If v ACT Commissioner for Housing [2005] ACTSC 80 (26 July 2005)

Last Updated: 14 September 2005

IF v ACT COMMISSIONER FOR HOUSING [2005] ACTSC 80 (26 July 2005)

EX TEMPORE JUDGMENT

APPEAL FROM DECISION OF DISCRIMINATION TRIBUNAL

No SCA 46 of 2004

Judge: Crispin J

Supreme Court of the ACT

Date: 26 July 2005

IN THE SUPREME COURT OF THE )

) No SCA 46 of 2004

AUSTRALIAN CAPITAL TERRITORY )

APPEAL FROM DECISION OF DISCRIMINATION TRIBUNAL

BETWEEN: IF

Appellant

AND: COMMISSIONER FOR HOUSING

Respondent

ORDER

Judge: Crispin J

Date: 26 July 2005

Place: Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed;

2. no order as to costs.

1. This is an appeal from a decision of the Discrimination Tribunal dismissing a complaint by the appellant. The Tribunal has previously made orders prohibiting the publication of the appellant's name and directing that she be described by the letters "IF" in the proceedings before the Tribunal. She has been similarly described in the Notice of Appeal and other documents filed in this court and I intend to follow that approach.

2. The appellant alleged in the Tribunal, that she had been discriminated against by the Commissioner for Housing on the ground of impairment in relation to the provision of public housing, contrary to s 21 of the Discrimination Act 1991 (ACT) ("the Act"), and/or in relation to the provision of goods, services or facilities, contrary to s 20 of that Act, between November 1997 and the filing of her complaint on 5 February 2002.

3. She also alleged that she had been victimised by the respondent due to her complaints relating to the Commissioner's behaviour.

4. The appellant suffers from congenital dislocation of both hips and there is medical evidence to the effect that this condition will become worse with age and that it is aggravated by climbing steps. It was not disputed that this condition constituted an "impairment" for the purposes of the Act.

5. The essential facts upon which the appellant relied were outlined in an affidavit, which she swore on 19 November 2003. It may be convenient to set out the operative parts of that affidavit, which are as follows:

(1) I am the Applicant.

(2) On or about June 1995 I have applied to ACT Housing for accommodation according to my medical needs . . . I provided ACT Housing with a statement from my doctor strongly recommending ground floor and no stairs due to my hip conditions.

(3) I have been placed on a waiting list and advised by ACT Housing that the standard waiting time was currently around three years.

(4) On or about November 1997 only one offer has been made by ACT Housing only a 2nd floor flat in a dangerous area of Belconnen . . . contrary to the two to be made under regulations. My medical statement was totally ignored by ACT Housing. I was unable to accept the offer on medical advice. No further offers made.

(5) On or about early April 1998 and because of the sale of private accommodation I was renting was pending, I made urgent request to ACT Housing for priority accommodation as I fulfilled all the criteria - that is - as a person, with medical conditions, and in danger of being left homeless. Housing Officer Brian Kent said words to the following effect:

There is nowhere I can send a person like you. You can appeal"

(6) On or about late April 1998 the private accommodation was sold. There was no time for me to appeal as facing homelessness. I therefore borrowed bond for private accommodation from ACT Housing and I ended up paying unaffordable private rent.

(7) On or about mid August 1998 I have been assaulted in a shared private accommodation. As a result I have been forced to move. There was no time to wait for ACT Housing. Once again I had to find very quickly private accommodation.

(8) On or about late August 1998 I moved into private accommodation in Bruce as a sub-tenant. It was very expensive, over 50% of my pension was going on rent.

(9) On or about September 1998 ACT Housing demands the repayment of the bond. I consulted a solicitor, I offered to pay the bond in instalments as I am paying more than half my pension on rent. ACT Housing refused this offer. ACT Housing passed the matter to a debt collector.

(10) On or about late early February 2000 the Lessor in Bruce requested from me to move out. As a result I faced homelessness again. I made an application to the Residential Tenancies Tribunal. I also made an application to ACT Housing again for priority housing.

(11) On February 2000 I attended the Residential Tenancies Tribunal and ordered to move out by 10 March 2000. I was, once again, in the position of imminent homelessness. My application for Housing refused by ACT Housing Officer, Pat Madigan on the grounds that I owe the bond and I am not eligible for priority housing.

(12) On or about 12 March 2000 ACT Housing-come in to view offered one tiny flat - aged in an aged persons unit, with many steps and with a long walk to my car. I had no chose but to accept because Housing officer told me words to the following effect:

"Take it or leave it - that's all we can offer you"

(13) On 5 May 2000 I moved into the Ainslie complex. The number of steps to my car and the laundry and the garbage exacerbate my hip conditions.

(14) On or about June 2000 I requested from ACT Housing to a move to more suitable accommodation with fewer steps. My request has been denied.

(15) On or about February 2001 I enrolled at U/C, [presumably University of Canberra] in a Post Graduate study. Carrying heavy loads of books up and down the stairs (in addition to my laundry, garbage and shopping and the long walk to my car) caused hip pain, muscle pain and exhaustion. I did not get adequate sleep due to the lack of insulation and excessive noise from above and around me on a nightly basis. My health declined. I was in a state of constant tiredness, exhaustion, pain and anxiety.

(16) On or about February 2001 I requested from ACT Housing to be moved on medical grounds. This was my third application for priority housing . . . My request was denied despite the fact that my doctor's advice was words to the following effect:

"You must move or your overall health will continue to suffer."

(17) On April 2001 and because my health was worsening, I withdrew from studying one subject at U/C on medical advice.

(18) On June 2001 I became seriously ill due to my inappropriate living conditions.

(19) On or about mid July 2001 I had an Emergency Surgery. My doctor's advice was words to the following effect:

"You have to move from Ainslie in order to recover and improve your health. Improving your health has to be your first priority."

(20) On or about mid August 2001 I moved on doctor's advice into private accommodation. I had to access private funds to pay the rent.

(21) On or about October 2001 I requested from ACT Housing to remain on the applicant list. My request has been approved.

(22) On or about late February 2002 I sent a letter to Housing with words to the following effect:

"It has now been over one year since my application. Please let me know how it is progressing - that is - when I can expect to be allocated suitable accommodation and why it has been decided that I do not qualify for early allocation as per your letter of 20 November 2001."

The ACT Housing response was words to the following effect:

"You are adequately housed at the moment."

6. A considerable amount of other evidence was presented to the Tribunal but, for present purposes, it is unnecessary to provide a detailed account of that evidence, though I will refer to aspects of it during the course of this judgment. The Tribunal itself referred in its judgment to some portions of the evidence which it apparently thought were of significance. In particular, it noted that the complainant had agreed that she had received a letter from the respondent in March 2000 advising her that there was an outstanding debt payable by her to the respondent and that, as a consequence, the respondent's discretion to refuse to grant assistance would be exercised unfavourably to her but that she had a right of appeal against that decision.

7. The appellant had lodged an appeal with the Administrative Appeals Tribunal on 10 March 2000 but withdrew that application when an offer of accommodation in Ainslie was made. She said that, according to her recollection, the offer from the respondent was made on or about 12 March 2000. She said that at the time the offer was made she complained that the flat was unsuitable and was told "to take it or leave it" as it was all that could be offered. She signed the tenancy agreement for that property on 17 March 2000. She knew that the respondent had a policy of making two offers but said that she was informed that the accommodation that would form the subject of the second offer was not worth looking at.

8. She agreed that she made no reference to a second offer in her affidavit and also agreed that her solicitor had told the respondent's officer that she had nowhere else to go when, in fact, temporary private accommodation had been available to her for a period of a few weeks. She stayed in that accommodation until May 2000, as she was apparently very ill at that time. Evidence was given concerning certain properties said to be available at particular times and I will return to that evidence in due course.

9. The Tribunal noted that it had been submitted on behalf of the appellant that the evidence had established that, during the period to which the complaint related, the appellant had been treated unfavourably because of her impairment. This unfavourable treatment was said to have been demonstrated by the Commissioner allocating her accommodation in Ainslie with steps which, it was suggested, showed little regard for the disability from which she suffers.

10. It had been contended that her disability had been known to the respondent but that she had, in essence, been offered only unsuitable accommodation when there were two other vacant properties managed by the respondent without steps that could have been allocated to her. The appellant had also relied upon a statement attributed to Mr Kent, to which I will refer to later, and the fact that the respondent's officers had, at some stage, lost the respondent's file relating to her. The appellant also highlighted the fact that the respondent had, at one stage, removed the appellant's name from the waiting list of people to be offered accommodation; that step having been taken because of the bond debt owed to the respondent by the appellant.

11. In its reasons for judgment, the Tribunal referred to its own earlier judgment dismissing an application to strike out the complaint, and said that the reasons that it had given at that stage also formed part of the reasons for the decision now appealed from. That statement is of some importance because the earlier judgment contains a narrative of events not reproduced in the subsequent judgment save for the notional incorporation of the earlier one.

12. In addressing the relevant issues, the Tribunal made a statement of principal that has been strongly challenged on appeal. It said:

In proceedings before the Tribunal the allegations of discrimination made by the complainant are required to be proved to a proper standard based upon proper evidentiary material (see DeDominico v Marshall (unreported)[1999] ACTSC 1 (3 February 1999)). It is not necessary that the allegations be proved beyond reasonable doubt but there must be a comfortable degree of satisfaction that they have been proved by evidence which is sufficiently robust to justify the conclusion arrived at rather than inexact proofs, indefinite testimony or indirect inferences (see Briginshaw v Briginshaw (1938) 60 CLR 336).

13. Having made that statement, the Tribunal went on to state that the evidence did not establish, to any comfortable degree of satisfaction, that at the date when the appellant accepted the offer of accommodation at Ainslie any property within the stock of housing for allocation under the program had been available to be let to the person whose name had reached the top of the list of those eligible to be provided with assistance. Nor did it establish that, by that date, the possibility of a property at 49/16 Goodchild Street, Lyneham becoming available in a reasonably short period of time would have been obvious to the respondent's staff if they had made due enquiry. Again, I will refer to that property later. The Tribunal also said in its reasons that "the absence of any detailed evaluation of the characteristics of that property, other than the fact that it was designated as a ground floor property, a description not necessarily inappropriate to accord the property at Ainslie, did not enable a conclusion to be drawn that that property would have been suitable to the appellant's requirements in any event".

14. The Tribunal adverted to the fact that it had previously commented on the dilemma that may confront the respondent in the provision of accommodation from a limited stock to people in genuine need of housing assistance. It added that the need on occasions to explore the possibility of compromising some aspects of the suitability of available accommodation may be justified where the alternative is an indefinite period of homelessness. It said that it was necessary for each case to be considered by reference to its own particular facts and circumstances.

15. The Tribunal observed that the comments attributed to Mr Kent, a housing officer representing the Commissioner, arguably suggested an attitude of unwillingness to acknowledge the complainant's particular housing requirements, but fell short of establishing that her treatment in the allocation to her of accommodation had been unfavourable.

16. The Tribunal held that the fact that the respondent's office lost the file containing the complainant's original application for accommodation without evidence to explain the circumstances of the loss, did not, by itself, enable any conclusion of adverse treatment because of her impairment to be drawn.

17. Such evidence, as was available to the Tribunal, suggested that the reason for removing the complainant's name from the waiting list had been her acknowledged indebtedness to the respondent. There was no evidence to support a conclusion that that action was taken because of the complainant's impairment.

18. In the circumstances, the Tribunal proceeded to dismiss the complaint.

19. On appeal, it was argued that by dismissing the appellant's complaint, the Tribunal had made a number of errors of law. There were 11 grounds of appeal but it was agreed during argument that the appellant raised four principal issues. Those issues are as follows:

° first, whether the Tribunal erred in applying a standard of proof based upon the decision in Briginshaw v Briginshaw (1938) 60 CLR 336 (see grounds 1-5 and 9);

° secondly, whether the refusal of the appellant's request for a subpoena to be issued to the respondent had been an error (see ground 6);

° thirdly, whether the Tribunal had erred by failing to have regard to the provisions of the Human Rights Act 2004 (ACT) (see grounds 7, 8 and 11); and

° fourthly, whether the Tribunal had misdirected itself as to the requirements of the Act (see ground 10).

20. The arguments advanced in relation to these issues overlapped to some extent. Nonetheless, I will attempt to deal with them sequentially.

21. Mr Hassall, who appears for the appellant, began his attack on the Tribunal's decision by contending that the application of the test in Briginshaw had clearly been inappropriate in the circumstances.

22. In Briginshaw, Sir Owen Dixon made the following remarks at 361-2:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts be proved. The seriousness of an allegation made, the inherit unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences.

23. This statement has been widely accepted and quoted, and I will refer briefly only to two or three judgments which have referred to the principle. In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449 at 449-50, Mason CJ, Brennan, Deane and Gaudron JJ referred to the Briginshaw principle and made the following comments:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.

24. Their Honours then proceeded to quote some of the observations of Dixon J in the subsequent case of G v H (1994) 181 CLR 387, in which the majority of the High Court consisting of Deane, Dawson and Gaudron JJ had again affirmed that since the decision in Briginshaw, it had been clear that in civil cases the standard of proof was on the balance of probabilities with due regard being had to the nature of the issue involved.

25. As Ms Eastman, who appears for the respondent pointed out, the principle has been consistently applied by courts and tribunals regardless of whether the rules of evidence apply. In this jurisdiction it has been applied specifically in relation to the findings of a tribunal involving allegations of non-criminal misconduct consisting of sexual harassment. In De Dominico v Marshall (2001) 146 ACTR 30, I upheld the approach of the senior member of the Administrative Appeals Tribunal in applying the principles as stated by Sir Owen Dixon in Briginshaw.

26. Mr Hassall, however, challenged the proposition that the principle in Briginshaw was applicable to the present case, pointing out that in the case of G v H, Deane, Dawson and Gaudron JJ had qualified their observations with the caveat that:

Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing. . . .

27. Mr Hassall submitted that no such consideration arose in the present case and that the situation was somewhat similar to that with which the Full Court of the Federal Court of Australia had been concerned in State of Victoria v Macedonian Teachers' Association of Victoria & Anor [1999] FCA 1287 at [21] where O'Connor, Sundberg and North JJ referred to the passage quoted from G v H above, and made the following statements:

In the present case it is not necessary to make a finding of "deliberate" discrimination against one section of the community in order to favour another section, and the probity of the Victorian government is not in issue. The mere finding that a government has contravened a provision of an anti-discrimination statute without considering the circumstances in which the contravention occurred is not, in our view, sufficient to attract the Briginshaw test. We disagree with his Honour's conclusion that the absence of intention to discriminate does not significantly diminish the gravity of any such finding. As the first respondent submits, there are many examples of governments being held to have discriminated unlawfully against individuals or groups of individuals without resort to the principle in Briginshaw. They referred to the case of Bacon v Victoria, (unreported, Supreme Court, Vic, Beech J, 7 November 1997) where the issue was whether the education policy of the Victorian government was discriminatory. Beech J held that it was, but his Honour did not invoke the Briginshaw principle. That case was similar, in principle, to this one. No issue of fraud or impropriety was raised or needed to be determined.

28. Mr Hassall submitted that the same comments could be made in relation to the present case. There had been no necessity for the Tribunal to find that the discrimination which was alleged to have occurred in response to the appellant's applications for housing had been engaged in deliberately.

29. It should be noted that the validity of the distinction drawn by the Full Federal Court in State of Victoria v Macedonian Teachers' Association of Victoria has been questioned. In Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt (EOD) [2003] NSW ADTAP 3 (28 February 2003), the Panel referred to that decision and went on to say, and I quote:

We consider that this formulation of the Briginshaw principle is misconceived. In our view the Briginshaw principle applies universally to all allegations, in the sense that the seriousness of the allegation and other relevant factors are to be taken into account before determining whether the Tribunal is satisfied "on the balance of probabilities" that an allegation has been proved.

30. The panel proceeded to refer to the judgment of Smith J in State of Victoria v Ors v McKenna and McKenna v State of Victoria v Ors (2000) EOC 93-080 which had articulated this "universal" approach, observing that the principles discussed in Briginshaw are applicable generally in all civil proceedings and to all issues. His Honour added that the view that the Briginshaw principle had universal application to all allegations, regardless of their seriousness, was also supported by s 140 of the Evidence Act 1995 (Cwth) which provides that in all civil proceedings the decision maker "is to take into account" the matters listed in subs (2) which include the nature of the cause of action or defence, and the gravity of the matters alleged.

31. The criticism of this approach may have been prompted by the use of the phrase "Briginshaw test" by the Full Court, which may suggest a third or intermediate standard of proof when the High Court has repeatedly rejected such a concept. However, the Briginshaw case was decided in 1938 and has been repeatedly applied and reaffirmed since then. It seems highly unlikely that their Honours were unaware of the true nature of the principle, or that they were seeking to modify it or change it in some way without giving any indication to that effect. Nor does it seem likely that their Honours were attempting to depart from successive decisions of the High Court of Australia which would have been binding upon them.

32. Accordingly, it is necessary to consider what their Honours have said in those circumstances. So considered, it seems to me that their Honours had in mind no more than the fact that Briginshaw stressed the fact that whilst the standard of proof remained the same, that is, proof on the balance of probabilities, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove and, in particular, by reference to the gravity of the matter in question. In the case with which their Honours were concerned, it was clear that what was being alleged was the, perhaps unintended, discriminatory effect of a government decision of general application relating to the manner in which a class of people should be referred to. The court had found that those actions were discriminatory in their effect, but that there had been no finding that that outcome had been brought about as a result of a deliberate discrimination.

33. Similarly, in the case of Victoria v Bacon [1998] 4 VR 269 to which the Full Court referred, the question had been whether an education policy introduced by the State Government had had a discriminatory effect.

34. In the absence of any deliberate discrimination, there would be no specific allegations of fraud or moral turpitude giving rise to a need for evidence to have any particular strength over and above that which would otherwise be necessary to establish the fact in question on the balance of probabilities. In that event there would be no consideration, such as a conventional perception that members of our society did not ordinarily engage in fraudulent conduct or conduct involving moral turpitude that would need to be weighed in the balance.

35. However, this is not a case in which the appellant alleges what might be described as non-deliberate discrimination, due to government policy that unfortunately proved to be discriminatory in its effect upon certain classes of people. On the contrary, the appellant relied upon s 8 of the Act, which makes it clear that conduct or treatment will be discriminatory only if it is engaged in due to a named attribute in s 7. Mr Hassall sought to establish that the appellant's impairment had been a cause of the respondent's alleged failure to provide her with accommodation adequate for a person which her physical limitations. He invited the Tribunal to draw an inference to this effect from the following:

° first, the Commissioner's unexplained loss of the respondent's file concerning the appellant's application;

° secondly, a dismissive statement by one of the respondent's officers, Mr Kent, in about May 1998;

° thirdly, the decision to remove the respondent's name from the list of applicants;

° fourthly, what was described as a dismissive statement made by Ms Sweeney in March 2000 about accommodation which the appellant had been then offered, namely "take it or leave it, that's all we can offer you";

° fifthly, evidence that accommodation with no steps was available at various times including the period between February and April 2000, but it was not offered to the appellant by the respondent, despite the fact that it was well aware of her needs.

36. Mr Hassall submitted that if any inference could have been drawn from this combination of facts, it could only have been that the respondent had deliberately discriminated against her.

37. The appellant had also complained of being victimised.

38. Such suggestions clearly involve allegations of impropriety on the part of the Commissioner. Within a contemporary democratic society such as Australia, right-thinking members of the community would clearly regard it as grossly improper to discriminate against a member of the community on the basis that she suffered from a physical handicap of some type unless, of course, the discrimination was warranted by a genuine belief that accommodation that might reasonably have been provided to a normally fit person would be unsuitable to someone with her physical limitations.

39. It may be true that an allegation of deliberate discrimination against a person by reason of physical handicap would not involve as grave moral turpitude of some of the allegations to which the Briginshaw principle has been applied such as, for example, allegations of gross sexual abuse. Nonetheless, it was still appropriate for the Tribunal to take into account the nature of the issues to which the civil test was directed in the hearing before it. As the High Court said in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd, at 450:

. . . the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.

40. In these circumstances, I am not satisfied that the Tribunal made any appealable error by averting to the principle in Briginshaw.

41. Furthermore, it seems clear that even if the civil test had been applied, without reference to the fact that the allegations raised issues of impropriety, the result could not have been any different. Mr Hassall argued that, whilst there had been no direct evidence that any unfavourable treatment of the appellant had occurred because of her disability, an inference to that effect would have been supported by the combined effect of the evidence to which I previously referred. In considering the validity of this contention, it is necessary to return to those contentions.

42. The loss of a file does not, of itself, provide any support for a contention that the person to whom the file related had been discriminated against. It is a melancholy fact of life that in any large organisation, files are, from time to time, lost. That fact does not reflect a discriminatory approach; it simply reflects ordinary human frailty. Nor does the fact that the relevant agency is unable to explain the reason for the loss necessarily infer a discriminatory attitude. Indeed, in many cases, if the department knew what had ultimately happened to the file, the file could be found. There may obviously be cases in which other extrinsic circumstances would give rise to a suspicion that the file had not been inadvertently lost but deliberately withheld or destroyed. However, in the present case there is no basis for any such contention. Nor is there any basis for a suggestion that the respondent's file was treated with less care than was given to the files of other applicants. Accordingly, it seems to me that this proposition would have provided little, if any, support for the appellant's contentions.

43. What was described as the "dismissive statement" by Mr Kent was made in about May 1998. The plaintiff's evidence was that she spoke to Mr Kent, who was then an Allocations Officer with the respondent. She said in evidence that "He told me that there was really nowhere they could send somebody like me". She said that she was shocked and told him that it was unfair and she reminded him of the respondent's policy to offer disabled people accommodation. She said that she also told him that she knew that he had a variety of ways to fulfil that policy by offering her something beyond what is the "normal offer" such as a property that the respondent could modify to make it safe and suitable. She said that the conversation took "maybe an hour", and she claimed that, in telling her that there was really nowhere they could send somebody like her, he had spoken in a rude and dismissive tone.

44. The Tribunal said that this evidence suggested an attitude of unwillingness to acknowledge the appellant's particular housing requirements. I must say that I would not necessarily interpret the statement in that way. It is possible that Mr Kent exhibited some measure of frustration during the course of the conversation which may have persisted for as long as an hour because he simply had no accommodation which was available, as well as suitable for the appellant. However, even if, as the Tribunal seems to have accepted was possible, the statement indicated an insensitivity to the appellant's needs, that fact alone does not establish that the decisions made in relation to the provision of accommodation were actuated by an intention to discriminate against her, or to return to the language of the Act, were "because" of the appellant's impairment.

45. The removal of the appellant's name from the list was, according to the appellant's own evidence, attributable to the fact that she had an unpaid debt relating to a rental bond owed to the respondent. There is evidence that that was a policy being pursued by the respondent at the time, and that it applied to all public housing tenants. It may, perhaps, have been an unfortunate policy, or it may have been a policy which should have been waived in the circumstances of this case, but those are not issues which the Tribunal was required to determine. Nor are they issues that arise on appeal. The Tribunal was required to determine only whether the removal of the appellant's name from the list provided some support for the appellant's contention that relevant decisions made in relation to the provision of housing were made because of her physical impairment. The evidence did not, in my view, suggest that the removal of her name from the list offered any support for that contention.

46. Furthermore, whilst the appellant said that in February 2000 she had been told by Mr Madigan, an employee at the Commissioner's office, that she could not be offered priority housing, she had, in fact, been offered some accommodation shortly thereafter. The statement attributed to Ms Sweeny, "Take it or leave it. That's all we can offer you", had allegedly been made on or about 12 March 2000, which was after the appellant had been offered accommodation, inspected it and returned to the respondent's offices to tell her that she had found it unsuitable.

47. Ms Sweeney's statement does not, of itself, indicate that the respondent's officers were making decisions because of the appellant's physical impairment. Whilst Ms Sweeney's expression may have been short, I see no reason to assume that the statement did not simply reflect her view that the property in question had been the only one appropriate to be offered to the appellant at the time.

48. Mr Hassall also relied strongly upon evidence that accommodation with no steps had, in fact, been available at the time the appellant required housing. It is, I think appropriate to turn briefly to the evidence on that issue. Mr Christensen agreed that a property at 1/10 Longerenong Street in Farrer had been available for a period between February and April 2000. He said, however, that his enquiries had led him to believe that repairs were then being carried out on that property and that it had been offered to a person who had been on the waiting list for some time as soon as it was tenantable. That person had been housed in that property on about 20 April that year. The availability of that property was also raised with Ms Hughes, who confirmed that the property had been available between 25 February 2000 and 19 April 2000. She also confirmed that there was another property at 49/16 Goodchild Street in Lyneham which had been vacant between 14 March 2000 and 25 April 2000.

49. Ms Hughes agreed with suggestions put to her in cross-examination that two properties had been vacant during that time period but added "They may not have been suitable for allocation at the time". When asked why, she said there may have been maintenance required to bring them up to a "tenantable" standard. She was then asked if she was able to say anything about the two properties, and said that she could not do so.

50. It should also be observed that the mere fact that a person has a need for a certain type of property, and that property of that type would have been available for allocation to that person, neither establishes nor provides any substantial support for a contention that the person has been discriminated against. The provision of public housing reflects a response of a compassionate society for people in need. Sadly, however, it appears that the supply of public housing is never adequate to meet the needs of all those seeking accommodation of that kind. There will always be people in desperate need of accommodation, because they are physically disabled, as in the case of this particular appellant, because they have intellectual difficulties, or because of other considerations such as a combination of poverty and the need to support and house young children. Faced with a constantly burgeoning demand by people in real human need and a limited stock of accommodation, it will always be necessary for organisations, such as that operated by the respondent, to seek to make value judgments as to which applicants should be given priority in relation to the allocation of property. That may sometimes mean that an applicant with real need is passed over because the nature of the property would be suitable for a family, and properties of that kind are in short supply. There may be many reasons why the respondent might feel compelled to ignore, or at least to defer, the satisfaction of the needs of a particular appellant because of its perception that in the overall scheme of things the needs of others prevail in relation to the allocation of a particular property.

51. I am conscious of the appellant's reliance upon the additional facts that a file had been lost, that one officer in April 1998 may have spoken to her in a manner that she described as a rude, dismissive tone, and that two years later another officer may have spoken to her in a tone that she described as abrupt and "matter-of-factly". However, even the combination of these facts does not, in my view, provide any adequate ground for an inference of discrimination.

52. Accordingly, I must say that in my opinion, even if no issue of the kind raised in Briginshaw had emerged for consideration in the present case, the evidence would have been quite inadequate to establish the appellant's contentions.

53. That brings me to Mr Hassall's next submission. He argued that the Tribunal had fallen into an error of law by refusing to issue a summons requiring the respondent to produce various records. He argued that this error had been compounded by the fact that the Tribunal had subsequently adopted the Briginshaw principle. In essence, he submitted that this led to a situation in which the appellant's case may have been dismissed because she had been denied the records that would have been available and might well have enabled her to prove the discrimination alleged.

54. In answer to this contention Ms Eastman pointed out that there had been an earlier summons issued for the production of records and that that summons had covered much of the same ground. It is true that the paragraphs of the second summons that had been struck out by the Tribunal had been cast in broader terms than those contained within the earlier summons. In particular, the second summons had sought access to records of property and applicants over a much broader period of time. In fact, that summons sought information going back to 1995, which was a time well prior to the period in which the appellant was involved with the respondent. She had also sought access to budgetary figures with a view to demonstrating the amount of funds that might have been available to the respondent. There was, however, no evidence as to why such an expansive approach was necessary, or how that additional evidence over that sought by the first summons could have facilitated proof of the appellant's case.

55. Mr Christensen gave evidence at the original hearing as to the enquiries that he had made in response to the first summons, observing that the respondent had not kept computer records of the details of properties such as the number of steps, proximity of car parking facilities and so on, though those details were slowly being put into the respondent's computer system as part of a property audit that had been taking place. Accordingly, it had not been possible for the respondent to provide details of properties with particular attributes at that time. He said that the only way the data could have been obtained would have been by an examination of each property and then by tracking back to ascertain when and if they had become vacant. A search of other records had disclosed that the respondent owned a total of 167 one-bedroom flats deemed to be "wheel chair accessible", that description apparently indicating that they had minimal steps.

56. There is no evidence that the additional material sought would have been either available or relevant. It may, perhaps, be thought the availability of finance to the respondent should have been accessible to show that it could have bought a house, or rented a house especially for the appellant, but it has not been suggested that failure to do so would have been capable of demonstrating discrimination against her.

57. It is true that the Tribunal apparently failed to provide reasons for its decision to strike out two paragraphs in the summons, and that such a failure may itself constitute appealable error. However, a failure to explain an interlocutory decision will not necessarily have the effect of invalidating a subsequent decision finally disposing of a complaint. In the present case, the issue of the summons was not raised again at the hearing and there is no evidence to suggest that the Tribunal's attention was drawn to any risk of injustice arising as a result of the appellant being denied access to the evidence in question. Nor does it appear that there was any request for reasons.

58. In the circumstances, I am unable to find that the approach taken by the Tribunal in relation to the summons vitiated its subsequent decision as to the disposition of the complaint.

59. Mr Hassall then turned to the application of the Human Rights Act 2004 (ACT). The provisions of that Act provide a potentially important guide to courts and tribunals in interpreting legislation including, of course, provisions of the Act. In the present case, however, it was not suggested that any section of the Act was uncertain of meaning, that it was clouded by some obscurity or ambiguity, or that it might otherwise have been clarified or qualified by reference to the provisions of the Human Rights Act.

60. Mr Hassall relied upon the proposition that, by reason of the Human Rights Act and the rights which it enshrines, the Briginshaw principle should not be applied to cases in which discrimination had been alleged because it would reduce access to relief in relation to such discrimination.

61. I am unable to accept this argument. The Human Rights Act is not concerned with the standard of proof in cases of this nature. Furthermore, it makes clear that all people are to have their rights respected and there is no basis in the Act for a view that the rights of applicants should be respected, and the rights of defendants correspondingly reduced. In particular, it seems to me that there is nothing in the Human Rights Act to displace a prima facie view that members of the community, whether they work for government agencies or not, should not have findings capable of reflecting adversely on their reputation and character made against them unless the evidence is sufficient to establish the relevant allegations.

62. Whilst I have considered Mr Hassall's submissions on the application of the Human Rights Act with some care, I have ultimately been unable to find any appealable error on the part of the Tribunal by reason of any perceived failure to apply its provisions.

63. Finally, Mr Hassall argued that the Tribunal had misdirected itself as to the requirements of the Act. As Ms Eastman pointed out, this seemed to have been a fairly general submission and it was not accompanied by any more precise argument attempting to relate it to particular parts of the Tribunal's reasons for judgment. I think I need only say that I was again unable to find any appealable error of the kind suggested.

64. It is clear that the appellant has special needs and that they may not have been adequately met by the respondent. It is to be hoped that the respondent may be able to provide her with more suitable accommodation in the future. However, that is not the issue raised by this appeal. The real question facing the Tribunal was whether she had been discriminated against by the respondent on earlier occasions because of her physical impairment. Mr Hassall invested considerable time in addressing the issues raised in relation to the manner in which the Tribunal had dealt with this question and, if I may say so with respect, brought real ingenuity to the arguments that he advanced on the appellant's behalf. However, despite his able arguments I have ultimately been unable to discern any error of law in the Tribunal's approach.

65. Accordingly, the appeal must be dismissed.

I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.

Associate:

Date: 18 August 2005

Counsel for the appellant: Mr D A Hassall

Solicitor for the appellant: Mamdouh Elmaraazey

Counsel for the respondent: Mr D Kettle

Solicitor for the respondent: ACT Government Solicitor

Date of hearing: 26 July 2005

Date of judgment: 26 July 2005