Equal Opportunity Tribunal of New South Wales CITATION: Horwood -V- Ryde-Hunters Hill Community Housing Co-Operative [1996] NSWEOT COMPLAINANT: Alan Horwood RESPONDENT: Ryde-Hunters Hill Community Housing Co-operative NUMBER: 118 of 1995 Judge David Patten ( Senior Judicial Member ) TRIBUNAL: Mr N Lacey Ms L Nemeth de Bikal GROUNDS OF COMPLAINT: Race, disability in area of accommodation and of goods and services DATES OF HEARING: 09/25/1996; 12/16/1996 DATE OF JUDGMENT: 12/16/1996 Complainant: Mr R Brender (Barrister) LEGAL REPRESENTATIVES: Respondent: Ms S Winters (Barrister) JUDGMENT IN FAVOUR OF: This is the hearing of a complaint referred to the Tribunal pursuant to section 91 of the Anti-Discrimination Act (the Act), it being a case in which the President of the Board had determined that the complaint lacked substance but nonetheless was required by the Complainant to refer the matter to the Tribunal. The complaint was based upon alleged discrimination on the ground of race and alleged discrimination on the ground of disability. As to the latter it will, I think, suffice for me to say that no submission were addressed in respect of it by Mr Brender who appeared for the Complainant and in the view of the Tribunal, there is not a scintilla of evidence to suggest that the Complainant was discriminated against upon the ground of any disability. The complaint therefore remains to be considered in relation to alleged discrimination on the ground of race. That concept is defined in section 7 of the Act and sections 19 and 20 in effect proscribe certain conduct. The former renders it unlawful to discriminate against another person on the ground of race in relation to the provision of goods and services and the latter prohibits discrimination against a person on the ground of race in relation to the provision of accommodation including, as may be relevant in this case, by evicting the person or subjecting the person to any other detriment. It is important to bear in mind that the Tribunal's jurisdiction depends upon the Complainant establishing that he was discriminated against on the ground of his race as opposed to being treated unfairly or unjustly by the Respondent. The race claimed for the Complainant is that he is a white Australian. The Respondent, as its name indicates, manages a community based housing co-operative and it appears that the Complainant became its tenant in 1987 of premises at 41 Rutledge Street, Eastwood (the premises) which are the subject of these proceedings. The premises were, for most of the Complainant's occupation of them, shared with other persons. Mostly he was required to share with two other males and usually they were white Australians, although it appears that two of the other occupants at varying times were males of other ethnic backgrounds. It appears from the material before the Tribunal that the Complainant, rightly or wrongly, was regarded by the Respondent in an unfavourable light as a tenant. Not all the evidence is one way as to this, there being statements relied upon in the Complainant's case which suggests that he was a responsible and respectable occupier of the house. The Respondent on the other hand claims that it had a number of complaints in relation to the Complainant's occupancy, that rent was often in arrears and that there were other breaches of its rules and regulations. None of those matters has however, particular relevance to this case and the Tribunal does not need to determine whether the Complainant was, or was not, a satisfactory tenant. It does, however, emerge that a particular dispute arose between the Complainant and the two persons then sharing the premises with him, Messrs Ellis and Hand. This dispute led to the Respondent establishing or referring the dispute to a disputes committee which on 8 September 1992, after a hearing, determined that the premises were not working satisfactorily as share accommodation. The relevant minute records that as all the tenants had indicated a willingness to move, the Co-operative would offer them separate accommodation and that each tenant would be given 60 days notice of the availability of alternative accommodation. This proposal was presented to all three tenants. Jack Ellis and Allan Hand agreed to it and signed the appropriate documents. Alan Horwood, the Complainant, however, stated that he would only move if the alternative accommodation included a garage. He was informed that the Co-operative would, if possible secure a unit with a garage but he refused to sign any document and said he would move only if something suitable were offered to him. It is clear that by 8 September 1992 the Complainant was aware that the Respondent intended to offer the premises elsewhere upon the basis that alternative accommodation would be made available to the three then current occupants. The evidence indicates that both Mr Ellis and Mr Hand very soon after were offered and accepted other accommodation. The evidence also indicates that no further accommodation offered to the Complainant was acceptable to him. The Tribunal is satisfied that attempts were made to offer him other accommodation. Whether or not any particular accommodation should reasonably have been accepted is not a finding which the Tribunal is able to make on the evidence before it but it would incline to the view that other accommodation was offered which would have provided the Complainant with reasonable alternative accommodation, having regard to the level of accommodation which the Respondent normally had available to it. In any event, as the Complainant continued to decline offers of alternative accommodation made to him the Respondent commenced proceedings for his eviction in the Residential Tenancies Tribunal. In the result, he was formally evicted with the assistance of the Sheriff, pursuant to an order of the Tribunal, of 1 April 1993. It is clear that the manner of his eviction caused the Complainant considerable emotional distress. Prime facie on the material before the Tribunal, it would appear that the Respondent acted in a somewhat cavalier fashion towards the Complainant's personal property, but again, this is not a subject upon which the Tribunal can make a finding. Detailed evidence in relation to the Complainant's property was rejected not only as irrelevant to the issues before the Tribunal but because the matter is the subject of litigation pending in the Local Court. But in any event, the Complainant was evicted on 1 April 1993. It appears that he was deprived of his personal property for some time thereafter and it also appears, from his evidence on the subject which was unchallenged, that for a period he had no accommodation available to him and was forced to sleep in his motor vehicle in the street. The matter which at that time became of concern to the Complainant and which, in the result, led to these proceedings, is that he believed, and there is no reason to doubt that his belief was genuine, that the Respondent at that time and possibly previously, had embarked upon a policy of favouring as its tenants; persons who had an ethnic background, being either from India or from Afghanistan. The Complainant concluded, rightly or wrongly, that the majority of the board of the Respondent was of Indian or Afghanistan descent and he concluded again, rightly or wrongly, that most of the persons for whom accommodation was found by the Respondent were of similar ethnic background. His feelings in relation to his eviction were therefore considerably exacerbated when he found that a Mr A was granted the tenancy of the premises to commence within a few weeks after the Complainant's eviction, and also, that the transfer to the premises of Mr A and his family was made from premises across the road, which, to Mr Horwood's belief, was quite adequate for Mr A's purposes. The Complainant concluded that the Respondent procured his eviction in order that Mr A and his family be granted the tenancy of the premises thereby discriminating against the Complainant on the ground of his race as a white Australian. The contention for the Complaint is that if he had been, as I understand it, of Indian or Afghanistan descent, his tenancy of the premises, would not have been disturbed. The Respondent, on the other hand, denies these allegation strenuously. It says that the decision to evict the Complainant was made following the meeting of 8 September 1992, that it was not at the time or indeed subsequently intended that Mr A would occupy the premises in his place and that as late as 20 April 1993 it was contemplated that the premises would be made available to an Australian single mother who had three children. This concept was abandoned for reasons which had nothing to do with Mr A. In the result, however, Mr A was moved into the premises and Miss K moved into the house that he vacated, tenancy agreements being entered into to operate from the same date in May 1993. The result of those facts, as the Tribunal finds, is that, whatever the belief of the Complainant, there is simply no evidence to warrant a conclusion that the eviction occurred because of the Complainant's race, that is, because he was a white Australian. To the contrary, the Tribunal is satisfied that there was no discrimination on the ground of race perpetrated against the Complainant and that the fact that subsequently Mr A, who is assumed rightly or wrongly, to be a person of Indian or Afghanistan descent, was entirely fortuitous. The same result might well have been achieved in favour of a white Australian person. The fact that the Tribunal has found that the Complainant has not established that he was discriminated against on the ground of race means that his complaint must be dismissed. It is to be dismissed because he has not made out a contravention of either section 19 or section 20 of the Anti-Discrimination Act and not because of any view that the Tribunal might have formed as to whether or not he was treated unfairly by the Respondent. Of course, as indicated, there are proceedings in relation to his personal property pending in another court. The result is that the Tribunal orders that the complaint be dismissed. This would not seem to be an appropriate case for an order for costs. I don't know whether you want to make any submission, Miss Winters? WINTERS: No, your Honour, but I would ask that even though a judgment such as this is unlikely to be reported fully, I would ask that in the Tribunal's Decision, reference to Mr A and Miss K and their addresses be suppressed. They have not been parties to these proceedings and I submit that their names and addresses ought not appear-- CHAIRPERSON: Yes, very well. I order that any reference to the address of either Miss K or Mr A be suppressed in any publication of this judgment. WINTERS : And their names, your Honour? If they might be referred to as Miss K and Mr A? CHAIRPERSON : Yes, very well, and of their names, the references to be Miss K and Mr A. The formal orders of the Tribunal are that the complaint is dismissed, no order as to costs. 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