Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Mosur v Miller [2013] NSWADT 237 Hearing dates: 8 October 2013 Decision date: 08 October 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate Hennessy, Deputy President Decision: Leave is refused for the applicant's complaint of race discrimination to proceed. Catchwords: LEAVE - complaint of race discrimination on being evicted from accommodation declined by President of Anti-Discrimination Board - whether fair and just for complaint to proceed - defence where landlord lives in premises and premises is for no more than 6 people Legislation Cited: Anti-Discrimination Act 1977 Category: Principal judgment Parties: Willi Mosur (Applicant) Allan Miller (Respondent) Representation: Applicant (No appearance) A Miller (Respondent in person) File Number(s): 131086 reasons for decision 1HER HONOUR: Mr Miller, the respondent, has appeared in person this morning but Mr Mosur has not appeared despite the fact that a letter has been sent to him at his nominated address of PO Box 4747, North Rocks, advising him of the hearing today. That letter was dated 4 September 2013. I am satisfied that Mr Mosur has been notified of the hearing and I am going to determine his application in his absence. 2Mr Mosur, who is from Germany, has applied to the Tribunal for permission for his complaint to go ahead even though the President of the Anti Discrimination Board declined the complaint as lacking in substance. The Tribunal has a discretion to allow a complaint to go ahead even though it has been declined if it is fair and just to do so in all the circumstances. 3The respondent to the complaint is Mr Alan Miller. He is the owner of a home where he lives with his wife. He rents out rooms in his home. On 29 September 2012 Mr Miller evicted Mr Mosur from his tenancy. Mr Mosur claims that this termination notice amounts to discrimination on the ground of his race because he says Mr Miller called him a "German", "no good" and "a troublemaker." 4The law in relation to this matter is set out in s 20(2)(b) of the Anti Discrimination Act where it says that it is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race by evicting that person. There is, however, an exception in s 20(3). I will read that out in full because that is the critical provision in this case: Nothing in this section applies to or in respect of the provision of accommodation in premises if: (a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises, and (b) the accommodation provided in those premises is for no more than 6 persons. 5Mr Miller relies on that exception. There is evidence that he is a person who provides accommodation, that he lives on the premises and that the accommodation is for no more than six people. That evidence is in the form of statements all dated 5 July 2013, from Mr Miller, his wife, Tutchakran Jaisue, and a tenant, Sue Anne Taylor. The only evidence which contradicts that evidence is an email from Mr Mosur which states in part, "In regard how many people were living at the property, I am sure it was more than four people." Mr Mosur does not describe or name any other person who was residing at the property at the time. In any case, Mr Mosur does not say that the accommodation was for more than 6 people. 6Given all the evidence it is highly unlikely that a Tribunal hearing this matter would find that there has been a breach of s 20(2)(b). In my view it is highly likely that a Tribunal would find that Mr Miller has made out the defence in s 20(3). In those circumstances it is not fair or just for the matter to proceed. I do not even need to consider whether anything that happened could constitute race discrimination. ********** 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. Decision last updated: 25 October 2013