On 3 March 2021, Roy van Royden made a complaint to Anti-Discrimination NSW ("ADNSW") against the Civil and Administrative Tribunal of New South Wales, [1] alleging in effect but not directly that he had been discriminated against in the provision of goods and services, on the ground of disability ("Complaint"). On 5 October 2021 the President of ADNSW ("President"), through her delegate, declined the Complaint under s 92(1)(a)(vi) of the Anti-Discrimination Act 1977 ("Act").
Mr van Royden wishes to pursue the Complaint before the Tribunal, for which he needs the leave of the Tribunal pursuant to s 96(1) of the Act. He seeks that leave.
At Mr van Royden's request, and with the Respondent's consent, Mr van Royden's application for leave has been determined "on the papers".
For the reasons that follow, I have decided not to grant leave for the Complaint to proceed before the Tribunal.
[2]
Background
On 23 February 2021, Mr van Royden sent an email to the Consumer and Commercial Division of the Respondent in respect of a complaint he had been pursuing against Vodafone Australia, through NSW Fair Trading and other agencies. In his email, Mr van Royden:
1. stated that he as he is an admitted non-practicing lawyer, he did not wish to receive "any generic reply about legal advice or your usual form process";
2. stated that having reviewed the Tribunal's website, he was unable to "physically complete the forms";
3. requested a fee waiver and a follow up on his complaint against Vodafone;
4. asserted that he has a brain injury, suffered in 2014 through the removal of a brain tumour; and
5. provided some details as to the nature of his complaint against Vodafone Australia.
On 26 February 2021 the Respondent sent Mr van Royden an email in response to his own. That email stated in part:
"Unfortunately we cannot pursue your complaint with Vodafone and your request for a fee waiver without you having to complete the appropriate forms.
…
You may consider going to one of the NSW Service Centre where you can get assistance in obtaining the forms and further assists you in completing the forms.
Nonetheless, I shall still attached the form which you have to complete in the event that you are able to get some independent assistance."
(Reproduced verbatim)
Mr van Royden replied to the Respondent by email the same day. He stated that he had submitted all of the information that the form required, and that his medical condition prevented him doing more, such as completing the form itself.
In a further email sent on 26 February 2021, the Respondent replied to Mr van Royden's email, stating that proceedings in the Tribunal could not be commenced "unless the application form and appropriate fee or fee waiver request form are completed".
Further correspondence between Mr van Royden and the Respondent failed to resolve the impasse. Mr van Royden continued to assert that he should be able to email the information that would otherwise be provided in a form. The Respondent maintained that completion of the necessary form was required. It informed Mr van Royden that applications could be lodged by post, at Service NSW or at any Tribunal registry.
On 3 March 2021, Mr van Royden made the Complaint via email to ADNSW. Having outlined some of the history of his grievance against Vodafone and the steps he had taken to address it, Mr van Royden stated:
"NCAT refuse to make reasonable adjustments by accepting my emailed information (or responding with email questions to supply any required information) to initiate my [Telecommunications Industry Ombudsman] appeal against Vodafone with fees waived on compassionate grounds in light of my personal situation."
On 15 March 2021, ADNSW sent an email to Mr van Royden. The email set out ADNSW's understanding of the Complaint; stated that he had failed to make "a sufficient connection between [his] disability/disabilities and [his] inability to complete the NCAT applications as required"; asked Mr van Royden to explain why he was unable to complete the online form or to lodge the form in another way (for example at a Service NSW office or a Tribunal registry, or by post); and, asked Mr van Royden to explain what specific adjustments he was seeking from the Tribunal.
Mr van Royden responded to ADNSW by email the same day. In relation to his disability, Mr van Royden stated that he has a brain injury which affects his coordination and spatial reasoning. He stated that he "cannot understand many forms plus suffer extreme pain and fatigue to try", and so was unable to complete online forms. He further stated that his condition often renders him unable to get out of bed, which was why he could not lodge the necessary forms in person.
As to the adjustments he was seeking from the Respondent, Mr van Royden stated that his emails to the Respondent contained all of the information required. To the extent that they were insufficient, he suggested three alternative adjustments, namely that the Respondent could:
1. email him questions to answer;
2. make a person available to assist him to complete the online form "to explain it if necessary"; or
3. to the extent a "physical form" was required, arrange for someone to meet with him in person to complete the form for him.
On 16 June 2021, ADNSW wrote to the Respondent notifying it of the Complaint and requesting a response to the allegations.
In an email to ADNSW sent on 1 July 2021, the Respondent proposed a resolution to the Complaint in the following terms:
"Mr van Royden says that his brain injury affects his co-ordination and spatial reasoning and therefore cannot understand forms or complete online forms.
Mr van Royden's claim
Mr van Roydens [sic] claim appears to be a consumer claim about goods and services - copy of NCAT form attached.
Rather than complete the form if Mr van Royden is able to use the form as a guide (after confirming that it [is] a consumer claim) then email his answers in the sequential numbered order of the form then NCAT would accept those responses.
Please note that NCAT proceedings are legal proceedings, we also have an obligation to the respondent and we need to be able to serve a copy of the application on them. If Mr van [Royden] can complete each section of the form we would then be able to attach the responses to a blank form and then send that form to the respondent.
Fee Waiver form
The Registrars manage requests for fee waivers/reduction. Again, rather than complete the form if Mr van Royden is able to use the form as a guide then email his answers in the sequential numbered order of the form then NCAT would accept those responses.
Mr van [Royden] will need to provide evidence to support his claim for financial hardship and that may be in the form of bank statements as I note that he does not receive centrelink [sic] payments."
The Tribunal's proposal was conveyed to Mr van Royden by ADNSW on 6 July 2021 and 12 August 2021 (after Mr van Royden advised that he was unable to open the PDF attachments to the email of 6 July 2021). In an email to ADNSW sent on 30 August 2021 Mr van Royden stated in part:
"I have explained that my issue is opening attachments and filling in forms. I respectfully thought it would be obvious that it would be unhelpful to send me forms as attachments. I appreciate I can email responses so why can't the government department put it on an online simple form (some I can complete online without help) or put it in a plain text email with questions and answers.
I also ask why my word (whether by statutory declaration or whatever) is insufficient for my financial circumstances. I am not giving my bank statements which contain a lot of unrelated and personal information that I cannot reasonably redact."
This email appears to have been taken by ADNSW to be a rejection of the proposal contained in the Respondent's email of 1 July 2021.
ADNSW forwarded Mr van Royden's email of 30 August 2021 to the Respondent on 10 September 2021. On the same day, the Respondent informed ADNSW, via email, that it was willing to provide Mr van Royden with a printed copy of the relevant form if that would assist him to provide an email responding sequentially to each question on the form. The Respondent maintained that an application for a fee waiver required documentary proof of financial hardship.
The Respondent's email was forwarded by ADNSW to Mr van Royden on 13 September 2021. On the same day, Mr van Royden sent an email to ADNSW in response, which stated in part (the bold sections being extracts from the Respondent's email of 10 September 2021):
"I can advise that in order to further assist Mr van Royden NCAT is willing to post him a printed copy of the form if this will assist him to then respond to each question in number order via email as we offered previously.
I have a brain injury which limits certain movements and co-ordination. My POA gets any physical mail - only in emergency and this is impossible during covid.
However, I can advise In relation to the fee waiver, NCAT requires documentary proof of financial hardship to assess a full or partial fee waiver.
This is an admission of at least indirect unlawful discrimination as I cannot provide the documentary proof requested due to my brain injury. I could ask my POA/accountant to try and help but that would cost something (most likely more than the fee waiver benefit) and defeats the purpose of providing financial understanding.
NCAT believes that what it has offered to do to assist Mr van Royden is reasonable and that should Mr van Royden not accept the above offer the complaint should be closed.
I press my complaint. I respect the NCAT immensely and understand the irony of this situation but without full and fair investigation of my complaint, it will be dismissed and I will appeal it to NCAT who will obviously dismiss it - thus no justice for this complaint and no justice for the previous complaint wrongly dismissed and unable to be appealed without undue financial burden to me."
(Bold in original)
On 5 October 2021 ADNSW sent an email to Mr van Royden, which stated in part:
"We have considered all of the relevant information received from both parties and the Delegate has decided to decline your complaint under section 92(1)(a)(vi) of the Anti-Discrimination Act 1977 (NSW) (ADA).
The reasons for the decision are:
1. The respondent has not refused the complainant a service on the ground of his disability.
2. The respondent has made significant efforts and taken reasonable steps to adjust its services to ensure that the complainant has not been provided with goods and services on less favourable terms by comparison to a person who does not have the complainant's disability."
In an email sent to ADNSW the same day, Mr van Royden gave notice that he "appealed" the Delegate's decision.
By letter dated 19 November 2021 the President referred the Complaint to the Tribunal, pursuant to s 93A of the Act.
[3]
Leave to proceed
Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.
The principles to apply in determining whether to grant leave under s 96 were considered and articulated by Schmidt J in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25]-[40], cited with apparent approval by Sackville AJA, with whom McColl JA and Handley AJA agreed, in Jones v Ekermawi [2009] NSWCA 388 at [57]-[59]. Those principles are as follows:
1. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed.
2. That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant's rights under that scheme.
3. The question of leave involves evaluating whether it is "fair and just" to grant or refuse leave in the particular circumstances of the case.
In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act, albeit that those grounds will not necessarily be determinative of the leave application under s 96: Jones v Ekermawi at [60].
The onus is on Mr van Royden to satisfy the Tribunal that leave should be granted: Bacirongo v ACL Pty Ltd [2011] NSWADT 12 at [2]; van Royden v The State of NSW (Transport for NSW) [2019] NSWCATAD 262 at [6].
[4]
Discrimination on the ground of disability in the provision of goods and services
Section 49M of the Act provides:
49M Provision of goods and services
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability -
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
Section 49B(1) of the Act provides for what constitutes discrimination on the ground of disability:
49B What constitutes discrimination on the ground of disability
(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if the perpetrator:
(a) on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
The term "disability" is defined in the Act in these terms:
disability means -
(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or
(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or
(c) the malfunction, malformation or disfigurement of a part of a person's body, or
(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.
[5]
Should leave to proceed be granted?
In written submissions filed on 13 March 2022, Mr van Royden submitted that he "has the burden of proof to not prove the case at this stage but simply that [he] must prove and has proven that it would not be fair and just to kill the complaint entirely by this court dismissing it now". Consistent with this submission, I accept that it is not the Tribunal's role when determining the leave application to decide whether the Complaint has been substantiated, although the merits of the Complaint are relevant: van Royden v The State of NSW (Transport for NSW) at [6].
It is not in dispute that Mr van Royden has a disability in the form of a brain injury, although the precise nature of that injury remains unclear. The injury affects Mr van Royden's coordination and spatial reasoning. He claims that this precludes him from completing online forms; filling in forms; opening attachments to emails; and attending in person to complete and lodge forms. At the heart of the Complaint is the contention that the Respondent did not provide reasonable adjustments to accommodate that disability.
One difficulty arising from the case presented by Mr van Royden is that he has not articulated, in the Complaint or otherwise, precisely how he alleges that the Respondent contravened the Act. In fact, in his correspondence with the Respondent and ADNSW he did not reference the Act at all. While this is not determinative of the matter, it is noteworthy in the context of Mr van Royden having made references in his correspondence with the Respondent to his legal qualifications and the fact that he does not require legal advice.
In any event, it is not the role of the Tribunal to fashion from the evidence a case that might be run in support of the Complaint, in the absence of Mr van Royden having done so. That said, I make the following observations.
The Respondent denied that it directly discriminated against Mr van Royden within the meaning of s 49B(1)(a) of the Act. I accept that the circumstances do not seem to suggest that Mr van Royden was, on the ground of his disability, treated less favourably by the Respondent than it would treat a person without that disability. Indeed, it is the fact that Mr van Royden was not treated differently which seems to be at the heart of the Complaint.
The next question is whether Mr van Royden was indirectly discriminated against within the meaning of s 49B(1)(b) of the Act. To answer this question it is necessary to identify the "requirement or condition" with which he was required, but was unable, to comply. Mr van Royden has not expressly done so. From the evidence there are potentially two requirements or conditions:
1. that Mr van Royden complete and lodge the forms relevant to his consumer claim against Vodafone and his application for a fee waiver or reduction online, by post or in person ("First Requirement"); and
2. that he provide evidence to substantiate his application for a fee waiver or reduction ("Second Requirement").
Mr van Royden asserts that due to his disability he is unable to comply with the First Requirement. This is not disputed by the Respondent, although as already stated the precise nature of the disability remains unclear. However, Mr van Royden has not addressed directly the elements of s 49B(1)(b) of the Act, and in particular why the First Requirement is one with which a substantially higher proportion of persons who do not have his disability are able to comply, or why it is not reasonable.
Allowing for that, I can see how a slavish and inflexible insistence by the Respondent on the First Requirement might give rise to the risk of indirect discrimination. However, that is not the situation here, despite some initial resistance on the part of the Respondent to depart from the usual process of requiring a complainant to complete the forms relevant to their complaint.
The Respondent provided Mr van Royden with clarification of the Tribunal's processes and directed him towards support services that might assist him to navigate them. It also proposed an adjustment to accommodate Mr van Royden's disability, by offering to allow him to email his responses to the questions in the application form to the Respondent, which the Respondent would then insert into a blank form to be served on Vodafone, rather than having Mr van Royden complete the form. To facilitate this, the Respondent provided Word versions of the forms when Mr van Royden indicated that he was unable to access the PDF version which had been emailed to him, and subsequently offered to post the documents to him so as to avoid him having to access email attachments at all.
The adjustment proposed by the Respondent was not acceptable to Mr van Royden. He maintained that the Respondent had been provided with adequate information in his emails and, in the event more was required, the Respondent could email him questions for response. This position carries with it an expectation that the Respondent would glean from the information he had provided the basis of his claim against Vodafone. The Respondent would be in the position of crafting the claim from the data, rather than presenting to Vodafone the claim as articulated by Mr van Royden. It is one thing to "cut and paste" content from an email onto a form, and quite another to become the author of that content on the basis of the information provided by Mr van Royden.
As the Respondent properly pointed out to ADNSW, it owed obligations to Vodafone as well as to Mr van Royden. Leaving aside whether the Respondent could have discerned from the information provided by Mr van Royden the nature of his claim against Vodafone and articulated that claim, I do not consider that it would have been appropriate for the Respondent to do so.
Further, Mr van Royden has not sufficiently explained why he was unable to adopt the approach suggested by the Respondent, namely, to send an email providing answers sequentially to the questions in the forms (which were to be provided in hard copy). I acknowledge that he claimed that writing such correspondence was painful and fatiguing, but it was his suggestion that he be permitted to provide the required information in an "question and answer" format via email. The Respondent's suggested approach was, at least to a point, a variation on this theme.
Turning to the Second Requirement, Mr van Royden offered different reasons as to why he was unable to comply. First, he stated that he could not provide the documentary proof requested by the Respondent due to his brain injury. He did not explain why that was the case. Second, he objected to providing the financial information out of a concern about disclosing personal financial information. I am left in some doubt as to whether the Second Requirement was one with which Mr van Royden was or is unable to comply due to his disability, or was rather one with which he was unwilling to comply.
There is no evidence that the Respondent refused to provide Mr van Royden with goods and services, within the meaning of s 49M(1)(a) of the Act. To the extent that the First Requirement constitutes a term on which the Respondent proposed to provide services to Mr van Royden, as referred to in s 49M(1)(b), I respectfully agree with the President that the Respondent made significant efforts (albeit after a slow start) to adjust its services to ensure that he was not provided with services on terms less favourable by comparison to a person who does not have his disability.
I have had regard to the criteria laid down in s 92(1)(a) of the Act. On the evidence before me, there is a basis to find that the "respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of" (s 92(1)(a)(vi)).
For the reasons set out above I have concluded that the prospects of the Complaint succeeding are poor. Having regard to the interests of both Mr van Royden and the Respondent it is fair and just to refuse to grant leave for the Complaint to be the subject of proceedings before the Tribunal.
[6]
Order
1. Leave under s 96(1) of the Anti-Discrimination Act 1977 for Mr van Royden to proceed with his Complaint is refused.
[7]
Endnote
In its submissions, the Crown drew a distinction between a reference to the Tribunal as the "Respondent" in its capacity as the effective respondent to these proceedings, and to the "Tribunal" in its capacity as the tribunal before which these proceedings are heard. I have adopted the same approach.
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
[8]
Amendments
15 June 2022 - Change from Senior Member to Principal Member
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: 15 June 2022