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Department of Land & Housing v Douglas [2011] FMCA 75 (22 February 2011)

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Department of Land & Housing v Douglas [2011] FMCA 75 (22 February 2011)

Last Updated: 22 February 2011

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DEPARTMENT OF LAND & HOUSING v DOUGLAS

HUMAN RIGHTS – Disability discrimination –allocation and modification of public housing.

PRACTICE & PROCEDURE – Interim application for summary dismissal – jurisdiction – no reasonable prospects of success – interim application dismissed.

Australian Human Rights Commission Act 1986 (Cth), s.46PO
Disability Discrimination Act 1992 (Cth), ss.6, 10, 11, 25
Federal Court Act, s.31A
Federal Magistrates Court Act 1999 (Cth), s.17A
Housing Act 2001 (NSW), s.6
Human Rights & Equal Opportunity Act 1986 (Cth), ss.46PH, 46PO
Residential Tenancies Act 1987 (NSW)

Ali-Hossaini & Anor v NSW Land & Housing Corporation [2010] FMCA 644
Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720
Cass v Kingston Capital Ltd [2010] FMCA 762
Gama v Qantas Airways Ltd [2006] FMCA 11
George (a bankrupt) v Fletcher (a trustee) [2010] FCAFC 53
Howe v Qantas Airlines Ltd [2004] FMCA 242
Secretary of the Department of Foreign Affairs & Trade v Styles [1989] FCA 342; (1989) EOC 92-265
State of New South Wales v Amery [2006] HCA 14; (2006) 80 ALJR 753
Vijayakumar v Qantas Airways Ltd [2009] FMCA 736; (2009) 233 FLR 369

Applicant:
DEPARTMENT OF LAND & HOUSING

Respondent:
WAYNE DOUGLAS

File Number:
SYG1224 of 2009

Judgment of:
Lloyd-Jones FM

Hearing date:
7 & 8 February 2011

Delivered at:
Sydney

Delivered on:
22 February 2011

REPRESENTATION

Counsel for the Applicant in a Case:
Ms K Edwards

Solicitor for the Applicant in a Case:
Mr N Cureton of Legal Services Branch NSW Land & Housing Corporation

Solicitors for the Respondent in a Case:
Mr Turner appearing on a pro-bono basis

ORDERS

(1) The Application in a Case, filed in Court on 8 February 2011, is dismissed.
(2) The matter to proceed on a date to be fixed.
FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

SYG1224 of 2009

DEPARTMENT OF LAND & HOUSING

Applicant in a Case


And


WAYNE DOUGLAS

Respondent in a Case


REASONS FOR JUDGMENT

Introduction

  1. I have before me an Application in a Case filed in Court on 7 February 2011, seeking the summary dismissal of the principle Application on the basis that:
    1. the Court has no jurisdiction to hear and determine the allegations of indirect discrimination made by the Application under s.6 of the Disability Discrimination Act 1992 (Cth); and
    2. the proceedings against the Respondent are dismissed summarily pursuant to r.13.10 of the Federal Magistrates Court Rules 2001 (Cth) on the basis that the Applicant has no reasonable prospects of success prosecuting the proceedings against the Respondent.
  2. The principle Application and the subsequent Amended Application alleged unlawful discrimination under s.46PO of the Human Rights & Equal Opportunity Act 1986 (Cth) (“HREOC Act”). The Applicant asserts disability discrimination and relies on s.6 of the Disability Discrimination Act 1992 (Cth) (“the DD Act”).
  3. Mr Douglas initially made contact with the NSW Land & Housing Corporation (“NSW Housing”) in or about 2006, to obtain assistance for rental arrears he was experiencing in relation to his privately rented accommodation. NSW Housing was subsidising Mr Douglas in respect of payments made by him under that private rental agreement. NSW Housing agreed to assist in paying the arrears Mr Douglas had accumulated in the private residence. When it became apparent that Mr Douglas was about to be evicted from the private accommodation, NSW Housing commenced searching for accommodation in the form of a head leasing arrangement for Mr Douglas. Once the eviction took place, Mr Douglas was housed in a motel paid for by NSW Housing while suitable accommodation for Mr Douglas was pursued.
  4. Mr Douglas suffers from a number of medical conditions including a cardiac condition, liver condition and morbid obesity. Mr Douglas requires the use of a motorised wheel chair. His medical problems are affecting his function particularly his residential environment which required modifications to allow him access.
  5. NSW Housing on or about 13 July 2006, located a four bedroom property at 9 Melliodora Way, Macquarie Fields which was identified as suitable for Mr Douglas. The property had a very large shower recess, including grab rails suitable for Mr Douglas’ use. There was a ramp at the rear of the house to accommodate the motorised wheel chair. Mr Douglas was offered the only property that could be located that fits his needs in the geographic area of Ingleburn, Glenfield and Macquarie Fields. This was the area requested by Mr Douglas.
  6. Mr Douglas commenced his tenancy on 7 August 2006, but claims that he was not given any choice about whether to accept the property and he contends it was not fit for or suitable for a person with his disability. Mr Douglas claims that in November 2006, his carer had moved a lounge suite so the floors could be swept. While Mr Douglas was sweeping the floor with a broom, he stepped over to the corner of the lounge room and went through the floor due to termite damage.
  7. Mr Douglas refused to pay rent for the Melliodora Way property from the commencement of his tenancy until January 2007. Following a series of hearings at the Consumer, Trade and Tenancy Tribunal (“CTTT”), NSW Housing was granted termination of the tenancy agreement with the date of effect being 1 March 2007. Mr Douglas subsequently appealed to the Supreme Court where the matter was held over several times. The CTTT decision was stayed during the Supreme Court proceedings. Mr Douglas lodged an Application for a transfer to alternative accommodation in June 2007. The Application was refused as his tenancy had been terminated by the CTTT in March 2007, and this decision was the subject of the Supreme Court proceedings.
  8. Mr Douglas filed a complaint with the Australian Human Rights Commission (“the Commission”). The date that this complaint was filed is unknown to this Court. The complaint was summarised by the Commission in the following terms:
  9. On 22 December 2008, the Commission issued a Notice of Termination pursuant to s.46PH(2) of the HREOC Act. A delegate of the President indicated that the compliant was terminated under s.46PH(1)(i) of the HREOC Act on the grounds that they were satisfied that there was no reasonable prospect of the matter being settled by conciliation. That notification indicated that the complainant may apply to the Federal Magistrates Court or the Federal Court of Australia to have the allegation decided by Court and that Application must be filed within 28 days of the Notice of Termination.
  10. On 20 May 2009, Mr Douglas filed an Application in this Court alleging unlawful discrimination under s.46PO of the HREOC Act. The first court date hearing was listed for 19 June 2009. Mr Douglas appeared as a self represented litigant on that date. Based on the documentation placed before the Court on that occasion and the brief discussion with Mr Douglas in open Court, I made the following orders:
  11. Mr Turner agreed to represent Mr Douglas on a pro bono basis.
  12. The parties agreed to pursue mediation in an attempt to resolve the dispute between them. The Court was advised that mediation was scheduled on 1 March 2010, and during that session, significant steps were taken to settle the matter involving making Mr Douglas’ house suitable for his particular circumstances. As progress was being made at that stage, both parties requested that the proceedings be adjourned for at least two months at liberty to apply on three days’ notice to enable negotiations to proceed. At a directions hearing on 22 October 2010, the Court was advised that despite a number of mediation sessions, final resolution of the matter was not possible and the parties requested that the proceedings be re-listed for final hearing.

Evidence

  1. Mr Turner, appearing for Mr Douglas, tendered the following:
    1. affidavit of Wayne Douglas affirmed 20 May 2009 (“first affidavit of Mr Douglas”);
    2. affidavit of Wayne Douglas affirmed 26 October 2009 (“second affidavit of Mr Douglas”);
    1. affidavit of Raymond Charles Turner affirmed 3 February 2010 (“first affidavit of Mr Turner”);
    1. affidavit of Raymond Charles Turner affirmed 7 February 2011 (“second affidavit of Mr Turner”);
    2. exhibit A1 Australian Human Rights Commission – Notice of Termination dated 22 December 2008;
    3. MFI 1 – Department of Housing – Residential Tenancy Agreement, Part 2; and
    4. MFI 2 – Housing NSW, Human Services Fact Sheet – Tenant’s rights and responsibilities.
  2. Ms Edwards, appearing for NSW Housing, tendered the following material:
    1. affidavit of Bryan Squires affirmed 23 December 2010;
    2. affidavit of Phillip Tomkins affirmed 24 December 2010; and
    1. affidavit of Nathan Cureton affirmed 7 February 2011.

Legislative framework

  1. NSW Housing seeks that Mr Douglas’ claim of discrimination be dismissed pursuant to s.17A of the Federal Magistrates Court Act 1999 (Cth) and r.13.10 of the Federal Magistrates Court Rules 2001 (Cth).
  2. Section 17A of the Federal Magistrates Court Act 1999 (Cth) states:
  3. Rule 13.10 of the Federal Magistrates Court Rules 2001 (Cth) states:
  4. In George (a bankrupt) v Fletcher (a trustee) [2010] FCAFC 53, the joint majority of Logan and Ryan JJ noted that s.17A of the Federal Magistrates Court Act 1999 (Cth) was equivalent to s.31A of the Federal Court Act. Their Honours at [75] stated:
  5. In Ali-Hossaini & Anor v NSW Land & Housing Corporation [2010] FMCA 644, Driver FM considered the principles to be applied in relation to the summary dismissal. His Honour states:

Applicant’s submissions on dismissal – jurisdictional issue

  1. Mr Douglas’ Application relies on s.6 of the DD Act. In order to make out his claims, Mr Douglas must satisfy the requirements of s.6 of the DD Act in force at the time the alleged discrimination. The DD Act was amended by the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009 (No 70, 2009) which came into effect on 5 August 2009. The Notice of Termination (Exhibit A1) is therefore important as the date of termination was 22 December 2008. The Notice of Termination shows that it relates to the Act as it was prior to the amendment. The pre-amendment, s.6 stated:
  2. Ms Edwards contends that the Applicant’s written submissions handed up in this case make it clear that the Applicant’s claims are now one of indirect discrimination on the ground of disability. The submissions further argue that the Applicant identifies the conditions or the requirements imposed by the Respondent which include:
    1. by operation of the lease that is published policy, the Respondent requires the Applicant to reside in the property at 9 Milliodara, Macquarie Fields (“requirement to reside”); and
    2. by operation of the lease and its published policy, the Respondent requires the Applicant to clean and maintain the property to a reasonable standard, including the garden and ensuring that no damage is done by you or your household members or visitors (“requirement to maintain property”).
  3. Under s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth), it states:

The Court was referred to the decision in Gama v Qantas Airways Ltd [2006] FMCA 11 per Raphael FM at [9]:

...What one can extract from these decisions is that a party can make an allegation that a particular act referred to in the complaint constituted different breach of an anti-discrimination act that originally alleged or possibly even considered by HREOC. It is also clear that what constitutes the “complaint” is not just the written document but all the facts and matters that are before the commission prior to the determination. But the allegation made in proceedings cannot be substantially wider than those initially complained of.
  1. Ms Edwards argues that there is nothing in the original complaint about the NSW Housing’s lease or policy being discriminatory. Further, there is nothing about Mr Douglas being required to maintain the property although it is clear that Mr Douglas was dissatisfied with how NSW Housing maintained the property. There is also nothing in the complaint about Mr Douglas requiring him to comply with the policy. However, there is a complaint that NSW Housing was not complying with its own policies and the law, those policies are not specified and this is a very different complaint in substance to acquiring Mr Douglas to comply with a particular policy (or tenancy agreement).
  2. Ms Edwards submits that NSW Housing relies on the decision in Vijayakumar v Qantas Airways Ltd [2009] FMCA 736; (2009) 233 FLR 369 of Scarlett FM at [93]-[114].
  3. Ms Edwards submits the original complaint does not reference that the lease or policy contains anything discriminatory. Furthermore, Ms Edwards contends that there is nothing about Mr Douglas being required to maintain the property, although it is very clear that Mr Douglas was dissatisfied with how NSW Housing maintained the property. There is also nothing in the complaint about Mr Douglas being required to comply with the policy although there certainly is a complaint that NSW Housing is not complying with its own policies.

Respondent’s submission on dismissal – jurisdictional issue

  1. Mr Turner submits that the Respondent’s case is simple. His evidence is clear and this factual dispute between the parties can only really be ventilated in a trial. His evidence is that he was told “That’s where you live. You have no alternative”. Mr Turner contends that this is the requirement. Mr Turner takes issue with the analysis of the requirement by the tenancy agreement. It is submitted that the tenancy agreement is the basis for the relationship between the parties.
  2. Turning to the question of jurisdiction, Mr Turner submits the matter before this Court can be distinguished from the decision Vijaykumar v Qantas (supra) on the facts. Mr Turner referred the Court to paras. [95], [99] and [100] which are reproduced above. In Vijaykumar v Qantas (supra) His Honour Scarlett FM determined whether an Applicant could rely on a substantially different set of facts or on an additional set of facts. Mr Turner submits that in the matter before this Court, Mr Douglas relies upon the same set of facts that were put before the Commission. Mr Turner refers the Court to the Australian Human Rights Commission’s letter dismissing the complaint (Exhibit A1, attachment A). That letter indicates that the Commission exercised an abundant level of caution when it considered the complaint under ss.6, 10, 11 and 25 of the DD Act. Mr Turner indicates that he relies on the fact that the Commission reviewed the complaint under s.6 and that the Amended Application brought under s.6.
  3. Mr Turner then referred the Court to the original HREOC complaint form. On p.3 of that form the following appears:
  4. Mr Turner referred the Court to the penultimate line on the following page:
  5. In the third para. on p.5:
  6. Then at the last para. of p.5:
  7. Mr Turner argues that the complaint document on its face reveals everything claimed by his client is directly or indirectly contained in that Application. In the absence of any recording or transcript from the Commission hearing, it is unclear how s.6 was addressed. However, on the face of the decision of the Commission, it is clear that the Commission considered s.6 and consequently it must be inferred that it was addressed by the Commission during the hearing.

Consideration – jurisdictional issue

  1. The jurisdictional issue argued before this Court hinges upon whether the pleadings contained in the Amended Application introduced significantly different set of facts from the original complaint filed with the HREOC.
  2. This decision is made significantly more difficult because the original complaint and the initial Application to this Court were drafted by a self-represented litigant with extremely limited knowledge of the operation of the complaint mechanism and the subsequent appeal process to this Court. When Mr Turner accepted a brief to appear for the Applicant on a pro-bono basis, he was placed in a very difficult and untenable position. In the preparation of an Amended Application, (for which leave was granted) Mr Turner had to rectify the pleadings in the appropriate form. In the absence of any specificity in Mr Douglas’ original complaint, Mr Turner was placed in the insidious position in the exercise of the pleading by not adopting a specific ground that was not contained in the original complaint. No criticism is directed at Mr Turner in respect of the manner of which he has approached this difficult dilemma.
  3. Mr Douglas expressed his original complaint to the Commission in the following terms.

This is supported by a two page explanation of what happened and a further five page handwritten note prepared by Mr Douglas’ carer, Garrard Skeates.

  1. The Commission, in its letter to Mr Douglas dismissing the claim, summarised the complaint as follows:
  2. The complaint was considered under ss.6, 10, 11, 25 of the DDA.
  3. The Amended Application, filed in these proceedings on 20 August 2009, sets out the ground of the Application as:
  4. Ms Edwards advances the argument that the Amended Application claims:
    1. by the operation of the lease and its published policy, the Respondent requires the Applicant (in the substantive application) to reside in the property being 9 Mulliodara Way, Macquarie Fields; and
    2. by operation of the lease and it published policy, the Respondent requires the Applicant (in the substantive application) to clean and maintain the property to a reasonable standard.
  5. The section of the pre-printed complaint form, (Exhibit A1, Attachment B) issued in this case by the HREOC (as it was known at the relevant time), requesting the identification of the nature of the complaint refers to discrimination only and omits indirect discrimination. A self-represented litigant, with limited or no knowledge of the operation of discrimination law, would not be aware of the concept of indirect discrimination and how it should be pleaded in the complaint form. In the absence of any reference of this aspect in the commission’s dismissal letter, it is not unreasonable for a self-represented litigant to not make reference to indirect discrimination in his original Application to this Court.
  6. The inadequacy of the original pleadings filed by Mr Douglas was immediately apparent at the First Court Date Directions hearing on 19 June 2009, and it was at this point that I indicated to Mr Douglas that because this particular legislation was technically different to the lay person, I did not believe it was appropriate for him to further prosecute these proceedings without the advice and assistance of a qualified legal practitioner. Consequently I made the referral to the Court Registry to seek appropriate pro bono assistance for Mr Douglas and issued the orders that are reproduced above at [10]. Mr Turner accepted the brief and appeared for Mr Douglas at the directions hearing on 31 July 2009. At that hearing, I granted leave for the Applicant to file and serve an Amended Application for 13 August 2009. An Amended Application was filed on 20 August in the form set out at [29] and it is the first time that Mr Douglas’ claim was expressed in appropriate form of pleadings.
  7. On analysis of all of the documents set out above, it is possible to distil the following elements:
    1. Mr Douglas’ disability of morbid obsesity.

Mr Douglas raises this in his HREOC complaint that NSW Housing was to give him “fit for my disability needs”. The dismissal letter identifies this as:

You have a severe disability as a result of morbid obesity...
The Department provided you with a house which was not suitable for your disability. In the Amended Statement of Claim states:

This claim is consistent in the original claim and the amended Application.

  1. In the initial HREOC complaint, Mr Douglas stated that the premises were not fit for his disability needs. In the dismissal letter the Commission states:

In the amended Application it states:

He was placed in inappropriate housing.

This claim has been maintained in both the initial complaint in the amended Application.

  1. I am not satisfied that the characterisation of the Amended Application before the Court can be legitimately distilled into the two themes advanced by Ms Edwards. I am satisfied that the authorities that apply to this issue focus specifically on changing the factual issues on which the initial complaint and the subsequent pleadings before this Court, have substantially changed or expanded between those two stages.
    I acknowledge that this task has been made more difficult because of the imprecise language and characterisation used by Mr Douglas in the original complaint. However, I am satisfied that the factual matrix has not changed and that the Application to dismiss these proceedings on the issue of jurisdiction cannot be sustained.

Applicant’s submissions – reasonable prospect of success

Claim one – requirement to reside at 9 Melliodara Place, Macquarie Fields

  1. Ms Edwards, in her written submissions, submits that in order to prove a breach of the pre-amendment s.6 of the DD Act, Mr Douglas must prove that:
    1. a substantially higher proportion of persons with the disability comply or are able to comply with the requirements; and
    2. the requirement is not reasonable having regard to the circumstances of the case; and
    1. with which the aggrieved person does not or is not able to comply.

The burden of proof in making out the claim rests wholly on Mr Douglas.

  1. Ms Edwards submits that on Mr Douglas’ own evidence, he is unable to make out s.6(c) because on his own evidence he was unable to comply and did in fact comply with the requirement to live in the relevant property and on this point alone his claim must fail. It not only satisfies the hurdle under s.17A of the Federal Magistrates Court Act but the more stringent hurdle under previous legislation of being hopeless or bound to fail. Mr Douglas would likewise be unable to show it was a requirement imposed by NSW Housing within the meaning of the DD Act. Ms Edwards submits that a requirement or condition it must be “imposed” by NSW Housing and not by agreement or by other means: State of New South Wales v Amery [2006] HCA 14; (2006) 80 ALJR 753 per Gummow, Hayne and Crennan JJ at [80]-[81] and Callinan J at [205]-[207].
  2. Ms Edwards has provided the Court with a detailed analysis of the elaborate statutory regime that governs how public housing is managed and allocated to clients such as Mr Douglas. I rely on those written submissions and have reproduced them without further direct attribution to assist in the understanding the nature of this specific regime of allocation and administration of this aspect of public housing.
  3. Relevant legislation includes the Housing Act 2001 (NSW) and the Residential Tenancies Act 1987 (NSW). Public housing is long term affordable housing for people living in NSW on low incomes who are unable to rent privately. The properties are managed by NSW Housing through the NSW Land & Housing Corporation (“the Corporation”), a statutory body representing the Crown established under the s.6 of the Housing Act 2001. The Corporation provides subsidised housing for approximately 117,000 people who meet the relevant criteria, about half of whom are disabled. The Commonwealth funding is provided as part of the National Rental Affordability Scheme (“NRAS”).
  4. The Corporation enters into written residential tenancy agreements with each tenant at the beginning of their tenancy. The Corporation offers residential tenancy agreements of different durations depending on the circumstances of the client, the general policy applying at the time they are offered housing and any special condition that may be attached to a particular offer of housing. Rental rebates are also available to tenants pursuant to the powers contained in ss.54-58 of the Housing Act. When the Corporation signs residential tenancy agreement with a client, it does this in accordance with the requirements of the Residential Tenancy Act 1987. One of those requirements is that the tenants must reside in the property allocated to them. Therefore these are not requirements imposed by NSW Housing but by legislation and are fundamental to the nature of public housing.
  5. Ms Edwards contends that the legislative structure, which is fundamental to the administration of public housing in NSW, clearly indicates that the requirement for Mr Douglas to occupy the house allocated to him cannot be seen as a condition imposed by NSW Housing. Ms Edwards relies on the decision in Howe v Qantas Airlines Ltd [2004] FMCA 242 per Driver FM at [231]-[232] where it was held that the requirement or condition must be something separate from the nature of the job itself. Consequently, Mr Douglas will not be able to make out a claim under s.6(a) and (b) of the DD Act.
  6. Ms Edwards submits that on the evidence on which Mr Douglas relies, there is no evidence that lease was to provide more than that of a standard lease with the Department. Therefore the lease only represented a reasonable agreement to provide accommodation in exchange for payments. Ms Edwards argues that the requirement has not been clearly specified. Ms Edwards submits that the requirement is one of the two following possibilities:
    1. to reside in the particular property; or
    2. for all public housing tenants to reside in the properties allocated to them.
  7. If the requirement falls within the first option, requiring Mr Douglas to live in the particular property is not applies to all people or all those leasing housing properties. If it is generalised to the extent that the requirement is one, which requires all public housing tenants to live in their properties, there is no evidence that people without a disability are more able to comply than those with a disability. Ms Edwards submits that this is similar to the situation in Ali-Hossani & Anor v NSW Land & Housing Corporation [2010] FMCA 644 in which His Honour Driver FM dismissed the claim of disability discrimination because they did not address each key limb of the legislation but rather simply listed their own concerns. At [13] His Honour stated:
  8. Ms Edwards argues that taking Mr Douglas’ evidence at its highest, there is no evidence for the requirement that he live in the relevant property unreasonably within the meaning of s.6(b) of the DD Act. Supply of public housing is a limited resource and if those seeking do not live in it, they are effectively disadvantaging those in the need of accommodation. Ms Edwards referred to Ali-Hossani where His Honour Driver FM noted:
  9. Ms Edwards submits that there is no evidence that the requirement had a detrimental effect on Mr Douglas within the meaning of s.25(2)(c). The house was in the same suburb as his daughter’s school. The property was allocated on the basis of it being the one of three suburbs nominated by Mr Douglas. It had a modified ramp at the back of the house and a bathroom with a hobless shower and grab rails. This evidence is not in dispute. Importantly, in relation to the requirements to reside at the relevant premises, the Applicant (in the substantive case) has taken every possible step to stay at the premises, this in itself and applying that test under s.17A as to whether he would have reasonable prospects of success or proving reasonableness.

Claim two – requirement to clean and maintain the property and cause no damage

  1. Ms Edwards reaffirms that the burden of proof is on Mr Douglas to make out his claim on the pre-amendment version of the DD Act. It is submitted that there is nothing in Mr Douglas’ evidence that this requirement was in fact ever imposed on him. There is no evidence that Mr Douglas ever read the relevant policy (of which only the 2010 version is tendered) or had it brought to his attention because he was not complying with it. Indeed there is no mention of it in his affidavit. Regardless, the tenancy agreement does not state the requirement as set out but puts the obligation in the terms that the Applicant was required to maintain the property to a reasonable standard in the context of the condition of the property at the time he took residence.
  2. It is submitted that on Mr Douglas’ own evidence, the condition of the house was poor and the garden a mess. The onus on Mr Douglas is very low. In addition, it is his own evidence that he was simply unable to carry out garden work. Regardless, even if he did receive the policy, which is the only document giving rise to the requirement, there is absolutely no evidence that NSW Housing ever enforced this policy against Mr Douglas. When the burden of proof is reversed and one considers the post amendment DDA, it is NSW Housing’s evidence that it did not enforce the obligation and moreover, that it did work on the garden until 2010. Such actions are inconsistent with enforcing that obligation on Mr Douglas. In that context, there can be unreasonableness or detriment to Mr Douglas.
  3. Ms Edwards submits that for the above reasons the claim ought to be dismissed for the reason of no reasonable prospect of success.

Respondent’s submissions – reasonable prospects of success

  1. Mr Turner, in his oral submissions, indicated that Mr Douglas says, and will say, that he was required to reside in the premises that were unsuitable for his particular disability. His evidence is clear and this is a factual dispute between the parties which can only be ventilated in trial. His evidence is that he will say:
  2. Mr Turner argues that there is a requirement. Mr Turner indicates that he takes issue with Ms Edwards’ analysis of the requirement of the tenancy agreement. The tenancy agreement is the basis of the relationship between the parties.
  3. Mr Turner contends that if there was a compulsion to live in the premises which were clearly unsuitable, the evidence of Mr Tomkins and Mr Squires confirms that considerable steps were taken long after the tenancy commenced to make it suitable for Mr Douglas’ disability. If that compulsion flows from either the tenancy agreement, the policy of the department or the actions of the department, then it is a requirement on Mr Douglas to reside and to maintain the premises in a neat and tidy fashion. Mr Turner contends that the second element that his client has to show is that a person without Mr Douglas’ disability could have done so. Mr Turner submits that judicial notice can be taken of that as it must be clearly the case that an able bodied person without Mr Douglas’ disability can carry out reasonable cleaning and maintenance on the property.
  4. Mr Turner advances the argument that it was unreasonable, if Mr Douglas’ evidence is accepted, that he was forced onto those premises. There was no alternative. It is no defence to say that he lived in those premises because he had no alternative. It was that house or the park. He had no other alternative and that was a requirement placed on him which was not a reasonable restriction of the state of the property. It seems to have been accepted by NSW Housing that the state of the property was not acceptable because subsequently modifications were made to the property.
  5. Mr Turner advances the argument that he is not required to establish that his client will definitely win but rather that they will not definitely lose. Based on this premise, Mr Turner maintains that his client has a case to be tried in that Mr Douglas is entitled to advance his case.

Consideration – reasonable prospects of success

  1. The Full Federal Court decision in George v Fletcher (trustee) (supra) (see [18] above) establishes that the operation of s.17A of the Federal Magistrates Court Act is equivalent to s.31A of the Federal Court Act. There are also very useful decisions of this Court in respect of the principles to be applied in relation to summary dismissal. This is addressed by His Honour Driver FM in Ali Hossein & Anor v Land & Housing Corporation (supra) (see [19] above). A decision of His Honour Lucev FM in Cass v Kingston Capital Ltd [2010] FMCA 762 where His Honour summarises the principles in respect of the dismissal at [9] – [10]:
  2. I am further assisted by the decision in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd [2006] FCA 1352; (2006) 236 ALR 720 where His Honour Rares J considered the effect of s.31A at [42]-[47]:

(emphasis added)

  1. I note the detailed analysis and submissions forwarded by Ms Edwards and acknowledge the significant deficiencies in the presentation of Mr Douglas’ claim. I believe this is substantially due to Mr Douglas’ lack of knowledge and understanding in presenting a case of this nature and I have referred to how this Court should handle self represented litigants. I also note the difficult position placed on Mr Turner accepting the pro-bono brief at such a late stage. However, I believe that the crux of Mr Douglas’ case is set out in ground three of the amended application which states:

I am guided by the words of His Honour Rares J in Boston Commercial Services Pty Ltd v GE Capital Finance Australasia Pty Ltd (supra) at [42] and in particular the passage that is highlighted in that section is reproduced above.

  1. Mr Douglas’ claim is advanced on the ground of indirect discrimination which is focused on the impact of rules, practices or policies that apply particularly and have a disproportionate impact on those with particular attributes. In Secretary of the Department of Foreign Affairs & Trade v Styles [1989] FCA 342; (1989) EOC 92-265, indirect discrimination was referred to as “practices which are fair in form and intention but discriminatory in impact or outcome”. The DD Act acknowledges that there is a duty to make reasonable adjustments to avoid indirect discrimination. The burden of proving reasonableness is on the person imposing the requirement for condition.
  2. Consequently, I believe that Mr Douglas should be provided with the opportunity to advance his case on this issue. In respect of the two claims formulated by Ms Edwards under this heading of ‘reasonable prospects of success’, I must agree. As I indicated above, the formulation of the specific claims advanced by Mr Douglas are difficult to understand. I believe they result from the initial proceedings together with the complaint filed with the Commission, drafted by a self-represented litigant with limited knowledge of the legal concepts that are incorporated in the operation of discrimination law and more particularly the structure and requirements of the DD Act.

I certify that the preceding sixty-six (66) paragraphs are a true copy of the reasons for judgment of Lloyd-Jones FM


Associate:


Date: 22 February 2011

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