Davis v Anglican Community Services

The conduct of the final hearing

1. On 1 June 2023 the respondent made an application for miscellaneous matters, seeking that the proceedings be dismissed for want of prospection pursuant to s 55(1)(d) of the Civil and Administrative Act 2013 (NSW) ("CAT Act") on the basis that Ms Davis had failed to comply with numerous orders of the Tribunal including: 1. Failure to serve a Points of Claims on numerous occasions; 2. Failure to serve evidence explaining her non-compliance with the orders; and 3. Failure to serve any evidence to support her claims.
2. The application was to be dealt with at the final hearing on 8 March 2024. At the hearing Ms Davis attended by telephone. Despite numerous orders made by the Tribunal that the final hearing be conducted in person, Ms Davis stated that she was unable to attend due to a medical condition and could not indicate to the Tribunal when she would be in a position to attend a hearing in person. Ms Davis insisted that the final hearing be conducted with her on the telephone. During the hearing, Ms Davis informed the Tribunal she did not have any documents with her but that she relied on the documents previously provided to the Anti-Discrimination Board when she made the complaint on 14 September 2022.
3. The Tribunal considered s 3 of the CAT Act and determined to accede to Ms Davis' request and the hearing proceeded on 8 March 2024. The respondent's application for the proceedings to be dismissed for want of prosecution was dismissed.
4. The documents attached to the President's Report included an application form in which Ms Davis stated that: The issue relates to my parking on the premises. I hold a disability parking permit and there is no off street parking near my building. I am old, I have a disability and feel that I am the victim of discrimination as I'm being terminated for trying to protect my independence and protect my safety in a high crime area.
5. Ms Davis stated that she had applied for mobility parking in March 2022 but had been overlooked and that people who arrived in June, July and August 2022 had been given parking. Ms Davis stated that she informed the respondent of her safety and mobility issues and that Anglicare did not take this into consideration.
6. Ms Davis stated that other people parked without permission but they were not singled out like her and that people had made false statements against her and that: It is discriminatory to refuse an older person with a mobility disability parking permit a car space.
7. Also included in the President's Report is a letter from the respondent dated 20 July 2022 to Ms Davis. The letter stated that she has been placed on a list for car park allocation and indicating that it understood that Ms Davis was seeking the car park allocation because of her mobility and safety issues, however there were no current vacancies and that she would be notified once a car park became available.
8. It was submitted that it was difficult for the respondent to understand Ms Davis' claim and it has not been in a position to put on evidence responding to her claim. The respondent was content to proceed based on the report of the President of the Anti-Discrimination Board.
9. The reasons for the Order made by the Tribunal on 31 August 2022 by Senior Member Wilson terminating the tenancy were not disputed by Ms Davis and contain the following facts; 1. Ms Davis was 68 years old at the time of the hearing in 2022; 2. Ms Davis has a disability. The medical evidence was that "Ms Davis has a number of significant health conditions which has caused quite severe difficulties and restrictions to her mobility and day-to-day activities." 3. The tenancy commenced on a periodic agreement, that is without a fixed term. It did not include a car parking space. 4. When Ms Davis purchased the car in March 2022 she immediately started to park her car in contravention of the strata by-laws. Despite being told on numerous occasions to cease parking in contravention of the rules, Ms Davis refused to comply with the directions. 5. Prior to car ownership, Ms Davis was provided with free transport to attend appointments and attendance at shops. 6. The respondent had a waiting list regime which allocates car spaces based on need, as well as who applied first.

Relevant legislation

1. Section 4 of the Act states that "accommodation" includes residential or business accommodation.
2. Sections 49N and 49ZYO make it unlawful for a person to discriminate on the ground of age or disability in accommodation. Section 49ZYO states: (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of age-- (a) by refusing the person's application for accommodation, or (b) in the terms on which the principal or agent offers the other person accommodation, or (c) by deferring the other person's application for accommodation or according the other person a lower order of precedence in any list of applicants for that accommodation. (2) It is unlawful for a person, whether as principal or agent, to discriminate against a person for whom accommodation has been provided on the ground of age-- (a) in the terms or conditions on which accommodation is provided, or (b) by denying or limiting access to any benefit associated with accommodation, or (c) by evicting the person or subjecting the person to any other detriment. (3) Nothing in this section applies to or in respect of the provision of accommodation in premises if-- (a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, in those premises, and (b) the accommodation provided in those premises is for no more than 6 persons, and (c) the accommodation is provided with a concession provided in good faith to a person by reason of the person's age.

The parties' submissions

1. The Tribunal asked Ms Davis at the commencement of the hearing to confirm her complaint. Ms Davis confirmed that her complaint was, as set out in the President's Report was, not being provided with a car space by the respondent in March 2022.
2. Ms Davis did not specify the aspect of her age or disability that she relied on, that is, what specifically the disability was, albeit that she had issues with her leg or whether age, was old age or a different aspect of age. It was also entirely unclear what subsection of ss 49N and 49ZYO, Ms Davis relied on.
3. The respondent took no issue with the assertion that Ms Davis had a disability within the meaning of s 4 of the Act.
4. Ms Davis submitted that she was overlooked for a car parking permit by the respondent and that other persons parked without a car parking permit but that their tenancies were not terminated. The report of the President's Report contained numerous photos, many of cars and exchanged text messages as well as other emails sent by Ms Davis to the Tribunal.
5. The respondent submitted that the photographs and text messages were not identified and did not demonstrate on their face any discrimination or that other people were granted a car parking permit ahead of her.
6. The respondent submitted that the complaint was wholly misconceived and lacking in substance and has no prospect of success and should be dismissed pursuant to s55(1)(b) of the CAT Act. Specifically because there is no evidence that she was treated less favourably by the respondent than those who do not have a disability or of a different age, in circumstances which are the same or not materially different from the circumstances that she finds herself in.
7. The respondent submitted that the application was not in regard to the provision of accommodation but in regard to a car parking space. The respondent also sought costs.

Consideration

1. The material facts are not in dispute. Ms Davis had a Tenancy Agreement with Anglicare for a unit that did not include a car space. Following the commencement of the tenancy, Ms Davis purchased a car and immediately commenced to park in contravention of the strata by-laws referred to in the Tenancy Agreement. Ms Davis applied for a car space. She provided a copy of her disability parking permit and a medical certificate with the application. Ms Davis was not granted a car parking space immediately or in the following months. Ms Davis received a letter from the respondent informing her that there were no available car parking spots but that she would be put on a waiting list. Ms Davis continued to park her car in contravention of the strata by-laws. Ms Davis continued to receive letters from the respondent warning her that her tenancy would be terminated if she continued to park her car in contravention of the strata by-laws. The respondent gave her notice terminating the tenancy. This Tribunal made orders terminating the tenancy.
2. Sections 49B and 49ZYA of the Act define discrimination on the ground of disability and age. Direct discrimination has been described the as having two separate questions. The first component is 'differential treatment', and the second component is 'on the ground' Waterhouse v Bell (1991) 25 NSWLR 99 at 105G.
3. The differential treatment question requires a factual inquiry as to whether the applicant was treated less favourably than a person of a different age or without the disability in the same circumstances or in circumstances which are not materially different. The second component is the causation element. The search is for the real reason why the person acted; Purvis v State of New South Wales (2003) 217 CLR 92; [2003] HCA 62 at [224]; Australian Iron & Steel Pty Ltd v Banovic [1989] HCA 56; 168 CLR 165 at 176.
4. The applicant submitted that she was not provided with a car spot and that her tenancy was terminated was because of her age and or disability. The onus is on the applicant to satisfy the Tribunal that the respondent acted because of her age and or disability.
5. Based on the material before the Tribunal there is no evidence that the respondent refused to provide Ms Davis with a car spot or terminated her tenancy because of her age and or disability.
6. Ms Davis failed to articulate the basis upon which an inference can reasonably be drawn from the documents she submitted to the Anti-Discrimination Board that she had been discriminated against. Ms Davis' honest belief that the respondent refused to provide her with a car parking approval because of her age or disability is insufficient to establish the cause of action.
7. The Tribunal is not satisfied that the respondent treated Ms Davis less favourably than those who do not have a disability or of a different age, in circumstances which are the same or not materially different from the circumstances that she finds herself in.
8. However, the Tribunal does not accept the respondent's submission that Ms Davis' complaint is wholly misconceived and lacking in substance because it does not come within ss 49N and 49ZYO of the Act.
9. The complaint raises a question of whether or not access to a car space is a "benefit associated with accommodation". The respondent submitted that the applicant's claim was not in relation to accommodation but as to a car parking space but did not make any submission as to whether a car parking space is a "benefit associated with accommodation."
10. The Tenancy Agreement is for 'residential premises' comprising of an apartment. Residential premises is defined as any premises or part of premises (including any land occupied with the premises) used or intended to be used as a place of residence.
11. As stated previously, the Tenancy Agreement did not include access to a car parking allocation. Schedule A to the Tenancy Agreement contained Special Condition 1 - Vehicles which was in the following terms: The tenant must not park or stand any motor or other vehicle on common area or permit a motor vehicle to be parked or stood on common area except with the prior written approval of the landlord or as permitted by assign, authorised by the landlord.
12. It is clear from the Tenancy Agreement that the accommodation occupied by Ms Davis did not include a car parking allocation.
13. Is a car parking allocation a "benefit" associated with the accommodation occupied by the person? In our view on a plain and ordinary reading of the word "benefit" a car parking space and other associated areas of the accommodation may be an added benefit to the accommodation without themselves being considered to be accommodation.
14. For this reason we reject the respondent's submission that the application ought to be dismissed on the basis of s55(b) of the CAT Act.
15. The respondent has not referred to any "special circumstances warranting an award of costs" within the meaning of s60(2) of the CAT Act and the Tribunal makes no order as to costs.
16. The Tribunal makes the following order: 1. The application is dismissed.

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: 22 May 2024