Bamblett v Keistow Pty Ltd trading as L J Hooker Cowra [2005] NSWADT 219

CITATION: Bamblett v Keistow Pty Ltd trading as L J Hooker Cowra [2005] NSWADT 219 DIVISION: Equal Opportunity Division APPLICANTS PARTIES: Cameron Bamblett & Lorraine Bamblett RESPONDENT Keistow Pty Ltd Trading as L J Hooker, Cowra FILE NUMBER: 041129 HEARING DATES: 4/07/2005 SUBMISSIONS CLOSED: 07/04/2005 DATE OF DECISION: 09/28/2005

BEFORE: Behrendt L - Judicial Member; Schembri A - Non Judicial Member; Weule B - Non Judicial Member APPLICATION: Race Discrimination - Accommodation - Race Discrimination - Goods and Services MATTER FOR DECISION: Principal matter Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Anti-Discrimination Act 1977 Evidence Act 1995 Chamberlain v The Queen (1984) 153 CLR 521 CASES CITED: Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 APPLICANTS: REPRESENTATION: In person RESPONDENT: G Casey, Solicitor ORDERS: 1. The applicant's complaint of race discrimination in the provision of a service and the provision of accommodation is dismissed; 2. The respondent's claim for costs is dismissed

REASONS FOR DECISION 1 The applicants, Mr. Cameron Bamblett and Ms. Lorraine Bamblett, are both Aboriginal. 2 The respondent, Keistow Pty Ltd trading as L.J. Hooker, Cowra, is a Real Estate Agency. Wayne Heilman is a Director of Keistrow Pty Ltd. Michelle McAllister and Tracey Ryan were employees of L.J. Hooker, Cowra at the time of the alleged incident. Keistow Pty Ltd trading as L.J. Hooker, Cowra is therefore vicariously liable for the acts of its employees, as per s.53 of the Anti-Discrimination Act 1977. The Bamblett's Complaint 3 Mr and Ms Bamblett had been asked to vacate their rental accommodation in Darling Ave, Cowra by 9 October 2003 due to sale and renovations. While they had been paying their rent to L.J. Hooker, Cowra, a new agent, Ray White Real Estate, was appointed for the Darling Ave property and had assisted Mr and Ms Bamblett in finding new accommodation at Taragala St. 4 The Bambletts attended L.J. Hooker, Cowra on 9 September 2003 to ensure that their bond money was transferred to Ray White Real Estate. They spoke to Ms Michelle McAllister about this transfer and she arranged for it to be processed. According to the Bambletts, Ms McAllister was helpful, had offered them a reference and had said that, if it were up to her, they would be staying in the flat. 5 The Bambletts then assert that Ms McAllister offered to assist them in finding accommodation, telling them that they had lots of houses and flats that were cheaper to rent than the one that Ray White had found for them at $130 per week. They assert that Ms McAllister then walked to the back of the office and spoke to someone behind a petition. Mr and Ms Bamblett could not see her but could hear her voice, though they could not make out clearly what she was saying. When she returned to Mr and Ms Bamblett, they say that her manner towards them had changed and she told them that they did not have anything to rent at that time. 6 Mr and Ms Bamblett gave evidence that, while they thought Ms McAllister was a nice person and they felt that she had genuinely wanted to help them, they were surprised that she had claimed that there were places that could be rented for $130 dollars per week and then say that there wasn't. 7 Mr and Ms Bamblett filed a complaint with the Anti-Discrimination Board on 12 January 2004. Ms Bamblett claimed in her original letter to the Anti-Discrimination Board dated 25 September 2003 that, at the end of her conversation with Ms McAllister on 9 September 2003, she and Mr Bamblett walked to the door to leave. She turned back and saw Ms McAllister standing near Mr Wayne Heilman. It was her belief that it was Mr Heilman that Ms McAllister spoke to at the back of the office. Ms Bamblett gave evidence that it was at this point that she began to suspect that she and Mr Bamblett may have been refused accommodation because they were Aboriginal. 8 She gave evidence in a later letter to the Ant-Discrimination Board, dated 31 March 2004 that she did not say anything at the time she left the L.J. Hooker office on 9 September 2003 because she was shocked and "in disbelief". 9 Ms Bamblett spoke to her mother, Ms Olive Williams, about the incident and Ms Williams rang L.J. Hooker and asked if there were any houses for rent. She was told that there were. 10 At this point, Ms Bamblett became convinced that she had been discriminated against. She gave evidence that she had been a good tenant, did not owe any back rent and was angry and hurt by her treatment at L.J. Hooker, Cowra. 11 The President of the Anti-Discrimination Board referred the complaint to the Administrative Decisions Tribunal on 21 September 2004. 12 Mr and Mrs Bamblett sought remedies from the Tribunal in the form of (a) a public apology, (b) cultural awareness training for the staff of L.J. Hooker, Cowra, (c) compensation for humiliation, pain, stress and suffering and (d) an explanation from the staff of L.J. Hooker who had discriminated against them. 13 Ms. Olive Williams gave evidence to the Tribunal. She said that she had rang L.J. Hooker, Cowra on behalf of her daughter and asked if they had any properties to rent. She said that she told the person who answered the phone about her daughter who needed accommodation in a house or unit or whatever was available. Ms Williams told the Tribunal that the person on the phone told her to send her daughter down straight away as there were houses and units available and they could make arrangements to move into them straight away. Ms Williams said that when her daughter returned and said that she had been told by L.J. Hooker, Cowra there were no vacancies she could not believe it because the person on the phone had said that they should go straight down to the agency. Ms Williams impressed the Tribunal as an honest witness and was impressed with her demeanour and presence. The Evidence of L.J. Hooker, Cowra 14 L.J. Hooker claims that, while Mr and Ms Bamblett did attend the offices on 9 September 2003, it was for the purpose of transferring their bond money. They claim that Ms McAllister, who ensured that the bond money was transferred, was a sales assistant and not responsible for rental properties. They say that Ms Bamblett told Ms McAllister that the new accommodation they were renting was $130 a week and that she expressed concern about how high this was. 15 Ms McAllister claims that she offered to inquire to see if there was anything available "cheaper than $130 a week" on their books. Ms McAllister gave evidence that she asked Ms Tracy Maher (now Ms Tracy Ryan), the Property Officer, who made a search of available properties but found none under $130 per week. Ms McAllister said that Ms Ryan looked at the whiteboards in her office and said that there was nothing for $130 per week at that stage. Ms McAllister said that she then told Ms Ryan that Ms Bamblett was the person making the inquiry, that she was a good tenant and that it would be good if they could keep her as a tenant because she had known Ms Bamblett for over four years. 16 Ms McAllister gave evidence that her intention in making the inquiry with Ms Ryan was to see if there was rental property available for less than $130 per week. She said that, although Mr Wayne Heilman was in the office, he was at no time a party to the conversation. 17 Ms McAllister said that she then returned to Ms Bamblett and advised her that there was nothing in that price range at that time. She noted that Ms Bamblett seemed disappointed by this and that she too was disappointed. 18 It was the consistent evidence of L.J. Hooker, Cowra that at no time did they tell Mr and Ms Bamblett that there was no rental accommodation. Rather, they assert that they told them that there was nothing to rent for less than $130 per week. 19 Mr Heilman gave evidence to the Tribunal that he did not keep a list of what properties were available. The system he worked with was one where available properties were listed on a whiteboard and were erased as they were no longer on offer for whatever reason. He said that this practice meant that the information on the whiteboard was a "living document". He also gave evidence that there was a print out done weekly, not daily, of properties available from the web-site but the office did not keep back records of this. Mr Heilman told the Tribunal that he was not required to keep this kind of documentation so he didn't. This meant, he asserted, that he now did not have a record of what properties were available on 9 September 2003 when Mr and Ms Bamblett made their inquiry. He also noted that there was no rental application completed by Mr and Mrs Bamblett at that time as they already had accommodation secured for them by another agent. 20 Mr Heilman gave evidence that the agency managed property on behalf of an Aboriginal Land Council and estimated that would have approximately 20 Aboriginal people as tenants at any one time. 21 Ms Ryan gave evidence that she did not know Mr and Mrs Bamblett or recollect their attendance at the office on 9 September 2003. She told the Tribunal that when an inquiry was made about a property, she would consult the list of properties available and if there was a suitable property, she would hand them a copy of the standard application. Ms Ryan could not recall what properties may or may not have been available on 9 September 2003 but she did give evidence that, since Ms McAllister was a Sales Assistant, she was not involved with the rental side of the business. She expressly denies that on 9 September 2003 she refused accommodation to anyone on the basis of their race. Issues 22 Section 7(1) of the Anti-Discrimination Act 1977 defines discrimination on the ground of race for the purposes of the Act: A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race … 23 Sections 19 and 20 of the Anti-Discrimination Act 1977 prohibit discrimination in the provision of goods and services and in accommodation, respectively. Of relevance to Mr and Ms Bamblett's complaint of racial discrimination are the following: 19 Provision of goods and services It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race: (a) by refusing to provide the person with those goods or services… … 20 Accommodation (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race: (a) by refusing the person's application for accommodation, (b) in the terms on which the person offers the person accommodation, or (c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation. … 24 In order to show racial discrimination for the purposes of the Act, Mr and Ms Bamblett are required to show that they were treated less favourably in the circumstances than a person who was not Aboriginal was. That is, Mr and Ms Bamblett have to show that their treatment was different by comparison to someone who was not Aboriginal. The issues for the Tribunal to determine are: (a) whether Mr and Mrs Bamblett were treated less favourably by the staff at L.J. Hooker, Cowra when they asked about accommodation on the 9 September 2003; and, (b) if so, was the reason for their less favourable treatment because of their race? 25 In proving a breach of the Act, Mr and Ms Bamblett carry the burden of proof to the standard of the balance of probabilities. s140 of the Evidence Act 1995. This standard was restated in Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 as being, in all civil cases, a requirement that the standard of proof to be met by the applicant is on the balance of probabilities. Findings 26 There are competing versions of the events of 9 September 2003 between the parties about the conversation that took place when Mr and Ms Bamblett visited L.J. Hooker, Cowra to transfer their bond money. Mr and Ms Bamblett believed that Ms McAllister had informed them that there was accommodation available for rent for less than they were going to be paying at the house that Ray White Real Estate had found for them and that, after talking to another staff member, told them that there was nothing available leaving the impression that the revocation of the offer was due to the fact that they were Aboriginal. 27 In her evidence, Ms McAllister said that, when Ms Bamblett had expressed concern that the rent for the new house would be $130 and that this was high, she offered to see if there was anything cheaper available at their agency. She asked a fellow employee, Ms Ryan, who looked at the whiteboard and told her there was nothing available in that price range. Ms McAllister says that she then relayed this information to Ms Bamblett. 28 The Tribunal found Mr and Ms Bamblett and Ms McAllister to all be credible and reliable witnesses and that untruthfulness on the part of one party is not the only explanation for this conflicting version of events. The Tribunal believes that Mr and Ms Bamblett genuinely believed that they were being offered cheaper accommodation by the staff of L.J. Hooker, Cowra and that they believed that this offer was subsequently withdrawn. However, the Tribunal also finds that Ms McAllister was genuine in her evidence that she was only agreeing to make an inquiry on behalf of the Bamblett's about cheaper accommodation. That is, the competing versions of events can be reconciled by the explanation that there had been miscommunication between Ms McAllister and Ms Bamblett. This miscommunication means that, despite Mr and Ms Bamblett's genuine belief that they were discriminated against, they have failed to meet the burden of proof required of them to prove their case. 29 Mr and Ms Bamblett had a genuine belief that they had been discriminated against and inferred from the change in Ms McAllister from before to after she had discussed cheaper accommodation with another staff member that the reason for there no longer being accommodation available was due to their Aboriginality. It is not unusual that in cases such as this there is little direct evidence and in these circumstances, the applicant may find support for their case by drawing inferences from primary facts. Edwards v Bourke Bowling Club Limited [2000] NSWADT 31. It is also well established that an inference can be drawn from a combination of facts, none of which if viewed alone would support the same inference. Chamberlain v The Queen (1984) 153 CLR 521. 30 However, where there is another explanation of the events, such as a simple miscommunication as occurred in this case, the Tribunal cannot infer unlawful discrimination. Edwards v Bourke Bowling Club Limited [2000] NSWADT 31. 31 Mr and Ms Bamblett gave evidence to the Tribunal that non-Aboriginal people were offered the accommodation that was denied to them. There was an attempt to prove this with the subsequent phone-call to L.J. Hooker, Cowra by Ms Bamblett's mother, Ms Williams, in which she was advised that there were houses and units available to rent. However, Mr and Ms Bamblett were hindered in meeting the requisite standard of proof by L.J. Hooker's assertion that they did not keep any records of what rental properties may have been available on or around 9 September 2003. This hindered the evidence of showing different treatment of Mr and Ms Bamblett from other prospective tenants at L.J. Hooker who could have provided a comparison for the purpose of proving racial discrimination. 32 Meeting the standard of proof in relation to comparative was further complicated for Mr and Ms Bamblett by the inconsistencies between their evidence and that of Ms Williams. In her evidence, Ms Bamblett claims that after she visited L.J. Hooker on 9 September 2003 and suspected that she had been treated in a racially discriminatory manner, she asked her mother to call the agency. Ms Williams claims that she made the phone call first and that after she made the inquiry with L.J. Hooker about accommodation for her daughter and husband, Mr and Ms Bamblett attended L.J. Hooker where they were told there was nothing available to rent. This conflicting evidence does not mean that the witnesses were being untruthful. Much time had passed between September 9, 2003 and the hearing date. However, the inconsistencies between the evidence of key witnesses for Mr and Ms Bamblett make it harder to prove their case to the standard they are required to meet. 33 While Mr and Ms Bamblett held an honest belief that they were being discriminated against, this belief of itself is not enough for them to prove a breach of the Act. For discrimination to be found to be unlawful, it must be proven in the circumstances and to the level of proof prescribed in the legislation. Mr and Ms Bamblett did not satisfy the Tribunal on the balance of probabilities that they had been discriminated against on the basis of their race in the provision of a service or in the refusal of an application for accommodation. In particular, they were unable to show to the Tribunal, beyond the balance of probabilities, that they were treated less favourably because of their race when they attended the offices of L.J. Hooker, Cowra on 9 September 2003. The Respondent's Application for Costs 34 L.J. Hooker, Cowra made an oral submission at the end of the hearing for a costs order on the basis that the case did not have merit, that the matter was pursued by legal representatives who then gave it away at the last minute leaving Mr and Ms Bamblett to run the case themselves, the plaintiffs didn't withdraw and respondent had to prepare for an anticipated hearing. 35 Section 88(1) of the Administrative Decisions Tribunal Act 1997 gives the Tribunal the power to make an order of costs but "only if it is satisfied that there are special circumstances warranting an award of costs." 36 No such special circumstances exist in this case. Mr and Mrs Bamblett had a genuine belief that they had been discriminated against and their failure to prove that to the standard they were required to does not mean that their case did not have merit. Nor was their claim frivolous or vexatious. Part of the difficulty they faced in meeting that standard of proof was the L.J. Hooker claimed that they did not keep records of which rental properties they had available. 37 Mr and Ms Bamblett did have the benefit of legal representation leading up to the hearing and this support was withdrawn just before the hearing date. It was clear during the hearing that Mr and Ms Bamblett had relied on their legal representatives to present their case and being deprived of legal representation at such a late stage in the proceedings meant that they had to represent themselves on very short notice. It would be inappropriate and unfairly burdensome to order costs against an unrepresented party on the basis that their legal representatives had pursued the case but withdrew before the hearing date, especially since Mr and Ms Bamblett attended the Tribunal, gave evidence and attempted to cross-examine L.J. Hooker, Cowra's witnesses. 38 In the lead up to the hearing, the parties attended several case conferences during which there was discussion of the issuing of subpoenas for various documents that Mr and Ms Bamblett's legal representatives sought to get from L.J. Hooker, Cowra. The failure of L.J. Hooker, Cowra to keep detailed records meant that several attempts were made by the Bamblett's legal representatives to extract some evidence that might have assisted in proving their case. This material was aimed at finding evidence of what houses and units were available to rent on or around 9 September 2003 and seeking to make comparisons with other people who might have made applications for accommodation with L.J. Hooker, Cowra on or around that time. It would not be in the interests of justice to order costs to a party simply because the other side vigorously sought to find evidence that they might reasonably have understood that their opposing side would hold and would assist their proof of their own case. 39 Neither Mr and Ms Bamblett's failure to withdraw their complaint nor the fact that L.J. Hooker had to prepare a case in the absence of evidence in affidavit form or points of claim are sufficient grounds to constitute the special circumstances that would lead the Tribunal to make an order of costs. It is true that the Tribunal not being bound by the strict rules of evidence makes it a more challenging jurisdiction for legal practitioners to prepare and present in but these challenges in and of themselves do not constitute a basis for a costs order. Orders 1. That the applicant's complaint of race discrimination in the provision of accommodation be dismissed. 2. That the respondent's claim for costs be dismissed.