Chato v Royal NSW Canine Council t/as Dogs NSW

Determination of leave application

1. A hearing was listed on Tuesday 14th of June 2016 to determine whether leave should be granted for the Complaint to proceed under s 96(1) of the Act.
2. Mr Chato appeared before the Tribunal by telephone and the Respondent was represented by Ms Skinner, solicitor, at the Tribunal.

Statutory framework and principles governing grant of leave

1. Headed "Complaints - the functions of the President", Division 2 of Part 9 of the Act deals with the making of complaints. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A (1) (a) (i) of the Act.
2. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If, at any time in the course of that investigation the President is satisfied that the complaint is misconceived or lacking in substance and/or that no part of the conduct complained of could amount to a contravention of a provision of the Act, he or she may decline the complaint, in whole or part: ss 92(1) (a) (i) and 92(1) (a) (ii).
3. Where the President has declined a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.
4. Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A (1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1).
5. In the matter of CLW v State of NSW (Department of Education and Communities) [2016] NSWCATAD 43 Principal Member Britton provided an analysis of the Tribunal's role in considering section 96 applications for leave as set out below.
6. Section 96 gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [57]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [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]; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [32]. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case: Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [36], [37]; Jones & Anor v Ekermawi [2009] NSWCA 388 at [58]. In deciding whether to grant leave the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60].

Relevant legislative provisions

1. The complaint referred by the President nominates the area of discrimination as being under section 49 M - the provision of goods and services and Qualifying Bodies under section 49 J of the Act.
2. If this matter went to a hearing, Mr Chato would have the onus of proving that the Respondent's actions were a breach of sections 49A, 49B, 49J and 49M dealing with the provision of services and qualifying bodies and 53 of the AD Act.
3. The relevant provisions state:

49B What constitutes discrimination on the ground of disability? (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: (a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or (b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a), something is done on the ground of a person's disability if it is done on the ground of the person's disability, a characteristic that appertains generally to persons who have that disability or a characteristic that is generally imputed to persons who have that disability. (3) For the purposes of, but without limiting, this section, the fact that a person who has a disability of or relating to vision, hearing or mobility has, or may be accompanied by, a dog which assists the person in respect of that disability, is taken to be a characteristic that appertains generally to persons who have that disability, but nothing in this Act affects the liability of any such person for any injury, loss or damage caused by the dog. (3A) For the purposes of, but without limiting, this section, and the fact that a person who has a disability: (a) is accompanied by, or possesses, a palliative or therapeutic device, or other mechanical equipment, that provides assistance to the person to alleviate the effect of the disability, or (b) is accompanied by an interpreter, a reader, an assistant, or a carer, who provides interpretive, reading or other services to the person because of the disability, or because of any matter related to that fact, is taken to be a characteristic that appertains generally to persons who have that disability. (4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

49J Qualifying bodies (1) It is unlawful for an authority or body which is empowered to confer, renew or extend an authorisation or a qualification that is needed for or facilitates the practice of a profession, the carrying on of a trade or the engaging in of an occupation to discriminate against a person on the ground of disability: (a) by refusing or failing to confer, renew or extend the authorisation or qualification, or (b) in the terms on which it is prepared to confer the authorisation or qualification or to renew or extend the authorisation or qualification, or (c) by withdrawing the authorisation or qualification or varying the terms or conditions upon which it is held. (2) Nothing in subsection (1) (a) or (c) renders unlawful discrimination by an authority or body against a person on the ground of the person's disability if taking into account the person's past training, qualifications and experience relevant to the particular profession, trade or occupation and, if the person is already a member of the profession, carrying on the trade or engaged in the occupation, the person's performance in the profession trade or occupation, and all other relevant factors that it is reasonable to take into account, the person because of his or her disability would be unable to carry out the inherent requirements of the profession, trade or occupation.

49M Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability: (a) by refusing to provide the person with those goods or services, or (b) in the terms on which he or she provides the person with those goods or services. (2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

1. A disability is defined in section 49A to include past, future and present disability.

49A Disability includes past, future and presumed disability A reference in this Part to a person's disability is a reference to a disability: (a) that a person has, or (b) that a person is thought to have (whether or not the person in fact has the disability), or (c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or (d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services.

1. The Act also provides:

4A Act done because of unlawful discrimination and for other reasons 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.

1. In summary, Mr Chato would have to prove that: a) a person or qualifying body has b) (i) treated him less favourably than in the same circumstances, or in circumstances which are not materially different, the person/qualifying body would treat a person who does not have Mr Chato's disability, (Direct discrimination) or (ii) required Mr Chato to comply with a requirement or condition with which a substantially higher proportion of persons who do not have Mr Chato's disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the Mr Chato does not or is not able to comply; (Indirect discrimination) c) by refusing or withdrawing an authorisation or qualification or providing the authorisation/ qualification on terms as a qualifying body; Or or by refusing to provide him with goods or services, or providing him with goods or services on terms which are less favourable to him; d) on the ground of his past, present or future disability.

Approach in deciding whether to grant leave

1. In considering whether to grant or refuse leave, the Tribunal has examined Mr Chato's complaint to decide whether all or part of it could amount to a contravention of the Act. In making that decision, the Tribunal adopts the approach commonly taken by NCAT and one of its predecessor Tribunals, the Administrative Decisions Tribunal, in determining applications for summary dismissal brought under the Act. That approach is that where there is a conflict between the factual allegations made by the parties, the Tribunal accepts Mr Chato's version of events: Alchin v Rail Corporation NSW [2012] NSWADT 142 at [19]-[26]; Razaghi v Director-General, NSW Department of Health & Anor [2002] NSWADT 4 at [38]; Stanborough v Woolworths Ltd [2005] NSWADT 203 at [28]; Burns v Sunol [2015] NSWCATAD 178 at [8]. In addition, where there is material which supports contentions made by Mr Chato, the Tribunal assumes that material is capable of being converted into evidence.

Mr Chato's submission

1. Mr Chato told the Tribunal that contrary to the Respondent's assertion, his application had not been approved automatically. He had tried to make his applications via the Internet however they would not go through. He understood that this was because he had been applying for his membership and judge's licence for a renewal period of two years rather than just one year. The application process was completed after discussion with the attendant at the front desk. Further the applications were made separately. In August 2014 he made his application for membership. He made his judges licence application later in October or November 2014. His membership had been accepted in August 2014. It was at a meeting in December 2014 at which his membership was cancelled. Under the rules of the association the Respondent can reject an application for membership without reason, but they cannot expel a person without a hearing. It was really a cancellation rather than a rejection of application for membership. The Respondent had set this up in order to avoid providing him with procedural fairness. The reason why the Respondent was asserting that the applications had been rejected at the outset was that there is no obligation for the Respondent to provide reasons for the rejection of an application. However there is an obligation for the Respondent to provide reasons where a membership is terminated after it has been granted.
2. Mr Chato referred to the fact that his offences had been dismissed by the District Court under section 32 of the Mental Health Criminal Procedure Act 1990. He had not fought the matter by arguing that he had not engaged in the behaviour subject of the convictions. This was because the advice from his legal representative was that it was better not to take this approach. He said that the Respondent was using it as a cover. They had known nine years ago about the matters. The period during which the matters had occurred was a terrible period in his life that had been resolved. He had depression and physical problems at that time. He told the Tribunal that the Respondent's decision was based on spite. A certain board member disliked gays and also him. This Board Member had influenced the decision.
3. Mr Chato said that the Respondent had been deliberately misleading by referring to 2 new 2004 offences. Mr Chato asserted that the correspondence from Campbelltown Court would show that all the matters were dismissed under section 32. In the 9 year intervening period he had been judging dogs interstate without problem. There had been no complaints about him.
4. He had wanted to upgrade his dog judging status. Because of all the trauma he had spoken to Liz Gunther in September/ October 2014 as to what he needed. It had gone to the judges committee only after it was referred by the general committee. He thought that certain members of the committee were in cahoots and had brought up the conviction which had actually been overturned.
5. The details which the ADB had used in drawing the conclusion that it should decline the complaint were false. That is - his membership had not automatically been renewed and it was false that there had been two further charges brought against him in later times. In any event, the alleged behaviour had not involved dogs - rather it had been horses. Dogs New South Wales had used a matter which was dismissed to enable certain board members to further a personal hatred of him.

Submissions of the Respondent

1. The Respondent provided written submissions supported by oral submissions. At the hearing the Respondent said that it was not fair and just for leave to be granted for the complaint to proceed. The ADB had found that the complaint was lacking in substance. There was no evidence that Dogs New South Wales had engaged in discrimination when determining to reject the applications. Mr Chato's applications had been lodged online and they were received and processed. The Respondent was aware of two charges in 2004 and only became aware of two further charges when correspondence was received from the RSPCA in December 2014. The Board became aware of the new charges at their meeting. The Board did not know what had happened to dispose of the two further 2004 charges.
2. The Respondent stated that it was the fact of the behaviour which led to the charges which caused the Respondent to make its decisions. The details of the Applicant's mental health were not known to the Respondent. The behaviour grounding the charges had not been refuted by the Applicant. The Applicant's mental health was not the reason for the refusal of applications.

The Tribunal's approach to the matter

1. As set out in the case law referred to, the Tribunal has considered the matter of whether to grant leave for the complaint to proceed by proceeding on the basis for the purpose of the leave application only, that Mr Chato's factual account of what occurred is correct. This includes Mr Chato's contentions that his applications for membership and for a judge's licence were submitted separately. The Tribunal accepts that his application for membership was initially approved in 2014 as a membership card was issued to Mr Chato to expire in September 2015.

A person?

1. The complaint, as referred by the President of the Anti-Discrimination Board, was against Royal NSW Canine Council Ltd t/as Dogs NSW. Dogs NSW is a "person" for the purpose of the AD Act.

Qualifying Body

1. It was not contested that Dogs NSW is a qualifying body under section 49J of the Act.

Less favourable treatment

1. The Tribunal accepts that either rejecting the applicant's applications for membership or a judge's licence or terminating the applicant's membership might be characterised as less favourable treatment and as a detriment.

On the ground of disability?

1. In relation to the fourth requirement, "disability is defined in section 4 of the AD Act as follows: "disability" means: (a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or (b) the presence in a person's body of organisms causing or capable of causing disease or illness, or (c) the malfunction, malformation or disfigurement of a part of a person's body, or (d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or (e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
2. Mr Chato identified as having a disability being "depression". The Tribunal is satisfied this falls within the definition of disability set out in section 4 paragraph (e).
3. The main issue in terms of the merits of the complaint is whether there is substance to Mr Chato's allegation that the reason for the less favourable treatment was his mental illness and whether a person without a mental illness would have been treated differently in the same or similar circumstances.
4. Section 49B sets out that discrimination on the ground of disability includes that "the perpetrator" discriminates against another person the "aggrieved person" on the ground of disability if the perpetrator on the ground of the aggrieved person's disability, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability. The High Court has considered the meaning of the term 'in circumstances that are the same or are not materially different' in section 5 of the Commonwealth Disability Discrimination Act 1992 in the matter of Purvis v NSW. See Purvis v NSW [2003] HCA 62; (2003) 217 CLR 92.
5. In this matter the High Court of Australia ruled on what would constitute the circumstances of the aggrieved person's case that are to be ascribed to the comparator without the disability.
6. The matter of Purvis involved a complaint of discrimination made against educational authorities on behalf of Daniel Hoggan. Mr Hoggan had an intellectual disability - a feature of which was violent behaviour. Mr Hoggan was expelled from schools in NSW. It was argued for Mr Hoggan that since the violent acts were a result of his disability, the appropriate comparator - without Mr Hoggan's disability - was a non-violent student whose circumstances were otherwise the same as Mr Hoggan's. The High Court held however that the comparator was a student who was not disabled, but who had acted in the same violent manner as had Mr Hoggan.
7. By analogy to Mr Chato's circumstances, the comparator would be a person who had engaged in the same behaviours - "animal cruelty" behaviours, who did not have Mr Chato's mental illness.
8. The Tribunal is satisfied that the Articles of Association of Dogs New South Wales (November 2013 version); Regulations of Dogs New South Wales Part XIII - Code of Ethics (July 2014 version) and Regulations of Dogs NSW Part IV - Judges (December 2014 version) make "animal cruelty" behaviours inconsistent with the expectation of any member of Dogs New South Wales.
9. The Respondent's reasoning for its actions does not refer to Mr Chato having a mental illness. The Respondent argues that it was knowledge of the behaviour alleged to have occurred, not Mr Chato's mental illness which caused it to act. In 2014 the RSPCA had advised Dogs NSW of 2 further matters that had occurred in 2004 in addition to the 2 matters Dogs NSW had previously been aware of. It was not that charges had been dismissed under Mental Health provisions, but that charges had been brought and the alleged behaviour not denied by Mr Chato, that was relevant.
10. The Tribunal is satisfied that on balance Mr Chato is unlikely to succeed in arguing that he was treated less favourably than a person without his disability in the same or similar circumstances.
11. In the absence of any evidence that the board of Dogs NSW actively considered Mr Chato's mental illness in reaching its decisions, the Tribunal considers that Mr Chato is unlikely to succeed in his complaint on the basis of direct discrimination on the grounds of his disability "mental illness".

Indirect discrimination

1. Mr Chato did not argue before the Tribunal that Dogs New South Wales had required him to comply with a condition that a higher proportion of people without mental illness would be able to comply with and with which he did not or could not comply and which was not reasonable in the circumstances. The Tribunal does not consider that Mr Chato could succeed in these circumstances in a complaint on the grounds of indirect disability discrimination.

Conclusion

1. On balance the Tribunal was satisfied that Mr Chato is unlikely to succeed before the Tribunal in a complaint of disability discrimination in the area of goods and services or qualifying bodies. In these circumstances the Tribunal is satisfied that it would not be fair and just for leave to be granted to Mr Chato to proceed with his complaint. Accordingly leave is refused for Mr Chato's complaint to proceed.

Orders

1. Leave is refused for the complaint of disability discrimination against Dogs NSW 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 June 2016