Australia, Feb. 9 -- New South Wales Land and Environment Court issued text of the following judgement on Jan. 9:

1. GJE has multiple sclerosis (MS). She and her husband, GKA, submitted a development application (DA) to the respondent - their local government council - seeking approval for renovations to their home. GJE and GKA contend that the renovations were intended to accommodate GJE's disability.

2. GJE and GKA lodged the application on 22 December 2021. The respondent refused the application by decision dated 22 July 2022. GJE and GKA appealed this decision to the Land and Environment Court in August 2022. There was a conciliation conference in December 2022 and on 2 December 2022 the Land and Environment Court made consent orders upholding the appeal and granting consent to the DA subject to certain conditions.

3. On 19 June 2023, GJE and GKA lodged a complaint with the respondent in relation to concerns about how their DA was processed and decided. They alleged disability discrimination under the Anti-Discrimination Act 1977 (NSW) (ADA) and a breach of privacy. The complaint was investigated by the respondent's general counsel and GJE and GKA were advised of the outcome by letter dated 11 October 2023. In brief, the respondent concluded that there was no breach of privacy and no unlawful discrimination.

4. GJE and GKA also lodged a complaint with the NSW Anti-Discrimination Board (ADB) on 20 July 2023. The President identified the grounds of the complaint as disability discrimination in relation to goods and services under ss 49A-49C, 49M and 53 of the ADA. The period of the complaint is 12 May to 2 December 2022 and the complaint is summarised by the President to the effect that GJE has MS, a DA was submitted seeking to accommodate GJE's disability and the respondent refused the application and did not follow their disability inclusion plan. On 15 September 2023, the respondent provided a response to the complaint, denying discrimination. The respondent contended the complaint was not substantiated and that the respondent, and its employees, complied with statutory requirements in relation to the consideration of the DA. On 21 December 2023, GJE and GKA requested that the complaint be referred to the Tribunal.

5. The President of the ADB referred the complaint to the Tribunal and the application was received on 17 January 2024. There is no dispute that the complaint was referred in accordance with the provisions of the ADA and that the Tribunal has jurisdiction in relation to the matter pursuant to s 29 of the Civil and Administrative Tribunal Act 2013 (NSW).

6. Directions were made about the conduct of the hearing and the proceedings were listed for hearing before us for three days commencing 23 July 2024. Extensive evidence was provided by both parties, including witness statements from officers of the respondent and evidence from GJE. Confidentiality orders were made at the pre-hearing directions.

7. GJE and GKA allege unlawful disability discrimination in relation to the consideration and decision made on their application. They also allege unlawful discrimination in the manner in which their complaint was managed and GJE alleges a privacy breach. These allegations are set out in their points of claim.

8. At the commencement of the hearing, the respondent raised a threshold issue about whether the respondent was providing "goods" or "services" for the purpose of the ADA.

9. We have decided to dismiss the application including the claims relating to unlawful discrimination in the handling of the DA and the subsequent complaint, and the breach of privacy. Our reasons follow.

Statutory framework

10. The ADA renders unlawful discrimination on certain grounds and in certain circumstances.

11. Section 4A provides:

4A Act done because of unlawful discrimination and for other reasons

If--

(a) an act is done for 2 or more reasons, and

(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act),

then, for the purposes of this Act, the act is taken to be done for that reason.

12. Part 4A deals with discrimination on the ground of disability.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/19443ca4493400f5e907e5e7)

Disclaimer: Curated by HT Syndication.