The applicant in these proceedings seeks the leave of the Tribunal to proceed with his complaint under s 96 of the Anti-Discrimination Act 1977 (the AD Act). On 8 May 2019 the President of the Anti-Discrimination Board of NSW received a complaint under the AD Act from the applicant against the respondent, Bodyline Spa and Sauna Ltd. The applicant alleged that he was discriminated against on the basis of his disability in the provision of goods and services.
The President declined the complaint as lacking in substance under s 92 of the AD Act. On 25 November 2019 the applicant requested that the complaint be referred to this Tribunal under s 93A of the AD Act.
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Legislation and principles governing the grant of leave
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).
Section 92 provides:
"92 President may decline complaint during investigation
(1) If at any stage of the President's investigation of a complaint -
(a) the President is satisfied that -
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or
(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or
(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or
(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or
(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or
(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint.
(2) The President, in a notice under this section, is to advise the complainant of -
(a) the reason for declining the complaint or part of the complaint, and
(b) the rights of the complainant under sections 93A and 96."
Where the President has declined a complaint under s 92 of the AD 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 ( s93A).
Where a complaint is referred to the Tribunal on the requirement of a complainant under s 93A(1), as has happened in this case, the complaint may not be the subject of proceedings before the Tribunal unless the Tribunal grants leave (s 96(1)).
Section 96 of the ADA gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed, which is not confined to the grounds on which the President declined the complaint, although the Tribunal may have regard to those grounds. That discretion must, however, 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. Leave must be granted or refused depending on what is fair and just in the particular circumstances. It is for the plaintiff to establish that the leave should be granted (Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25-36] [58-61]).
Section 49A provides:
"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, 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. Discrimination."
The complainant alleges that the respondent discriminated against him in banning him from the premises. The period of the complaint is between February 2018 and 8 May 2019. He has been assessed as having an anxiety condition and mild intellectual disability. He says that he speaks slowly with a lisp and finds conversations difficult.
The complainant provided a statement which covered facts prior to February 2018. He alleged that he was refused entry a number of times during 2017 and then after a meeting between himself, his case worker and a solicitor from the Redfern Legal Centre, Mr Shadd Danesi who was the owner and Mr Jason Harrigan who worked at the business, it was agreed he could attend the premises but had to "behave himself" and not fall asleep on the premises.
He referred to a number of occasions on which two employees, one of whom he alleges was Mr Harrigan, refused him entry and when he was allegedly filmed, told that he was not the kind of client they wanted and that he was not intelligent and was stupid. In December 2017 he was told he was banned for falling asleep while on the premises. After some correspondence between the complainant's solicitor and the business, Mr Shadd Danesi wrote to the complainant's solicitor on behalf of the Bodyline Spa and Sauna stating that they had suggested the complainant come to the business during daytime hours so that he did not fall asleep. The complainant did not agree to this and stayed away from the premises for a number of months. He also said he was aware that other people who fell asleep on the premises were allowed to return.
In around July 2018, the complainant states that the business changed hands.
On 18 July 2018 the complainant's solicitor wrote to Mr Jason Harrigan at the premises and asked for the complainant to be allowed to attend the premises as six months had passed.
It appears that there was no response to these letters and later letters and emails between September 2018 and April 2019, and no success in contacting Mr Danesi by telephone. On 2 May 2019 he lodged his complaint.
On 14 August 2019 Mr Harrigan wrote to the Anti-Discrimination Board and stated that the ban would remain in place until the complainant was able to provide a testimonial that would show he was not sleeping in December 2017.
The complaint said the person who had discriminated against him was "Jason Wayne Halligan" described as the owner of the business "Bodyline Spa and Sauna".
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The respondent's case
Mr Jason Harrigan stated that he is a director of PJBL Pty Ltd trading as "Bodyline Sydney". The respondent stated that he began operation of his business after the facts referred to in the complaint. He tendered a search showing that Bodyline Spa and Sauna is registered as a business name and Bodyline Spa and Sauna (Sydney) Pty Ltd was a corporate entity but has been deregistered. He also tendered corporate details of PJBL Pty Ltd showing himself as one of 2 directors and that it was registered on 11 May 2018.
He stated that following the close of the business Bodyline Spa and Sauna and deregistration, Mr Danesi transferred the lease of the premises to him and he and his business partner renovated the premises and opened a new business trading as Bodyline Sydney. A copy of the lease, dated 14 May 2018, was tendered.
He said that he was formerly an employee of Bodyline Spa and Sauna Pty Ltd but was never a director of the company and his business was not connected to that company.
He denied receiving the requests for entry in the latter part of 2018 and 2019.
He also submitted that:
1. The complainant was found asleep on the premises on a number of occasions
2. Sleeping on the premises was not permitted and the complainant was aware of that.
3. The complainant was not denied entry on the basis of his disability.
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Consideration
To establish a complaint of direct disability discrimination under section 49B(1)(a) the applicant would need to establish:
1. That the respondent treated him less favourably, by banning him from the premises, in the same or similar circumstances, than it treated, or would have treated a person who did not have his disability; and
2. That one of the reasons for that less favourable treatment was because of his disability, or a characteristic that generally appertains to, or is generally imputed to persons with his particular disability.
Section 4A of the Act provides that the protected attribute - disability - need only be one of the reasons for the behaviour complained of. The issue is whether the protected reason, presumed disability, is at least one of the 'real', 'genuine' or 'true' reasons for the treatment.
The initial decision to ban the complainant was made in December 2017. Representations were made by the complainant's representative to the new owner to allow the complainant access between July 2018 and April 2019 but these were not responded to. The applicant says he is aware of other people who were banned for ostensibly falling asleep but were allowed to return, while he has not. He has given evidence of conduct which would support his claim that the real or true reason was his disability, not whether he fell asleep.
The President initially accepted the complaint with a timeframe from February 2018 to May 2019. A complaint can be made in relation to a continuing contravention of the Act where the state of affairs established by the initial act continues (Wollongong City Council -v- Bonella & ors and Bonella & ors -v- Wollongong City Council (EOD) [2002] NSWADTAP 26).
Leave must be granted or refused depending on what is fair and just in the particular circumstances. The respondent may be wrongly named, however, if that is the case, there is evidence of an association between the previous owner and the current owner, and there is evidence of conduct by the current owner which continues the ban in place under the previous owner. In addition the applicant in the proceedings may apply to the Tribunal to join a party (s 44(1) Civil and Administrative Tribunal Act 2013).
In my view there is substance to the complaint based on the information outlined above. In those circumstances I consider it is fair and just that he have the opportunity to proceed with his case.
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Orders
1. Leave to proceed with the complaint under section 96 of the Anti-Discrimination Act 1977 is granted.
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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
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Decision last updated: 28 February 2020