Equal Opportunity Tribunal of New South Wales CITATION: Hume -V- Mulheron [1997] NSWEOT COMPLAINANT: Halina Hume RESPONDENT: Dennis Mulheron NUMBER: 218 of 1996 Ms Pat O'Shane ( Judicial Member ) TRIBUNAL: Mr M Luger Mr W Bowtell GROUNDS OF COMPLAINT: Discrimination on the ground of race in the area of goods and services DATES OF HEARING: 07/15/1997 DATE OF JUDGMENT: 07/15/1997 Complainant: Ms J Boulos (Solicitor) NSW Legal Aid Commission LEGAL REPRESENTATIVES: Ms S Winters (Counsel) Respondent: Self Represented JUDGMENT IN FAVOUR OF: Background This matter was heard on 15 July 1997, on which date the Tribunal delivered an ex tempore decision in which the complaint was dismissed on the grounds that it was not made out on the evidence. On 21 July 1997 the Legal Aid Commission on behalf of the Complainant wrote to the Equal Opportunity Tribunal asking for a statement of reasons, in accordance with the provisions of s.117(1) of the Anti-Discrimination Act 1977. The Act further provides, per s.117(2), that the Tribunal shall, within 14 days after the service of a notice under sub-s.(1), state its reasons for the decision or order... The s.117(1) notice was received into the office of the Equal Opportunity Tribunal on 22 July 1997, and copies sent to the Tribunal members on 25 July 1997. The Tribunal expresses its regrets that these written reasons were not provided earlier than this, in accordance with the requirements of the Act. The reasons for this late response are twofold: firstly, upon receipt of the notice, a transcript of proceedings was called for, and that was provided some weeks after the hearing; secondly, the Judicial Officer's pressure of Local Court work, and annual leave, obviated against this matter being dealt with expeditiously. The complaint in this case was based on s.19, race discrimination in the provision of goods and services. Specifically, s.19 provides: It is unlawful for a person who provides, for payment or not, goods or services to the public or a section of the public to discriminate against another person on the ground of race - (a) by refusing to provide the person with those goods or services; or (b) by refusing to provide the person with goods or services - (i) of the like quality; (ii) in the like manner; or (iii) on the like terms, as are normally provided by that firstmentioned person to the public, or where the person requesting those goods or services belongs to a section of the public, to that section. On the hearing day, the Tribunal indicated that it was satisfied that the Respondent had failed to provide services to the Complainant on the specific date of 25 January 1995, but that it was not satisfied that that refusal was on the grounds of race. The conduct of these proceedings was not of very great assistance to the Tribunal. The Complainant's evidence was that she purchased a motor vehicle for something like $10,000 from the Respondent's dealership. Shortly before Christmas 1994 there was a fire in the car engine, and the Complainant arranged for the vehicle to be towed to the dealer's yard, late in the evening. Her evidence on the chronology of events is completely unclear, since she focused her mind and emotional energies on the complaint which she had about the Respondent's attitude. However, the Tribunal, after adjourning to consider the Complainant's evidence, heard submissions from her legal representative, in the course of which it transpired that the Complainant obtained an NRMA report about the condition of the motor vehicle after 23 December 1994 (the time of the fire) which report apparently set out a number of faults in the vehicle which required rectification. Armed with that report, the Complainant attended at the Respondent's dealership and there had an exchange of words with him about the motor vehicle, the work she required to be done on it, the towing of the vehicle to his premises on 23 December previous, and the payment for that towing. It would not be a correct characterisation of what took place between the two parties to describe it as a conversation. From the tenor and terms of the Complainant's evidence, and the tenor and terms of the cross-examination by the Respondent (who was not legally represented), it was a heated and abusive exchange, although the Complainant alleges that all of the abuse was on the part of the Respondent. In respect of that latter matter, the Tribunal is not left in any doubt. The tenor and terms of his cross-examination certainly bordered on the offensive on a number of occasions. However, that is by the way. The submissions made on behalf of the Complainant are to the effect that, as at 25 January 1995, the Respondent refused to carry out the rectifications indicated in the NRMA report. The Respondent did not take issue with that submission, but in any event there was no explicit evidence from the Complainant that he refused at that time to carry out the necessary work. As was noted, there was an exchange between the parties, in the course of which, it is the Complainant's evidence, the Respondent said to her, "You should be deported". She then gave extensive evidence about the hurt she felt upon hearing those words. It is noted that the Respondent, both in cross-examination of the Complainant, and later in submissions, denied ever having said those words. However, the Tribunal on the hearing day accepted her evidence on that point, and found that the Respondent had abused her in the terms she stated. The Tribunal went on to say, and now affirms, that it was not satisfied that those terms constituted racial abuse. More to the point though, there was nothing in the evidence of the Complainant, nor in the submissions advanced on her behalf, that led the Tribunal to conclude that it was on that basis that the Respondent denied her the services she sought on 25 January 1995. What did become evident was that the services were carried out subsequent to that date, but that is not to the point, in terms of the complaint. As the Tribunal stated on the hearing day, the Complainant failed to make out her complaint, if it were founded on s.19(a). Likewise, if her complaint was founded on the provisions of s.19(b), then again she failed to make out her complaint. There was no evidence of any sort that the Respondent refused to provide her with services of a "like quality" or "in a like manner" or "on like terms" as normally provided to other members of the public. The Tribunal therefore affirms its determination as stated on the hearing day, that the complaint lacked substance. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.