Complainant's final reply submissions 25 February 2025.

Pursuant to s 99(1) of the Anti-Discrimination Act 1998 the complainant's complaint against the respondent is dismissed.

Inquiry - Direct discrimination - Indirect discrimination - Prohibited conduct - Disability.

Anti-Discrimination Act 1998; ss 3, 14, 15, 16(k), 17(1), 22(1)(d), 63, 78, 79, 89,99, 104.

Anti-Discrimination Commissioner v White [2024] TASSC 26;

Briginshaw v Briginshaw (1938) CLR 336; [1938] HCA 34;

Garity v Commonwealth Bank of Australia [1999] HREOECA 2;

State of Tasmania v Anti-Discrimination Commissioner [2022] TASSC 20;

Cain v Australian Red Cross Society [2009] TASADT 3;

Durston v Anti-Discrimination Tribunal No. 2 [2018] TASSC 48;

Summers v Department of Education [2019] TASADT 8;

Makkar v Australian Dispatch Company Pty Ltd [2022] TASADT 9;

Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349;

Lindisfarne R & SLA Sub-Branch and Citizen's Club Inc & Anor v Buchanan [2004] TASSC 73;

White v Department of Police, Fire and Emergency Management [2022] TASCAT 126;

Cui v State of Tasmania (Department of Primary Industries, Parks and Environment) [2019] TASADT 2; Drummond v Telstra Corporation Limited [2008] VCAT 2630;

Evershed v The City of Geraldton (1995) EOC 92-745;

Kelly v Pensalfini [2019] TASSC 2;

Costello v Tasmania Police [2012] TASADT 9.

1. On 17 May 2023 the complainant lodged a complaint with the Office of the Anti-Discrimination Commissioner (ADC) alleging that he had been discriminated against by the respondent during his tenancy at an independent living unit operated by the respondent at 22 Hoblers Bridge Road in Newstead (the respondent's premises).
2. The ADC accepted the complainant's complaint for investigation and on 10 January 2024 referred the complainant's complaint to the Tasmanian Civil and Administrative Tribunal (the Tribunal) pursuant to s 78 of the Anti-Discrimination Act 1998 (ADA).
3. In the referral report provided to the Tribunal, the ADC indicated that the complaint had been accepted because it disclosed possible:
   • indirect discrimination (s 15 ADA);
   • conduct that was offensive, humiliating, intimidating, insulting or ridiculing of the complainant (s 17 ADA).
4. The prescribed attribute was indicated as disability (ss 3 and 16(k) ADA) and the relevant area of activity as accommodation (s 22(1)(d) ADA).
5. These are my reasons for my decision to find the complaint unsubstantiated, and that it should be dismissed.

1. The complainant is a man living with a number of significant disabilities including spinal stenosis, spinal cord narrowing, a major depressive disorder, and complex post-traumatic stress disorder.
2. Since 2018 he has required the use of a motorised wheelchair to move around as consequence of these disabilities.
3. On or about 20 December 2020 the complainant, pursuant to a written lease agreement with the respondent, commenced occupation in an independent living unit at the respondent's premises.
4. The complainant moved out of this unit on the 13 May 2023, lodging his complaint with the ADC on 17 May 2023.
5. The complainant's allegations against the respondent covered the 12month period prior to 17 May 2023 as required by s 63 of the ADA.

1. Between 10 January 2024 when the complaint was first referred to the Tribunal by the ADC for inquiry, and the commencement of the inquiry hearing on 15 October 2024, a number of pre-hearing directions conferences occurred readying the inquiry for hearing.
2. The hearing occurred on 15, 16 and 17 October 2024 and was finalised on 3 and 4 December 2024.
3. At the conclusion of the respondent's case on 4 December 2024 I reserved my decision, directing a timetable for the provision of written closing submissions from both the complainant and the respondent.
4. The complainant filed his written submissions on 28 January 2025 and the respondent on 18 February 2025. The complainant provided a final reply closing submissions on 25 February 2025.

1. The complainant gave his evidence in chief over Tuesday 15 and Wednesday 16 October 2024.
2. His outline of evidence and his additional outline of evidence provided pursuant to Tribunal directions prior to the hearing commencing was not tendered into evidence.
3. The complainant was recalled on the morning of 3 December to give evidence to clarify the temporal aspects and relevancy of a number of photographs and videos which were taken into evidence at that time.
4. The complainant's evidence in chief was lengthy and in some aspects not clear and somewhat confusing. I accept this may have had some cause in his disabilities, inexperience with giving evidence and the effluxion of time since the occurrence of many matters he asserted were relevant. At certain times during his cross examination he became argumentative and somewhat aggressive when pressed.
5. My overall impression of him was that he was a rather unsatisfactory witness and his evidence required close scrutiny and where possible, objective corroboration.
6. Mr Green for the respondents extensively cross-examined the complainant about how he became aware of the availability of the respondent's premises for him to reside in prior to him actually commencing a tenancy in a residential unit with the respondents. It was clear that this line of questioning was directed at the complainant's credit rather than any significant factual matters relating to his allegations of discriminatory conduct.
7. It was however clear that the complainant's admission for tenancy form which he completed on 24 November 2020 for his tenancy with the respondent that he became aware of the respondent's facilities by virtue of "his family".
8. I was also not impressed with the complainant's evidence regarding the involvement of his brother Brett Charlton, both in December 2020 (particularly Brett Charlton's involvement in a significant meeting on 22 October 2020), and in his dealings with the respondents after the complainant had commenced his tenancy at the respondent's premises.
9. It was clear on the evidence that Brett Charlton had a much more significant involvement in the complainant's decision to take up his residential tenancy with the respondent than the complainant was prepared to concede.
10. It was also clear during the complainant's evidence that he had undertaken two inspections of the respondent's premises before he formally moved in in late December 2020, these occurring on 27 November and 7 December 2020. Neither were brief and provided him with a full understanding of what he was to expect when he moved into the respondent's premises.
11. The complainant was extensively cross-examined about all of the matters he asserted to be the conduct of the respondent which he purported showed a course of conduct which amounted to discriminatory conduct.
12. I will not detail these matters here. My factual findings about these matters where relevant, are detailed later in this decision.

1. Dr Gardner, the complainant's regular GP, gave evidence by video on the morning of 17 October. His report of 17 June 2024 was tendered into evidence.
2. Dr Gardner gave evidence with regard to his report, summarising the complainant's medical conditions and the treatments for them. He also gave evidence in relation to the complainant's falls which had occurred whilst the complainant was resident at the respondent's premises. Although Dr Gardner's evidence assisted with clarifying the nature and extent of the complainant's disabilities, he was not able to assist significantly with the corroboration of the complainant's assertions concerning the dates of falls within the relevant 12month period. As a consequence of subsequent clarification of veterinary evidence relating to the veterinary treatment of the complainant's assistance dog Bess, and its relevancy to Dr Gardner's evidence about stressors in the complainant's life (this being an incident where Bess was allegedly deliberately fed lamb bones), it became clear that this had occurred in the first quarter of 2022 and not 2021. Either period was outside the 12 months preceding the date of the complaint.
3. Although Dr Gardner was confused about the timing of his attendance at a meeting relating to the complainant taking up a residential tenancy agreement with the respondent, it was apparent that he had done so to assist the complainant in determining whether the respondent's premises would be a suitable place for the complainant to move into.
4. In cross examination Dr Gardner confirmed he had no records relating to the complainant reporting to him that he had suffered injuries from a fall or had had a fall on 7 May 2023.

1. Ms Duggan, the complainant's carer for three years through her employment with OneCare, gave evidence on the morning of 17 October 2024. An outline of evidence dated 17 May 2024 was tendered into evidence. After a brief examination in chief, she was cross-examined.
2. It was apparent from her evidence that she had no dealings with the complainant subsequent to 18 January 2022. As a consequence, all of her evidence predated the 12 month period for discriminatory conduct provided by the ADA.
3. It was clear that Ms Duggan was very supportive of the complainant given their three year close relationship.
4. Due to her answer during cross-examination that she was on medication which made her forgetful, I do not give her evidence significant weight in the context of how her evidence can be utilised in this hearing as stated subsequently in this decision.

1. Ms Maddigan, the complainant's cleaner for three hours per week whilst he was in residence at the respondent's premises during her employment with Absolute Domestic, gave evidence on the afternoon of 3 December 2024. Her outline of evidence dated 19 August 2024 was tendered into evidence.
2. After a brief examination in chief, Ms Maddigan was subjected to significant cross examination by Mr Green.
3. For the reasons set out subsequently in this decision, I found Ms Maddigan's evidence, although to the best of her recollection, to lack credibility and cogency.

Other documentary evidence tendered by the complainant

1. Other documentary evidence was tendered by the complainant without objection from the respondent.
2. I have considered all of this evidence in this decision, and comment on it where relevant, subsequently in this decision.

1. Mr Thomas, the respondent's Chief Executive Officer (CEO), replacing former CEO Mr John Gilpin in November 2021, gave evidence on the afternoon of 3 December 2024 and the morning of 4 December 2024.
2. His outline of evidence dated 19 April 2024 was tendered into evidence and he was questioned further in relation to this by Mr Green.
3. During his evidence, I found Mr Thomas to be a credible witness. His answers were forthright and he was not shaken during an extensive cross-examination by Mr Smith, counsel for the complainant.
4. Where Mr Thomas' evidence is contradicted by other evidence, I prefer the evidence of Mr Thomas.

1. Mr Gower, the respondent's current Chief Financial Officer (CFO), and previously it's Corporate Services Manager and Executive Director of Disability Services, gave evidence on the morning of 4 December 2024. His outline of evidence dated 9 September 2024 was tendered into evidence.
2. Mr Gower's evidence was clear and concise, especially concerning his advice to the complainant of the need to provide reports relating to maintenance of his unit via the respondent's maintenance reporting system. On Mr Gower's evidence, this was especially so for the complainant who had the habit of making maintenance issue reports to various staff, including him, rather than going through the appropriate channels to enable such maintenance requirements to be recorded and actioned.

1. Mr Butt, the respondent's Asset Supervisor during the period of the complainant's residency at the respondent's premises, gave evidence on 4 December 2024. His outline of evidence dated 10 September 2024 was tendered into evidence.
2. After clarification of relevant matters during further examination in chief, Mr Butt was extensively cross-examined by the complainant's counsel.
3. Having observed Mr Butt and considered his evidence, I find Mr Butt to be a credible witness, him not having being shaken in an extensive cross-examination by the complainant's counsel.

1. Mr Ponting, the respondent's Information and Communication Technology Manager, gave evidence on 4 December 2024. His outline of evidence dated 19 April 2024 was tendered into evidence.
2. After examination in chief by the respondent's counsel, Mr Ponting was cross-examined by the complainant's counsel, particularly in relation to issues relating to the Alexa system within the complainant's unit at the respondent's premises.
3. Mr Ponting was not shaken in this cross-examination and I find his evidence to be both cogent and credible.

Other documentary evidence tendered by the respondent

1. Other documentary evidence was tendered by the respondent without objection from the complainant.
2. I have considered all of this evidence in this decision, and comment on it where relevant, subsequently in this decision.

1. The parties have agreed the following facts, and I so find:

(i) Disability as defined in s 3 of the ADA is a prescribed attribute pursuant to s 16(k) of the ADA.

(ii) The complainant has a disability as defined in s 3 of the ADA.

(iii) The respondent provided accommodation to the complainant pursuant to s 22(1)(d).

1. On the evidence before me I find the following facts:

(i) At relevant times the respondent provided accommodation and other community services to Tasmanians living with intellectual and/or physical disabilities including:

(a) NDIS funded programs

(b) Respite accommodation

(c) Supported Independent Living (SIL)

(d) Independent living units

(e) Community access programs

(f) In house tenancy support

(g) Assistance with daily living

(h) Registered training (refer exhibit R06)

1. Since 2021, the respondent has received full accreditation under the National Disability Insurance Scheme (NDIS) which requires it to maintain an incident management system that complies with the requirements under the NDIS (Incident Management and Reportable Incidents) Rules 2018.
2. These requirements extend to all staff and impose an obligation on them to record and report all incidents and events involving anyone on the respondent's premises into its incident management system (IMS). Incident recording is an integral part of the success of the service delivery of the respondent.
3. The IMS has been in use at the respondent's premises since August 2022. It records incidents such as resident falls.
4. The respondent has been operating and providing accommodation services from the respondent's premises since 1973.
5. At the time of the complainant's residency at the respondent's premises there were 53 independent living units, 4 group homes, 1 respite centre and 1 transitional facility.
6. The last tranche of units was constructed in 2020 and accepted tenants in early December 2020. The complainant leased a new independent living unit from the respondent in this tranche of construction.
7. All of the units constructed on the Hoblers Bridge Road premises, being some 29 in total, were designed and constructed to the platinum design standards of the Liveable Housing Design Guide (Guidelines). These standards were developed in consultation with, and endorsed by, the Australian Human Rights Commission, National People with Disabilities and Carers Council, and the Office of the Disability Council of New South Wales.
8. The units were marketed as fully disability compliant and are built to the respective building codes/standards. The units also meet the standards to be considered for registration as specialist disability accommodation under the NDIS.
9. Although highlighting there was a level of automation built in to some of the units, the respondent did not advertise the units as being 100% voice controlled. The media release and materials in evidence before me refer to "smart home" technology which can help improve the lives of people living with a disability. Nowhere does it make any claims that the units were 100% voice controlled, I find that no evidence in that regard was provided to the complainant at any time before he commenced occupation of his unit.
10. The complainant's brother, Brett Charlton, was involved with his decision-making to take up a residential tenancy agreement with the respondent. Despite the complainant's assertions that this was not the case, there was clear evidence that Brett Charlton was assisting the complainant in the period prior to him executing his residential tenancy agreement with the respondent and moving into the respondent's premises by 20 December 2020. There was also evidence that Brett Charlton had ongoing involvement on behalf of the complainant in the period after he took up his residency at the respondent's premises.
11. The complainant did inspect the premises before he moved into them on 27 November 2020 and again on 7 December 2020. I find he made a decision to take up a residential tenancy agreement with the respondent. He moved into those premises, exercising full and free personal decision making.

1. In the referral report pursuant to s 79 of the ADA, the ADC indicated she had decided to accept the complaint because it disclosed possible:

(i) indirect discrimination (s 15) on the basis of disability (s 16(k)) in connection with accommodation (s 22(1)(d));

(ii) conduct that is offensive, humiliating, intimidating, insulting or ridiculing of the complainant on the basis of disability (s 16(k)), in connection with accommodation (s 22(1)(d)), in breach of s 17(1) of the ADA.

1. On the authority of Anti-Discrimination Commissioner v White [2024] TASSC 26, a decision of Marshall AJ, it is not a requirement of the ADA for a complainant to explicitly identify the form of discrimination or prohibited conduct they allege to have experienced, nor the specific provisions of the ADA. That is a question for the Tribunal to determine based on the facts and evidence before it in the inquiry.
2. In the complainant's closing submissions, reference was made to direct discrimination as a basis of the complaint pursuant to s 14 of the ADA, again on the basis of the attribute of disability (s 16(k)) and in the area of activity of accommodation (s 22(1)(d)). In his closing submissions, the complainant has also stated that the evidence adduced during the inquiry can support a finding of direct discrimination pursuant to s 14 of the ADA.
3. I will return to matters relating to direct and indirect discrimination later in this decision.
4. It is also apparent from the complainant's closing submissions that he also alleges, by virtue of the respondent's alleged discriminatory behaviours, that there has been a breach by the respondent of s 104 of the ADA.

1. It has been a consistent approach of the Tribunal that the onus is upon the complainant to prove his allegations according to the civil standard of proof, that being on the balance of probability.
2. In furtherance of this approach the Tribunal has followed the principles in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; where the High Court stated:

The seriousness of an allegation made, the inherent unlikelihood of occurrence of a given description, or the gravity of the consequence flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved...

Evidence of events occurring more than 12 months before the complaint

1. When considering this complaint, I am only permitted to consider the evidence submitted at the hearing. This includes the evidence from the witnesses who gave evidence, and the documents and other exhibits which were put into evidence.
2. During the course of the inquiry hearing, evidence was adduced which clearly related to events occurring before the 12month period prescribed in s 63(1) of the ADA.
3. On the authority of Garity v Commonwealth Bank of Australia [1999] HREOCA 2, a decision of the Honourable Robert Nettleford, cited with approval by Blow CJ in State of Tasmania v Anti-Discrimination Commissioner [2022] TASSC 20 at [34], I can take into account evidence relating to events/conduct prior to this 12 month period for evidentiary purposes, that is, circumstantial evidence that is potentially relevant to the allegations made by the complainant.
4. This was the entirety of Ms Duggan's evidence, and two of the several photographs and videos introduced into evidence by the complainant.

1. The ADA prohibits discrimination on the grounds of any prescribed attributes. A prescribed attribute is defined in s 3 of the ADA as an attribute specified in s 16 of the ADA.

1. With regard to the complainant's allegations of direct discrimination pursuant to s 14(2) of the ADA, it must be shown that a person has treated another person on the basis of any prescribed attribute or characteristic imputed to the attribute less favourably than a person without that attribute or characteristic.
2. In Cain v The Australian Red Cross Society [2009] TASADT 3 the former Tribunal held at [403], [405], [410], [437]-[440], and [442]-[446] that the terms of s 14 require the complainant to prove the following:

(i) that the true reason or genuine reason for the alleged discriminator's acts was on the basis that the complainant had one or more prescribed attributes under s 16 of the Act or a characteristic imputed to the attribute or attributes.

(j) that there was a different treatment of the complainant when compared with the treatment of a comparator, that is, a notional person similarly placed to the complainant, and in the like circumstances but without the prescribed attribute; and that the complainant has suffered a detriment, that is, a disadvantage that is real, a matter of substance, and not trivial.

1. The elements of indirect discrimination were also dealt with in Cain (supra), where at [56] and [57] the following was stated:

[56] The elements of indirect discrimination are set out in s15 in the following terms: > > (1) Indirect discrimination takes place if a person imposes a condition, requirement or practice which is unreasonable in the circumstances and has the effect of disadvantaging a member of a group of people who - > > (a) share, or are believed to share, a prescribed attribute; or > > (b) share, or are believed to share, any of the characteristics imputed to that attribute- > > more than a person who is not a member of that group. > > (2) For indirect discrimination to take place, it is not necessary that the person who discriminates is aware that the condition, requirement or practice disadvantages the group of people.' > > [57] The elements of s15 are as follows: > > 1. Imposition of 'condition, requirement or practice'.

2. The condition, requirement or practice is unreasonable in all the circumstances.

3. It has the effect of disadvantaging a complainant.

3. The complainant is disadvantaged as a member of a group of people who share or are believed to share a prescribed attribute more than a person who is not a member of that group.

Conduct that is offensive, humiliating, intimidating, insulting or ridiculing

1. Section 17(1) of the ADA relevantly provides:

17. Prohibition of certain conduct and sexual harassment > > (1) A person must not engage in any conduct which offends, humiliates, intimidates, insults or ridicules another person on the basis of an attribute referred to in section 16(e), (a), (b), (c), (d), (ea), (eb) and (k), (f), (fa), (g), (h), (i) or (j) in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated, intimidated, insulted or ridiculed.

2. In the decision of Brett J in Durstan v Anti-Discrimination Tribunal (No 2) [2018] TASSC 48 at [63] his Honour stated:

Section 17(1) is also a provision which prohibits conduct. By its terms, it is apparent that the provision has an extremely wide ambit of operation. Some aspects of this are as follows:

(a) The scope of conduct is unlimited. It encompasses "any conduct", which falls within the description contained in this section. However, the section will almost always be concerned with conduct that involves communication in one form or another. It follows that the section has the capacity to burden the implied freedom of restricting communications in a wide variety of circumstances.

(b) Read literally, the words "offends, humiliates, intimidates, insults or ridicules", are vague terms which have the potential to encompass a broad range of subjective emotions and feelings. The emotional response will vary from one person to another. However, judicial interpretation of the words "offend, insult, humiliate or intimidate", in respect of similar, but not identical provisions under s 18C of the Racial Discrimination Act 1975 (Commonwealth) suggest that the operation of the section is more restricted than the literal meaning of the words would suggest. In Eatock v Bolt [2011] FCA 1103, 197 FCR 261 Bromberg J endorsed judicial statements which require the conduct caught by s 18C to have "profound and serious effects and not to be likened to mere slights." Creek v. Carins Post Pty Ltd [2011] FCA 1107, 120 FCR 243 at [16] [Kiefel J]: Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16 at [70] (French J as he then was), Jones v Scully [2002] FCA 1080, 2002 (120 FCR 243 at 102 Healy J.)

1. Thus, applying the principles enunciated in Durstan (supra), as the operation of s 17 is more restricted than its literal meaning of the words set out therein, this requires the complaint of conduct to have profound and serious effects and not to be likened to mere slights.

104. Obligation of organisations > > (1) An organisation is to ensure that - > > (a) its members, officers, employees and agents are made aware of the discrimination and prohibited conduct to which this Act relates; and > > (b) the terms of an order made under section 89 relating to that organisation are brought to the notice of those of its members, officers, employees and agents whose duties are such that they may engage in conduct of the kind to which the order relates; and > > (c) no member, officer, employee or agent of the organisation engages in, repeats or continues such conduct. > > (2) An organisation is to take reasonable steps to ensure that no member, officer, employee or agent of the organisation engages in discrimination or prohibited conduct. > > (3) An organisation that does not comply with this section is liable for any contravention of this Act committed by any of its members, officers, employees and agents.

2. Section 104 of the ADA only becomes relevant in the event of a finding that the respondent has engaged in discrimination or prohibited conduct. If such a finding is made, the onus shifts to the respondent to prove that it has discharged its obligations to take reasonable steps and to ensure that its employees do not repeat the discrimination or prohibited conduct - see Summers v Department of Education [2019] TASADT 8; Makkar v Australian Dispatch Company Pty Ltd [2020] TASADT 9.

Direct discrimination v indirect discrimination

1. In Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349, which was applied in Tasmania in Lindisfarne R & SLA Sub-Branch and Citizen's Club Inc & Anor v Buchanan [2004] TASSC 73, it was held that direct and indirect discrimination are mutually exclusive forms of discrimination, that is, discrimination can be direct or indirect but not both.
2. Tribunal Member Smith in Martin White v Department of Police, Fire and Emergency Management [2022] TASCAT 126 at [84] made reference to the High Court decision in Waters (supra) and noted:

Within the Australian legal system, it is usual for anti-discrimination legislation to ban discriminatory practices in terms which deal separately with treatment which differentiates by reason of some irrelevant or impermissible consideration and with practices which, although not overtly differentiating on that basis, have the same or substantially the same effect.

3. Tribunal Member Smith also referenced the judgments of Justices Dawson and Toohey in the Waters (supra) as follows:

A distinction is often drawn between two forms of discrimination, namely "direct" or "disparate treatment" discrimination and "indirect" or "adverse impact" discrimination. Broadly speaking, direct discrimination occurs where one person is treated in a different manner (in a less favourable sense) from the manner in which another is or would be treated in comparable circumstances on the ground of some unacceptable consideration (such as sex or race). On the other hand, indirect discrimination occurs where one person appears to be treated just as another is or would be treated but the impact of such "equal" treatment is that the former is treated less favourably than the latter...The major difference is that in the case of direct discrimination the treatment is on its face less favourable, whereas in the case of indirect discrimination the treatment is on its face neutral but the impact of the treatment on one person when compared with another is less favourable.

4. In light of these authorities, and based on the complainant's submissions and the evidence before me, only direct discrimination has been considered by me in this decision.

1. Within the complainant's counsel's closing submissions, it is asserted that ten examples of conduct by the respondent demonstrate a course of action that constitutes prohibited conduct under the ADA, and that this conduct fell within four general categories.
2. Below are these ten examples of this conduct alleged by the complainant set out within the four general categories detailed above, and my findings in relation to each:

(a) Falls and the concerns/risk of falls from complainant's wheelchair due to the landscaping provided near and around the front of his accommodation.

(i) On or around 7 May numerous employees failed to provide decent and timely assistance to the complainant (including failing to help him up) shortly after he had fallen from his wheelchair on the stone area along the pathway near the front of his unit.

The complainant's evidence regarding the occurrence of this event lacked credibility, and I find on the balance of probability it is unlikely to have occurred as he has asserted.

• There is no corroborative evidence of this event such as CCTV footage.
• The complainant was inconsistent with his evidence regarding the number of respondent employees present at the time of this fall. In his statutory declaration he initially indicated there were six respondent employees but in his evidence during the hearing he indicated it was three.
• Respondent employment and other records tendered do not corroborate that three or six respondent employees could have been in the vicinity of him at the time he asserts he fell.
• These records also do not corroborate the complainant's assertions that there were managers working on that day.
• Given that the respondent is registered with the NDIS, it is inherently unlikely that if the complainant had fallen as asserted, respondent employees would not have assisted him because of his care status not being a responsibility of the respondent, nor that they would have failed to report this incident.
• There is also evidence that the complainant did not report this fall to Dr Gardner at his first dealings with him after 7 May 2023.

(ii) Repeatedly failed to make adjustments to the stone pathway area in front of his unit despite complaints being raised to them this was of concern and a danger to the complainant, and despite having knowledge he had fallen from his wheelchair on occasions. These falls caused injury to the complainant.

Considerable evidence was given by the complainant regarding the concrete pathways around his unit often having stones from surrounding gardens on them which made movement in his wheelchair difficult and, on occasions, causing him to fall from his wheelchair.

The respondent was aware of the complainant's concerns in this regard with there being clear evidence that the complainant was given permission to extend these paths at the front of his unit and on the clothesline side if he chose to do so and at his expense.

There was also evidence that the complainant's brother, Brett Charlton, had advised the respondent's former CEO Mr John Gilpin that he considered the pathways to be sufficient and that the complainant needed to adjust his manoeuvring on them.

It was also clearly recognised by the Residential Tenancy Commissioner that it was not a responsibility of the respondent to improve the complainant's property's condition after his tenancy commenced. Although the respondent did not make any adjustments to the areas sought by the complainant, there were ample opportunities offered to the complainant to resolve these issues for himself should he choose to do so. The evidence was that he had not done so before his departure from the respondent's premises around 13 May 2023.

(b) Communication from employees of the respondent to the complainant found to be offensive.

(iii) The employee or agent said to the complainant in a mocking and/or degrading tone that he hoped his assistance animal "does not die" as a result of him laying the soil down in front of his unit as he sprays the grass with potential hazardous chemicals because "it would be his fault".

• The complainant's evidence regarding this alleged conduct is not materially corroborated by any other evidence. Mr Butt gave evidence that whilst this work was being done, possibly by ex-employee gardener Mr Peter Barclay, Mr Barclay may have had a conversation with the complainant about the spray being used possibly affecting the complainant's assistance dog Bess but that the sprays used at the respondent's facility at that time were not toxic.
• Given the state of the evidence with regard to this issue, I am unable to make any formal finding that it occurred as alleged by the complainant.

(iv) The CEO communicated around late 2022 to Ms Sue Maddigan who in turn communicated to the complainant words to the effect that the complainant was dishonest about the extent of maintenance required in his unit. Whilst a different employee communicated to Ms Maddigan that the complainant was dishonest about serving in the defence forces.

This alleged conduct, on the evidence of Ms Maddigan, appears to have occurred on the same day as the issues relating to the kitchen sink dealt with under paragraph (d)(viii)(iii) on page 19.

On the evidence, it was not clear on precisely which day these events occurred, nor the precise reason for the tap in the kitchen of the complainant's unit coming free. There was some evidence from Mr Butt that the cause of the tap coming free was that it had been unscrewed.

Although there was evidence from Ms Maddigan that the tap had come free on a day when tradesmen were working on the front door of the complainant's premises, and although there was video footage in evidence of tradesmen working on the front door around 28 September 2022, as there was evidence of other work at the front door occurring on other specific occasions, I am not able to make a definitive finding as to precisely when this occurred. It was the complainant's evidence that this occurred around "late 2022".

With regard to the conduct alleged under paragraph (b)(iv), the complainant's case relating to this aspect hinges on the evidence of Ms Maddigan. For the following reasons, I find her evidence to be unreliable:

• Ms Maddigan gave evidence that she spoke to Mr Thomas about the tap issue at the respondent's office. In her outline of evidence she described the person she spoke to as a "short stocky fellow". She also said she mentioned that the complainant was a veteran.
• Under cross examination, Ms Maddigan conceded that she did not mention that the complainant was a veteran in her discussions with the person she spoke to in the office at this time. The complainant in his closing submissions has conceded this, and in any event, I make a finding that this discussion did not occur with Mr Thomas, him being of approximately 6ft 2in in height and on his own evidence, as his GP has described him, "morbidly obese". He is not a "short and stocky" man.
• Ms Maddigan was unable to identify the other respondent employee, a gardener who she alleges in her presence, and after seeing a photograph of the complainant in his unit, said to the complainant words to the effect "that's not you mate, no way is it you", which she overheard.
• This evidence contradicts the complainant's evidence that Ms Maddigan told him it was Mr Butt who had made these derogatory comments regarding the lack of belief in the complainant's veteran status. Mr Butt's evidence is that he made no such derogatory comments about the complainant, and his service in the Australian Armed Forces. It was Mr Butt's evidence that he in fact had enormous respect for defence force personnel, having strong family connections to defence force personnel.

(ix) Communicated disrespectfully towards the complainant because of his repeated requests for external efforts to address these issues, in the context of his disability.

(x) Overall by demonstrating a high handed and disrespectful attitude communicated towards the complainant over a sustained period. This attitude ultimately hastened the complainant's decision to terminate his accommodation with them.

With regard to (ix) and (x) above, although there was significant evidence of the complainant detailing with the respondent's personnel through the time of his residency at the respondent's premises, I am unable to find that any such conduct was, as described in the complainant's counsel's submissions "high handed and disrespectful, in the context of his disability".

(c) The respondent denying support for the Department of Veterans Affairs (DVA) to provide the complainant with an assistance dog at his accommodation.

(v) The respondent's CEO on or around 15 February 2023 dismissed a written request for DVA to provide assistance to the complaint in the form of an addition of assistance dog, without providing a legitimate reason or a justification as to why not, despite knowing it was intended to benefit him as a disabled person.

(vi) And/or the CEO dismissing this request because of a dislike of the complainant due to his complaints about his accommodation and requirements to support his disability rather than on merits.

This alleged conduct involved the complainant's assertion that Mr Thomas as the respondent's CEO dismissed a request from the complainant's rehabilitation provider for the respondent to provide assistance to the complainant with regard to a request for him to obtain another assistance dog from the DVA in mid-February 2023. The complainant's assertion is that this decision was made by Mr Thomas without legitimate reason nor justification knowing it was intended to benefit the complainant as a disabled person.

Further, or in the alternative, it was asserted that Mr Thomas dismissed this request because of a dislike of the complainant due to his complaints about his accommodation requirements to support his disability rather than on the merits.

Having considered the evidence in relation to this issue, I am unable to be satisfied that Mr Thomas' refusal to support the application occurred for any of the reasons asserted by the complainant.

There was clear evidence from Mr Thomas that after considering the request to complete a pro-forma letter detailing undertakings by the respondent concerning an additional assistance dog, he was unwilling to do so on behalf of himself and the respondent on the basis that he believed giving such undertakings fell outside his and the respondent's obligations to the complainant. He held these concerns that he and/or respondent staff would be unable to ensure the safety of any additional assistance dog for the complainant, in addition to his existing assistance dog Bess.

Although Mr Thomas' letter in response to the complainant's rehabilitation provider, which refused this request, was somewhat "curt", this decision was advised to that rehabilitation provider. On the evidence, I find it was not an unreasonable response given the respondent's relationship with the complainant.

(d) The respondent's communication and conduct regarding repair maintenance and suitability requests for his accommodation in the context of his disability.

(vii) Failed to provide and maintain specifically in assisting the complainant in the context of assisting him live with his disability, his accommodation by failing to have equipped a fully functional Alexa system as "full disability accessible voice controlled smart unit", despite communicating this feature to him prior to moving in.

Although the complainant has asserted making verbal and other formal requests regarding the operation of the Alexa system within his unit from shortly after he commenced occupation at the respondent's premises in late 2020, there is no direct corroborative evidence of this.

Because of the respondent's NDIS registration and the consequent requirements for it to keep significant record, on the evidence is more than likely that the complainant's first formal complaints about issues with the Alexa system occurred on 28 April 2022, and that this issue was from that time dealt with significantly by Mr Ponting.

There was significant evidence adduced about the cause of the problems at this time with the Alexa system, especially relating to the operation of the major controlling aspect of this system being what Mr Ponting described as "smart hub".

Mr Ponting gave evidence of there being clear efforts by someone to reset the smart hub by the insertion of a pen into the reset switch on the back of that unit. The evidence for this were clear pen marks in the reset switch.

Mr Ponting's evidence was that the effects of resetting the smart hub reset all of the smart hub's configurations meaning that none of the components could be communicated with via Alexa and that they would then stop working.

Mr Ponting's evidence was also that ethernet cables into the smart hub had been swapped around which also affected its functionality.

Mr Ponting's evidence was that although the Alexa system ceased working, the complainant would still have been able to operate motorised windows, door blinds and fans without the smart hubs by utilising their wall switches which were all installed pursuant to the guidelines.

There was indeed a long delay with effecting repair to the Alexa system within the complainant's unit. This was due to:

(i) The initial installing technician from ICL Tas having left Tasmania and moved interstate; and

(ii) Unsuccessful attempts to secure local technicians with requisite experience to effect the repairs to the Alexa system.

The evidence was that the respondent was finally able to secure a technician leading to the rectification of the Alexa systems functioning within the complainant's unit by 30 January 2023.

The evidence was also clear that during this long delay, the complainant with assistance from the Tenancy Union's legal service brought action before the Residential Tenancy Commissioner and subsequently the Magistrates Court of Tasmania.

Although it was the complainant's evidence that it was not him who was responsible for resetting the smart hub, nor moving the configuration of the ethernet cables, and that it was also the Residential Tenancy Commissioner's findings that he could not identify precisely who had done this, despite finding this was the likely cause for the issues with the Alexa system, on the available evidence it seems more probable than not that it was the complainant or people who had access to his unit, who caused the initial problems with the Alexa system.

Mr Ponting denied the complainant's counsel's assertions that it could have been his IT trainee who was responsible for resetting the smart hub by the use of the pen. I find it unlikely that this was the cause of that issue, noting that the complainant had reported problems to Mr Ponting before the site attendance on 28 April 2022, which was the day Mr Ponting and the IT trainee attended the complainant's unit for the first time.

(viii) Failed to address other issues with the suitability of the accommodation, specifically those related to his disability:

(i) Bathroom door - was too narrow, not installed properly so would swing out and was too heavy to reasonably open manually.

Significant evidence was led during the inquiry regarding the complainant's concerns about the functionality of the bathroom door within his unit from the commencement of his tenancy with the respondent.

There was clear evidence that the complainant was aware of this door issue before he signed his residential tenancy agreement with the respondent and took up his occupancy of the unit.

There was, as the respondents have asserted, no evidence adduced that this door was not installed correctly, nor that it was non-compliant with relevant Australian Standards.

There was evidence that the bathroom door in the complainant's unit would lock appropriately but that the door did swing out from its slide. The evidence as to the cause of this was that the floor guide to contain the sliding door had broken off and that it was likely that this had occurred by virtue of the complainant's wheelchair striking it as he attempted to enter or exit the bathroom.

There was evidence from Mr Butt that this issue had been attended to and repaired early in the complainant's tenancy.

(ii) Front automated door - as the only emergency exit it did not shut and lock properly during tenancy.

The evidence in this regard also relates to (d)(iv).

The respondent's records only indicate two significant issues brought to the respondent's attention by the complainant with the front door during the complainant's residency at the respondent's units.

Again, there was evidence before me that the cause of the automatic door malfunctioning was the complainant's own action in pressing the emergency opening button on the wall switch which caused the door to open and close but did not allow it to lock until repaired.

There was evidence before the Tribunal that on occasions when formal reports relating to the door were made, the respondent responded to effect repair. One clear example being that indicated in the video of 28 September 2022.

(iii) Kitchen sink - persistently leaked and tap flew off and was not fixed in final months of tenancy.

(iv) There was not an adequate fire safety exit in place putting the complainant at risk.

(i) The evidence tendered during the inquiry hearing;

(ii) Having had the benefit observing all the witnesses called by the parties to give evidence;

(iii) Having considered the written closing submissions of the parties; and

(iv) Having made the factual findings I have made as set out previously in this decision;

I have come to the conclusion that the complainant has not discharged his onus of establishing to the requisite standard, on the balance of probabilities, that the respondent, in its dealings with the complainant during the 12 months of his tenancy at the respondent's premises prior to the date of the complaint, has breached the complained of provisions of the ADA.

1. Whilst the complainant's experiences at the respondent's premises during that 12 month period prior to May 2023 may not have been as he had hoped, I am not persuaded that any of the events alleged either individually or collectively, where proven, amount to conduct in contravention of the complained of provisions of the ADA.
2. The complainant is clearly an articulate man who is living with significant physical disabilities. As I have stated, although some of his behaviours in the hearing could be attributed to his unfamiliarity with the hearing process, I generally found him to be an unsatisfactory witness, even taking into account the effluxion of time since the occurrence of the alleged events basing his claim.
3. The evidence of Ms Duggan, being entirely her opinion as to how the respondent allegedly treated the complaint provided no assistance to me on the basis that it only came into evidence because it was of a type of evidence referred to at paragraphs [31]-[34] of this decision.
4. Similarly, I have not found the evidence of Ms Maddigan to be of assistance as it was inconsistent and lacked cogency.
5. Dr Gardner's evidence was clear in his dealings with the complainant during his tenancy with the respondent, but this evidence tended more to contradict the complainant's assertions regarding the occurrence of events the complainant asserted were indicative of discriminatory conduct by the respondent towards him. Dr Gardner's evidence did not assist me in being satisfied that there was a connection or nexus between any of the complainant's dealings with him, and the alleged behaviours of the respondents.
6. It was clear to me that the basis of the complainant's case was fundamentally his belief that he had been discriminated against because of his disability during his dealings with the respondent about issues related to his tenancy.
7. In Cui v State of Tasmania (Department of Primary Industries, Parks and Environment) [2019] TASADT 2, a decision of Deputy President McNamara in Drummond v Telstra [2008] VCAT 2630, was cited with approval. At [57]-[58] of Drummond (supra), Deputy President McNamara stated:

Most people in one form or another possess most of the attributes. It is a frequent experience in this list that people who feel they have been unjustly dealt with, whether in employment or other contexts, identify as what they see as unfair treatment in their possession of one or more attributes, leaping to the allegation then that they have been the victims of direct discrimination. > > If this mode of argument were acceptable every instance of unfair dismissal for instance would also be an instance of direct discrimination because every unjustly or allegedly unjustly dismissed employee possesses certain attributes. Logically no complaint of direct discrimination can be proven other than frivolous and lacking in substance unless to use the words of s 8(2)(b) of the Act, the attribute is a 'substantial reason' for the detrimental treatment.

8. In Evershed v The City of Geraldton (1995) EOC 92-745 at p. 78-564, it was stated:

In the absence of direct evidence, the complainant could use inferences drawn from the primary facts to establish the causal link between a person's characteristics and the alleged discrimination so that it appears that the discriminatory conduct occurred by reason of that characteristic. Discrimination however cannot be inferred "when more probable and innocent explanations are open on the evidence" (see for example Alone v The State Housing Commission HomeWest citing Finwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147.

9. Although the attribute is different, the nature of the complaint in this case is similar to that which was dealt with by the Tribunal in Costello v Tasmania Police [2012] TASADT 9. In that case the Tribunal said at [37]:

... The complainant asserts that he possesses certain attributes. In this case those relate to his sexual orientation and disabilities. He is, essentially, dissatisfied with his treatment at the hands of the respondent. He has formed the view that the basis of the respondent's conduct and decision making in this regard is based upon those attributes. At base he asks that an inference should be drawn that the Act has been transgressed because of the existence of an attribute and his dissatisfaction with the respondent's actions and decisions. There is no evidence to support that conclusion that there is any link between the two. The purpose of an inquiry is not to give the complainant an opportunity to "fish" for evidence that might provide the required nexus.

10. In the case of Kelly v Pensalfini [2019] TASSC 2, Porter AJ when considering direct discrimination at [34] observed:

Questions of motive and intention may assist in the resolution of the question as to whether something was done on the ground of an attribute, but the question is - why was the aggrieved person treated as he or she was?

11. The evidence presented during the inquiry satisfied me that there is no nexus between the complainant's attribute of disability and the respondent's alleged discriminatory behaviours. More probable and innocent explanations are open on the evidence.
12. He was not treated as he was because of his attribute of disability, the preponderance of evidence clearly indicated, as the respondents have asserted, that these dealings related to residential tenancy, and not discrimination issues.

Conduct that is offensive, humiliating, intimidating, insulting or ridiculing

1. Having made the factual findings as set out in this decision, I am not satisfied on the evidence that the respondent engaged in the conduct asserted by the complainant, not that there is any nexus between the conduct found and his disability.
2. Further, there is no evidence which satisfies me to the requisite standard that a reasonable person having regard to all the circumstances would have anticipated the complainant would be offended, humiliated, intimidated, insulted or ridiculed.
3. I am also not satisfied that any of the respondent's alleged conduct, even when found to have occurred, created "profound and serious effects which are not to be likened to mere slights" upon the complainant.
4. For all of the reasons indicated above, I find that the complainant's complaint against the respondent is unsubstantiated.

1. Having found that there has been no discrimination under the ADA by the respondent, following the approach adopted by the Tribunal in its decisions of Summers v Department of Education [2019] TASADT 8 and Makkar v Australian Dispatch Company Pty Ltd [2020] TASADT 9, I do not need to consider the application of s 104 of the ADA.

1. Having found the complaint unsubstantiated, I also do not need to consider the orders sought by the complainant pursuant to s 89 of the ADA.

1. Pursuant to s 99(1) of the Anti-Discrimination Act 1998 the complainant's complaint against the respondent is dismissed.