Chato v Royal NSW Canine Council t/as Dogs NSW - [2016] NSWCATAD 128 - NSWCATAD 2016 case summary — Zoe

NSWNSWCATAD

Chato v Royal NSW Canine Council t/as Dogs NSW

[2016] NSWCATAD 128

NCAT Administrative and Equal Opportunity|2016-06-14

View original source

At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2016-06-14

Source

Original judgment source is linked above.

Judgment (21 paragraphs)

[1]

Introduction

Mr Chato is requesting the Tribunal's permission for a complaint of disability discrimination to go ahead despite the fact that on 9 November 2015 after investigation, the President of the Anti-Discrimination Board declined the complaint as lacking in substance. The complaint made on 19 January 2015 relates to the rejection by the board of Dogs New South Wales of Mr Chato's applications to renew his membership and judge's licence in December 2014.
The complaint was prompted by Dogs New South Wales' letter to Mr Chato dated 11th of December 2014 which advised that his request to renew his judges licence and his membership application to re-join Dogs NSW were rejected by resolution of the board. No reason was provided in the letter.
Mr Chato then made a complaint to the Anti- Discrimination Board received by the Board on 19 January 2015. Mr Chato alleged that his membership had been withdrawn and his judge's licence refused on the grounds of his disability - mental ill health. In 2005 he had convictions relating to animal cruelty overturned by the District Court on the grounds of his mental health.
In its response to the President of the Anti-Discrimination Board, Dogs New South Wales advised that the reason it had rejected Mr Chato's membership was that Mr Chato had been convicted of animal cruelty matters in the Campbelltown Local Court in 2005. The Respondent stated that Mr Chato's appeal to the District Court resulted in dismissal of the charges under section 32 of the Mental Health Criminal Procedure Act 1990 on account of Mr Chato's mental health.
The Respondent maintained that it had been made aware of 2 matters relating to "animal cruelty" that had occurred between 27 July 2004 and 30 August 2004 and 22 July 2004 and 30 August 2004 in 2005. The Respondent suspended Mr Chato's membership at that time. The Respondent maintained that in 2014 it was informed by the RSPCA that Mr Chato had been subject to further animal cruelty charges of aggravated cruelty to an animal between 3-6 July 2004 and failing to provide veterinary treatment between 30 June and 5 July 2004.

[3]

Statutory framework and principles governing grant of leave

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.
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).
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.
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).
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.
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].

[5]

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.

[12]

Mr Chato's submission

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.
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.
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.
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.
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.

[18]

On the ground of disability?

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.
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).
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.
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.
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.
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.
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.
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.
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.
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.
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".

Chato v Royal NSW Canine Council t/as Dogs NSW

At a glance

Court

Decision date

Source

Judgment (21 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (6)