Foundas v The Law Society of New South Wales

NCAT Administrative and Equal Opportunity|2019-09-03

REASONS FOR DECISION

These proceedings concerned an application by Mr Bill Foundas for leave to proceed with a complaint before the Tribunal under section 96 of the Anti-Discrimination Act 1977 (ADA).
On 21 December 2018, Mr Bill Foundas lodged a complaint with the President of the Anti-Discrimination Board (the President, ADB) alleging that he had been discriminated against by The Law Society of New South Wales in the provision of goods and services, on the grounds of disability - mental illness. The President declined Mr Foundas' complaint (the Complaint) on the ground that the complaint was lacking in substance: s 92(1)(a)(i) of the ADA. As a consequence, the Complaint may not be the subject of proceedings before the Tribunal without leave of the Tribunal: s 96(1) of the Act.
For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.

Statutory framework and principles governing the 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 in part: ss 92(1)(a)(i) and 92(1)(a)(ii).

Principles for the granting of leave to proceed under section 96

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 [58]; 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].

Should leave be granted for the Complaint to proceed?

The discretionary power conferred by s 96 of the Act, can only be exercised if the President has declined the complaint or part of the complaint and, on the request of the complainant, the President has referred the complaint or part of the complaint to the Tribunal under s 93A of the Act.
The President declined the complaint as lacking in substance, setting out the following reasons: 1. The need for Mr Bill Foundas to accompany Mrs Cassiani Foundas at all times in order for her to care for him, does not establish Mr Foundas was seeking a service from The Law Society. 2. Notwithstanding that Mr Foundas was not the person seeking a service, he has failed to demonstrate that he, along with his wife, were refused a service by the Respondent. Information provided by the parties supports that Mrs Foundas' application for referral for pro bono assistance was accepted, processed and she was found to be eligible under the relevant scheme. 3. Mr Foundas had not established that the Respondent provided services on less favourable terms than, in the same circumstances or in circumstances that are not materially different, a person without his disability would have been treated. 4. Mr Foundas had failed to establish that his disability prevented him or his wife from complying with the requirements set by the Respondent. 5. The Law Society had provided reasons for its actions in respect of the delivery of services to Mr Foundas that did not equate with discrimination.

Summary of Mr Foundas' complaint

Mr Foundas stated in his complaint to the President that on 30 November 2018 his wife went to "pro bono" to lodge an application. The office is situated downstairs and he asked if they could meet him in the foyer or see them downstairs via a back of house passage with security. He explained his conditions to security and to the female officer of the Law Society when his wife and he saw her. His wife's application was given to the officer of the Law Society. The officer told them that they were not allowed to blackout account numbers and other details. The officer refused the application and rudely said that she would not accept this and if they got another copy to her by close of business, she would see if she could accept that application. Mr Foundas said that he stated to himself that this was "absolute bull shit" and left in a hurry to get the new statements from his bank as there was a great urgency on applying to help in his wife's matter. He was not happy with the level of treatment that he got so he went to reception to ask where he could voice his concerns about the pro bono staff. "I was told by reception on Level 3 that if I got the bank statement needed that they could send it to pro bono on my wife's behalf because reception rang to confirm pro bono said they will not accept any business from my wife or me."
Mr Foundas took the document back that afternoon. At this time, he was confronted by security. He was advised not to go anywhere as he and his wife (who had done nothing to annoy anyone), were banned from the building, which is public. Mr Foundas did not believe security. He called reception and the woman told him that they got orders from pro bono that they could not get involved. He was not to come up to level III. Security then threatened that they would call the police. Security eventually took the document and gave it to pro bono staff before 5 PM. They accepted it.
On 3 December 2018 they received an email stating some parts were not correct and another bank statement was needed to complete the application. On 7 December 2018 Mr Foundas provided this via email, being the only way they would accept it. In the Law Society's email of 7 December 2018, it was stated at the bottom of the letter that both his wife and he are to be advised that due to behaviour when attending the front office, that they were to put all writing either by email or letter.
Mr Foundas said that his wife does not need to be "outclassed" because of his illness and disability. In order to conduct their business, he prefers to hand in things in person. He is being refused access to a public building.
Mr Foundas told the President in May 2019 that he and his wife wish to submit one response in relation to their complaints about the Law Society as they don't agree with the Law Society of New South Wales treating them as "individualised persons". The Respondent could not claim that because he did not apply for a service, he cannot have been refused a service. His wife is his carer. Where he goes his wife goes too and it affects her as much as him. Since he was banned and never to be allowed back in person, that affects his wife applying for the service. The Respondent had claimed that he never provided documents, that his wife had. He had given the documents to security as they were both not allowed to deal with any staff member after he was told to never come back. They both had to do as instructed. One couldn't stay and the other go as he needed his carer around him constantly.
The Law Society had treated him less favourably. He was to go and never to come back. He had to either email or post his wife's application in.
The Respondent's claim that they were simply asked to leave and not banned was a false statement. If he was asked to leave, then he would have been welcome back at any time with his wife to submit her application. This wasn't the case and they had to do as per staff members' instructions to email or post only. That is defined as a ban.
The Respondent had agreed that due to his behaviour, all correspondence needed to be by post or email only, not in person and not invited to ever come again. The Law Society had claimed to have found his wife eligible but could not find them a lawyer. Mr Foundas questioned how hard the Law Society had tried to find a pro bono solicitor for his wife. Eligibility had just been granted for the sake of providing three contacts to relieve the Respondent of its responsibility. It did not seem like the search had occurred as his wife was able to speak with lawyers that do pro bono work through an organisation from the Law Courts building. He knows that this was a lie.

The Respondent's response to the Complaint

In its response to the President, the Respondent set out that the Law Society's pro bono scheme aims to put members of the public in contact with law firms willing to provide their legal services for free or for reduced fees. This assistance can include legal advice, help with preparing documentation and representation in court. The scheme also provides legal assistance on an in-house basis for eligible applicants. The scheme relies on the generosity of solicitors. The Law Society cannot compel a solicitor or law firm to accept the matter.
The Law Society denied that it had discriminated against Mr Foundas. When Mr and Mrs Foundas attended at the Law Society on 30 November 2018, Mrs Foundas lodged an application. Mr Foundas did not lodge any application for referral under the scheme. The Law Society staff member met Mr Foundas in the lobby of the Law Society's premises so that Mr Foundas did not have to navigate the stairs down to the pro bono scheme's office. The application and additional documents provided by Mr Foundas, were accepted by the Law Society and processed in the usual manner. Mrs Foundas' application had been incomplete. Mr Foundas left the Law Society's premises to obtain documentation. Upon his return, Mr Foundas provided the documentation to the security officer who provided it to the Law Society staff. Mr and Mrs Foundas were asked to leave the premises. They were not banned.
The Law Society wrote to Mrs Foundas and advised that her application could not be processed as it was incomplete. The letter asked Mrs Foundas to sign a section of the form and to submit copies of her and her husband's bank statements. The letter also advised that due to her and her husband's behaviour on 30 November 2018, the Law Society requested all correspondence to be in writing by email or post. On 7 December 2018, Mr Foundas emailed the documents sought to the Law Society. Mrs Foundas was found eligible for pro bono referral. Unfortunately, none of the participants in the pro bono scheme wished to take on the matter. The Law Society wrote to Mrs Foundas on 22 January 2019 advising this. The letter advised that the system operates on a purely voluntary basis and the scheme cannot compel any practitioner to accept referrals. The letter also provided a list of three names of private solicitors who may have been willing to assist Mrs Foundas and her husband. The Law Society denied treating Mr Foundas less favourably on the ground of his disability.

Disability

Section 4 of the ADA sets out the meaning of "disability" as including 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 Foundas told the Tribunal that he has a mental illness. The Tribunal considers that a Tribunal hearing the matter would accept that this is a disability within the meaning of section 4 of the ADA.
Where an act is done for two or more reasons, and one consists of unlawful discrimination, whether or not it is the dominant or a substantial reason for doing the act, then, for the purposes of the Act, the act is taken to be done for that reason: s 4A of the Act.

Provision of goods and services

Section 49M of the ADA makes it unlawful for a provider of goods and services to discriminate against a person on the ground of disability: (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....

What constitutes discrimination on the ground of disability

Direct disability discrimination

Section 49B(1)(a) sets out the test for direct disability discrimination. (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

What Mr Foundas must establish if the Complaint were to proceed

The Tribunal understands that Mr Foundas' complaint is that the Law Society of NSW discriminated against him on the grounds of his disability under section 49M of the ADA. Mr Foundas alleges that the Law Society of NSW refused him a service because it had refused his wife a service and where she goes, he goes too as she is his carer.
The Tribunal is satisfied that a Tribunal hearing this matter would find that the service offered by the Law Society pro bono scheme includes acceptance of an application for assistance and assessment of the application. Depending upon the outcome of the assessment, the applicant may then be referred to third party providers of pro bono legal services, who themselves make a decision as to whether they will offer assistance. The Law Society of NSW assessed Mrs Foundas as eligible for service. The Respondent's letter of 22 January 2019 advised that the Respondent was unable to refer the matter to a solicitor on a pro bono basis. It is a matter for third party providers of pro bono legal services to decide whether they will accept a referral.
As a preliminary matter, the Tribunal is satisfied from the evidence of Mr and Mrs Foundas and the Law Society of NSW that a Tribunal hearing this matter would, on the balance of probabilities, find that Mrs Foundas did receive a service from the Law Society of NSW. The Tribunal is not satisfied in these circumstances that a Tribunal hearing the matter would find that Mrs Foundas was refused a service by the Law Society of NSW.
The Tribunal is also satisfied that Mr Foundas did not himself seek a service from the Law Society. If the matter were to proceed to hearing, the Tribunal considers that Mr Foundas would not be able to establish that he had been refused a service by the Respondent.

The terms on which the service was provided

Mr Foundas also alleges that he was discriminated against under section 49M on the grounds of his disability in the terms on which the Law Society of NSW provided him with services, by asking him and his wife to communicate in writing and not attend the Law Society offices.
The final sentence of the Law Society's letter to Mrs Foundas of 3 December 2018 states: "Please be advised that due to your and your spouse's behaviour when attending our front counter on Friday 30 December 2018, we request that all correspondence be in writing via email or post."
The Tribunal is not satisfied however that Mr Foundas was seeking a service from the Law Society.
Accordingly, Mr Foundas is unlikely to succeed in a complaint that he was discriminated against unlawfully by the Law Society of NSW on the grounds of his disability in the terms on which the Law Society of NSW provided him with services, by asking him and his wife to communicate in writing and not attend the Law Society offices.
The Tribunal notes that the reason provided in the Law Society's letter to Mrs Foundas of 3 December 2018 is "due to your and your spouse's behaviour". Before the Tribunal, Mr Foundas was candid in stating that the interaction with the officer of the Law Society on 30 November was heated. Ms Raper for the Respondent also told the Tribunal that there had been an altercation when Mr and Mrs Foundas had attended the building on 30 November 2018.
The Tribunal accepts that even if Mr Foundas had requested a service, it would be unlikely that a Tribunal would find in these circumstances that the reason for requiring Mrs Foundas to provide documents to the Law Society by email or post included Mr Foundas' disability and her association with him.

Indirect disability discrimination

Section 49B(1)(b) sets out the test for indirect disability discrimination (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of disability if the perpetrator: … (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, ..., 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. ... (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.
If Mr Foundas did allege there had been indirect disability discrimination against him, he would need to show that the Law Society of NSW had applied a requirement or condition with which a substantially higher proportion of people without his disability of mental illness was able to comply; with which Mr Foundas was not able to comply and which was not reasonable in the circumstances.
However, the Tribunal is satisfied that Mr Foundas did not seek a service from the Law Society and a complaint of indirect disability discrimination in the provision of services would be unlikely to succeed at hearing.

Should the Tribunal in all the circumstances grant leave?

The President declined Mrs Foundas' complaint on the basis it was lacking in substance. The Tribunal is satisfied that a Tribunal hearing the matter is likely to find that Mr Foundas has a disability. It is unlikely however that a Tribunal would find that Mr Foundas was refused a service by the Law Society of NSW. It is also unlikely that a Tribunal would find that if services were provided to Mr Foundas on less favourable terms, it was because of his disability. The Tribunal must exercise the discretion to grant leave, having regard to the purpose of the legislative scheme established by the ADA and be guided by the consideration that the refusal of leave will finally determine Mr Foundas' rights under that scheme. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case.

Decision

For the reasons set out above, I have concluded that the prospects of the referred Complaint succeeding are poor, and it is fair and equitable, having regard to the interests of both parties to refuse to grant leave for the Complaint to be the subject of proceedings before the Tribunal.

Orders 1. Leave to proceed with the complaint under section 96 of the Anti-Discrimination Act 1977 (NSW) is refused.

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: 25 September 2019

At a glance

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Judgment (17 paragraphs)

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