Trustee for Ironfish Property Management Melbourne Unit Trust 73299113275

VVR v Trustee for Ironfish Property Management Melbourne Unit Trust 73299113275 (Human Rights) [2024] VCAT 222

1. This decision contains VVR's sensitive personal information. It will be published on a public website, so VVR has been given an anonymised name to protect her privacy.[1]
2. VVR is a renter, and the respondent is a real estate agent which acts as property manager for VVR's residential rental provider.[2]
3. I heard VVR's discrimination claim on 17 and 18 October 2023. VVR provided a witness statement about her claim; she attended the hearing to answer questions about her evidence and was represented by counsel instructed by a firm of solicitors. The respondent had no legal representation until after the hearing, when its written submissions were prepared by a solicitor.
4. Orders were made in May 2023 for the parties to file particulars, witness statements, and submissions. The respondent filed particulars of defence and submissions but no witness statements. Ms Tao, the respondent's managing director, attended the hearing and was prepared to give oral evidence. Ms Tao said she had not understood the orders for written evidence and her colleague who was dealing with this issue had left the firm.
5. I determined that the respondent's particulars of defence[3] and written submissions[4] could be treated as a summary of its proposed evidence and that Ms Tao could give oral evidence about the matters mentioned there. Otherwise, the respondent was not to give any new evidence in chief, since that could necessitate an adjournment and much time and effort had already been expended to bring the matter to hearing. Ms Tao was cross examined at the hearing.
6. At the end of the hearing, I made orders for the filing of written submissions and reserved my decision. Final submissions were received on 29 November 2023.

1. VVR is a transgender woman. VVR complains that the respondent has repeatedly "deadnamed" her, that is, has addressed her by her previous non-preferred male-gender name, which VVR claims, discriminates against her in breach of the Equal Opportunity Act 2010 (Vic) ('the EO Act'). VVR applied to VCAT seeking a finding that the respondent's conduct amounted to direct and indirect discrimination causing her loss and damage including psychological harm and distress and an order that the respondent pay her at least $100,000 in compensation.
2. VVR's written witness statement[5] described her situation and there was no dispute about these facts. VVR was assigned the sex of male at birth and given the name she now refers to as her deadname. VVR identified as female from the age of 4 or 5 but suffered emotional abuse and bullying when expressing that. VVR experienced ostracism from late childhood and was mentally and physically traumatised as a result of her gender identity. VVR married and had three sons and manifested her femininity only in secret. VVR's marriage ended when her gender identity was revealed, and she then sought professional help.
3. VVR's evidence described her painful and difficult journey. Finally, in October 2014, she decided to affirm her identity as female and began living as a woman. Since then, VVR has progressively asked family, acquaintances and businesses to address her by her current female-gender preferred name (to which I refer as her current name).[6] Also, since then, VVR has experienced many difficulties including two assaults. Since 2018 she has been receiving clinical support.
4. VVR has been renting her current home since April 2014, under the National Rental Affordability Scheme ('NRAS') and entered the lease[7] under her previous male-gender name.[8]
5. VVR's evidence was that for various reasons, including potential complications with the NRAS funding, she has not sought to have her name changed on the residential rental agreement, so the name on that document is still her former male-gender name.
6. In October 2019, VVR informed the rental provider's previous property manager of her transgender status and her wish to be known by her current name and to be referred to as a female.[9]
7. VVR said she felt respected and visible when that property manager said they had updated their systems[10] .VVR said all subsequent communications from that property manager used her current name. On 27 November 2019, there was a change of property manager, to the current manager, Ironfish, the respondent.
8. The respondent addressed the applicant by her deadname on first contacting her and the applicant immediately requested that the respondent use her current name.[11] There was no dispute that the respondent subsequently sent automated emails to VVR addressing her by her former name.
9. This claim is about the respondent's failure to consistently address the applicant by her current name.

THE APPLICATION AND THE EQUAL OPPORTUNITY ACT 2010

1. The EO Act prohibits discrimination against a person in some areas of life on the grounds of any of the attributes listed in section 6 of that Act. "Gender identity" is one of those attributes.
2. Section 4 of the EO Act includes the following definition of gender identity:

"gender identity" means a person's gender-related identity, which may or may not correspond with their designated sex at birth and includes the personal sense of the body (whether this involves medical intervention or not) and other expressions of gender, including dress, speech, mannerisms, names and personal references.

1. The definition (to state the obvious) makes it clear that the way a person is referred to is part of their gender identity. VVR claims in this proceeding that she has been discriminated against on the basis of her gender identity, specifically the way she has been referred to by the respondent.
2. Section 7 of the EO Act relevantly says that discrimination means direct or indirect discrimination on the basis of an attribute.
3. Section 8 of the EO Act provides that direct discrimination occurs when a person treats another person with an attribute unfavourably because of that attribute. Under section 8(2) it is irrelevant whether the person discriminating is aware of the discrimination or considers the treatment unfavourable. It is also irrelevant whether the attribute is the only or dominant reason for the treatment, provided it is a substantial reason.
4. Section 9 of the EO Act provides that indirect discrimination occurs when a person imposes a requirement condition or practice that has or is likely to have the effect of disadvantaging a person with an attribute and is not reasonable.
5. The applicant says that the discrimination against her was either direct, indirect or both.
6. Section 10 of the EO Act provides that in determining whether or not a person discriminates, the person's motive is irrelevant.

DISCRIMINATION IN THE PROVISION OF SERVICES OR ACCOMMODATION

1. The EO Act prohibits discrimination in only some areas of life. The respondent contended it was not providing goods or services to the applicant, so that the prohibition of discrimination in section 44 of the EO Act, in the area of provision of goods and services, should not apply.
2. The respondent provides services to its client, the residential rental provider. In my view section 44(1)(c) which prohibits discrimination "by subjecting the other person to any detriment in connection with the provision of goods or services to him or her" covers the activities of a property manager who is engaged with the renter in connection with the provision of services, where the services are provided to the rental provider.
3. Even if that is not correct, section 53 prohibits discrimination "by subjecting the other person to any other detriment in connection with the provision of accommodation to that person" and the respondent conceded the interactions between the applicant and the respondent occurred in connection with the provision of accommodation. I agree section 53 applies to the interactions between the applicant and the respondent to prohibit discrimination, including by subjecting a person to any detriment.
4. Accordingly, if there has been discrimination, it has occurred in an area of life or activity where the EO Act prohibits discrimination.

1. Direct discrimination occurs when a person treats someone with an attribute unfavourably because of the attribute. The questions for decision are first whether addressing the applicant by her former name was unfavourable treatment and secondly whether the respondent addressed VVR by her former male gender name because of her gender identity.
2. The respondent submitted there was no unfavourable treatment, suggesting that VVR was not treated less favourably than other renters. However, as Senior Member Nihill said in Slattery v Manningham City Council, the concept of 'unfavourable' requires only 'an analysis of the impact of treatment on the person complaining of it',[12] although the analysis 'may be informed by consideration of the treatment afforded to relevant others'.
3. In simple terms, the treatment was unfavourable, in that VVR suffered when she was addressed by her former male-gender name, in circumstances where she had asked to be called by her current name.
4. The more difficult question is whether the respondent addressed VVR by her former name because of her gender identity.
5. It was submitted for the applicant that having a previous or past name (a deadname) is a characteristic of the gender identity of a transgender person and I agree.
6. Section 7(2) of the EO Act indicates that discrimination on the basis of an attribute includes discrimination on the basis of a characteristic that a person with that attribute generally has.
7. The question then becomes whether the respondent addressed VVR by her former name either because she was a transgender person or because as a transgender person she had a previous or past name. Either of those reasons for their conduct would be discriminatory.
8. Regarding the first email, on 29 November 2019 (which addressed VVR by her former name), after receiving that, VVR asked the respondent not to address her by her former name.[13] VVR's first email response to the respondent said "[the previous agent] would have passed documents to you regarding my gender status and you have not acknowledged that".[14] However, there was no evidence before me that the previous agent had in fact passed that information to the respondent.[15]
9. Further, the respondent's points of defence denied this had occurred and said the respondent had addressed VVR by the name they obtained from the previous agency. Ms Tao was not asked about this in cross examination.
10. I am not satisfied the previous agent had passed on information about the applicant's transgender status and preferred name. Accordingly, it was appropriate for the respondent to address the applicant by her previous name to begin with, because that was the only name they had for her. This was not an instance of direct or indirect discrimination. The respondent only knew that name for VVR and could not address her by a name they had not heard of.
11. Turning to subsequent offending emails, it was submitted for VVR that gender identity had a proximate bearing on the respondent's conduct in the sense that deadnaming can only occur when a person has a preferred current name and a non-preferred, non-current name. That omits the more proximate fact that VVR was still using her non-preferred non-current name for the purposes of her residential rental agreement (lease).
12. VVR also submitted that gender identity had a "causally operative" effect because the reason the respondent called VVR by her non-preferred name was "because she had used a different name in a previous period of her life, being the period in which she signed the lease for the property." That submission also omits a highly relevant aspect of the evidence, namely that VVR's previous name still appeared on the current residential rental agreement for her home.
13. The respondent's evidence was that (with three exceptions) it was only the respondent's system-generated emails which addressed the applicant by her previous male-gender name. Apart from two direct emails which attempted to address the applicant by both her former and current names together, after VVR's response to the respondent's very first email on 29 November 2019, the respondent's evidence was that all direct (as opposed to system generated) correspondence to her from the respondent addressed VVR by her current name.
14. Ms Tao said in her oral evidence that all the emails after December 2019 which addressed VVR by her non-preferred name were system-generated.[16] It was not put to her in cross examination that this evidence was incorrect.
15. The applicant submitted that I should not accept Ms Tao's evidence because the emails were not produced to the Tribunal in a form which showed the sending address and were signed by different people at different times.[17] I noted however that the emails used standard wording and that Ms Tao had said different staff performed different functions.[18] In some cases, the emails were on their face intended to address all renters, such as in the announcement of a new employee taking over responsibility for property management.
16. At one point, one of the respondent's employees apologised to VVR and said she had asked her colleague not to send any reminders.[19] I am not persuaded this means that the reminder emails were not system generated. It implies rather that someone had responsibility for authorising reminders on the system.
17. I accepted the respondent's evidence that after December 2019 the emails which addressed VVR by her former name were system generated.
18. The respondent's evidence about why it continued to use VVR's former name in its systems (appearing in its written submissions dated 3 October 2023 and from Ms Tao at the hearing) was that communications about VVR's residential rental agreement had to be addressed to the person whose name appeared on that agreement, because otherwise it would be difficult to prove in a dispute about the residential rental agreement that the communications complied with the residential tenancies laws.
19. Further, Ms Tao said that each year it was the property agent's task to ask VVR for updated information about income and assets, showing that she was still eligible under the National Rental Affordability Scheme (NRAS) and this required that the information be formally related to the person named on the residential rental agreement so that the rental provider could receive the government subsidy directly.[20] Ms Tao's evidence about this was essentially undisputed.
20. Although the applicant's counsel suggested that Ms Tao's interpretation of the residential tenancies law was incorrect, the applicant did not suggest to the Tribunal or to Ms Tao in cross examination there was any other reason for the respondent's conduct.
21. In regard to residential tenancies law, Ms Tao said that she and her employees were conscious that cases brought to VCAT about residential tenancies would be unsuccessful if a notice under the Residential Tenancies Act 1997 ('the RT Act') was addressed to the wrong person or was not in the renter's name.[21] Ms Tao also said that VVR's name in the 'rental ledger' could not be changed. Ms Tao describes the ledger as follows:

"...a record of monies in - rents received um with names, dates and all of that. Um. So as an agent we rely on this ledger as a legal document if we need to go to VCAT. We also rely on this to submit to NRAS provider so that the rental provider and VVR can both be eligible for this - to enjoy this benefit. So, these are the things and these are the reasons we insisted not to change the record in the system.[22]

1. The respondent's submissions of 3 October 2023, which were treated as part of its evidence and were further explained in Ms Tao's oral evidence, said that the respondent's actions were based on legal compliance, NRAS requirements, industry standards and system limitations. The applicant submitted that these reasons were inadequate.
2. While Ms Tao or her staff may have made incorrect assumptions about the law and compliance, or not fully understood the use of their systems, the respondent did not suggest that the evidence as to the reasons for the respondent's conduct was actually incorrect. It was not put to Ms Tao in cross examination that there was some reason for the errors in addressing VVR other than the above.
3. I find on the basis of Ms Tao's evidence that the reason the respondent did not change VVR's name in its automated property management systems to her current name was that it was not the name on VVR's residential rental agreement. The problem was not that VVR had a previous name, but that she was still using that name for her tenancy.
4. In questions of causation, the courts have consistently applied a 'but for' test. These cases are usually about the cause of actionable damage to an applicant but apply by analogy to the present situation where we are considering what caused the respondent's conduct.
5. In the High Court, in Wallace v Kam, the majority said:

'The determination of factual causation in accordance with [the legislation] involves nothing more or less than the application of a "but for" test of causation. That is to say, a determination ... that negligence was a necessary condition of the occurrence of harm is nothing more or less than a determination on the balance of probabilities that the harm that in fact occurred would not have occurred absent the negligence.'[23]

1. Applying that test, the question is whether the respondent's deadnaming of VVR would not have occurred without her transgender status. The answer to that question is no. The evidence indicates that but for VVR's former name still being on the residential rental agreement, the respondent would not (after VVR told them of her status) have called VVR by that name.
2. I find that the respondent did not discriminate directly against VVR. It is not the case that the respondent called VVR by her former name because of her gender identity or because of a characteristic of her gender identity (having a former name). Rather, it was that VVR was still using her former name for the purpose of her residential rental agreement.
3. This is not a criticism of VVR. I accept VVR's evidence that she maintained her former name on the lease because she wanted to maintain her rental history and NRAS eligibility. Ideally, it should be possible for her to do keep those important connections while using her current name. However, that is not the situation which the respondent had to manage.

1. Section 9(1) of the EO Act describes indirect discrimination thus:

(1) Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice -

(a) that has, or is likely to have, the effect of disadvantaging persons with an attribute; and

(b) that is not reasonable.

1. Sub section (2) says that the person who imposes the requirement condition or practice has the burden of proving that the requirement condition or practice is reasonable. Sub-section (3) says reasonableness depends on all the relevant circumstances including the following:

(a) the nature and extent of the disadvantage resulting from the imposition, or proposed imposition, of the requirement, condition or practice;

(b) whether the disadvantage is proportionate to the result sought by the person who imposes, or proposes to impose, the requirement, condition or practice;

(c) the cost of any alternative requirement, condition or practice;

(d) the financial circumstances of the person imposing, or proposing to impose, the requirement, condition or practice;

(e) whether reasonable adjustments or reasonable accommodation could be made to the requirement, condition or practice to reduce the disadvantage caused, including the availability of an alternative requirement, condition or practice that would achieve the result sought by the person imposing, or proposing to impose, the requirement, condition or practice but would result in less disadvantage.

1. Section 9(4) says that in determining whether a person indirectly discriminates it is irrelevant whether the person is aware of the discrimination.

1. The respondent said in its points of defence that "the name in the system must be the name recorded on the lease" and that VVR's previous name must appear in some of their documents, for example the rental ledger, which would be used in any rental dispute and in preparation of submissions to the NRAS.
2. The applicant contended that the respondent's practice of using the name on the lease (residential rental agreement) in communications with renters amounts to indirect discrimination because it is a requirement, condition or practice that resulted in VVR being addressed by her former name rather than by her current name. The applicant contended this occurred because she entered the lease during the period in her life in which she used her deadname.
3. The evidence did not indicate the respondent has a practice of addressing all transgender persons by the name on a previous rental agreement signed when they were using their non-preferred former name. It indicated that the practice is applied to persons who have a new name but have not changed the name on their current residential rental agreement.
4. Ms Tao's evidence referred to the need to properly identify the tenant (renter) named on the current lease (residential rental agreement) and the need to relate that person to the documents produced for the purposes of the NRAS.
5. Further, I have found that after the applicant told the respondent of her transgender status and objection to being addressed by her previous name or having it combined with her current name, the respondent used her preferred name in all individual correspondence to her (as opposed to system generated emails). That is, it is not a practice applied to all communications.
6. Apart from the first three emails the respondent sent to the applicant, I have found all the offending emails were a system-generated communications.
7. I have already considered the first email on 29 November 2019, which did not amount to discrimination.
8. After that, two emails written specifically for VVR (as opposed to a system-generated email for all tenants or for tenants in a particular category) addressed her incorrectly.
9. On those two occasions, a non-system email was sent by one of the respondent's employees addressing the applicant as '[former name] aka [current name]'. After VVR asked the respondent not to do that, it did not occur again. The evidence showed that the respondent's employee Trang Vu addressed VVR in that way on 18 December 2019 and 27 December 2019 and that on the latter day VVR asked for that never to happen again.[24]
10. These instances did not amount direct discrimination. I am satisfied these emails were addressed to VVR in this way not because she had changed her name to her new preferred name but because she had done so while still maintaining her former name on her lease. As to whether they were indirect discrimination, like the system emails they are attempts to link VVR's current name to the name on the rental agreement. The question is whether that practice was reasonable.
11. The applicant's Points of Claim mention a further 28 emails in which the respondent addressed the applicant by her former name. The annexure to the applicant's submissions mentions 25 such emails. I accept also the applicant's evidence that there was a period during which she blocked emails from the respondent, so there may have been more. The respondent did not dispute that the emails were sent to VVR.
12. In cross examining VVR, Ms Tao suggested that her employee Trang Vu who first dealt with VVR's issues had written her 22 emails addressing her by her preferred name. Further, Ms Tao suggested, other employees had sent a total of 46 emails addressing VVR by her preferred name. VVR said she had not counted the emails.[25]
13. Ms Tao gave evidence that since December 2019 a total of 68 direct emails had been sent to VVR addressing her by her current name.[26] I accepted that evidence although the emails had not been produced. I understood this was because the self-represented respondent had not understood the need for this material. Even in VVR's witness statement to which she attached the emails she was complaining about, the email chains showed a dozen examples where a staff member addressed VVR by her preferred name.[27]

1. The use of the applicant's former name, she contended, caused her disadvantage due to her gender identity, because she is transgender and has a preferred name that is different to the name she used in a previous period of her life. I agree it is a disadvantage to the applicant and to any transgender person to be addressed by their former name, their deadname, if they have decided to stop using that name (as the applicant has done).
2. Section 9 only applies if the practice imposed by the respondent has the effect of disadvantaging "persons with an attribute", not just one person. The applicant submitted that the respondent's practice of addressing renters by the name on their residential rental agreement is likely to have the effect of disadvantaging other persons with VVR's gender identity.
3. I agree there is possibly a disadvantage to some others with VVR's gender identity. If there are others, it is a small group - of transgender persons who retain their former name on their residential rental agreement.
4. Having found that there is a disadvantage or likely disadvantage to some persons, the next question is whether the respondent's practice is reasonable. If it is reasonable then it does not amount to indirect discrimination.

1. It is for the respondent to prove the reasonableness of the practice. In other words, if the requirement condition or practice causes a disadvantage to persons with a particular attribute then it is presumed not to be reasonable, until the evidence shows otherwise.
2. The respondent was not legally represented for most of the proceeding and had not organised its evidence to address the issues in the proceeding, such as the reasonableness of its practices. I consider my task was to ensure the respondent had an opportunity within the limits of fairness to give its evidence about the issues. Then it was my task to assess the issues on the basis of all the evidence, whether or not the respondent had itself formally adduced the evidence as evidence in chief.
3. Some of the relevant circumstances are already described. I note also that VVR's witness statement makes it clear that she has frequently corresponded with the respondent asking that they not use her non-preferred name and yet Ironfish has continued to use that name, albeit only in system-generated emails.

Reasonableness - how the practice was applied

1. Turning now to consider the content of the emails which addressed VVR by her former name, I take the emails described in the annexure to the applicant's submissions. Of the 56 items in that annexure, 27 are emails from the respondent to the applicant. Of those there is an initial email on 29 November 2019 which I have accepted was reasonable.
2. Two early direct emails address VVR as '[former name] aka [current name]'.
3. There are eight emails about rent arrears using VVR's deadname. They are not formal notices under the RT Act and refer to short periods of arrears which would not justify a notice to vacate. They are on their face system generated notices. I understand that the applicant disputed their accuracy but that is not the issue here. The question is whether it was reasonable for these emails to address the applicant by the name on her residential rental agreement.
4. Other emails addressing VVR by her former name include: nine generally describing the respondent's property management system, outlining benefits or advertising aspects of the system; four about how to manage issues related to covid protection; and two notices of tradesmen inspecting.
5. On 17 May 2022 the respondent wrote to the applicant[28] informing her that their system had been updated so that all subsequent emails she received from them would address her by her preferred name. After that, one further email on 7 February 2023 addressed VVR by her deadname. That email was about a gas and electricity safety check.
6. While there may well have been other emails, as VVR said, there was no suggestion they were different in character from those produced in evidence. Apart from the three direct emails I have mentioned, I accept the offending emails were all system-generated.

1. Professor Jeffrey Zajac provided a report about VVR. Professor Zajac is a professor of endocrinology with extensive experience in managing endocrine disease and transgender health. He has over 500 transgender patients. He had a single consultation with VVR in September 2023, for about half an hour.[29]
2. He attended the hearing and was cross examined. I set out a summary of his evidence as it is a useful reminder of how a transgender person experiences being called by the wrong name:

(a) "misgendering" whereby an individual deliberately chooses not to address a transgender person by their chosen name, pronoun and gender can cause significant distress and anxiety and can exacerbate depression.

(b) Often transgender people can cope with accidental misgendering by discussion but deliberate misgendering causes significant and often immense distress as it challenges their very identity.

(c) He discussed with VVR her interactions with Ironfish and VVR told him the repeated use of her previous name and gender caused significant psychological distress.

(d) VVR told him she thought she was being mocked when her previous name was used linked by AKA to her new name and she thought this was being done deliberately.

(e) VVR said she accepts her contract is in her original pre-transition name and is not concerned about that.

(f) The misgendering has caused her significant anxiety and depression, episodes of panic, a sense of impending doom, disturbed sleep, hyper vigilance and hypersensitivity. She has tried to harm herself by sitting in a very hot shower. She has felt despair, and these feelings are exacerbated by each item of misgendered correspondence.

(g) VVR told him she thinks her mental state will improve significantly if she is addressed appropriately by her real estate agent.

(h) He said VVR had told him she was not bothered by official correspondence related to her contract, which was in her previous name, she wasn't fussed about that, because that's how it was. He said VVR wanted to retain that identity for her rental history. But when it came to other forms of communication about other things, she found any communication which deliberately, she assumed, misgendered her to be immensely distressing.

(i) He agreed when asked that VVR's psychological state is not entirely due to her issue with Ironfish but caused by all the things that have happened to her over the years. He added that the single most important thing for a transgender person is to be accepted in society in the gender with which they identify. Deliberate misgendering is viewed as a personal attack on their very identity.

1. When cross-examined, Professor Zajac said he was unaware when he wrote his report, that between 13 May 2022 and 23 September 2023, the date he saw VVR, there had been only one instance of Ironfish calling VVR by her non-preferred name. Despite that fact, VVR had told him that "she thinks her mental state will improve significantly if she is addressed appropriately by her real estate agent". Yet it seems she had already been addressed appropriately for sixteen months up to September 2023, except on one occasion in relation to a gas and electricity safety check.[30]
2. Professor Zajac said that deliberate misgendering is particularly harmful. I note that the respondent did not deliberately address VVR or refer to her, by her former name once informed of the situation and that emails specifically written for her used her current name. While Professor Zajac reported that VVR thought she was being mocked when "aka" was used to link her former and current names, I note there is no evidence this was deliberate, and it did not happen again once VVR asked that it not occur.
3. The applicant said at the end of her witness statement:[31]

This emotionally draining and frustrating situation is compounded because Ironfish's unfavourable treatment occurred in the context of my home. Not only did this feel like an additional intrusion into my personal life, it also meant that I couldn't avoid it. I had to communicate with Ironfish, because they were the manager of the Property, and were involved in (among other things):

117.1 - receiving and processing my rental payments;

117.2 - managing requests for maintenance for the Property; and

117.3 - submitting the documentation I had to provide every year in order to receive NRAS funding in relation to the Property.

1. This evidence from VVR about why the use of her former name was so upsetting, raises precisely the problematic issue in her claim. The specific interactions VVR mentions - her rental payments, her requests for maintenance and her NRAS documentation, are all interactions related to her tenancy, which was still in her former name.
2. As I have mentioned the applicant had reasons for not changing her name on the rental agreement. VVR was concerned to maintain her rental history and her eligibility for the NRAS subsidy, which she relies on to be able to afford rent for her home.[32]

Reasonableness - the results the respondent sought

1. Ms Tao's evidence was the respondent could not lightly change the name used in its system to communicate with the renter, because the property manager needed to have a clear record of the tenant's (renter's) name and identity. Further she said the tenancy ledger had to refer to the renter's name as on the rental agreement, because the law required that the handling of arrears and renewals refer to the renter by the name on the rental agreement. Ms Tao said the agent needed to be able to show their client (the rental provider) that they had followed up on rental arrears and needed to be able to prove if necessary in a residential tenancies dispute at VCAT that the tenant had been properly informed of the arrears.[33]
2. I accept MsTao's evidence that ultimately the respondent was required to ensure that formal documentation, including notices under the RT Act, the rental ledger and the proofs of identity and income required by NRAS correctly referred to the person whose name was on the rental agreement. I agree however with the applicant's submissions that informal communications did not require that level of precise identity.
3. At the hearing I suggested to Ms Tao a notice to vacate or a compliance notice under the RT Act may require accurate reference to the name on the rental agreement, and asked why she considered less formal correspondence such as a reminder to pay rent which was only slightly overdue also needed to use the renter's name as it appeared on the agreement.[34]
4. Ms Tao said she had sought advice from Consumer Affairs Victoria about whether the use of a different name than appeared on the rental agreement would affect the agent's evidence in a tenancy dispute and had been unable to obtain a clear answer. Ms Tao said this was a situation her agency had not encountered before, and she was unsure what to do to protect their client the rental provider.[35]
5. The applicant submitted that notices or formal correspondence issued to VVR in her current name would not be invalid. That is not an accurate reflection of cases decided under Victoria's RT Act. For example, in Hallingbury Pty Ltd v Hayden,[36] where the notice to vacate identified only one of the two tenants and misidentified the address of the rented premises and rent payable per month, VCAT dismissed the landlord's application for possession on the basis that the notice did not clearly identify the tenants or the rented premises. VCAT rejected an application that the notice to vacate be amended, saying that once a notice to vacate has been given, it cannot be amended.
6. That case is one of a line of cases outlining the need for accuracy and precision in notices given under the RT Act. Because the remedy offered to the rental provider is one which affects the renter profoundly and swiftly, the Tribunal and the Courts have taken an approach which requires that notices to renters under the RT Act be accurate and enable the renter to understand exactly what is the problem with their tenancy.
7. That approach is described in the leading case of Smith v Director of Housing.[37] In turn, that case is referred to in (on my brief survey of the law) some 70 cases heard in the Residential Tenancies List of VCAT since 2005. Most recently, a tenant (unsuccessfully) challenged a notice to vacate on the basis that it did not include her middle name.[38]
8. In my view an informal reminder addressed to the renter by their preferred name instead of the name on the rental agreement would likely still be useful evidence if accompanied by evidence that the renter had asked to be called by that name. However, the question is not whether the respondent's understanding of the law was accurate, but rather whether the respondent's approach to changing the tenants name in its system was reasonable.
9. In the light of the need for accuracy in documents issued under the RT Act to a renter, I consider it was reasonable for the respondent to be cautious about changing the name by which the applicant was to be addressed in system-generated communications. The respondent needed to be sure when their system issued any formal notice that it would address the renter by the name on the rental agreement.
10. As for the NRAS, Ms Tao said the agent was required each year to produce the tenant ledger, the rental agreement, the proofs of the renter's financial circumstances such as bank statements and credit statements and proof of Centrelink payments, and the names on these documents needed to match the name on the lease so that the renter's eligibility was clear.
11. A brief glance at the NRAS Regulations 2020 (Commonwealth) shows the rental provider was required each year to demonstrate in detail that the renter was eligible to be an NRAS tenant. Accordingly, it is reasonable that the agent is careful about collecting that information identifiable with the renter whose name is on the rental agreement and insisting on its accuracy. If the proofs are not produced, the rental provider does not receive the NRAS subsidy, and the renter will then have to pay a higher rent.

Reasonableness - alternatives and the respondent's financial circumstances

1. I asked Ms Tao whether it was possible to isolate emails to the applicant and prevent them being sent using VVR's former name, instead generating a different email addressing her by her current name.
2. Ms Tao said that the agency has 50 staff, who all perform different tasks across the range of properties being managed. Ms Tao said there is no functionality in the system which could be used to highlight a particular property to remind staff of the client profile and need to alter the name, so attempting to achieve that by instructing staff could lead to errors.[39]I accept that as a reasonable concern, given the need for a high degree of accuracy in some communications.
3. I asked Ms Tao about the income her business receives from the management of VVR's property. Ms Tao responded that it is probably $1000 per year, or $1200 at most. Ms Tao added that over the three years of the pandemic (by which I understood she meant from early 2020 onwards) her business had suffered significant financial loss, particularly in relation to the part of the business managing properties receiving the NRAS subsidy, which had operated at a loss.[40]
4. This tends to indicate it was reasonable for the respondent not to expend a high degree of time and cost on solving an issue for one tenant in an area which was already part of a financial drain on the business.
5. Ms Tao said that in May 2022 she updated the system so that emails to VVR would be addressed to her using her 'contact' name' in the system instead of being addressed to the name on the lease. At the same time, Ms Tao had also introduced a procedure to advise teams to use the contact name for all contacts and advised commonly used tradesmen of the same procedure.[41]
6. Ms Tao said that even after the system was updated to use the 'contact name' for VVR there was still some automated correspondence which used the 'lease name'.[42]
7. In cross examination VVR's lawyer asked Ms Tao why the change to sending emails addressed to the contact name rather than the 'lease name' had not been made in November 2019. Ms Tao replied that she was not sure that functionality was available in the system in 2019 but it was there in 2022. Questioned further, she said she thought in 2019 there had been a function to set a contact name but she was not sure when it became possible to set that as the default address for automated emails. Ms Tao had discovered the functionality when she looked into it herself in 2022.[43]
8. VVR's lawyer suggested to Ms Tao that her agency was not compelled to use the system it had in place to send emails to VVR. Ms Tao replied that it was not possible to turn off the system's automatic functionality for just one renter. If it was turned off for one, it would be turned off for all renters.
9. Taking into account the relatively low fee the respondent received for its work with each renter (a maximum of $120 per month) on rental issues, maintenance and NRAS documents, I accept it was reasonable for the respondent to use an automated system to communicate with renters.
10. The applicant submitted that it was the respondent's choice to use a system which resulted in issuing discriminatory communications. I note however that the system was in place before VVR raised the issue. I am not of the view the system was inherently discriminatory only because it assumed a renter would have the same name for the rental agreement and in everyday life.
11. I accept it was reasonable for the respondent to retain the existing system in the circumstances. Those were, that there was one instance of a person receiving some communications addressing her by her former name, and that person was seeking to use two different names in their relationship with their residential rental provider.

Reasonableness - could a reasonable adjustment have been made

1. I accept the respondent's evidence that it was not possible to turn off the automatic email functionality for one renter.
2. Further, I accept it was administratively complex to instruct 50 staff to treat one renter differently when performing multiple tasks which sent automated emails to multiple renters, especially in the context that formal documents had to identify the renter by the name on the lease.
3. In all the circumstances, I am not satisfied a reasonable adjustment (such as an earlier change to sending VVR's emails addressed to her contact name) was possible. Ms Tao did not know at the time that the functionality was available. Further, these events occurred during the pandemic when alterations to business systems would have been harder to organise. The relevant part of the business was losing money so that concentration of effort on one such issue would have led to further loss.

1. It was submitted for the applicant that the fact other service providers have immediately moved to using VVR's preferred name without issue indicates that the respondent could reasonably have done so.
2. However, I note that the previous agent in the respondent's position ceased being the property manager six weeks after being informed of VVR's preferred name. There was no time for them to be tested on how they communicated with her about matters involving the rental agreement.
3. As for other providers, they were not in the position of the property manager, who was asked to address VVR by her current name while keeping her former name on the rental agreement, which was the fundamental document on which their relationship as renter and rental provider's agent was based.
4. It was also submitted that the fact some informal arrears notices sent to the applicant were inaccurate meant they need not have addressed VVR by the name on the rental agreement. I agree that addressing informal notices to the renter by a name other than the one on the rental agreement may not be fatal to the usefulness of the notice in a residential tenancies dispute, but that does not mean the agents' preference to use that name is unreasonable, in the context of the respondent's overall obligations. The applicant submitted that the rental reminders were inaccurate and that may well be so, but the accuracy of particular notices does not affect the reasonableness of the respondent's approach to sending notices.
5. Taking all these considerations into account, particularly that the applicant effectively sought that the respondent treat her as a person with two different names, that using an automated system was financially reasonable for the respondent and that after an initial hiccup all direct emails respectfully used the applicant's current name, I consider the respondents practice of sending automated emails to the applicant in the name on her rental agreement was reasonable. It was not an ideal response, and the respondent has now improved its practice, but it was reasonable in all the circumstances.

1. I have made no finding of direct or indirect discrimination. Accordingly, the application is dismissed.

[1] The Tribunal has made an order about this under the Open Courts Act 2013 (Vic).

[2] Here I use the terms renter and residential rental provider in line with the Residential Tenancies Act 1997 which was recently amended to use these terms instead of the older terms "tenant" and "landlord".

[3] Dated 20 July 2023 at Tribunal Book ('TB') 18-21.

[6] Applicant's statement at [100] - [102].

[7] Now called a residential rental agreement as provided by the Residential Tenancies Act 1997.

[9] Attachment 4 to Applicant's statement TB 87.

[11] Applicant's statement [17] and attachment 14 at TB 98.

[12] [2013] VCAT 1869 at [53].

[13] The relevant emails are in attachments 13 and 14 to VVR's witness statement, at TB 98 and following.

[15] VVR's witness statement attached her correspondence with the previous agent as attachments 2 to 6 but did not show the material had been handed on to the respondent.

[16] Transcript ('T') page 51 lines 2 to 10.

[17] See emails at TB 107,111,113,123,126,127,132,142,176,186.

[23] [2013] HCA 19; (2013) 250 CLR 375, [16] (French CJ, Crennan, Kiefel, Gageler and Keane JJ).

[24] See attachments to the applicant's witness statement at TB 104,109 and 111.

[27] See TB 100,101,115,129,130,138,140,145,169,170,182,185.

[28] TB 182 attachment 48 to a witness statement).

[30] Attachment 50 to the applicant's witness statement at TB 187.

[31] Applicant's witness statement at [117].

[32] Applicant's witness statement at [6].

[36] [2013] VCAT 826.

[37] See for example, Smith v Director of Housing [2005] VSC 46.

[38] Staten v Malone [2023] VCAT 1093.