Foundas v The Law Society of New South Wales

Principles for the granting of leave to proceed under section 96

1. 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?

1. 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.
2. The President declined the complaint as lacking in substance, setting out the following reasons: 1. Mrs Foundas had not established that she was refused a service by the Respondent. Mrs Foundas' application for referral to pro bono assistance was accepted, processed and she was found by the Respondent to be eligible under the relevant scheme. 2. Mrs Foundas had not provided information supporting her allegation that the Respondent provided services to her on any less favourable terms because of her husband's disability - other than with mere conjecture. 3. Mrs Foundas had failed to demonstrate that she and her husband were: 1. required to leave the Respondent's premises because of her husband's disability; 2. required to submit correspondence via email or post, because of her husband's disability; or 3. unable to comply with the terms of service provided by the Respondent because of her husband's disability. 1. Mrs Foundas appeared to be under the misapprehension that the Respondent in finding she was eligible under the pro bono assistance scheme, has powers to ensure that she was provided with representation. 2. The Law Society had provided reasons for its actions that do not equate with discrimination. Namely that the process it took in accepting Mrs Foundas' application was done so on the basis of Mr and Mrs Foundas' behaviour.

Summary of Mrs Foundas' complaint

1. Mrs Foundas' complaint to the President stated that her husband, Mr Bill Foundas, is "mentally sick". Due to all his illnesses, Mrs Foundas is required to provide round-the-clock care for her husband. Mrs Foundas has a matter in the Supreme Court of New South Wales dealing with her home. She is a pensioner and needs assistance.
2. On 30 November 2018, Mrs Foundas went to the pro bono office in Sydney. The office is located down some stairs. Her husband has issues going down the stairs. An officer of the Law Society met with them at the top of the staircase. Mrs Foundas presented her application for legal assistance to the officer. After a few moments the officer began to question the application. The officer was rude to her husband and ordered him to leave, banning him from ever returning. The officer then mentioned that she would need to only communicate to the office by email. Mrs Foundas felt that she was being punished because she is associated with her husband who has an illness and is disabled. Mrs Foundas later received a letter stating that she and her husband were officially banned from ever entering the office or doing any sort of business with them. Later her application for legal assistance was declined. Mrs Foundas alleges it was as a direct result of this issue.
3. Mrs Foundas also said that it was a false statement that she and her husband were simply asked to leave and not banned. The Respondent appeared to agree that due to Mr Foundas' behaviour, all correspondence needs to be by post or email only, not in person and they were not invited either to ever come again into the office. Mrs Foundas questioned how hard the Law Society tried to find a lawyer for them after she was found to be eligible. She thought that eligibility for assistance was just granted to her for the sake of providing three contacts and then to relieve the Respondent of its responsibility. Mrs Foundas considered that she had not been given a service at all. All she got was a denial of service and told to go away. The letter that she received didn't even say she was accepted. The contacts provided do not even do the work requested. If she did qualify for assistance, then why did she not have more options available to her. She should have the right to go the front desk and speak with the person and not be denied that right.

The Respondent's response to the Complaint

1. 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.
2. The Law Society denied that it had discriminated against Mrs Foundas. When Mr and Mrs Foundas attended at the Law Society on 30 November 2018, Mrs Foundas' application was 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.
3. The Law Society's pro bono scheme assessed Mrs Foundas' application. On 3 December 2018, 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 Mrs Foundas less favourably because of Mr Foundas' disability. It also denied having required Mrs Foundas to comply with an unreasonable requirement or condition.

Disability

1. 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.
2. 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.
3. 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

1. 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

1. 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 Mrs Foundas must establish if the Complaint were to proceed

1. The Tribunal understands that Mrs Foundas' complaint is that the Law Society of NSW discriminated against her on the grounds of her husband's disability under section 49M of the ADA in two ways. Mrs Foundas alleges that the Law Society of NSW refused her a service - that is, legal representation in her matter in the Supreme Court.
2. 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 satisfied that the service offered by the Law Society pro bono scheme includes basically 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 advises that the Respondent was unable to refer the matter to a solicitor on a pro bono basis. The Tribunal understands that the scope of the Law Society's service offered does not include representation itself. It is a matter for third party providers of pro bono legal services to decide whether they will accept a referral.
3. 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.
4. If the matter were to proceed to hearing, the Tribunal considers that the likelihood of Mrs Foundas being able to establish that she had been subjected to less favourable treatment, and therefore a contravention of the Act, would be remote.

The terms on which the service was provided

1. Mrs Foundas also alleges that she was discriminated against under section 49M on the grounds of her husband's disability in the terms on which the Law Society of NSW provided her with services, by asking her to communicate in writing and not attend the Law Society offices.
2. 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."
3. The Tribunal accepts that the implication of this paragraph is that Mrs Foundas was not to attend the offices of the Law Society of NSW to deliver documents. The reason provided 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.
4. The Tribunal accepts that 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.
5. The Respondent denied that there had been provision of a service to Mrs Foundas on less favourable terms than would have been afforded an applicant whose relative did not have a disability. Even if a Tribunal were to find that there had been less favourable treatment by requiring Mrs Foundas to provide documents by email or post, a Tribunal would be unlikely to find this to have been a detriment and unlawfully discriminatory.

Indirect disability discrimination

1. 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.
2. If Mrs Foundas did allege there had been indirect disability discrimination against her, she 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 her husband's 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.
3. This was not put to the Tribunal. The Tribunal did not understand Mrs Foundas to be alleging that she had been discriminated against indirectly by the Law Society of NSW.

Should the Tribunal in all the circumstances grant leave?

1. 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 and that Mrs Foundas is associated with Mr Foundas. It is unlikely however that a Tribunal would find that Mrs 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 Mrs Foundas on less favourable terms, it was because of her husband's 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 Mrs 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

1. 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