Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Karacakoylu v Sisbro Investments Pty Ltd [2015] NSWCATAD 236 Hearing dates: 22 September 2015 Date of orders: 13 November 2015 Decision date: 13 November 2015 Jurisdiction: Administrative and Equal Opportunity Division Before: Hennessy LCM, Deputy President Decision: Leave is refused for the complaint of race discrimination lodged by Mr Karacakoylu to proceed. Catchwords: ANTI-DISCRIMINATION – leave to proceed when complaint declined as lacking in substance - complaint of race discrimination against real estate agency - whether fair and just for complaint to proceed – complaint lacks merit – leave refused Legislation Cited: Anti-Discrimination Act 1977 (NSW) Cases Cited: Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 Category: Procedural and other rulings Parties: Ecran Karacakoylu (Applicant) Sisbro Investments Pty Ltd t/as Century 21 Southwest Fairfield (Respondent) Representation: E Karacakoylu (Applicant in person) N Dilles (Licensee of Respondent) File Number(s): 1510451 Publication restriction: Nil reasons for decision Introduction 1. Mr Karacakoylu, who is of Turkish ethnic background, complains of race discrimination against a real estate agent, Century 21 Southwest Fairfield. Mr Karacakoylu was a tenant of a property managed by Century 21. 2. The complaint is that from 3 November 2014 to 18 December 2014 Century 21 breached the Anti-Discrimination Act 1977 (NSW) through the actions of its employee, Ms Sirol. The conduct about which Mr Karacakoylu complains is: 1. refusing to send him a copy of the inspection report and the accompanying photographs within 7 days; and 2. failing to forward the paper work to Fair Trading promptly so that he could receive 50% of the bond as agreed. 1. According to Mr Karacakoylu, these were two "illegal actions" which were perpetrated because of his nationality. As a consequence of this conduct, Mr Karacakoylu says that he has been experiencing anxiety and difficulty sleeping. He says he needed to take a week off work. 2. The President of the Anti-Discrimination Board declined the complaint on the basis that it was lacking in substance: Anti-Discrimination Act, s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or 'leave' for the complaint to go ahead: Anti-Discrimination Act, s 96. I have refused leave in this case because the complaint lacks substance and it is not fair and just for it to proceed. Principles for granting leave – whether "fair and just" 1. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J: 1. emphasised that a cautious approach should be adopted because a refusal of leave will "finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights"; 2. found that the Tribunal's discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint; 3. concluded that leave must be granted or refused "depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and 4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates. 1. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed. The alleged conduct Failure to provide inspection report within 7 days 1. Mr Karacakoylu advised Century 21 that he wished to break his lease and vacate the premises he was renting. Century 21 carried out an inspection of the property on 3 November 2014. During the inspection Century 21 states that they noted a broken/cracked shower screen, large scratches on the timber floors and oil stains to the driveway. That evening, just before 6 pm, Mr Karacakoylu spoke to Ms Sirol on the phone to ask about the results of the inspection. Mr Karacakoylu alleged that Ms Sirol was extremely rude and unprofessional and that she said, "I don't have to send it, if you want to see it come to my office and have a look but you can't have a copy." 2. Ms Sirol denies those allegations and says that Mr Karacakoylu was extremely upset that he needed to telephone her to inquire about the outgoing inspection report. Mr Karacakoylu denies being upset when speaking to Ms Sirol on the phone and says he was calm. 3. Ms Sirol says she told Mr Karacakoylu that she had not finalised the inspection report as she had carried out three inspections that day, but that he could come to the office at any time and pick up both the report and the accompanying photographs. Ms Sirol said she could not email the photographs to him because there were more than forty photographs and it was too time consuming to email. Mr Karacakoylu said that Ms Sirol could have posted or emailed the report and the photographs to him. Mr Karacakoylu alleges that he was told by an officer of Fair Trading that the inspection report had to be sent to him within 7 days of the inspection. 4. Mr Karacakoylu subsequently brought proceedings in the Consumer and Commercial Division of the Tribunal and says that he was prejudiced in relation to those proceedings because he did not have the inspection Report before the hearing. Failing to forward the paper work to Fair Trading promptly 1. At a conciliation on 1 December 2014 in the Consumer and Commercial Division, the parties settled the matter on the basis that half the bond would be paid to Mr Karacakoylu and he would withdraw the application. 2. On 1 December 2014, in Century 21's offices, Mr Karacakoylu signed a form to release the bond. His understanding was that the balance of the bond money would be available within 5 business days, that is by Friday 5 December 2014. On that day, when he had not received the money, Mr Karacakoylu phoned Fair Trading and was told that they had not received the paper work from Century 21. Mr Karacakoylu alleges that Ms Sirol deliberately failed to process the paper work to delay him receiving a refund of half the bond money. 3. Mr Sirol provided evidence that on 1 December 2014, she emailed the form claiming a refund of the bond money of $580 and a signed agreement between the parties to "bondclaims@finance.nsw.gov.au". Ms Sirol said she sent the agreement to Fair Trading, just as she always does. That agreement stated that Mr Karacakoylu's application to the Consumer and Commercial Division of the Tribunal was to be withdrawn as the parties had settled the matter. 4. On 8 December 2014, Century 21 received a letter from the Consumer and Commercial Division of the Tribunal stating that correspondence dated 1 December 2014 had been received, noting that the matter had been settled and advising that the issue should be raised on the next hearing date. 5. On 15 December 2014 Mr Karacakoylu's application to the Consumer and Commercial Division was dismissed because there was no appearance by either party. Merits of complaint 1. Mr Karacakoylu submits that Century 21 has breached of s 19 of the Anti-Discrimination Act: 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, or (b) in the terms on which the other person is provided with those goods or services. 1. I understand Mr Karacakoylu's complaint to be one of direct discrimination as defined in s 7(1)(a): (1) 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, or ... 1. In order to substantiate a complaint of direct race discrimination in relation to the alleged conduct Mr Karacakoylu would have to prove that: (1) he is of a member of a race as defined in s 4; (2) Century 21 refused to provide him with a service or provided him with a service on unfavourable terms; (3) in refusing that service or providing it on unfavourable terms, Century 21 treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment) and (4) at least one of the reasons for that treatment was Mr Karacakoylu's race: (causation). Race 1. "Race" is defined in s 4 of the Anti-Discrimination Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Mr Karacakoylu is of Turkish national origin. Identification of the "service" 1. The first step in determining whether a person has been refused a service or has been provided with a service on unfavourable terms is to identify the relevant service : Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. 2. In this case there was no dispute that Century 21 provides services to tenants as agent for landlords and that Mr Karacakoylu alleged that those services had not been provided promptly in accordance with his expectations and the time lines that he had been told by Fair Trading to expect. Differential treatment and causation 1. The first component of the test for direct race discrimination is the "differential treatment" test. The treatment afforded to Mr Karacakoylu must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Mr Karacakoylu, a decision maker would have to rely on a hypothetical person in a comparable situation. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation. 2. At least one of the reasons that Ms Sirol refused to provide the inspection report by email and delayed providing the agreement about the payment of the bond money must have been his race: Anti-Discrimination Act, s 4A. There is no need to prove that she intended to discriminate. 3. If leave were granted for the complaint of race discrimination to proceed, the legal burden of proof would be on Mr Karacakoylu to prove his case on the balance of probabilities. Mr Karacakoylu acknowledges that he does not have any direct evidence of race discrimination. 4. As with the vast majority of complaints of discrimination, a causal link between Mr Karacakoylu's race and the alleged treatment, if that treatment could be proved, would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant: "... (b) an inference must be reasonably drawn on the basis of the primary facts; (c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ; (d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection"; (e) the inference must be a logical one, and not supposition; (f) an inference cannot be made where more probable and innocent explanations are available on the evidence." 1. In my view, if leave were granted for this complaint to proceed, Mr Karacakoylu would be unable to satisfy the decision maker that race was a reason for Ms Sirol's alleged conduct. A more probable and innocent explanation in relation to the inspection report and photographs is that the photographs could not be sent easily via email so Ms Sirol invited Mr Karacakoylu to collect the report and photographs in person. There was no evidence that Ms Sirol treated tenants who were not from Turkey any differently from the way she treated Mr Karacakoylu. Mr Karacakoylu received the inspection report and was not prejudiced by the delay. 2. In relation to the allegation that Ms Sirol deliberately delayed sending the documentation enabling the release of the bond, the evidence suggests otherwise. Mr Karacakoylu received 50% of the bond as agreed at the conciliation. The complaint lacks substance and it is not fair or just for it to proceed. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar 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: 13 November 2015