Federal Court of Australia

Chadwick v State of New South Wales [2022] FCA 1498

ORDERS

THE COURT ORDERS THAT:

1.    The applicant’s originating application under the Australian Human Rights Commission Act 1986 (Cth) filed on 28 November 2022 be dismissed.

2.    The applicant pay the respondents’ costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WIGNEY J:

1    Ms Sandra-Anne Ngaone Chadwick has lodged a complaint with the Australian Human Rights Commission pursuant to s 46PP of the Australian Human Rights Commission Act 1986 (Cth) (AHRC Act). The complaint concerns the actions of the State of New South Wales and the New South Wales Land and Housing Corporation. Ms Chadwick alleges, in summary, that the actions of various officers of the State (specifically officers of the Department of Communities and Justice) and the Corporation in seeking to terminate her social housing tenancy agreement constituted unlawful discrimination as defined in s 3(1) of the AHRC Act.

2    On 28 November 2022, Ms Chadwick filed an originating application under the AHRC Act in which she sought urgent interlocutory orders pursuant to s 46PP of the AHRC Act. Those orders included an order that the State and the Corporation be restrained from terminating her lease and from evicting, or taking steps to evict, her. Ms Chadwick also sought an order that proceedings brought against her by the Corporation and the State in the New South Wales Civil and Administrative Tribunal (NCAT) be dismissed or stayed until further order. While both the State and the Corporation were named as respondents to Ms Chadwick’s application, it is convenient to refer to them collectively as the State.

3    Ms Chadwick’s interlocutory application came before me as duty judge on 1 December 2022. The Corporation was represented at the hearing and opposed the making of the orders.

4    For the reasons that follow, Ms Chadwick’s application for urgent interlocutory relief must be dismissed.

Relevant facts

5    The following outline of the relevant facts is taken primarily from the affidavit sworn by Ms Chadwick on 28 November 2022. That affidavit annexed Ms Chadwick’s complaint to the Commission, some communications between the State and Ms Chadwick and some documents relating to the NCAT proceeding. Ms Chadwick was not cross-examined. The State did not adduce any evidence.

6    Ms Chadwick is of New Zealand Māori race and ethnic origin. She is female and a single mother. She has been a public housing tenant for approximately 16 years. He currently resides at a house in Belmont North in New South Wales pursuant to a residential tenancy agreement. That agreement apparently was entered into in December 2005. The agreement was a fixed term tenancy agreement, though Ms Chadwick appears to allege that since at least June 2012 she had been subject to a “continuous lease” and that she is accordingly not subject to lease reviews. It appears that the basis of that claim is that Ms Chadwick was sent a letter in September 2012 which said that she was on a continuous lease.

7    The actions that are the subject of Ms Chadwick’s current complaint appear to have commenced as long ago as December 2021. On 6 December 2021, officers of the State attended Ms Chadwick’s home for a property inspection. According to Ms Chadwick, the inspection was cut short and subsequently some difficulties were encountered in rescheduling an inspection. The State subsequently commenced proceedings in NCAT against Ms Chadwick. Ms Chadwick alleges that an officer of the State lied during the NCAT hearing. She believes that the State acted against her because she is female, a single mother, of Māori ethnicity, and had lodged a previous complaint against the State.

8    Ms Chadwick’s reference to a previous complaint against the State would appear to be a reference to a complaint which was lodged with the Commission as long ago as May 2019. That complaint was terminated pursuant to s 46PH(1B)(b) of the AHRC Act in October 2020.

9    Officers of the State conducted further inspections in April 2022. Ms Chadwick alleges that an officer of the State yelled at her during that inspection. That made her feel “bullied, demeaned, humiliated, intimidated and victimised”.

10    The State apparently commenced further NCAT proceedings against Ms Chadwick in May 2022. Ms Chadwick alleges that the commencement of those proceedings amounted to victimisation because she had made the previous complaint to the Commission.

11    On 21 April 2022, the State sent a letter to Ms Chadwick in which it stated that it had decided that Ms Chadwick was not eligible for an extension of her current lease. The letter informed Ms Chadwick that the State intended to terminate her tenancy under s 143 of the Residential Tenancy Act 2010 (NSW) on the ground that she was not eligible to live in public housing. The letter also advised that Ms Chadwick could seek to have the State conduct a formal review of the decision in respect of her eligibility.

12    Section 143 of the Tenancy Act provides as follows:

143    Termination notice may be given on ground that tenant not eligible for social housing

A landlord under a social housing tenancy agreement may give a termination notice to the tenant on the ground that the landlord has determined, as the result of an assessment carried out under this Subdivision, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies (the eligibility ground).

13    Section 144 of the Tenancy Act makes provision for eligibility assessments of social housing tenants. It is in the following terms:

144 Eligibility assessments of social housing tenants

(1)    In carrying out an assessment of the eligibility of a tenant under a social housing tenancy agreement to reside in the class of social housing premises concerned, the landlord is to apply the criteria approved by the appropriate Minister for the purposes of this section.

(2)    Any such criteria may differ from the criteria used to assess a person’s eligibility to commence residing in that class of social housing premises.

(3)    The criteria used for the purposes of an assessment must not relate to whether or not the tenant has complied with any term of the agreement.

(4)    The landlord may request the tenant to provide any information that is reasonably required to enable the landlord to determine whether the tenant meets the criteria for the purposes of an assessment under this section.

(5)    If the tenant refuses to provide any such information to the landlord, the landlord may determine, without further inquiry, that the tenant is not eligible to reside in the class of social housing premises concerned.

(6)    In the case of a fixed term agreement, an assessment may not be carried out earlier than 6 months before the end of the fixed term.

(7)    The criteria referred to in this section are to be made publicly available.

(8)    A copy of the criteria is to be provided, on request, to any tenant under a social housing tenancy agreement free of charge and to other persons either free of charge or on payment of reasonable copying charges.

14    Section 147 of the Tenancy Act provides as follows in relation to the termination of a social housing tenancy agreement on the eligibility ground:

147 Termination by Tribunal on eligibility ground

(1)    The Tribunal must, on application by the landlord under a social housing tenancy agreement, terminate the agreement on the eligibility ground if it is satisfied that—

(a)    any notice required to be given, or any review required to be carried out, was given or carried out in accordance with this Subdivision before giving the termination notice on the eligibility ground, and

(b)    a termination notice has been given in accordance with this Subdivision, and

(c)    the landlord has determined, as a result of an assessment under this Subdivision, that the tenant is not eligible to reside in the class of social housing premises to which the agreement applies.

(2)    In deciding whether or not to make an order, the Tribunal is not to review the eligibility of the tenant to reside in the class of social housing premises to which the agreement applies.

15    On 24 June 2022, the State sent Ms Chadwick a notice of termination pursuant to s 143 of the Tenancy Act. The letter advised that Ms Chadwick’s continuing eligibility for a social housing tenancy had been assessed according to s 144 of the Tenancy Act and the State had decided on the basis of that assessment that she was no longer eligible to live in social housing. The letter referred to the notice of intent that the State had sent to Ms Chadwick on 21 April 2022 and noted that Ms Chadwick had requested a review of the decision. The letter stated that the decision to issue the notice of termination had been reviewed and that the State had confirmed that the decision was correct after following the procedures in the Tenancy Act. Ms Chadwick was advised that she was required to give vacant possession on 29 August 2022.

16    On 30 August 2022, the State commenced proceedings in NCAT pursuant to ss 123 and 147 of the Tenancy Act.

17    Ms Chadwick believes that the State’s actions in deciding that she was no longer eligible for a social housing tenancy and its subsequent actions to terminate her lease were taken because she is female, a single mother, of Māori ethnicity and had lodged a previous complaint against the State. The basis of that belief appears to be that none of her public housing tenant neighbours, who are Caucasian, are being treated in the same way by the State.

18    The proceeding against Ms Chadwick in NCAT is currently listed for hearing on 9 January 2023.

19    The current proceeding is Ms Chadwick’s second attempt to restrain the State from terminating her social housing tenancy agreement. As noted earlier, Ms Chadwick lodged a complaint against the State with the Commission in May 2019. That complaint was terminated by the Commission in October 2020. On 15 July 2022, Ms Chadwick sought interlocutory orders in this Court pursuant to s 46PO of the AHRC Act restraining the State from seeking possession of her leased property. That application was dismissed, essentially because the allegations of unlawful discrimination that were the subject of that proceeding were not the subject of the terminated complaint as required by s 46PO(3) of the AHRC Act: Chadwick v State of New South Wales [2022] FCA 918 (Chadwick No. 1).

The statutory basis of the relief sought and relevant principles

20    The statutory basis of the interlocutory relief sought by Ms Chadwick is s 46PP of the AHRC Act which provides as follows:

46PP    Interim injunction to maintain status quo etc.

(1)    At any time after a complaint is lodged with the Commission, the Federal Court or the Federal Circuit and Family Court of Australia (Division 2) may grant an interim injunction to maintain:

(a)    the status quo, as it existed immediately before the complaint was lodged; or

(b)    the rights of any complainant, respondent or affected person.

(2)    The application for the injunction may be made by the Commission, a complainant, a respondent or an affected person.

(3)    The injunction cannot be granted after the complaint has been withdrawn under section 46PG or terminated under section 46PE, paragraph 46PF(1)(b) or section 46PH.

(4)    The court concerned may discharge or vary an injunction granted under this section.

(5)    The court concerned cannot, as a condition of granting the interim injunction, require a person to give an undertaking as to damages.

21    In Carlsson v Ford (2019) 37 ALR 382; [2019] FCA 584, Besanko J rejected a submission that the usual tests on an interlocutory injunction apply to an application for an interim injunction under s 46PP of the AHRC Act. His Honour stated (at [28]):

Section 46PP is designed to empower a court to grant relief in an appropriate case to an applicant who has a complaint pending and by reason of that fact is unable, at least in the ordinary case, to bring substantive proceedings in the Court. The section provides that an applicant is not required to give the usual undertaking as to damages. The usual tests on an interim or interlocutory injunction must be applied having regard to that context. Of course, a claim without any merit would not form the basis for an injunction under s 46PP, but that is not this case.

22    That statement of principle was referred to with approval by McKerracher J in Daccache v BOC Ltd [2020] FCA 485 at [30]. His Honour went on to say:

I consider that the purpose of s 46PP is to protect the complaint-making and resolution process. The mediation role of the Commission is facilitated by the interim preservation of the status quo, ensuring in an appropriate case, as close to a level playing field as possible, while attempts to achieve a conciliated outcome are pursued.

23    Similarly, in Abraham v Housing Authority [2022] FCA 1145, Jackson J rejected a submission that an applicant for relief under s 46PP of the AHRC Act must establish that there is a probability of an entitlement to a remedy in this Court. His Honour reasoned as follows (at [37]):

However in my view there is no strict requirement on an applicant under s 46PP to satisfy the Court at the time of making that application that if the subject matter of the complaint becomes the subject matter of an application to the Court seeking remedies for unlawful discrimination, there is a probability of success in that latter application. In exercising statutory injunction powers, the court is not constrained by the traditional methods of equity, even though those methods represent a sound basis for undertaking a preliminary assessment which should then be reviewed against the statutory context: see Australian Securities and Investments Commission v Triton Underwriting Insurance Agency Pty Ltd [2003] NSWSC 1145 at [25] (Barrett J). Relevant features of the statutory context here are that an application under s 46PP(1) is only open to be made while a complaint is current: s 46PP(1) and s 46PP(3). Section 46PP(1) expressly provides that the purpose of the injunction is the maintenance of the status quo before the complaint and maintenance of the rights of any complainant, respondent to the complaint or affected person. These aspects of the statutory power indicate that it was granted in order to help preserve the effectiveness of the inquiry and conciliation processes of the Commission in relation to a complaint. It should be exercised principally with that purpose in mind.

24    Jackson J expressed agreement with what was said by Besanko J in Carlsson and McKerracher J in Daccache and said (at [41]) that the analysis by both Besanko J and McKerracher J was “inconsistent with any proposition that a s 46PP application must fail if there is insufficient evidence, at the time of the s 46PP application, to establish that there will be a probability of success in a later court application under s 46PO”.

25    In Millar v FQM Australia Nickel Pty Ltd [2022] FCA 1331, Colvin J expressed agreement with what Jackson J said in Abraham and said (at [17]):

… it is not the case that the usual tests on an interlocutory injunction apply. Rather, s 46PP confers a statutory power of a particular kind and consideration as to whether to exercise the power requires regard to those considerations that bear upon whether one or both of the stated objects would be achieved if an interim injunction was granted. It requires an exercise of judicial power by considering what the interests of justice require in the particular circumstances bearing in mind the evident purpose for which the power is conferred.

26    It must be accepted, in light of the statements of principle in Carlsson, Abraham and Millar, that the “usual tests” or equitable principles that apply when considering whether to make an interlocutory injunction do not apply, or do not apply with the same rigour, when considering whether to grant an interim injunction under s 46PP of the AHRC Act. The “usual tests” that apply in the case of interlocutory injunctions are, in summary, that an applicant must establish a prima facie case, or that there is a serious question to be tried, and that the balance of convenience favours the granting of an injunction: see for example Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238; [2011] FCAFC 156 at [53], citing Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153 (Mason CJ). In the case of an interim injunction under s 46PP of the AHRC Act, regard must be had to the apparent purpose of the power in s 46PP, which is to maintain the status quo and thereby preserve the effectiveness of the powers of the President of the Commission under ss 46PF, 46PI and 46PJ of the AHRC Act to, respectively, inquire into a complaint, obtain information relevant to that inquiry and conciliate a complaint.

27    The fact that the “usual tests” for an interlocutory injunction do not apply in the case of an interim injunction under s 46PP does not mean that, in considering whether to grant such an injunction, the Court can or should disregard entirely the apparent merits or otherwise of the complaint in question, or not have regard to the types of considerations that ordinarily factor into the balance of convenience. The mere making of a complaint cannot itself be sufficient to ground the making of an interim injunction under s 46PP of the AHRC Act.

28    While regard must be had to the nature and purpose of the statutory power in s 46PP, the interests of justice would ordinarily require an applicant for an interim injunction to demonstrate at least that the complaint that had been made to the Commission was one which has sufficient apparent merit to warrant inquiry and conciliation by the President of the Commission. A complaint which appears, prima facie, to be unmeritorious and likely to be terminated by the President of the Commission pursuant to s 46PH could scarcely be seen to provide a sound basis for an interim injunction.

29    Likewise, even if the general law principles concerning the balance of convenience may not be applied with the same rigour in respect of interim injunctions under s 46PP of the AHRC Act, the Court should nevertheless have regard to the types of considerations that are ordinarily seen as relevant to the balance of convenience in the case of an interlocutory injunction. That would include, for example, any prejudice or damage that the granting of the injunction to preserve the status quo might cause to the respondent. It is less likely that the interests of justice could be seen to favour the grant of an interim injunction to preserve the status quo if the injunction was likely to cause significant loss or damage to the respondent, particularly in circumstances where the Court cannot require the applicant to give an undertaking as to damages. That would particularly be the case if the complaint was not one which appeared to have sufficient merit to warrant inquiry and conciliation by the President of the Commission.

Should an interim injunction be granted?

30    I am not, on balance, persuaded that it is appropriate to grant Ms Chadwick an interim injunction. That is so for a number of reasons.

31    First, I am not persuaded that there is sufficient apparent merit in the complaint to warrant the grant of an interim injunction.

32    It is readily apparent that Ms Chadwick’s complaints about the State’s dealings with her in respect of her tenancy date back a number of years. She first lodged a complaint with the Commission in May 2019 alleging that the State had discriminated against her on a number of bases, including her sex, race and marital status. The Commission progressed aspects of the complaint, but ultimately terminated the complaint in October 2020, essentially because, despite the Commission’s best efforts, the parties were unable to reach any agreement to participate in a conciliation or otherwise resolve the matter: see Chadwick No. 1 at [22]-[23].

33    The present complaint contains very similar allegations of discrimination. I have closely considered the terms of the complaint and Ms Chadwick’s evidence concerning it. The difficulty, as I see it, is that while it may be accepted that Ms Chadwick genuinely believes that the State has discriminated against her on the basis of her sex, race and marital status, the complaint does not contain any facts or allegations which provide an objectively reasonable basis for that belief.

34    The only identified basis for Ms Chadwick’s belief would appear to be that the State has not taken similar action against her Caucasian neighbours. The difficulty, however, is that the mere fact that the State has not taken action against Ms Chadwick’s neighbours does not demonstrate that the State has discriminated, or is discriminating, against Ms Chadwick. The lack of action against Ms Chadwick’s neighbours may equally be explained on the basis that the circumstance that has caused the State to take the action it has taken against Ms Chadwick – that her income is such that she is not eligible for social housing – may not apply to her neighbours, or that her neighbours meet the eligibility criteria on other grounds. In any event, Ms Chawick’s claims concerning the manner in which the State has dealt with her neighbours, as opposed to the manner in which it has dealt with her, rises no higher than bare assertion.

35    Another problem is that Ms Chadwick does not appear to claim that the basis upon which the State seeks to terminate her social housing tenancy agreement – that her income exceeds the income eligibility limits – is without foundation. If the State’s claims concerning Ms Chadwick’s ineligibility were shown to be without reasonable foundation, that might tend to suggest that Ms Chadwick’s belief that she is being discriminated against might have some foundation. Ms Chadwick does not, however, claim that she meets the income eligibility limits. Rather, she claims that the State should consider her eligibility on other grounds. The problem for Ms Chadwick is that it is entirely unclear whether any of those grounds correspond with the eligibility criteria approved by the Minister for the purposes of s 144 of the Tenancy Act. Moreover, Ms Chadwick had the opportunity to seek a review of the State’s decision in respect of her eligibility. It appears that she initially sought such a review, but subsequently withdrew her consent to the review.

36    I accept that if the Commission exercises its powers to inquire into the complaint and obtain information, further information may emerge which might perhaps provide some substantiation of Ms Chadwick’s complaint. By the same token, the President of the Commission may also terminate the complaint on the basis that an inquiry is not warranted: s 46PH(1)(c) of the AHRC Act. I am not persuaded by the terms of the complaint, or by Ms Chadwick’s evidence generally, that there is any demonstrable merit in her complaints concerning discrimination, or that there is any reasonable prospect that any inquiry that the Commission may conduct into Ms Chadwick’s complaint will result in any positive outcome for Ms Chadwick. Indeed, given the history of Ms Chadwick’s complaints, it appears more likely than not that her present complaint will suffer the same fate as her first complaint.

37    Second, the granting of the interim injunction sought by Ms Chadwick would, in all the circumstances, effectively prevent the State from pursuing its legal rights under the Tenancy Act. It would also impede or interfere with the existing proceeding in NCAT, perhaps for a lengthy period of time. The evidence revealed that the State decided that Ms Chadwick was no longer considered eligible to reside in social housing as long ago as April 2022. Ms Chadwick had review rights in respect of that decision. She initially pursued those review rights, but subsequently withdrew her consent for the review to occur. The State served a termination notice under s 143 of the Tenancy Act on 24 June 2022 and commenced proceedings in NCAT seeking relief under s 147 of the Tenancy Act on 30 August 2022. That application is listed for hearing on 9 January 2023.

38    The effect of the injunction sought by Ms Chadwick would be, at the very least, to stay the NCAT proceeding until the Commission has taken action in relation to her complaint. The hearing currently scheduled to commence on 9 January 2023 could not proceed. The evidence suggested that the stay in respect of the NCAT proceedings could operate for a very lengthy period. When Ms Chadwick first lodged her complaint, the Commission advised her that the delay in actioning her complaint could be more than six months. The inquiry and conciliation process could take a number of months once commenced. The first complaint, for example, was terminated about a year and a half after it was lodged.

39    The power to grant injunctions in restraint of proceedings in a foreign jurisdiction should be exercised with caution: CSR Ltd v Cigna Insurance Australia Limited (1997) 189 CLR 345 at 396. That principle, based on the notion of judicial comity, applies between state and territory courts and this Court: Wileypark Pty Ltd v AMP Limited (2018) 265 FCR 1; [2018] FCAFC 143 at [11]; Abraham at [56]. I am unable to see why the principle would not apply in respect of state and territory inferior courts and tribunals and this Court. It follows that this Court should exercise some caution in granting an injunction which would effectively restrain the conduct of proceedings in NCAT.

40    That is not to say that the Court does not have the power to grant such an injunction in an appropriate case. It plainly does. The point is that an applicant might be expected in such a case to demonstrate that the complaint which founds their application for an injunction under s 46PP of the AHRC Act is sufficiently meritorious to warrant an injunction which operates to restrain legal action in a state and territory court or tribunal. For the reasons given earlier, Ms Chadwick has not demonstrated that her complaint is sufficiently meritorious.

41    Third, it may be inferred that the injunction sought by Ms Chadwick, if granted, would or might have an impact on third persons. It might reasonably be inferred that the State’s social housing resources are limited and that there are persons who are eligible for social housing tenancies who are waiting for properties to become available. If Ms Chadwick is permitted to stay the proceeding taken by the State to terminate her social housing residency on the basis that she is not eligible, the result may be that other persons who are eligible for social housing are forced to wait longer to secure a social housing tenancy. As noted earlier, Ms Chadwick does not appear to claim that, contrary to the position taken by the State, she in fact does meet the income eligibility criteria.

42    Fourth, if the injunction sought by Ms Chadwick is not granted, it does not necessarily follow that she will be evicted in the near future. That will depend on the outcome of the proceeding in NCAT. If Ms Chadwick has a proper basis to oppose the State’s effort to terminate her social housing tenancy, she may well persuade the Tribunal not to terminate her tenancy pursuant to s 147 of the Tenancy Act. As noted earlier, however, Ms Chadwick did not appear to claim that she met the income eligibility criteria. She effectively withdrew her application to the Housing Appeals Committee to review the State’s decision concerning her eligibility.

43    Fifth, it may be accepted that, if the interim injunction is not granted and NCAT subsequently makes an order under s 147 terminating Ms Chadwick’s social housing tenancy agreement, Ms Chadwick and her son may suffer some hardship. It does not follow, however, that her complaint to the Commission thereafter becomes otiose or moot. The President of the Commission may nevertheless inquire into the complaint, obtain information and conciliate Ms Chadwick’s complaint pursuant to ss 46PF, 46PI and 46PJ of the AHRC Act. If the complaint is terminated by the President of the Commission pursuant to s 46PH of the AHRC Act, Ms Chadwick may then apply to this Court and seek redress for any unlawful discrimination found to have been engaged in by the State. That redress might well include an order requiring the State to reinstate the terminated social housing tenancy agreement, or an order requiring the State to pay Ms Chadwick damages: s 46PO(4)(b) and (d) of the AHRC Act.

Conclusion and disposition

44    I am not persuaded that the interests of justice favour the grant of the injunction sought by Ms Chadwick pursuant to s 46PP of the AHRC Act. In particular, I am not persuaded that Ms Chadwick’s claim is sufficiently meritorious to warrant the grant of the injunction, or that the balance of convenience favours of the grant of an injunction. It follows that Ms Chadwick’s originating application filed on 28 November 2022 must be dismissed with costs.

Associate:

Dated:    16 December 2022