Quilty v Commissioner of Police, NSW Police Force

NCAT Administrative and Equal Opportunity|2024-11-25

Overview

Rachel Quilty (the Applicant) complains that officers of the Commissioner of Police, NSW Police Force (the Respondent) discriminated against her on the grounds of her sex, when providing her with their services, contrary to ss 23, 24 and 33 of the Anti-Discrimination Act 1977 (the Act).
There are a number of interrelated occasions on which this sex discrimination is claimed to have occurred, taking place between 17 May 2023 and 14 August 2023. On 17 May 2023 the Applicant emailed Constable Simpson to complain about "recent ongoing harassment from my landlord" (the initial contact event). On 19 May 2023 the NSW Police attended the Applicant's residence in response to a call she made to 000, and spoke with the Applicant and her neighbour (the primary event). Following enquiries, the NSW Police closed the incident and declined to conduct further investigations into the allegations raised by the Applicant at the primary event. On 14 August 2023 the Applicant lodged a customer service complaint with NSW Police and on 17 August 2023 the Applicant discussed her customer service complaint with Inspector Howard (the third event). Further detail of these events is described below.
The Applicant believes that because she was a female, she was treated differently to her male landlord by the NSW Police.
The Applicant lodged a complaint of sex discrimination with Anti-Discrimination NSW (ADNSW) on 14 August 2023. ADNSW investigated the complaint but was unable to resolve the matter by conciliation, and so referred the complaint to this Tribunal pursuant to s 93C(b) of the Act.
At hearing the Applicant relied on the President of ADNSW's Summary of Complaint (Exhibit A1), a document titled "Statement of Rachel Quilty" including Points of Claim dated 8 July 2024 (Exhibit A2), a document titled "the Statement of Evidence including Statements, Documents and Submissions of Rachel Quilty" dated 30 October 2024 (Exhibit A3), a document titled "Response to the Evidence, Statements, Documents and Submissions of the Respondent by Rachel Quilty" dated 18 November 2024 (Exhibit A4), and a document titled "Applicant's Response to Respondent's Outline of Submissions by Rachel Quilty" dated 24 November 2024. The Applicant was cross examined at hearing and made oral submissions. The Applicant did not require the Respondent's witnesses for cross-examination.

The Complaint

The Applicant's Complaint identified three events, at which she claimed the Respondent's conduct constituted unlawful sex discrimination, namely the: 1. Initial Contact Event - on 17 May 2023; 2. Primary Event - on 19 May 2023; and 3. Third Event - on 17 August 2023.
The Initial Contact Event was described by the Applicant as: Following an individual entering my property and bedroom and a further attempt to break in later the night of 16th May 2023 and that it may have been an attempted rape as a chemical substance was placed at the end of her bed. I sent an email on 17th May 2023 to a Police Officer at Lismore Police Station. I also outlined the deliberate harm with chemicals that had been occurring at my property. The Police Officer emailed a response advising me to call into the Police Station or call to have the Police attend. Given Applicant was concerned about her property being stolen, her preference was for the Police to attend and see the evidence or call to take a verbal report. The email identifies some of the events that led to the Applicant contacting the Police and to the issues that she was concerned with namely, the break in to her property, as well as the issue of the owner's use of chemicals on her property.
The email referred to by the Applicant was sent directly to Senior Constable Simpson and stated: Hi Aaron Police Incident Report - Rachel Quilty Mob 04xx xxx xxx I would like to report ongoing harassment from my landlord who lives in the property next door that I lease at [address] East Lismore and which is part of the Flood Emergency Accommodation managed by Dept of Community. [Mr R] at [address] East Lismore has been spraying and pouring chemicals on my property. I have been diagnosed by a toxicologist with a chemical sensitive; advised him prior to lease and he has repeatedly refused to give notice and is deliberately poisoning the plants and spraying around my property. Given that the plants around my property are now dead I have evidence of the harm and therefore very little investigation is necessary. Given the volume of chemicals these would have had to have been purchased locally. I have also had someone unlock my door at 6am and coming into my property yesterday morning and attempted at 10.40pm last night. I had jammed the door so it made a lot of noise. I was then harassed with a few times during the night and had to turn on the security lights disturbing the neighbour's. I would like the Police to call [Mr R] and ask him not to be using chemicals. He is an alcoholic. This has now clearly moved from spraying without permission to criminal harassment and deliberately attempting to harm me. I would appreciate your 20min assistance with this matter.
Senior Constable Simpson responded: Hi Rachel My role here is as the exhibits/property officer, if you would like to report incidents to Police you will either need to come into the station and speak with an Officer, or request they come to you to make the report. I appreciate you reaching out, and your concerns, however that is the appropriate means to report the matter.
The Primary Event was described by the Applicant as: Ms Rachel Quilty (The Applicant) called NSW Police Services - Emergency Police line at approximately 7am 19th May 2023 following an individual trespassing again at her property during the night. A recording of the NSW Police - Emergency Police line call may be available to confirm the principal concern was to report the break in on the night of the 16th May 2023 and a further break in and later attempt during night of 18th May 2023 and to report and request cessation of deliberate harm from physical exposure and unsafe air quality from use of chemicals on her property and lodge the complaint with the Police as property rental subsidies by Dept of Housing. The Applicant advised Police Emergency that she had emailed Lismore Police and been advised to call and have Police attend. Email sent on 17th May 2023 to a Police Officer at Lismore Police Station. After a discussion with the Emergency Police line, they deemed the circumstances and the concern sufficient to warrant the Lismore Police to attend. Two Police vehicles attended the property, at approximately 7.55am; The Police Officer in Charge went to the Landlord's property adjoining Applicant's cottage and after approximately 10 mins attended Applicant's property and left by 8.16am. Two Police officers attended Applicant's property. The older Officer advised that he knew the Landlord, Alan and that he would ring him later. Applicant advised she had air purifiers; she was a tenant and her property had recognised boundaries and that the evidence of deliberate chemical harm was at her office window and around her property. The two Officers then followed Applicant to inspect the area and boundaries when the Police Officer in Charge stopped them at her front door. The Police Officer in Charge advised the applicant that, "He [the landlord] seemed reasonable"; and The Police Officer in Charge advised the applicant that, "It's his property and he [the landlord] could do whatever he wanted on his property." Applicant has responded that she was a tenant and they had agreed to boundaries. Applicant had a signed tenancy agreement with the Landlord/s. Applicant asked the Police Officer in Charge if he would look at the evidence. He advised her, he would not. Applicant asked if she could report the concerns she had with the Landlord. The Police Officer in Charge said, "No, we are leaving." The Police Officer in Charge refused to take a Police Report from Applicant on the break in, attempted break in and the trespassing and to consider evidence of harm from deliberate pouring and/or spraying of chemicals on her property impacting on the air quality in the property. Applicant had spoken to the other Police Officers mentioning she had two air purifiers which were frequently registering unsafe and/or dangerous air quality and recorded the results. The Police did not provide a card or event number or Police Report number. The Police left the property at approximately 8.16am.
The Third Event was expressed by the Applicant in her Points of Claim as: Applicant lodged a customer complaint with NSW Police. Applicant lodged an Anti-Discrimination complaint on the 14th August 2023. Inspector Howard on 17th August 2023 responded to the customer complaint. Inspector Howard requested information on her concerns with the Landlord which led to the Police call out on 19th May 2023 and advised he would send a female police officer to discuss the issues; as no information was on the system about the Police attending the property or the any details of the complaint. That's the customer service complaint was the only information he had. Applicant advised that the concerns had forced her to leave the property and she required Police assistance on the 17th May and the 19th May 2023 and not months later after she was forced to leave; so, providing a Police report now was not necessary and would not result in any helpful outcome from the Police. A recording of the conversation may be available. Applicant advised that she had previously sent an email to the Lismore Police station on 17th May 2023 seeking assistance with the Landlord and was advised to call the Police or call into the Station. Applicant advised that she had called the Emergency NSW police line and a recording of the events and her concerns were available via that avenue. Applicant advised that she had escalated the matter and it was now an Anti-discrimination matter and that it was probably inappropriate to decision the matter. Applicant advised that it was inappropriate to change the police record now that it was subject to an anti-discrimination claim. Applicant advised that it was unlawful and possibly corruption to amend the police record of the events of the 19th May 2023. The comments and requests for information by Acting Inspector Howard confirmed the failure of the Police Officer in Charge (OIC) to take a brief Police Report and record a police event. A recording of this conversation may exist. Application to amend the Complaint to include the Third Event
The Respondent submitted that the Third Event raised by the Applicant in her Points of Claim and submissions was outside the temporal scope of the complaint referred by ADNSW to this Tribunal and should not be considered as part of the matter to be determined by the Tribunal.
The period of complaint referred by ADNSW to this Tribunal is limited to 17 May 2023 to 14 August 2023. It appears from the President's Summary of Complaint that ADNSW did not investigate the period after 14 August 2023, however the Applicant did refer to conversations she had with Inspector Howard following her customer service complaint, in her letter to ADNSW of 15 January 2024.
The Applicant requested that the Tribunal exercised its power to amend the application to include the period up to and including 17 August 2023 (that is, to include the Third Event).
The Respondent submitted that the application should be dismissed on the following grounds: 1. the Applicant had not applied to ADNSW to add this complaint or amend the existing complaint; 2. it was not apparent what the complaint was - that is, what services were being referred to, whether there was an alleged refusal of services, or what issue the Applicant had with the terms on which services were provided; 3. the Third Event factually supported the Primary Event and was not a distinct or independent basis for a complaint capable of being substantiated as unlawful discrimination; 4. the Applicant had made no submissions regarding the amendment of the complaint pursuant to s 103 of the Act, and had not addressed the statutory criteria for how it was alleged to be a complaint of unlawful sex discrimination; 5. the Third Event as a complaint of unlawful sex discrimination had no merit and was unlikely to have any merit; 6. the Respondent had objected to amendment of the complaint at the earliest possible stage - that is, in its Points of Defence at paragraphs 9(a), 26(a) and 27(a) filed on 22 August 2024; 7. The Applicant had not articulated the Third Event sufficiently as a complaint, even after the Respondent had squarely raised this issue during the Tribunal's case management of the proceeding after the Respondent filed its Points of Defence; and 8. Inspector Howard had not been called for cross-examination, which caused prejudice to the Respondent.
For convenience these factors can be summarised as: 1. procedural objections - because the Applicant did not make the application to amend in formal terms with reference to s 103 of the Act with ADNSW or the Tribunal and had not adequately articulated it; 2. lack of merit; and 3. prejudice to the Respondent.
The Tribunal may exercise its discretion to amend a complaint in broad terms as set out in s 103 of the Act: 103 Tribunal may amend complaint (1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint. (2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President. (3) An amendment may be made subject to such conditions as the Tribunal thinks fit.
The relevant considerations to be taken into account when exercising its discretion are addressed in Thompson v Rail Corporation NSW [2008] NSWADT 329 (Thompson) and McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 (McCrystal) at [10]- [12]: In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s 103. The Appeal Panel rejected the proposition that s 103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel in Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) at [37]- [38]. The Appeal Panel in Chand at [38] commented that relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred. In Thompson v Rail Corporation NSW [2008] NSWADT 329, after considering Zhang and Chand, I considered the factors that may be relevant to the exercise of the power to amend a complaint, at [13]: The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant: • Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)). • Whether the proposed amendment is futile because it seeks to pursue claims that are untenable. • Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs. • Whether the proposed amendment raises any issue of joinder. • Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred. • Whether if refused/granted, any party might be prejudiced. • Whether the party making the application is in default of previous orders.
The objects of the Civil and Administrative Act 2013 (NSW) (CAT Act) at s 3 and its guiding principle at s 36 are also relevant considerations for the Tribunal in determining whether to exercise its discretion.
Applying the relevant factors as expressed in McCrystal, the factors in favour of the amendment include that the proposed amendment may obviate the need for the Applicant to lodge a new complaint with ADNSW specific to the Third Event, and that any such complaint would be out of time and therefore prejudice the Applicant's ability to have that complaint considered. We gave those factors reasonable weight.
The factors against the amendment include the Applicant's procedural failures and the merit of the complaint. The Applicant has had an opportunity throughout the case management of these proceedings to provide the evidence and submissions supporting the amendment of her complaint to incorporate the Third Event. There is no clear submission made by the Applicant in relation to the Third Event that identifies how the conduct specific to that event is alleged to be unlawful. It is not even clear that the Applicant is critical of Inspector Howard's conduct.
The Applicant submitted that the "two other events" - referring to the 17 May 2023 Initial Contact Event and the 17 August 2023 Third Event - "were identified because the initial contact event included an email which identifies some of the reasons I called the Police on 19th May 2023" and "The third event is evidence that discrimination occurred". It appears that on the Applicant's own submissions, the Initial Contact Event and the Third Event are not separate instances of discriminatory conduct but are relied upon by her as evidence in support of the Primary Event being unlawful discrimination.
Having considered the material provided by the Applicant, we are not convinced that there is an evidentiary basis upon which the Tribunal could reasonably find that there was any "less favourable treatment" involving, or that there was any causal connection between, Inspector Howard's conduct following 14 August 2023 and the Applicant's sex.
We give those factors considerable weight because, in the absence of sufficient evidence or submissions from the Applicant as to how the Third Event constituted less favourable treatment or unlawful sex discrimination, the complaint regarding this event is untenable.
We do not give any weight to the prejudice claimed by the Respondent, as although Inspector Howard has not been called for cross-examination, there was no reason given as to why he could not be called at short notice or would not be able to provide written evidence to the Tribunal in relation to the Third Event.
Having considered the Applicant's filed materials on the issue of the Third Event and having provided her with a reasonable opportunity to make submissions on the application of s 103 of the Act, and having considered the Respondent's submissions, both written and oral, we find that the considerations against the Tribunal exercising its discretion to amend the Applicant's complaint outweigh those in favour.
We have, therefore, determined not to exercise the Tribunal's discretion to amend the Applicant's complaint to include the conduct described by the Applicant as the 'Third Event' as unlawful sex discrimination. Instead, as submitted by the Respondent, we consider the factual matters of the Third Event as alleged by the Applicant in her Points of Claim, to be part of her evidence in relation to the Primary Event.
In issue in these proceedings is, therefore, whether the Respondent's conduct described by the Applicant in the Initial Contact Event and the Primary Event constituted unlawful sex discrimination. Specifically, with reference to s 24(1) of the Act, whether there was direct sex discrimination because the Applicant was treated less favourably than a man would be, in the same or not materially different circumstances, and the less favourable treatment was because of her sex. If we find direct sex discrimination we then need to determine, pursuant to s 33 of the Act, whether that conduct was unlawful because it had the effect of deny the Applicant access to the Respondent's services, or limiting the terms on which those services were provided to her, because of her sex.
The Respondent accepted the following: (a) to the extent that the Applicant's complaint relates to the Respondent: (i) responding to a request for police assistance into possible criminal activity; and (ii) carrying on an investigation into such a request, it is involved in the provision of a service to the Applicant pursuant to section 33 of the ADA; (b) it is vicariously liable for any proven unlawful conduct actions of its employed police officers, pursuant to section 53 of the ADA; and (c) the Applicant's sex is female.
The Applicant must therefore prove that: 1. in relation to the Initial Contact Event the: 1. Applicant was treated less favourably than a man was or would have been treated, who made a similar complaint via email to a police officer; and 2. reason for the less favourable treatment was because of her sex; and 3. Police officer's response had the effect of denying the Applicant access to police services; or 4. Police officer's response had the effect of limiting the terms on which the Applicant was provided with police services; and 5. denial of services or limitation of the terms on which services were provided were because of the Applicant's sex; and 1. in relation to the Primary Event, that the: 1. Applicant was treated less favourably than a man was or would have been treated, who made a similar complaint when Police attended her residence; and 2. reason for the less favourable treatment was because of her sex; and 3. Police officers' response had the effect of denying the Applicant access to police services; or 4. Police officers' response had the effect of limiting the terms on which the Applicant was provided with police services; and 5. denial of services or limitation of the terms on which police services were provided were because of the Applicant's sex.

Legal Principles

Section 24 of the Act outlines what conduct is considered sex discrimination. Relevantly: 24 What constitutes discrimination on the ground of sex (1) A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of sex if the perpetrator-- (a) on the ground of the aggrieved person's sex or the sex 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 of the opposite sex or who does not have such a relative or associate of that sex, …
Direct discrimination has two elements, differential treatment and causation. For differential treatment to occur the treatment of the complainant must be less favourable than the treatment which was, or would have been, afforded to a person of different sex, and that treatment must have occurred in circumstances which are the same or not materially different. In Purvis v New South Wales [2003] HCA 62; 217 CLR 92 (Purvis) the majority (Gummow, Hayne and Heydon JJ) found at [224] that the relevant circumstances: ... are all of the objective features which surround the actual or intended treatment of the … person by the person referred to in the provision as the "discriminator".
If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination, then the act is taken to be done for that reason. That is the case whether or not the lawful reason is the dominant or a substantial reason for doing the act: see s4A of the Act.
When considering causation, it is the grounds or the reasons for a respondent's action, as opposed to his or her intentions or motives for so acting, which are relevant: see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Purvis at [160] and IW v City of Perth (1997) 71 ALJR 943 at 975 per Kirby J. The focus is on the "real reason" for the alleged discriminator's act: see Purvis at [166].
Section 33 makes sex discrimination in the provision of goods or services unlawful. Relevantly: 33 Provision of goods and services (1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of sex-- (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.
To substantiate her complaint, the Applicant has to establish that the Respondent discriminated against her (as defined by s 24 of the Act) in a manner which was unlawful under s 33 of the Act. The conduct which is unlawful under s 33 of the Act is limited to either refusing to provide her with services, or in the terms on which the services are provided.
The use of the word "terms" indicates that the terms of the services must be determined or agreed in advance (unless later varied). The performance of such services occurs pursuant to such terms: Turner v State Transit Authority [2004] NSWADT 89 at [72]. Unlawful discrimination pursuant to s 33 of the Act does not include the manner in which services are provided to an individual. The terms on which a person is provided with services are the conditions on which the service is or will be performed; they are not part of the manner of actual performance: Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30].

The Initial Contact Event

The Applicant refers to the Initial Contact Event as "related initial police contact" in her Points of Claim. In her evidence, the Applicant stated that prior to 17 May 2023 she had contacted Senior Constable Simpson in relation to unrelated property issues. The email evidence of the Initial Contact Event demonstrates that the Applicant had been in contact with Senior Constable Simpson previously in 2022 in the context of seeking compensation for personal items lost from the Lismore Police Station during the Lismore flooding.
The Applicant's email is at [10] above and Senior Constable Simpson's response is at [11] above.
The relevant circumstances are where a member of the public emails a police officer a complaint for investigation and assistance, and the police officer is not in a relevant role to conduct an investigation or provide that assistance. The evidence demonstrates that Senior Constable Simpson was the exhibits / property officer for Lismore Police Station at the time. There is no evidence that Senior Constable Simpson's response to the Applicant's email was not appropriate. There is also no evidence that Senior Constable Simpson treated, or would have treated, anyone any differently in the same circumstances. The Applicant has not pointed to any differential treatment by the Senior Constable Simpson, and there appears to be nothing connecting Senior Constable Simpson's response to the Applicant's sex (or any other protected attribute).
We find that there was no refusal to provide the Applicant with services, or limit the terms on which services were provided to her, because of her sex. The Applicant's complaint of unlawful discrimination in relation to the Initial Contact Event is, therefore, unsubstantiated.

Primary Event

The Applicant claimed that the following were "concerns" or "offences" she was seeking police assistance for: 1. Unlawful entry (trespassing) of the Applicant's rental property by landlord or guest of landlord while Applicant in shower 2. assault with chemical substance placed on applicants bed 3. potential rape or assault attempt by landlord or guest of landlord 4. attempted unlawful entry (trespassing) of the Applicant's rental property by guest of landlord during the night 5. unlawful entry of the Applicant's rental property during day 6. assault and physical harm to Applicant with chemicals by landlord 7. assault and physical harm to Applicant's pets with chemicals by landlord 8. assault with chemical substance when Applicant's medical condition and allergic reaction known to landlord 9. harassment over a two-week period following request for Rent receipts and confirmation of flood affected rent subsidy payments and rent paid to. 10. Trespassing and theft 11. Repeated breach of WH&S legislation with creating an unsafe and dangerous environment 12. Repeated breach of Tenancy Agreement to provide safe, secure and peaceful environment. It is important to note that the neighbour also had concerns with the Landlord spraying on his property and impacting on the air quality and exposing him and his children to harmful chemicals. These concerns were reported in an Email to Lismore Police Station on the 17th May 2023 and again on the Emergency Police call.
The Respondent conceded that its conduct in responding to the Applicant's inquiries and investigation of the Primary Event constituted "services" within the meaning of s 33 of the Act. The Respondent denies, however, that it refused services to the Applicant, or discriminated against her in the terms on which any services were provided to her.
The Applicant first emailed the Police about her concerns on 17 May 2023 - the Initial Contact Event (see [10] above). Following Senior Constable Simpson's response (at [11] above) on 19 May 2023 at about 7am, the Applicant contacted Emergency Services by dialling 000. During that call she claims that she complained that she had emailed Lismore Police Station about her concerns, and mentioned the spraying and pouring of chemicals at her residence, and told them she had been subjected to break ins. The Applicant claimed that she wanted the Police to call her to speak to her about her concerns.
The Respondent's evidence from four police officers - Constables Woodhouse, de Zubicaray, Parlby and Aspinall - is that there was a police broadcast that a caller to 000 had reported that her residence was full of chemical fumes and she was being poisoned due to her neighbour spraying pesticides. Those four constables attended the Applicant's residence in two separate vehicles, arriving shortly before 7am. The Applicant's neighbours, a man and woman living in the adjoining property, were also the owners of the Applicant's property - that is, her neighbours were her landlords.
The system printouts provided by the Respondent contain entries from 6.51am to 8.16am on 19 May 2023. The initial details at 6.51am were recorded as: NBOUR HARASSING INFT - FM ATTEMPTING TO LEAVE HER PROPERTY NOW - FM HOUSE FULL ON FUMES
The broadcast was sent out and the following updates were made prior to police arrival: NWS - FM IS INJ FROM ASTHMA WAS COUGHING ON THE CALL FM SAYING SHE HAS CHEMICAL SENSITIVITY SAYING SHE HAS OPENED THE DOOR AMBO DECLINED NIL AVOS ONGOING ISSUES WITH NBOUR NBOUR POSS SPRAYS ROUND UP AROUND FMS HOUSE SHE IS SAYING HE HAS SPRAYED ROUND UP AROUND THE HOUSE AND FUMES HAVE ENTERED HOUSE
Police arrived at the Applicant's premises at 6.58am. By 7.07am the system entries record the Police radio message: NOTHING HAPPENING HERE
The system also records welfare checks have been completed by 7.07am by WD29 and WD19, the two sets of Constables who attended the Applicant's residence and spoke with her and her neighbour landlord.
The Applicant alleges that the police officers came to speak to her at her residence. She couldn't see the officers speaking to her landlord. She was trying to show the officers where the chemicals were sprayed but they declined to go with her to do so. She said they refused to speak to the landlord. She wanted them to speak to her first but it was a very short conversation. She told them there were fumes in her property and her air purifiers were managing it. She went back inside to get a cardigan and when she came back out she asked if she could show them where the plants were killed, and then she showed them. She states that she was not given an opportunity to make her report, in circumstances where her complaint was more than just the chemicals killing the plants. She was not given an opportunity to respond to the landlord's report, or to show them the air purifier records, or the drums of chemicals. She did not have the opportunity to tell the police officers about the break-ins at her residence and when she asked if she could show them evidence, they said "No, we're leaving" two or three times. She wanted them to follow up on her complaints, to investigate what she had told them, put her allegations to the landlord, and inform her of his responses.
The Applicant described the discriminatory conduct of 19 May 2023 as follows: It is important to recognise that the discrimination by the Police Officer in Charge on the 19th May 2023 was not a singular event but a series of discriminatory incidents, decisions and responding behaviour towards Applicant. Discrimination is evident in the following series of incidents that occurred on the 19th May 2023. For example, the Police Officer in Charge (OIC) 1. responded to the applicant's emergency call by attending the landlord's residence rather than the Applicant's. 2. went to the Landlord's neighbouring residence and obtained his report. 3. did not request any information from the Applicant. In fact, refused to accept any information from the Applicant. 4. discriminated in obtaining a report from the landlord and not the Applicant 5. was unaware of the applicant's primary concerns when he made a decision not to obtain a report, review evidence or investigate the applicant's complaints. 6. advised the applicant that the landlord seemed reasonable; and Applicant advised that he did 'seem' reasonable. 7. expressed that it was his, Mr R's property 8. advised the applicant that the landlord he could do whatever he wanted on his property 9. failed to indicate to the Applicant what the Landlord had said in order for her to respond. 10. denied Applicant, an opportunity to show them the evidence of harm 11. denied Applicant an opportunity to discuss her concerns 12. elected to leave without obtain a report from Ms Quity 13. refused to take a report in about the chemical 14. refused to look at evidence 15. refused to listen to the applicants concerns in relation to the break in on a number of occasions 16. refused to listen to the applicants concerns in relation to the break inspecifically on the evening of the 16th May 17. refused to listen to the applicants concerns in relation to the break in specifically again on the evening on the 18th May 2023 18. refused to listen to the applicants detail the entry of someone into her bedroom and t leave a hand towel drenched with chemicals on the end of her bed while she was in the shower at approximately 6.l5pm. 19. refused to review the applicant's evidence of chemical exposure in her bedroom and the air purifiers records 20. refused to listen to the applicants concerns in relation to someone at 10pm attempting to break in 21. refused to look at the evidence of chemical harm by the Landlord on her property 22. refused to provide take a police report from the Applicant 23. refused to listen to the applicants concerns in relation to the break in specifically on the evening of the 16th May and again on the 18th May which had prompted contacting the Police 24. refused to provide an event number, Police report number and card 25. log a complaint on the Police recording system of the event, the concerns and identity the individuals involved. 26. refused to enforce the rights of a tenant and addressing the trespassing of both the landlord and a guest of the landlord 27. refused to enforce the law in relation the deliberate physical harm of the Application from chemicals 28. refused to enforce the rights of a tenant where unsafe conditions generate a WH&S Act breach 29. advised he would not inspect the evidence 30. advised he would not contact the Landlord to discuss the matter 31. refused to support a tenants' rights to safe conditions 32. provided favourable service to the Landlord and his friends which resulting escalated harm to applicant and pets 33. failed his statutory obligations 34. failed to comply with the law 35. failed to comply with professional conduct standards 36. failed to undertake his duty of care 37. failed to enforce the law under the Residential Tenancy Act which identifies trespassing as a Police matter. 38. failed to enforce the law under the Criminal Act, support the assault, harassment and psychological harm of the Applicant 39. failed to enforce the law under the WH&S Act whereby the activities of the landlord placed the tenant at risk of harm or death. 40. failed to recognise, report and respond a life-threatening activity and conduct by the Landlord and as such has enabled and encouraged the continuation of this type of behaviour 41. failed to recognise, report and respond to the likely assault of the Applicant by a guest of the Landlord and as such has enabled and encouraged the continuation of this type of behaviour and further: 42. The Applicant attempted to advise the OIC she was tenant and they had boundaries and a tenancy agreement in place. Copy of Tenancy Agreement Attachment 1. 43. The Applicant asked the OlC if she could show him the evidence, he responded "No". 44. The Applicant asked the OIC if she could discuss her concerns, he responded "No" 45. The Applicant advised Police that the Landlord's wife had told her that the Landlord was an alcoholic. 46. Importantly, another Police Officer advised her the Landlord was known to them and he would ring the Landlord later. The OIC over ruled this decision. It is important to recognised that the failure to take a Police report, undertake a basic review of evidence and enforce the law or at a minimum confront the Landlord with the facts and request a change in conduct and obtain the details of his male guest has had significant consequences.
When asked why she believed the officers' conduct was connected to her being a woman, she said words to the effect: Simply, I'm comparing myself to the situation which my landlord was provided with. My landlord is a "him". The OIC said "he", "the landlord, he seems reasonable" "this is his property". It's more than an inference, due to the conversation I had with the OIC. I believe because I was a female I was treated differently. The male landlord was provided with that service and I was not. I had less rights than the landlord. I then formulated that view. I wasn't expecting it. It was surprising. Hence my complaint.
The four constables who attended the Applicant's residence on 19 May 2023 provided statements to the Tribunal. They were not required by the Applicant for cross-examination, despite the Tribunal explaining to the Applicant that the Tribunal would accept their evidence in the absence of it being tested.
There is some inconsistency in the evidence between the four constables as to who spoke to the Applicant first, and who went to speak to the Applicant's neighbouring landlords first. The evidence is consistent, however, that both the Applicant and the Applicant's neighbour landlord were spoken to by police officers around 7am on 19 May 2023. The objective evidence is that the conversations must have been relatively short, because the police system recorded "Nothing Happening Here" and welfare checks having been concluded less than 10 minutes after the officers' arrival.
The constables' evidence makes clear that the focus of inquiries at the Applicant's residence was whether there were poisonous or dangerous fumes from chemicals being sprayed by her neighbour landlord. Constable de Zubicaray, who was the officer-in-charge (OIC), stated "there was no evidence of poisoning or intentional harm using pesticides and the Applicant's demeanour was erratic and fluid. Accordingly, we viewed the call out as resulting from mental health concerns". Constable de Zubicaray also stated, "I do not recall the Applicant raising any allegations of a rape, assault or trespassing (other than the alleged trespass by the spraying of chemicals". Constable Woodhouse makes an identical statement, after observing "there was no credible evidence of criminal activity occurring and that the matter was a neighbour dispute that did not require further investigation".
Constable Parlby said he spoke with the Applicant about her belief that the landlords/neighbours were poisoning her by spraying pesticides and this exacerbating her medical condition, and "I did not identify any evidence of poisoning or pesticides, such as dead foliage in the affected areas. In conjunction with her mannerisms and the absurdity of the allegations of intentionally spraying pesticides inside her property in an attempt to poison her, I considered that the Applicant was suffering from mental health issues." Constable Aspinall could not recall specifically what was discussed, only that "the neighbours were also the Applicant's landlords, and they had ongoing problems regarding her tenancy".
Although each of the four constables claim that the Applicant's neighbouring landlords were spoken to by police officers that morning, none of the officers gives direct evidence of a conversation with either of the male or female landlord, which landlord was spoken to, what was said in that conversation and by whom. The Applicant's own evidence on this issue is also conflicting - she claimed under cross-examination that she did not see the officers speaking to the landlord, and when it was put to her that "you asked them to speak to the landlord and they did that" she stated "No, they refused", but then alleges that the male landlord was spoken to by police officers and was treated better than she was by them. Her allegation that the male landlord was treated differently to her is based entirely on her recollection of what the OIC said to her, to the effect that "the landlord, he seems reasonable" and "this is his property", rather than any direct knowledge of such a conversation.
To the extent that the Applicant was being provided with services when a police officer was speaking with her at around 7am on 19 May 2023, there is no evidence that the Applicant was provided with less favourable treatment than anyone else was or would have been in the same or similar circumstances. If the Tribunal assumes (in the absence of reliable direct evidence) that a police officer also spoke with the neighbour/landlord at that time, then the exact same treatment was afforded to both the Applicant and her neighbour/landlord, to the extent that the police officers spoke briefly with both of them. Even if the Tribunal was to find that the neighbour/landlord was not spoken to by a police officer, because there is no reliable direct evidence of that conversation, then there is also no evidence that less favourable treatment was provided to the Applicant in those circumstances.
Looking at the Applicant's complaint wholistically, based on both her evidence and submissions, it appears that what the Applicant is complaining about is the failure of the Respondent to make inquiries with her about her complaint to the level she expected or desired, which she describes as their failure to "properly investigate" her allegations against her male neighbour/landlord. She believed that her male neighbour and landlord, or possibly someone associated with him, broke into her house on 16 May 2023 and left chemicals at the end of her bed (see [9] above) and that this was "an attempted rape". However, there was no evidence before the Tribunal, other than the Applicant's assertion that this had, in fact, taken place.
The Applicant agreed that she had no evidence that it was her neighbour landlord who had done this, other than it was her "assumption it could be my landlord because my door was unlocked. Or a guest staying with the landlord". The Applicant assumed it was her landlord or his guest who entered the house by unlocking her door with a key rather than by some other means because she knew of no-one else who had access to a key. The Applicant also believed that her male neighbour landlord was spraying chemicals in and around her residence, despite her informing him that she had a "chemical sensitivity", and that he was therefore doing this deliberately to poison or otherwise harm her. These two beliefs appear to have become conflated in her mind and, in her email of 17 May 2023 (see [10] above), she raised both concerns of harassment and chemical spraying with police, through Senior Constable Simpson. Instead of accepting his response (see [11] above) that he was unable to assist and she should contact police directly in relation to her concerns, she instead expected the police to contact her.
The Applicant called 000 early in the morning of 19 May 2023 in relation to her neighbour spraying chemicals. Within 6 minutes of her 000 call four police officers attended her residence. After making some brief inquiries, on the undisputed evidence before the Tribunal they ascertained the following: 1. the Applicant was not in any immediate or life-threatening danger, contrary to her claims during the 000 call that she was being poisoned; 2. the neighbour being accused by the Applicant of harassing her by spraying chemicals into or near her residence was her landlord; and 3. the Applicant had ongoing disputes with the landlord.
The Applicant believed that the Respondent should have done the following on 19 May 2023 when 4 police officers attended her residence after a 000 call: 1. "take[n] a Police Report from Applicant on the break in, attempted break in and the trespassing and to consider evidence of harm from deliberate pouring and/or spraying of chemicals on her property"; 2. convey her allegations to the neighbour landlord, obtain his response to them, and then inform her of his responses; 3. "help" in enforcing "work health and safety obligations" by speaking to her neighbour landlord and getting him to stop using chemicals; 4. assumedly, also stop the neighbour landlord, or his unnamed guest, from the "escalation of harassment" she believed she had been experiencing "over 2 weeks".
It is undisputed that these expected actions were not done by the Respondent's officers. There was no police report taken, no event number given to the Applicant, and no follow up with the Applicant after 19 May 2023 until after she had made a complaint on 14 August 2023.
The Applicant complains that, in comparison to the services provided to her by the Respondent: The Officer that attended to the Applicant indicated that he knew [Mr R], the landlord, and would speak to him later in the day. I understand from the later note added to the Police CAD system that this call occurred… The Officer in Charge repeatedly defended the male landlords conduct, irrespective that it was unlawful. The lack of correct detail, enquiry, investigation, and lack of review of the evidence as well as the dismissive personal comments made by non-mental health practitioners is clear evidence of discrimination by the Respondent.
The Applicant also complained that: …the male landlord was able to raise a complaint about the Applicant as a tenant and that the Landlord was afforded the opportunity to respond to alleges as well as for the verbal evidence of the male landlord to be provided and accepted.
Although not entirely clear, it appears the Applicant was thereby submitting that the male landlord received services from the NSW Police in more favourable terms to her, because he was able to make a complaint about her as a tenant and provided with her allegations and given an opportunity to respond to them, and she was not provided with the same opportunity. However, there is no evidence before the Tribunal of a police report that records any such complaint by the Applicant's landlord, no relevant event number, and no other records that support the Applicant's claim that this occurred.
There is evidence before the Tribunal that the Applicant's complaints regarding her landlord spraying pesticides, entering her residence and "inappropriate behaviour" were raised by her in the context of a tenancy dispute in which she was seeking alternative accommodation, during what she refers to as a "housing crisis" in the Northern Rivers area. On 12 May 2023 the Applicant wrote to the "Manager - Transition to Home" at the Department of Community & Justice requesting "assistance in moving to a new house in Ballina as soon as possible". She stated "I have a number of concerns in relation to my existing accommodation which I have not been able to resolve simply with the Landlord", which included slipping on a slippery pathway on 25 March 2023, unfulfilled requests for a clothesline and garbage bin, queries about whether the landlord had Landlord Protection Insurance, requests for rental receipts, pesticide spraying, entering without notice and visiting without notice, inappropriate behaviour, request for bond loan and back payment, and "$25k Business Grant Jeopardised due to Dept Community".
Significantly, the Applicant included in her concerns about pesticide spraying "I have been advised by Fair Trading - tenancy that no[t] providing notice and spraying so that the air quality and my safety is impacted is a breach of contract and requires two weeks' notice". The Applicant also provided the Tribunal with a copy of the Notice to Terminate Tenancy Agreement by Tenant, signed by her and dated 15 May 2023, identifying 28 May 2023 as the date on which she would vacate the premises on the ground of "Breach of Agreement". The Applicant's Initial Contact Event was 2 days after she purportedly served the landlord with the Notice of Termination, and her call to 000 about the same issues of pesticide spraying and "harassment" by her landlord occurred only 4 days after she signed the notice.
On or around 14 August 2023 the Applicant lodged both a customer service complaint with the Respondent, and a complaint with ADNSW. In her complaint she claims to have been forced from her residence due to the conduct of police "refusing to caution the landlord", that "I and my pets have now been placed in a dangerous situation due to Police failing to enforce the law, take a verbal report, document basic evidence and caution the landlord". According to her, on 17 August 2023 Inspector Howard contacted her from NSW Police Customer Assistance Unit, requesting information about what led to the officers attending her residence on 19 May 2023, because there was no information on the system, and he stated that he would send a female police officer to discuss the issues with her. The Applicant "advised that the concerns had forced her to leave the property and she required Police assistance on the 17th May and the 19th May 2023 and not months later after she was forced to leave; so, providing a Police report now was not necessary and would not result in any helpful outcome from the Police". The Applicant submitted that this evidence demonstrated the Respondent's failures to provide her with the relevant services on 19 May 2023.
There is no evidence to support the Applicant's assertions that this conversation with Inspector Howard occurred in the manner described by her. In her submissions, the Applicant suggested that the Tribunal could or should obtain recordings or transcripts of the telephone calls she had with officers, and body worn footage, to support her claims. The onus is, however, on the Applicant to prove her complaint. There was no explanation given by the Applicant as to why she had not obtained this material herself, should she require it. We consider it is appropriate for the Tribunal to make independent requests for evidence to support a party's submissions in these circumstances.

Was there differential treatment?

To demonstrate differential treatment in the context of the Applicant's complaint, the Tribunal must identify an appropriate comparator. The Applicant submitted that the appropriate comparator was her male landlord, who she claimed was treated differently to her by the police officers attending her property.
The Respondent submitted: The relevant comparator in the present matter is a person (a member of the public) who was not a woman, making a complaint in the same or similar circumstances as the Applicant in regard to their neighbours and reporting the matter to police. The comparator is not, as submitted by the Applicant, her male landlord, who was not relevantly in the same or similar circumstances' as the Applicant.
We agree with the Respondent as to the identification of the comparator. The Applicant's landlord was not in the same or similar circumstances to the Applicant, and therefore cannot be an appropriate comparator by whom to demonstrate differential treatment.
The reason that the landlord is not in the same or similar circumstances to the Applicant is that a landlord has the right to access their property, in certain circumstances, whether or not a tenant is resident there. A landlord also has certain rights in relation to the plants and other foliage at the property, potentially including the spraying of chemicals, and is also entitled to communicate with their tenant. The context of a landlord-tenant relationship materially alters the circumstances surrounding the Applicant's complaints to Police. The "same or similar circumstances" by which to identify a comparator for the Applicant's treatment must therefore take the landlord-tenant relationship out of the equation.
There is no evidence before the Tribunal upon which we could make a finding that the Applicant had been subjected to differential treatment in the circumstances.
Even on the basis of the Applicant's described comparator, there is no evidence upon which the Tribunal could make a finding that the Applicant experienced less favourable treatment than her landlord did on 19 May 2023. As discussed above, contrary to the Applicant's assertions, there is no evidence that the Police who attended her residence as a result of her call to 000 on 19 May 2023 treated her landlord any differently with respect to the provision of police services.

Is there evidence of causation?

Putting aside the absence of evidence demonstrating differential treatment, even if the Tribunal were to find that the Applicant was subjected to poor treatment by the Respondent - that on the basis that her assertions of break-ins and dangerous chemical spraying, her complaints should have been made the subject of a police report, given an event number, and investigated by the Respondent's officers - there is absolutely no evidence upon which the Tribunal could made a finding that this poor treatment was because of her sex. The Applicant's submission that her complaints were dismissed or not taken seriously because of her sex is unsupported by any evidence.
There being no finding of differential treatment and no finding of causation on the grounds of sex, the Applicant's complaint of sex discrimination is not substantiated.

Provision of Services

The Respondent additionally submitted that it did not unlawfully discriminate against the Applicant on the grounds of sex pursuant to s 33 of the Act by refusing to provide her with services, or in the terms on which services were provided to her. Referring to the 46 alleged instances of discrimination (set out at [53] above), the Respondent submitted that these were all concerned with the manner in which services were provided to the Applicant, rather than demonstrating that she had been refused services or that the terms on which services were provided to her were limited.
The Applicant submitted that the list of 46 instances: …is a list related to the terms or understood process in which the provision of services is understood to be provided. The provision of services which were actually and constructively refused. At each point the Respondent had the opportunity to provide non-discriminatory service.
It appears to the Tribunal that the list set out [at 53] above is the Applicant's expression of all of the separate actions and inactions of the Respondent which, according to her, demonstrate that she was subjected to sex discrimination. The list does not identify the "services" which the Respondent provides to members of the public generally, or the services which were provided or allegedly refused to be provided to the Applicant. Those services are stated by the Respondent to be limited to "responding to a request for police assistance into possible criminal activity" and "carrying on an investigation into such a request". However, it is clear from the Applicant's submissions that she believes those services to which she was entitled to be far broader in subject and more specific in detail.
We are guided by the Tribunal's role as outlined in s 3 of the Civil and Administrative Tribunal Act 2013 in providing these reasons for the decision. In circumstances where we have found that there is no evidence of differential treatment of the Applicant by the Respondent, and there is no evidence that any conduct by the Respondent was causally connected to the Applicant's sex, it is therefore not necessary or appropriate for the Tribunal to make findings in relation to what services are provided by the Respondent generally or were provided in this specific instance, or whether the Respondent denied or refused the Applicant access to those services or limited the terms on which she was provided with such services. In this matter, the relevant finding is that the evidence does not substantiate a complaint of sex discrimination.
The Applicant's complaint not being substantiated on the evidence before the Tribunal, the application should therefore be dismissed pursuant to s 108(1) of the Act.

Orders: 1. The Applicant's complaint 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: 04 March 2025

Civil and Administrative Act 2013(NSW)

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Judgment (10 paragraphs)

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Legislation Cited (1)

Cases Cited (3)