Kyriakou v Long

Principles for determining leave applications

1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In that case Schmidt J:

• emphasised at [32] that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights";
• found at [28] that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;
• concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted . . ." and went on to say, at [38] that: Whatever the contest between the parties might be, the question of leave must be determined having in mind the purposes of the Act, which includes precluding unlawful discrimination and to permit those who have been so discriminated against, a remedy. Given that the legislation does not require all complaints to be investigated and dealt with, this means that while on the one hand, an obviously meritorious complaint will not be refused leave, where, for example on the other, it is apparent that the complaint lacks substance, or where the complaint is already being redressed elsewhere, leave may be refused, if that is what justice dictates.

1. Even if it is likely that an applicant will be able to prove a breach of the Anti-Discrimination Act, leave may be refused where, for example, the respondent has taken appropriate steps to remedy or redress the conduct complained of": Jones & Anor v Ekermawi [2009] NSWCA 388 at [32]. Similarly, if any damages that could be awarded are within a very low range, that may also be a factor affecting the fairness of granting leave: Mitry v Abbas [2013] NSWADT 214.

Background to the complaint

1. A summary of the details of the allegations and counter allegations is set out in the President's Report to the Tribunal. In relation to the parking arrangements and the use of the barbecue, Mr Kyriakou considers that Ms Long has sided with a Chinese neighbour who did not want him to park on the premises or use the barbecue. In relation to the refusal to be allowed to keep a pet bird on the premises, he says that Ms Long allowed a Chinese tenant to keep a dog in his room.
2. The alleged conduct has also been the subject of proceedings in the CTTT. The jurisdiction of that Tribunal is now undertaken by the Consumer and Commercial Division of this Tribunal. On 14 September 2013 Mr Kyriakou lodged an application under the Residential Tenancies Act 2010 (NSW) for orders including an order restraining any action in breach of the residential tenancy agreement and an order as to compensation. The factual allegations in that application included many of those that are the basis of the current complaint.
3. Following Mr Kyriakou's application to the CTTT, Ms Long lodged an application seeking termination of the tenancy agreement. Mr Kyriakou sent an email to the CTTT on the morning of the hearing saying that he was not able to attend because of illness. The applications proceeded in Mr Kyriakou's absence. The Tribunal terminated the residential tenancy agreement under s 92(b) of the Residential Tenancies Act on the basis that Mr Kyriakou had: intentionally engaged, or intentionally caused or permitted another person to engage, in conduct in relation to any such person that would be reasonably likely to cause the person to be intimidated or harassed (whether or not any abusive language or threat has been directed towards the person).
4. The CTTT also ordered that Mr Kyriakou pay outstanding rent of $782.86. The CTTT subsequently refused Mr Kyriakou's application for a re-hearing partly on the basis that he had not demonstrated a reasonably arguable defence to the proceedings brought against him. In effect, he had not demonstrated how the application for rehearing would lead to a different outcome.
5. Mr Kyriakou appealed to the District Court and when that appeal was unsuccessful he appealed to the Supreme Court. White J dismissed the appeal on the basis that Mr Kyriakou had not been denied procedural fairness partly because he had applied for the applications to be re-heard but had not set out what his defence would be: Kyriakou v Long [2013] NSWSC 1890. Mr Kyriakou appealed to the Court of Appeal: Kyriakou v Long [2014] NSWCA 308. Mr Kyriakou did not appear and sent an email stating that he was unwell. The Court of Appeal refused his application for an adjournment because there was no utility in granting an adjournment in circumstances where the proposed appeal did not have any reasonable prospects of success. Mr Kyriakou told me that he was considering seeking leave to appeal to the High Court.
6. Mr Kyriakou has complained about other landlords both under the Residential Tenancies Act and the Anti-Discrimination Act and landlords have complained about him. Proceedings against another landlord, Mr Kuzevski, were determined by the CTTT in 2012: Kyriakou v Kuzevski (Tenancy) [2012] NSWCTTT 451 (2 November 2012). The Tribunal recognised that Mr Kyriakou was a tenant for a three week period at the end of 2011 but otherwise dismissed Mr Kyriakou's applications including his application for compensation under the Residential Tenancies Act. Following an application to the Supreme Court Mr Kyriakou was allowed back into possession of the premises for seven days subject to him giving certain undertakings to the landlord and the Court: Kyriakou v Kuzevski & Ors [2011] NSWSC 1541 (25 November 2011)
7. In 2013 he alleged that Mr Jiang, had not registered the boarding house in which Mr Kyriakou lived so he should not have to pay rent. In April 2013, Mr Jiang successfully applied to the CTTT for an order terminating the tenancy on the same basis that his tenancy with Ms Long was terminated. The Tribunal found, under s 92(b) of the Retail Tenancies Act, that Mr Kyriakou had intentionally engaged, caused or permitted another person to intimidate or harass a person. The Tribunal was satisfied the racist slurs against people of Chinese background contained in an email Mr Kyriakou sent on 26 February 2013, would cause the landlord to feel intimidated and harassed: Jiang v Kyriakou (Tenancy Division) [2013] NSWCTTT 120 (4 April 2013). His appeal to the Court of Appeal was unsuccessful: Kyriakou v Jiang [2013] NSWCA 105 (26 April 2013).
8. In January 2014, this Tribunal granted leave for a complaint Mr Kyriakou made against another landlord, Mr Guo, to proceed: Kyriakou v Guo [2014] NSWCATAD 6 (29 January 2014). The subject matter of that complaint was that the landlord, who is of Chinese background: 1. accepted and acted on complaints about him from Chinese tenants when those complaints were not justified; 2. wrote to him on 15 October 2012, asking him to leave by 17 November 2012 because Council was only allowing him to have four people remain as tenants; 3. accepted and acted on further complaints from Chinese tenants after Mr Kyriakou responded to Mr Guo's letter of 15 October 2012; and 4. wrote to him on 24 October 2012 threatening legal action if he did not vacate the room by 7 November 2012 and served him with a Notice to Terminate Tenancy Agreement on the same day.
9. Mr Kyriakou subsequently withdrew the complaint.
10. The Consumer and Commercial Division of this Tribunal (the successor to the CTTT) heard further proceedings involving Mr Kyriakou and another landlord, Ms Xie, in June and July 2014: Kyriakou v Xie. [2014] NSWCATCD 154 (14 August 2014), The basis of Mr Kyriakou's application included that he should be reimbursed for his rent because the premises were being operated illegally and that he should be compensated because Ms Xie and her boyfriend had engaged in "malicious and constant harassment, intimidation, threats of assault and breach of the tenant's rights to quiet enjoyment and privacy." The Tribunal concluded that it did not have jurisdiction because Mr Kyriakou was a member of a shared household and was not subject to the Residential Tenancies Act.
11. Mr Kyriakou applied unsuccessfully for decisions to be set aside in relation to his suspension and ultimate dismissal as a bus driver for failing to comply with a reasonable and lawful direction: Kyriakou v State Transit Authority [2011] NSWTAB 17; Kyriakou v State Transit Authority Division of the NSW Government Service (No 2) [2012] NSWIRComm 63.
12. Mr Kyriakou has been involved in litigation against three landlords, other than Ms Long. He has been found more than once to have been in breach of s 92(b) of the Residential Tenancies Act because he intentionally engaged in conduct that would be reasonably likely to cause the person to be intimidated or harassed. While it is not necessary to find that Mr Kyriakou's complaint is vexatious, the frequency and nature of the litigation in which he has been involved and the adverse findings that have been made against him, are relevant considerations when determining whether it is fair and just for this complaint to proceed. Whether the complaint lacks substance is also a relevant consideration.

Proving discrimination

1. To substantiate his complaint of race discrimination, Mr Kyriakou would have to prove that Ms Long has breached s 20 of the Anti-Discrimination Act. Mr Kyriakou appears to be relying on s 20(2)(a) and (b): (2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race: (a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person (b) by evicting the person or subjecting the person to any other detriment.
2. Eviction cannot be the subject of these proceedings because the order terminating the tenancy was made by the CTTT. Ms Long did not evict him. But it is arguable that Ms Long denied him access, or limited his access to a benefit associated with the accommodation or subjected him to "any other detriment."
3. Section 4 of the Anti-Discrimination Act defines "race" to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Mr Kyriakou is Greek. There is no doubt that his race comes within the definition in s 4.
4. Race discrimination is defined in s 7: What constitutes discrimination on the ground of race (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) 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 of a different race or who has such a relative or associate of a different race, or (b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race.
5. I understand Mr Kyriakou to be relying only on direct race discrimination as defined in s 7(1)(a).
6. In order to substantiate his complaint, Mr Kyriakou would have to prove that: 1. Ms Long's treatment of him was less favourable than the treatment she did or would have afforded to a person of a different race in circumstances which are the same or not materially different; and 2. the treatment was "on the ground of" his race.
7. These two components of discrimination are sometimes called "differential treatment" and "causation".
8. There is no direct evidence that Ms Long treated Mr Kyriakou differently from other tenants because of his race. No one made any admissions. The only way Mr Kyriakou can establish that connection is by identifying other primary facts which would allow the Tribunal to draw an inference to that effect. An inference must be logical, reasonable and establish a "probable connection" with race. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70].
9. In relation to the dispute about where Mr Kyriakou could park his car Mr Kyriakou asserts that Ms Long sided with a Chinese neighbour when she complained about where Mr Kyriakou was parking his car. The fact that Ms Long took action following complaints from a Chinese neighbour does not necessarily establish differential treatment. The neighbour is not a comparator for the purpose of the differential treatment test. The Tribunal would have to compare the way Ms Long treated Mr Kyriakou with the way she would have treated another tenant of a different racial background in the same or similar circumstances. There is no evidence of any such treatment in this case so the comparator would have to be a hypothetical person.
10. The dispute about where Mr Kyriakou should park his car was apparently a long and heated one. On one occasion Mr Kyriakou says that the Chinese neighbour stood in the drive way blocking his entrance for 30 minutes until he moved the car forward into her path forcing her to move. He called the police, who spoke to Mr Kyriakou but they took no action. Mr Kyriakou accuses Ms Long of "supporting her Chinese counterpart" and engaging in "harassment, bullying and discrimination."
11. In my view, it is unlikely that a Tribunal hearing this complaint would draw an inference that a reason that Ms Long directed Mr Kyriakou to park on the street was his race. A more innocent explanation is that she made that decision because of complaints from a neighbour as well as safety concerns. The fact that both Ms Long and the neighbour are Chinese would not be sufficient, in my view, for a Tribunal to draw an inference that the directive was on the ground of Mr Kyriakou's race.
12. In relation to the complaint about being denied the use of the barbecue, Mr Kyriakou wrote in his application to the CTTT that when the neighbour complained about smoke blowing in to her house Ms Long "issued a directive that she did not want the applicant or any other tenant having a barbecue at the premises." If the so-called "directive" was addressed to all tenants, it is unlikely that a Tribunal hearing this case would conclude that the directive discriminated against Mr Kyriakou on the ground of his race.
13. In relation to the dispute about pets, the residential tenancy agreement between Mr Kyriakou and Ms Long states: "No pets allowed." Mr Kyriakou gave evidence that, at the very beginning of the tenancy he asked Ms Long if he could keep a bird in a cage but that she refused. Mr Kyriakou also says that another tenant of Chinese background, was allowed to keep a dog. According to Mr Kyriakou, there was no residential tenancy agreement between that tenant and Ms Long. Even if that is the case, and Mr Kyriakou's assertion that Ms Long was operating an "illegal boarding house" could be proved, it is not relevant because it was not the subject of the complaint as referred by the President of the Anti-Discrimination Board.
14. It is arguable, however, that the absence of a residential tenancy agreement means that Mr Kyriakou's circumstances and those of the Chinese tenant were not the same or were materially different for the purposes of the differential treatment component of direct discrimination. I also take into account that the tenancy agreement clearly states that Mr Kyriakou is not to have any pets. In all the circumstances, a Tribunal hearing this matter is unlikely to be satisfied that a decision not to vary that agreement was on the ground of Mr Kyriakou's race.
15. Mr Kyriakou is a serial complainant with a history of intimidating landlords and tenants. In one case that intimidation involved using racist language. The complaints that Mr Kyriakou makes are not necessarily doomed to fail on the basis of the evidence currently available, but they are weak. That finding, together with the nature and frequency of complaints Mr Kyriakou has brought against his landlords and his former employer and the adverse findings that have been made against him, satisfy me that it is not fair or just for the complaint to proceed.

Order Leave is refused for Mr Kyriakou's complaint to proceed. 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: 03 March 2015