Orlowski v Sunrise Co-operative Housing Inc [2009] FMCA 31 (29 January 2009)

Last Updated: 2 February 2009

FEDERAL MAGISTRATES COURT OF AUSTRALIA

ORLOWSKI v SUNRISE CO-OPERATIVE HOUSING INC

[2009] FMCA 31

HUMAN RIGHTS – Disability discrimination alleged against housing cooperative by member – no discrimination shown.

Human Rights and Equal Opportunity Commission Act 1986 (Cth), s.46BO(4) Disability discrimination Act 1992 (Cth), ss.27(2) and 39 South Australian Co-operative and Community Housing Act 1991 (SA)

McCormick v Commonwealth [2007] FMCA 1245 McDonald v Hospital Superannuation Board [1999] O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 346

Applicant:

EDWARD ORLOWSKI

Respondent:

SUNRISE CO-OPERATIVE HOUSING INC

File Number:

ADG 357 of 2007

Judgment of:

Simpson FM

Hearing date:

14 July 2008

Date of Last Submission:

14 July 2008

Delivered at:

Adelaide

Delivered on:

29 January 2009

REPRESENTATION

The Applicant:

In person

Counsel for the Respondent:

Mr S Cole

Solicitors for the Respondent:

Minter Ellison Lawyers

ORDERS

(1) The application is dismissed.
(2) The applicant pay the respondent’s costs.

FEDERAL MAGISTRATES COURT OF AUSTRALIA AT ADELAIDE

ADG 357 of 2007

EDWARD ORLOWSKI

Applicant

And

SUNRISE CO-OPERATIVE HOUSING INC

Respondent

REASONS FOR JUDGMENT

The application

1. This is an application for compensation pursuant to s.46PO of the Human Rights and Equal Opportunity Commission Act 1986 (Cth) (“HREOC Act”) for alleged contraventions by the respondent of s.27(2) and s.39 of the Disability Discrimination Act 1992 (Cth) (“DD Act”).
2. The applicant lodged a complaint with the Human Rights and Equal Opportunities Commission (“HREOC”) on 28 November 2006. After considering the respondent’s response a decision was made by HREOC on 28 November 2007 that the complaint be terminated. The applicant commenced these proceedings on 24 December 2007 and therefore within the time allowed by sub-s46PO(2) of the HREOC Act.

The parties

3. The respondent, Sunrise Co-operative Housing Inc, is an organisation registered under the South Australian Co-operative and Community Housing Act 1991 (SA) (“SACCH Act”). The applicant, Edward Orlowski, has been a member of the respondent since it was established on 1 July 2005.
4. The SACCH Act provides a regime for the registration, incorporation and regulation of housing co-operatives in South Australia. It is a body corporate with full juristic capacity to exercise any powers that are by their nature capable of being exercised by a body corporate (see sub-s.23(1)(a)(ii) of the SACCH Act and is therefore capable of suing and being sued. All rights and liabilities formerly exercisable against the members or officers of the co-operative in their capacity as such immediately before the incorporation of the co-operative become rights and liabilities of the registered housing co-operative. (see sub-s.23(1)(c) of the SACCH Act).
5. Section 3 of the SACCH Act provides that, unless a contrary intention appears:
   • housing co-operative means an association which is formed-
     • (a) on the basis of the principles of co-operation; and
     • (b) principally to provide housing accommodation to its members.
6. As to the meaning of “principles of cooperation” sub-s.3(2) of the SACCH Act says in part that:
   • An association will, for the purposes of this Act, be regarded as having been formed on the basis of the principles of co-operation if the following conditions are satisfied:
     • (a) membership of the association must be voluntary and available without artificial restriction or any discrimination based on sex, sexuality, marital status, pregnancy, race, physical or intellectual impairment, age or political opinion to all who can make use of its services and are willing to accept the responsibilities of membership; and
       
     • (b) the affairs of the association must be administered on a fair and democratic basis by persons who are elected or appointed by the members of the association and who are accountable to them; and
     • ...
7. The respondent is a self managed non-profit organisation. It offers members long term housing tenancy security with affordable rent (generally 25% of the member’s income) and involvement in housing management. The respondent provides housing to people with special needs including the aged, people with disabilities, survivors of domestic violence, people from non-English speaking backgrounds, low income families, individuals who have difficulty accessing the private rental market and people who have experienced homelessness.
8. To be eligible for community housing an applicant must meet the government based eligibility criteria that apply to all applications for community housing. These criteria include current residency, income, assets and needs. In addition an applicant must meet the specific eligibility criteria of the individual co-operative or association for which an applicant wishes to apply or register an interest.
9. The respondent here is managed by a committee of volunteers who are themselves members and tenants of the respondent.

The applicant’s claims and the respondent’s response

10. The applicant, who has been unrepresented throughout these proceedings, alleges that the respondent unlawfully discriminated against him in that:
    1. during his time as a member, he was never nominated for an elected position in the respondent’s organisation such as Maintenance Officer, Rent Coordinator or Assistant Purchasing Officer;
    2. the respondent was responsible for fabricating stories about the applicant;
    100. the respondent was responsible for the applicant being “marginalised”; and
    4. the respondent was responsible for threats of violence being made against the applicant.
11. When the applicant filed his complaint with HREOC on 28 November 2006 he alleged an instance of unlawful discrimination concerning the applicant which is not referred to above, namely, that on 21 March 2006 the respondent’s Tenancy Committee decided to offer a rental property (“the Bowyer Avenue property”) that had become available to another member and not the applicant. At trial before me the applicant abandoned this aspect of his claim.
12. The applicant says that the discrimination resulted in deterioration of his health for which he seeks compensation. He has provided no evidence of the further treatment that was needed as a result of the alleged deterioration or its cost. He also claimed compensation for lost earnings which he initially estimated to be $300 to $500 per week but later confined to $300 per week. No supporting evidence was provided in relation to the alleged lost earnings.
13. The respondent denies that it has been guilty of unlawful discrimination and says that in any event the applicant has not made out any proper basis for an award of compensation.

Evidence relied upon

14. The evidence in chief of all witnesses was to be by way of affidavit filed and served well prior to trial. At trial, the applicant relied on his two affidavits filed on 2 June and 1 July 2008 respectively. Neither affidavit was particularly helpful as trial affidavits as they did not tell the applicant’s story but simply annexed numerous documents without proper explanation of their relevance. I permitted the applicant to orally givefurther evidence in chief so that he had every opportunity to put all appropriate evidence before the Court.
15. The respondent relies on three affidavits: two affidavits of Claire Joan Vogt (the current Chair of the respondent) filed on 27 June and 9 July 2008 respectively and an affidavit of Juanita Ruth Jane Anderson (a former Membership Officer and now Treasurer of the respondent) filed 11 July 2008.

The law

16. In relation to the allegation that the respondent was guilty of unlawful discrimination for failing to nominate the applicant for an elected position in the respondent’s organisation, the applicant relies upon sub-s.27(2)(c) of the DD Act which states:
    • It is unlawful for (an) ... incorporated association ... or a member of the committee of management of (an) ... incorporated association to discriminate against a person who is a member of the ... association on the ground of the member’s disability ... :
      • (a) ...
      • (b) ...
      • (c) By denying the member access, or limiting the member’s access to any benefit provided by the club or association;
      • (d) ..., or
      • (e) By subjecting the member to any other detriment.
17. Disability discrimination is defined in s.5 of the DD Act as follows:
    • 5.5(1)
    • For the purposes of this Act, a person (discriminator) discriminates against another person (aggrieved person) on the ground of a disability of the aggrieved person if, because of the aggrieved person’s disability, the discriminator treats or proposes to treat the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person without the disability.
    • (2) For the purposes of subsection (1), circumstances in which a person treats or would treat another person with a disability are not materially different because of the fact that different accommodation or services may be required by the person with a disability.
18. In relation to the applicant’s suggestion that the respondent is guilty of unlawful discrimination as a result of false allegations being made concerning the applicant, the applicant being marginalised and the suggestion that threats of violence were made against the applicant, the applicant relies on s.39 of the DD Act. The section states:
    • 39. It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to harass another person who:
      • (a) wants to acquire the goods or services or to make use of the facilities; and
      • (b) has a disability;
      • in relation to the disability.
19. “Harassment” is not defined in the DD Act. In McCormick v Commonwealth [2007] FMCA 1245 Mowbray FM sought assistance from the following meanings found in the Macquarie Dictionary:
    • Harass 1. to trouble by repeated attacks, incursions, etc, as in war or hostilities; Harry; raid. 2. To disturb persistently; torment, as with troubles, cares, etc.
20. In relation to the meaning of the phrase in s.39 “in relation to the disability” Mowbray FM applied the following statement of McKew J in O’Grady v The Northern Queensland Company Limited (1990) 169 CLR 346:
    • “The prepositional phrase “in relation to” is indefinite. But, subject to any contrary indication derived from its context or drafting history, it requires no more than a relationship, whether direct or indirect, between two subject matters. (O’Grady v The Northern Queensland Company Limited [1990] HCA 16; (1990) 169 CLR 356 at 376 per McKew J.)
21. On the basis of these authorities I consider that for there to be a finding here of harassment the applicant must not only prove on the balance of probabilities that disparaging or other comments have been made about him but also that the disparaging comments were made in relation to his disability and to him personally. (See also McDonald v Hospital Superannuation Board [1999] HREOCA 13 (extract at (1999) EOC 93-025).

Findings

22. In what follows, statements of fact constitute findings of fact. Findings of fact are here made by me on the balance of probabilities having regard to the evidence and my observations of the witnesses.
23. The applicant is now 55 years old and has for many years suffered from an anxiety disorder and major depression. He has not worked since 2000 and has been in receipt of a disability pension since that time. It is not disputed by the respondent that the applicant suffers from a disability within the meaning of s.4 of the DD Act.
24. In 2000 the applicant became a member of the Hills Housing Co-op Inc. Whilst a member of that co-op he rented and lived in a property at 6 Easter Street, Nairne (“the Nairne property”). For reasons that were not made clear to the Court on 1 July 2005 the Nairne property was transferred to the newly created respondent. The applicant thereafter was a member of the respondent and paid rent for the property to the respondent.
25. The applicant suggested that one of the main reasons that he decided to transfer to the respondent when it was formed rather than remain with the Hills Housing Co-op was that he had received an assurance from an individual (or individuals) associated with the respondent (he did not specify who) that he would be offered the Bowyer Avenue property. He acknowledges in his evidence that he was very upset that the respondent did not offer him the Bowyer Avenue property but instead offered it to another member.
26. As well as the respondent’s failure to offer him the Bowyer Avenue property, the applicant, in his oral evidence and in the voluminous documents annexed to his two affidavits, makes reference to numerous other matters that resulted in the applicant sending letters of complaint to the respondent. The respondent complained also about the applicant’s conduct. In an “open” letter that the applicant sent to the respondent on 10 January 2007 the applicant summarises what the respondent’s complaints were about the applicant. He stated that the respondent was unhappy about the fact that:
    • the applicant did not involve himself in the respondent’s activities;
    • he remained antagonistic towards other members who were trying to help;
    • he had been unwilling to assist any other members; and
    • the applicant’s relationship with the other members had deteriorated to the point that it was irreparable.

The applicant says in the letter that the first three matters were false but that the fourth matter is “absolutely correct”.

27. It will not assist resolution of this claim to examine the detail of the complaints that each of the parties make of the other. I propose instead to examine all of the evidence to determine whether any of the four claims that the applicant brings against the respondent as particularised by him in his opening and as has been summarised in these reasons is made out.
28. The applicant’s uncontradicted evidence is that nobody ever nominated him for an elected position in the respondent’s organisation. There is no evidence from the applicant that this was because he had a disability. The material before me and in particular the applicant’s letter of January 2007 earlier referred to leads me to conclude that it was the breakdown in the relationship that he had with other members of the respondent that dissuaded them from nominating him for an elected position. It is clear to me that there was a lot of animosity between the applicant and the other members of the respondent and that this had been growing since the applicant was not to be offered the Bowyer Avenue property. There is no evidence before me that suggests that the animosity was anything to do with the applicant’s disability.
29. I accept Ms Vogt’s evidence contained in her affidavit of 9 July 2008 in which she says as follows:
    • “3.1 As stated in my affidavit sworn on 27 June 2008 Mr Orlowski transferred over to Sunrise from the Hills Housing Co-operative along with other members and properties on the 1st July 2005.
    • 3.2 Initially, Mr Orlowski attended meetings of Sunrise.
    • 3.3 Sunrise usually holds a general meeting every month. This is essentially a management meeting when decisions are made in relation to the running of the properties managed by Sunrise.
    • 3.4 The members of Sunrise also cooperate in relation to the maintenance of the houses it manages, including participating in working bees.
    • 3.5 At some time following Sunrise’s decision in relation to the Bowyer Avenue property, Mr Orlowski stopped participating in meetings of Sunrise.
    • 3.6 Mr Orlowski has also not made himself available to assist in working bees or similar activities and has not been prepared to do any gardening or maintenance work in relation to Sunrise properties, including his own. Rather, Mr Orlowski appears to be of the view that other members of Sunrise should attend to this for him.
    • 3.7 ...
    • 3.8 ...
    • 3.9 In relation to attendance at meetings, Mr Orlowski has been in the practice of calling Mr Brian Elley, a member of Sunrise, to arrange for Mr Elley to pick Mr Orlowski up to take him to meetings. Although I am not aware of the precise date, at some time after the decision was made by Sunrise in relation to the Bowyer Avenue property, Mr Orlowski stopped calling Mr Elley prior to meetings and accordingly Mr Elley stopped picking Mr Orlowski up to take him to meetings.
    • 3.10 Mr Orlowski appears to have suggested to Dr Asokan ... that Sunrise changed the location of its meetings when his relationship with Sunrise deteriorated. Since its commencement, Sunrise has always held its meetings in Mt Barker. Initially, they were held at the Mt Barker RSL Hall and sometime in early 2006 the meetings were moved to the Mt Barker TAFE Campus because there was no shelter at the RSL Hall and because the RSL members were on occasions late to attend to open the hall for meetings.

4. Decision to terminate Mr Orlowski’s membership.

• 4.1 In my affidavit sworn on 27 June 2008 I annexed documentation to the decision of Sunrise made at a special general meeting on 10 February 2007 to terminate Mr Orlowski’s membership of Sunrise.
• 4.2 A special resolution to terminate Mr Orlowski’s membership was presented at a Special General Meeting on 10 February 2007 and was put by me as the Chair of Sunrise.
• 4.3 The decision to put the Special Resolution was based on Mr Orlowski’s failure to participate in Sunrise’s activities and the fact that he remained antagonistic to other Sunrise members who were trying to assist him and because he was unwilling to assist other members of Sunrise. It was considered that the relationship between Mr Orlowski and other members of Sunrise was irreparable and Mr Orlowski’s attitude was detrimental to Sunrise and its members.
• 4.4 The decision to put the Special Resolution to the Special General Meeting was in no way based on any disability, psychiatric or psychological or otherwise, Mr Orlowski may suffer from.
• 4.5 Sunrise is a community housing organisation and is self managed. The organisation cannot operate successfully unless all members cooperate with Sunrise and other members and provide whatever assistance they are reasonably able to provide to other members and to Sunrise.
• 4.6 Mr Orlowski was simply not prepared to cooperate with other members or Sunrise or provide any assistance to other members (of) Sunrise.

30. In Ms Vogt’s affidavit filed on 27 June 2008 she says that Mr Orlowski’s membership of Sunrise was terminated by unanimous vote at the Special General Meeting on 10 February 2007. She says that Mr Orlowski appealed that decision on 26 February 2007 and on 11 April 2007 the respondent’s appeal’s panel upheld Mr Orlowski’s appeal and his membership was re-instated.
31. The importance of all of this evidence is that it demonstrates the depth of ill feeling that existed between the applicant and the other members of the respondent. I accept the evidence from the applicant that the relationship between he and the other members had irrevocably broken down. There is not sufficient evidence before me of less favourable treatment of the applicant because of his disability. Nowhere is there any claim by the applicant that the respondent’s members made reference to or adverse comments about his disability. In addition, I am by no means convinced that all of the conduct of members of the respondent can be attributed to the respondent as the applicant would wish. Clearly not all acts or omissions of members will be acts or omissions of the respondent. But as no point to this effect has been taken by the respondent I do not propose to make any finding on the topic.
32. For the above reasons the applicant has not established any discriminatory conduct by the respondent. The application must be dismissed.

I certify that the preceding 32Error! Style not defined.!Syntax Error, !Error! Style not defined.Error! Style not defined.!Syntax Error, !thirty-twothirty-two (32) paragraphs are a true copy of the reasons for judgment of Simpson FM

Associate: Julie Davey

Date: 29 January 2009