these proceedings that those complaints have not been investigated, there is no evidence from which it can be inferred that a reason for failing to do so is Mr Carroll's homosexuality. This part of the complaint lacks substance and it would not be fair or just for it to proceed.

Third complaint - victimisation

Mr Carroll alleges that after the Anti-Discrimination Board notified the Department about his complaint, it responded to complaints by Sarah Tokdogan on 8 November 2013 of smells coming from Mr Carroll's unit. According to Mr Carroll, staff visited him, accused Mr Benton of hoarding and threatened him with action in the Consumer and Commercial Division of NCAT.
The Department's response to this complaint was that Ms Tokdogan complained of an unpleasant odour coming from Mr Carroll's unit. It is a requirement of Mr Benton's tenancy agreement that the property be maintained to a reasonable standard and that he does not engage in or allow hoarding on the premises.
Mr Carroll would bear the onus of proving a breach of s 50: (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.
In summary, to prove victimisation Mr Carroll would have to prove that: 1. he did one or more of the things listed in (a) - (d): (the trigger); 2. the Department subjected him to a detriment; and 3. the detriment was on the ground that Mr Carroll did one of the things listed in (a) - (d): (causation).
There is no dispute that Mr Carroll lodged a complaint with the Anti-Discrimination Board on 12 September 2013. The "detriment" on Mr Carroll's version of events, is that staff visited him and threatened him with proceedings for breaching the tenancy agreement if he did not clean up his unit. One difficulty with this submission, as with that relating to discrimination, is that Mr Carroll is not the tenant. Any proceedings would be brought against Mr Benton, not Mr Carroll. It may not be a detriment to Mr Carroll that the Department visited the unit and told Mr Benton to clean up.
If that conclusion is incorrect, and the Department's actions can be characterised as a detriment to Mr Carroll, the Tribunal would have to determine whether that detriment was 'on the ground' that Mr Carroll lodged a complaint of discrimination.
The Anti-Discrimination Board notified the Department of Mr Carroll's first complaint by letter dated 15 October 2013. On 3 October 2013, 12 days before the Anti-Discrimination Board wrote to the Department, Mr Carroll sent to the Board a copy of a letter he wrote to the Department. In that letter Mr Carroll writes that: ". . As you listened to unit 24 when she complained about us with our unit smelling (which it did not you realised when you came out) and you went on about hoarding problems as we did feel you did not listen to our complaints we addressed about units 19 and 24."
It is apparent from this letter that the Department had responded to complaints from the occupants of unit 24 and had visited Mr Benton and Mr Carroll even before the Department was aware that Mr Carroll had lodged a complaint. That fact will make it extremely difficult for Mr Carroll to prove that a reason the Department visited him following further complaints from the neighbours was that Mr Carroll had lodged a complaint of discrimination.
For these reasons the complaint lacks substance and it is not fair or just for it to proceed. 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: 23 April 2015

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