Bates v BDG Properties Pty Ltd [2013] NSWADT 285

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Bates v BDG Properties Pty Ltd [2013] NSWADT 285 Hearing dates: 3 December 2013 Decision date: 10 December 2013 Jurisdiction: Equal Opportunity Division Before: Magistrate N Hennessy, Deputy President Decision: Leave for the applicant's complaint of homosexuality discrimination to proceed is refused. Catchwords: ANTI-DISCRIMINATION - leave requested to proceed with a declined complaint - alleged homosexuality discrimination against property owner and agent for not selecting applicant as tenant - whether fair and just for complaint to proceed - likelihood that complaint will be substantiated Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Category: Principal judgment Parties: David Bates (Applicant) The Property Business Australia (1st Respondent) Danny Tang (2nd Respondent) Representation: D Bates (Applicant in person) B Rayner (1st respondent in person) Dr Tang (2nd respondent - No appearance) File Number(s): 131109

reasons for decision

Introduction 1Mr Bates and his partner applied to rent a property but their application was unsuccessful. Mr Bates complained to the President of the Anti-Discrimination Board (ADB) that both the owner of the property, Dr Danny Tang, and the agent, BDG Properties Pty Ltd trading as The Property Business Australia, had discriminated against him on the ground of homosexuality. 2The Property Business says that after the inspection date three applications to rent were forwarded to the owner. He accepted the application which offered $50 more than the advertised weekly rental. Mr Bates complains that he and his partner were not asked whether they would consider paying more rent and have concluded from that fact and other facts that the reason they were rejected was their homosexuality. 3The President declined the complaint as "lacking in substance" and Mr Bates has elected to have the complaint referred to the Tribunal. Before the complaint can go ahead the Tribunal must give its permission or 'leave'. The test is whether it is fair and just in all the circumstances to do so: Anti-Discrimination Act 1977 (AD Act), s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In this case whether it is fair and just to proceed depends on the likelihood that the complaint will be substantiated if it goes to hearing. If it is highly unlikely to succeed, leave should be refused. 4My role is not to review the reasons for decision provided by the President of the Anti-Discrimination Board. Rather, I must come to my own view as to the merits of the complaint based on the material in the President's Report and what the parties told me at the hearing. I have decided to refuse leave for Mr Bates' complaint to go ahead because it is highly unlikely to succeed. There is no direct evidence that one of the reasons for not selecting Mr Bates and his partner was their homosexuality. An inference to that effect cannot be drawn where there is a more probable and innocent explanation. There is a more probable and innocent explanation in this case, namely that the successful applicants offered $50 more than the advertised weekly rental. 5The second respondent, Dr Danny Tang, did not appear. I have decided the application against him in his absence, as I am satisfied that he had adequate notice of the hearing.