Grass v McIntosh

[2024] NSWCATAD 224

NCAT Administrative and Equal Opportunity|2024-06-04

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At a glance

Source facts

Court

NCAT Administrative and Equal Opportunity

Decision date

2024-06-04

Catchwords

Karelicki v Harguos (No 2) [2006] NSWADT 275 Commonwealth of Australia v Evans [2004] FCA 654
Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

Source

Original judgment source is linked above.

Catchwords

Karelicki v Harguos (No 2) [2006] NSWADT 275 Commonwealth of Australia v Evans [2004] FCA 654Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191

Judgment (11 paragraphs)

[1]

REASONS FOR DECISION

On 13 February 2024, Mr Grass lodged an application for miscellaneous matters against Mr Leonard McIntosh and Mr Edi Leong. This application is in relation to the orders made on 11 October 2023 ("the Orders") in Grass v McIntosh, Leong and Auyeng [2023] NSWCATAD 258 ("the Decision").
The Orders subject to this application are as follows: 1 The first respondent and the second respondent is enjoined from continuing or repeating any conduct rendered unlawful by Anti-Discrimination Act 1977 against the applicant. 2 The first respondent is to provide a copy of this decision to the management of the tennis court within 14 days. 3 The first respondent is to place a copy of this decision next to the sign on sheet for the social group for two consecutive Tuesdays and Thursdays following receipt of this decision. 4 The application against the third respondent is dismissed.
The Orders were certified by the Registrar on 18 October 2023 under s 114 of the Anti-Discrimination Act 1977 (NSW) ("AD Act").
The background to this claim can be found at Paragraphs 8 to 31 of the Decision and should be read alongside this decision. In summary, the Tribunal found that: Mr McIntosh and Mr Leong took active steps in excluding Mr Grass from the tennis social club at Meadowbank because he made allegations under this Act, [56] of the Decision.
In this application, Mr Grass seeks an order for damages pursuant to s 108(7) of AD Act and, or alternatively, orders under s 72 of the Civil and Administrative Tribunal Act 2013 (NSW) ("CAT Act"). He seeks these orders on the basis that both Mr McIntosh and Mr Leong failed to comply with the Orders.

[2]

Applicant's Claims

Mr Grass alleged that the day after the respondents received the Orders, the respondents cancelled the booking with the Meadowbank Facility and moved the social group to a different location without informing him. Mr Grass later identified this location to be Rod Faye Tennis Centre in Marsfield. Mr Grass alleged that Mr McIntosh scheduled the social group's activities at the new location in the same manner at the Meadowbank Facility: Tuesdays and Thursdays between 8.30am and 12.30pm.
In written submissions, Mr Grass contended that the respondents did not comply with Order 1. He submitted that his guests, other club patrons and himself continued to be excluded from the social club as the respondents cancelled the social club without disclosing the location of the new location. He also alleged that Mr McIntosh did not abide by Order 2.
Mr Grass submitted that the respondents kept the Orders and sign on sheet for the social tennis group in an equipment box in a storeroom and did not display it as per Order 3. He contended that the photographic evidence provided by Mr McIntosh depicting a copy of the Decision displayed alongside the sign on sheet for the social tennis group to prove compliance with Order 3 was falsified.
Mr Grass further submitted that the Tribunal has the power under s 73 of the CAT Act to enforce orders. He submitted that the respondents' conduct amounted to contempt on the basis that they have failed to provide Mr Grass a copy of their submissions which was contrary to the Orders made on 20 February 2022. He submitted that the respondents have repeatedly not complied with Tribunal orders and timetable by denying the applicant access to, and time to adequately respond to, the respondents' submissions. Specifically, Mr Grass stated that he attended the Tribunal on 8 April 2024 to access the file and the respondents' submissions but was unable to do so.
However, Mr Grass has not made an application under s 73 nor does his application seek an order under s 73.
Mr Grass submitted that he has suffered detriment, including financial detriment, due to the respondents' failure to comply with the Orders. Attached to his application, is Mr Grass' contention that that due to the exclusion instigated by respondents, he has been paying $25 per hour for 4 hours, amounting to $100 per day and $200 per week. He stated that he was excluded from the social tennis group for a total of 104 weeks with a cost of $180 per week amounting to financial detriment of $18,720.00. He also stated he incurred further expenses involved in filing documents in the Tribunal and in the NSW Supreme Court.
Mr Grass submitted that the Tribunal should make an order pursuant to s107(8) of the AD Act "as a deterrent for conduct contrary to order and as an additional component for the detriment/financial loss the complaint incurred as per paragraph [50] of the decision."
Mr Grass filed further material on 16 June 2024 after the hearing on 4 June 2024 making contentions about, inter alia, the financial detriment he had suffered. Mr Grass did not seek leave for filing of such further material nor was leave granted. As such, the further material was not considered.

[3]

Respondents' Contentions

Mr McIntosh submitted that he had complied with the Orders. In regard to Order 1 he submitted that he left the social group and would not be having any contact with Mr Grass. On 16 October 2023, Mr McIntosh sent an email to Mr Leong stating that as a result of the Decision it was untenable for him to keep playing tennis at Meadowbank and he could not come tomorrow "and risk further escalation of this for which I will be blamed regardless of what I do. As the courts are booked in my name I have no choice but to cancel my permanent booking effective immediately."
He stated that he informed a member of the social group that they would have to re-book a tennis court if they wanted it to continue. He stated that at that stage he left the group completely "to ensure they could carry on without these matters disrupting them".
Mr McIntosh contended that the social group chose to not re-hire the Meadowbank court and moved to another location. He stated that he had no way of knowing whether the social group took the copy of the Orders to the new location as he has not had any contact with them after cancelling the booking. He denied moving the social group to another location in Marsfield and scheduling the club's activities in the same manner (Tuesdays and Thursdays between 8.30am and 12.30pm). Mr McIntosh denied that "he had relocated the group to another centre in Marsfield."
In regard to Orders 2 and 3, Mr Mcintosh relied on an email dated 1 April 2024 addressed to him from Sumit Rana, the manager of Voyager Tennis at Meadowbank Tennis Courts, which confirmed receipt of a copy of the orders on 16 October 2023 and also confirmed that a copy of the orders had been placed with the group's tennis equipment in the Tournament office.
Mr McIntosh disputed the financial detriment suffered by Mr Grass. Mr McIntosh stated that Mr Grass has allegedly only hired the courts approximately 36 occasion for one to two hours each booking and that the other players on the court with Mr Grass would share, on Mr McIntosh's assumption, the costs of each booking.
Mr Leong did not provide any written submissions. However, he attended the hearing on 4 June 2024, and submitted that he also has not played with the social group and has not attended the Meadowbank Tennis Courts.

[4]

Contravention of Tribunal Orders

In relation to the applicant's allegation of contravention of orders, he sought the following orders: 1. That the Tribunal finds that the Respondents on the evidence before the Tribunal are in contravention of Orders made by the Tribunal on 11 October 2023; and 2. That the Tribunal directs the Registrar to give a copy of these orders and reasons to the Commissioner of Fair Trading to consider whether the Minister wishes to intervene and make submissions about commencing proceedings as per sections 75 and 77 of the CAT Act.
Section 72 of the CAT Act is as follows: 72 Contravention of orders of Tribunal (1) A person must not, without lawful excuse, contravene a designated order of the Tribunal. … 2) A designated order of the Tribunal means any of the following - (a) an order of the Tribunal made under section 64 (Tribunal may restrict disclosures concerning proceedings), (b) an order of the Tribunal made under section 108(2)(b), (c), (d) or (e) of the Anti-Discrimination Act 1977 or an interim order of the Tribunal made under that Act, (c) an order of the Tribunal made under section 42 of the Guardianship Act 1987, (d) any other order of the Tribunal that a provision of this Act or enabling legislation has declared to be a designated order for the purposes of this section. (3) A person must not, without reasonable excuse, contravene any other order of the Tribunal made under this Act or any other legislation. Civil penalty provision.
Section 75 of the CAT Act states: 75 Commencement of proceedings Proceedings for an offence against a provision of this Act or on an application under section 77 may be commenced only by any of the following persons (an authorised official) - (a) the Minister, (b) a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose.
Relevantly, s 77(1) of the CAT Act states: 77 Proceedings for contravention of civil penalty provision of this Act (1) This section applies to a provision of this Act (a civil penalty provision of this Act) if the words "Civil penalty provision" are specified at the end of the provision. Note - A contravention of a provision of this Act for which a maximum penalty is provided is an offence rather than a contravention of a civil penalty provision of this Act.
Pursuant to ss 75 and 77, a proceeding seeking a civil penalty must be commenced by either the Minister or a person with the written consent of either the Minister or another person or body authorised by the Minister for that purpose. Mr Grass does not satisfy either criterion in s 75(a) or (b). Wojciechowska v Secretary, Department of Communities and Justice; Wojciechowska v Registrar, Civil and Administrative Tribunal [2023] NSWCA 191; 379 FLR 256 at [100].

[5]

Can the Tribunal Make an Order under s 108(7) of the AD Act after Final Orders?

Section 108(7) of the AD Act stated: 108 Order or other decision of Tribunal … (7) If the Tribunal makes an order under subsection (2) (b), (c), (d) or (e), it may also order that, in default of compliance with the order within the time specified by the Tribunal, the respondent is to pay the complainant damages not exceeding $100,000 by way of compensation for failure to comply with the order.
Section 108(7) of the AD Act has mostly been evoked by Tribunals contemporaneously with the making of order(s) under subsection (2)(b), (c), (d) or (e): see Burns v Sunol [2014] NSWCATAD 2; Burns v Sunol (No 2) [2014] NSWCATAD 44 (Tribunal determining non-compliance); Lamb v Campbell [2021] NSWCATAD 103 and Malenha v Sullivan [2017] NSWCATAD 222; Cohen v Harguos; Karelicki v Harguos (No 2) [2006] NSWADT 275.
In Gardiner v Aquasun Pty Ltd (t/as Asher Coastwise Real Estate) (No 3) [2006] NSWADT 196 ("Gardiner") and Burns v Corbett [2015] NSWCATAD 188 ("Burns v Corbett") the Tribunal considered the power to make an order under s 108(7) after final orders were made in circumstances where an order under s 108(2)(b), (c), (d) or (e) of the AD Act has been made previously.
In Gardiner, the Tribunal made an order under s 108(7) after consent orders were entered into at a dismissal hearing. The Tribunal found at [61] that one of the consent orders was an order made under s 108(2)(c) thus enlivening the power under subs (7) when the Respondents did not comply with that order.
In Burns v Corbett the Tribunal observed that orders made under s 108(2)(b), (c), (d), or (e) of the AD Act can and should be enforced by, inter alia, s 108(7) of the AD Act: see [121] to [124], [137]
Relevantly, the Appeal Panel in Margan v Mania [2014] NSWCATAP 16 at [44] stated that whether a Tribunal makes a default order under s 108(7) for payment of an amount in damages is discretionary matter for the Tribunal to determine. The Appeal Panel stated. "The Tribunal did not make an error of law in deciding not to [make a default order under s 108(7)] …".
The respondents did not make any submission that s 108(7) of the AD Act imposes a temporal limitation or requirement that for an order to be made under this subsection, it must be made contemporaneously with final orders.
The Tribunal finds that the Tribunal may exercise its discretion in making an order pursuant to s108(7) of the AD Act as the Orders were made pursuant to s 108(2)(b) and (c) of the AD Act.
The question, therefore, is not whether the Tribunal can make an order under s 108(7) after making final orders, but rather whether it should exercise it's discretion to make the order. An order pursuant to s 108(7) should only be made if the Tribunal finds that there was default in compliance with an order and an order for damages is compensation for failure to comply with the order. It is appropriate to consider in this case the conduct of the respondents and whether such conduct amounted to non-compliance with the Orders.

[6]

Have the Respondents Failed to Comply with the Orders?

At the hearing, Mr Grass did not pursue his submission regarding Mr McIntosh's failure to comply with Order 2 and agreed that it was in fact complied with. Thus, the written submission of non-compliance with Order 2 is not considered. In any event I find that based on the material before the Tribunal, Mr McIntosh did comply with Order 2 by providing a copy of the decision to Mr Rana of Voyager Tennis Academy on 16 October 2023.
Mr Grass has the onus to establish that the respondents have failed to comply with Orders 1 and 3 on the balance of probabilities: Burns v Corbett at [90].
Mr Grass contended that the respondents' conduct continued to constitute victimisation, which is unlawful under the AD Act, because he was still excluded from the social group.
It was not submitted by Mr Grass that the respondents' conduct amounted to other conduct rendered unlawful under the AD Act apart from victimisation. The relevant legal principles regarding victimisation are set out in [35] to [47] of the Decision.
There was some contention regarding the date on which Mr McIntosh received a copy of the Decision. Mr McIntosh claimed that he received the copy of the Decision on 16 October 2023. However, as Mr Grass correctly submitted, that the Decision was published on Wednesday, 11 October 2023 and that the parties were notified on the same date.
I accept Mr McIntosh's statement that he did not receive a copy of the decision until 16 October 2023. The Registry wrote to the parties on 18 October 2023 that although the parties were notified by email of the decision on 11 October 2023, there were intermittent technical issues that were experienced during that period where parties may not had received email communication from its case management system. Given that it is Mr McIntosh's compliance that is subject of this application, I accept that he was only able to comply with the Orders when he became aware of the decision by receiving it.

[7]

Order 1

The Decision and Orders was confined to the complaint that during the complaint period (1 November 2021 and 4 January 2022) Mr Grass was subject to victimisation. The Tribunal found that Mr Grass was victimised by the respondents by being excluded from the social tennis group at Meadowbank Tennis Courts. Order 1 enjoined the first and the second respondent from continuing or repeating any conduct rendered unlawful under the AD Act.
Order 1 was addressed to the conduct of the first respondent and second respondent regarding the social tennis group at Meadowbank Tennis Courts.
Order 1 does not place an obligation upon Mr McIntosh to ensure that the social tennis group continued under his name or that the social tennis group at Meadowbank Tennis Courts would continue at all if its members decided to not rehire a booking for the group to then go to a different tennis court, as what has happened in this case.
The Tribunal's jurisdiction is limited to the breadth of the complaint. The Tribunal does not have general power to direct individuals to engage with each other in general life or in social endeavours. Mr Grass' submission about the effect of Order 1 goes beyond the scope of the complaint. Mr Grass' submission that the respondents had to ensure that the social group continued, or to prevent the members of the social group to move to a different location was misguided as it was outside the scope of Order 1.
It also goes without saying that the respondents' failure to maintain the booking for the social group for the next two consecutive Tuesday and Thursday after receipt of the Decision also does not constitute victimisation. As stated below, and to re-iterate, the Orders did not impose an obligation upon the respondents to ensure the continuance of the social group. The social group was free to rehire a court for its members. The fact that it refrained from doing so does not mean that the respondents should be held responsible.
It does not appear from the evidence that the respondents had actively planned with the members of the social group to go to a different tennis centre.
The Tribunal is not persuaded that the conduct of Mr McIntosh or Mr Leong amounted to non-compliance with the Order 1.

[9]

Conclusion

The Tribunal is not satisfied that either Mr McIntosh or Mr Leong failed to comply with Order 1. The Tribunal is also not satisfied that Mr McIntosh failed to comply with Order 3.
Even if the Tribunal found that Mr McIntosh failed to comply with Order 3 by cancelling the booking for the tennis social club on 16 October 2023, the Tribunal would not exercise it's discretion to make an order pursuant to s108(7) of the AD Act because it is not a way to compensate "for failure to comply with the Order.".
While the Tribunal understood that Mr Grass wanted to return to playing tennis with the social group, Decision at [57], the Tribunal does not have the power, under anti-discrimination law, to direct how each individual is to engage with each other in social endeavours. The Tribunal deals with specific allegations within a complaint period by reference to the facts of the case.
In his complaint, Mr Grass did not seek damages. At [50] of the Decision, the Tribunal stated: The Tribunal has no difficulty in finding that excluding a person from playing tennis with a social group that he has been playing with for over twenty five years is a detriment. Playing with the social group was also cheaper than hiring a tennis court as an individual, so financial damage also ensued as a result of the exclusion.
The reference to "financial damage" was the difference in cost between hiring the tennis court as an individual compared to playing with the social group during the complaint period (1 November 2021 and 4 January 2022). Mr Grass made no claim for damages pursuant to s108(2)(a) of the AD Act.
In this application Mr Grass has not provided evidence of payments he has made to play tennis during the complaint period, instead he claimed payments for 104 weeks at $180 a week plus "expenses" associated with Supreme Court and NCAT. There is no evidence as to what economic loss Mr Grass suffered during the complaint period. The fact that the social group did not continue following 15 October 2023 did not result in financial loss to the applicant within the complaint period.
Mr Grass has also sought damages as a deterrent to the respondents for failing to comply with the Orders. I consider that the power to make orders under s 108 is compensatory in nature; Margan v Mania [2014] NSWCATAP 16 at [40], it is not to impose punishment on the respondent; Commonwealth of Australia v Evans [2004] FCA 654; 81 ALD 402 at [80].
In relation to Mr Grass' submission that the respondent' conduct amounts to contempt, the Tribunal cannot make any findings as the applicant must make a separate application seeking an order pursuant to s 73 of CAT Act.

Grass v McIntosh

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Judgment (11 paragraphs)

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Cases Cited (9)