Ajami & El-Chaar v Car Advantage Pty Limited

NCAT Administrative and Equal Opportunity|2021-10-22

REASONS FOR DECISION

The Applicants, two men of Lebanese descent, complained that a staff member at a used car business, namely, Car Advantage Pty Limited, racially discriminated against and victimised them.
Mr Steven Ajami, the First Applicant, contacted Mr Gary Tyrell, an employee or agent of the Respondent, on or around 6 November 2020 about the purchase of a motor vehicle. Mr Ajami alleges that he was refused the opportunity to purchase a car by the Respondent on the basis of his race.
On 12 November 2020, the President of Anti-Discrimination NSW (ADNSW) received a complaint from Mr Ajami, alleging race discrimination in the area of goods and services. The President's delegate exercised a discretion, pursuant to s89B of the Anti-Discrimination Act 1977 (NSW) (the ADA), to accept the complaint of race discrimination against Car Advantage Pty Limited (the Respondent) for the period 6 November 2020 to 12 November 2020.
On 22 February 2021, the Respondent answered an enquiry from ADNSW in relation to the complaint denying that it racially discriminated against Mr Ajami.
Resolution of the complaint by negotiation was attempted but failed. Mr Ajami requested the complaint be referred to the Tribunal.
These reasons for decision relate to the determination of the matter by the Tribunal.

Procedural matter

Mr Edward El-Chaar, the Second Applicant, made an application that he be added as an applicant to the complaint. Mr El-Chaar alleges that between 9 November 2020 and on 28 January 2021 he was victimised on the basis of his race by Mr Tyrell.
We note the directions of the Tribunal on 2 June 2021 included orders that Mr El-Chaar provide on or before 9 June 2021 any amendments or an additional claim to be determined by the Tribunal at this hearing. Mr El-Chaar addressed the additional claim by way of his application and submissions received by the Tribunal on 22 June 2021.
We note the submissions and request to be added as an applicant to the proceedings were sent to the Respondent. Despite those documents being sent to the Respondent by email, no response was provided, nor were any submissions filed in reply. Given that the Respondent has not filed a reply and failed to appear and participate in the hearing, we dealt with Mr El-Chaar's matter in its absence.
We decided to grant leave to Mr El-Chaar to be joined as a party to the proceedings and order accordingly.

The complaint by the First Applicant Mr Ajami

The background to the complaint by Mr Ajami includes the following narrative.
Mr Ajami made contact with the Respondent through its employee or agent, Mr Tyrell, on or about 31 October 2020. The enquiry related to the purchase of a 2017 Land Rover Range Rover Autobiography motor vehicle. Mr Ajami located the business of the Respondent through an advertisement on Carsales.com.
The advertised price of the motor vehicle was $170,000.
Mr Ajami said in his evidence that he was contacted by Mr Tyrell by text message on 31 October 2020. He said they had a telephone conversation and began negotiating to 'do the deal to purchase the car'. Mr Tyrell and Mr Ajami then over the next 5 days continued to arrange finance for the purchase of the motor vehicle.
Mr Ajami said that Mr Tyrell gave him the name of a finance broker whose name was 'Goran'. Mr Ajami spoke with Goran and was told he would get a response soon.
On 6 November 2020, at approximately 5.40 a.m., Mr Ajami said that he received a text message from Mr Tyrell which reads as follows: Mr Tyrell: 'You are nowhere mate You don't have 170K You don't have anyone who will lend you 170K Nowhere. As in, Could not fund a used Corolla?' Mr Ajami: 'Who' Mr Tyrell: 'You I don't like wasting time Buy'
The text messages continued where the following exchange took place: Mr Ajami: 'Go fuck yourself then' Mr Tyrell: 'I beg your pardon? Don't fucking waste my time, you broke prick' Mr Ajami: 'You better watch your mouth Garry you don't know who you talking to' Mr Tyrell: 'Now Fuck off' Mr Ajami: 'Okay mad cunt let's meet up Talk tough over the phone okay come see you now' Mr Tyrell: 'Typical wog Just go away.' Mr Ajami: 'Now you're going to pay for this now I'm coming to see you You gone too far' Mr Tyrell: 'Get your credit file sorted first' Mr Ajami: 'Don't text I will see you soon' Mr Tyrell: 'Typical wog Please Go away You are boring And you can't spell …'
On 8 November 2020, Mr Ajami informed his employee, Mr Edward El-Chaar, senior consultant, about the exchange. Mr El-Chaar took over dealing with Mr Tyrell about the motor vehicle. Mr Tyrell informed Mr El-Chaar that the motor vehicle had been sold.
It is not in contest that Mr Ajami and Mr El-Chaar both identify as being Lebanese Australian.
Mr Ajami said in evidence he has never met Mr Tyrell and assumes that he was aware that he was Lebanese either by his name or given he told Goran that he was Lebanese.
Mr Ajami claims that he was refused goods and services by the Respondent based on unlawful race discrimination.

The Complaint by the Second Applicant Mr El-Chaar

Mr El-Chaar is employed to assist and work with Mr Ajami from time to time as required.
On or about 6 November 2020, Mr El-Chaar received a telephone call from Mr Ajami. Mr Ajami set out his dealings with Mr Tyrell. Mr Tyrell's mobile telephone number was given to Mr El-Chaar. Mr Ajami asked Mr El-Chaar to follow up the matter and proceed with the purchase of the motor vehicle.
On the morning of 8 November 2020, Mr El-Chaar said that he contacted Mr Tyrell and advised that he was an employee for Mr Ajami. They had a conversation during which Mr El-Chaar said to Mr Tyrell words to the effect: "I am contacting you on behalf of Mr Ajami to discuss the text messages you have sent him, and what (surely) is a mistaken identity, as my employer's financial position is more than sound and there is no reason for you to send racially motivated or offensive texts".
Mr Tyrell replied to Mr El-Chaar and said words to the effect: "Well, it was a misunderstanding, and I apologise to Mr Ajami, I had confused him with another person from Melbourne who also wanted the same car, the person was annoying, abusive and violent, and his name was also Steve, so it was a coincidence, it's not my normal style (to be rude). I was wound up by this Melbourne guy."
Mr El-Chaar responded with words to the effect: "I understand, well Mr Ajami is still open to trade in his current vehicle and continue with the transaction and purchasing the vehicle from you, I am communicating with you on his behalf to clarify your position and advise you that Mr Ajami has several businesses, security and hospitality and is in a great financial position to move forward with any transactions, and open to negotiating, addressing the insults and moving forward."
Mr Tyrell replied with words to the effect: "I will be happy to buy his car and continue with the transaction and again (I know it sounds coincidental) but it was another guy who was just frustrating to deal with, I have tried to send Mr Ajami some apology texts." There is no evidence before us of any apology text message.
Mr El-Chaar requested that the car be put on hold and that Mr Ajami would contact Mr Tyrell for a meeting to purchase the vehicle.
On 9 November 2020 at 5.01 p.m., Mr El-Chaar received a text message from Mr Tyrell stating that the car had been sold and was on its way to Perth.
Mr El-Chaar completed a complaint form which was sent to Anti-Discrimination NSW in relation to the incident on behalf of Mr Ajami.
That complaint was received by the President of Anti-Discrimination NSW on 12 November 2020.
On 8 December 2020 at 9.01 p.m. Mr El-Chaar received a text message from Mr Tyrell requesting his email address so that his lawyer could make contact. Various text messages passed between Mr El-Chaar and Mr Tyrell. The following exchange is alleged by Mr El-Chaar as amounting to victimisation by Mr Tyrell within the terms of the ADA: Mr Tyrell to Mr El-Chaar: 'LOL, your client barks of a night, It is an offence to represent oneself as an auxiliary arm of the court, $900 claim you sad wankers Get a law degree Fuck off you clown I discriminate … against broke clowns, You are, at this stage a friend of a broke clown, Goodbye clown, good luck you broke fuck, senior adviser of a broke prick, Senior adviser to a broke wog, You sad tosser, Masquerading as a lawyer for a midget, Shame on you and your 200 strong security force, Get a life, pretend rich client'
Mr El-Chaar replied: 'Garry, I reject your claim I have masqueraded as a lawyer. I request you cease texting me forthwith. Your messages are inappropriate, offensive, insulting, racist and threatening. They will be forwarded to the appropriate entities for comment. Do not text me any further'
The evidence reveals that Mr Tyrell replied in a text as follows: 'Get a life. Love the pretend legal talk .. $900 LOL'
Mr El-Chaar attended the Campsie Police Station on 28 January 2021 to make a complaint to the police about Mr Tyrell's conduct.
It is this behaviour which Mr El-Chaar claims to amount to victimisation under s50 of the ADA.

The evidence

The Tribunal had before it a copy of the President's summary of complaint and the documents filed to that organisation.
The Applicants relied upon a joint bundle filed with the Tribunal on 22 June 2021.
Mr Ajami gave evidence, as did Mr El-Chaar.
Due to the Respondent not appearing in the proceedings, neither Mr Ajami nor Mr El-Chaar were cross-examined. We accept them both as reliable and honest witnesses.
As indicated above, the Respondent filed no documentation in response to the two complaints. However, we note that in correspondence passing between the Respondent and the delegate of the President of Anti-Discrimination NSW, Mr Daniel Phillips denies any discrimination or victimisation in an email dated 19 April 2021. At its highest, the only explanation provided in the correspondence by the Respondent is: 'We will not be providing any compensation, whatsoever, to a party who attempted to purchase a vehicle from us on finance, that could not afford or get finance for. We are also not providing compensation to someone who lied to us about their financial situation. And finally we are definitely not engaging with a party who had a 'pretend' lawyer contact us and threaten us with legal action. We do not and never discriminate against anyone who is in a position to purchase with a vehicle from us.'
A bundle of late documents in support of the Applicants' loss were filed by them on 27 October 2021. Despite our order allowing the Respondent to file any documents or submission in reply, nothing was received.

Discrimination on grounds of race

Section 7 of the ADA provides: "7 What constitutes discrimination on the ground of race (1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of race if the perpetrator - (a) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, 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 (b) on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or (c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have a relative or associate not of that race, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply. (2) For the purposes of subsection (1) (a) and (b), something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."

Discrimination on the ground of race by refusing to provide good or services

Section 19, relevantly provides: "19. 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 …"

Victimisation

Section 50 provides: "50 Victimisation (1) It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has - (a) brought proceedings against the discriminator or any other person under this Act, (b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act, (c) alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or (d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person, or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them. (2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith."

Liability of principals and employers

Section 53 provides: "53 Liability of principals and employers (1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act. (2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability. (3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act. (4) For the purposes of subsection (1), the principal or employer of a volunteer or unpaid trainee who contravenes Part 2A is the person or body on whose behalf the volunteer or unpaid trainee provides services."

Mr Ajami's complaint

To succeed in his complaint of discrimination on the ground of race, as a first step, Mr Ajami must establish that the Respondent failed to provide him with goods or services or provided him with services on discriminatory terms.
Mr Ajami gave evidence that he is a Lebanese Australian. Mr El-Chaar supported this contention. We accept their evidence in this regard.
We also accept Mr Ajami's evidence that he attempted to purchase a motor vehicle from the Respondent through its employee/agent Mr Tyrell.
Mr Ajami expresses his complaint in terms of sections 7 and 19 of the ADA, in that the Respondent refused to sell him the motor vehicle to him on the ground, at least in part, of him being a member of the Lebanese race.
The evidence reveals that Mr Ajami was not sold the motor vehicle on either (1) the perceived basis that he could not raise finance for the purchase, or (2) that the Respondent discriminated against him on the grounds of his race, or a combination of both. The difficulty for the Respondent in this matter is that it has refused to engage with the complaints and, apart from the email referred to in paragraph [46] above, it has provided no explanation as to the conduct of Mr Tyrell.
It is evident from the messages passing between Mr Tyrell and Mr Ajami that Mr Ajami early on appeared not to have the ability to finance the purchase of the motor vehicle. Mr Tyrell responded: "You are totally nowhere mate' 'You don't have 170K." The conversation in text messages then proceeded to Mr Tyrell responding to Mr Ajami by saying "Typical wog just go away."
We also note in the text messages passing between Mr Tyrell and Mr El-Chaar, Mr Tyrell refers to Mr El-Chaar as being a "senior adviser to a broke wog". We find that the reference to the use of the word 'wog' can only relate to Mr Ajami's race, namely him being of Lebanese descent.
It is also important to note Mr Phillip's reply to Anti-Discrimination NSW where he sates: "We do not and never discriminate against anyone who is in a position to purchase with a vehicle from us." Mr Phillip's explanation leaves open the inference that a person who can not purchase the vehicle may be discriminated against. We make such an inference.
We accept the unchallenged evidence of Mr Ajami that he informed Mr Tyrell's finance broker that he was of Lebanese descent. It can be inferred that Mr Tyrell has used the word 'wog' assuming him to be of a particular race given the use of that word in his text messages 'typical wog'. We make that inference.
The subject goods and services are in the nature of the Respondent selling Mr Ajami a motor vehicle. It is established on the evidence that the Respondent was a seller of second-hand motor vehicles and Mr Ajami was a willing buyer. The Respondent was providing a service to Mr Ajami within the meaning of s. 19 of the ADA.
We accept Mr Ajami's evidence that during the Covid 19 period he had put a stop on his credit card payments. He said the bank did not put a stop on the credit card and the non-payment of his credit card payments were reported to a credit reference check showing default. Mr Ajami believed it was for this reason that his finance was initially not approved at the time when Mr Tyrell's broker may have made enquiries about his creditworthiness. Mr El-Chaar gave evidence that he was not aware of any difficulty with Mr Ajami's credit reference except for a $15 bill that he had objected to paying. Mr El-Chaar said that the question relating to Mr Ajami's credit reference was fixed within days of Mr Tyrell's broker making the initial credit enquiry and before the motor vehicle was sold. This is undisputed. We accept his evidence.
Without the benefit of the Respondent appearing in this matter and defending the complaints, or indeed Mr Tyrell providing an explanation about the use of the term 'wog', we find that Mr Tyrell has unlawfully discriminated against Mr Ajami by refusing to sell him the motor vehicle on the basis of his race. It matters not that another reason - namely, Mr Ajami having the finance to purchase the motor vehicle - may also have been a factor in Mr Tyrell's decision not to sell him the motor vehicle. We find Mr Tyrell's use of the word "wog" was a reference to Mr Ajami's race and that it was a factor which he considered in refusing to sell Mr Ajami the motor vehicle. Without Mr Tyrell appearing and providing evidence, or indeed any other evidence of the Respondent, we find on the evidence that Mr Ajami's complaint is substantiated and the Respondent has breached s19 of the ADA.
Mr Ajami claims $5,079 in costs associated with Mr El-Chaar acting on his behalf in relation to the claim. These costs are not recoverable under s. 98 of the ADA.
We accept Mr Ajami's evidence that he suffered a degree hurt, humiliation and embarrassment because of Mr Tyrell's conduct.
A claim is made for $260 for payments made for medical treatment arising because of the hurt, humiliation and embarrassment Mr Ajami suffered because of Mr Tyrell's conduct. We do not allow an amount for this part of his claim due to him not providing receipts or tax invoices to evidence his loss.
A claim is made for compensation for the hurt, humiliation and embarrassment Mr Ajami suffered because of Mr Tyrell's conduct. We award the sum of $2,000.

Mr El-Chaar's complaint

Mr El-Chaar bears the onus of establishing on the balance of probabilities, that: 1. Mr Tyrell caused him to undergo or experience something; 2. He suffered some consequential detriment; and 3. That detriment occurred "on the ground" that he did one of the things listed in s 50(1) of the Act: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].
The word "detriment" in the context of s 50(1) of the Act means "loss, damage or injury" that is "real and not trivial": see Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808; Sivananthan v Commissioner of Police [2001] NSWADT 44 at [40]; and Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]. Whether something constitutes a detriment requires an objective not subjective evaluation to be undertaken: Sivananthan v Commissioner of Police, NSW Police Service at [41].

Was Mr El-Chaar subjected to a detriment?

We accept Mr El-Chaar's evidence that he was assisting Mr Ajami in trying to resolve the purchase of the motor vehicle with Mr Tyrell. We have considered the trail of text messages between Mr Tyrell and Mr El-Chaar. Mr Tyrell, without reason or foundation, contends in his text message that Mr El-Chaar was committing an offence 'to represent oneself as an auxiliary arm of the court'. There is no evidence at all that Mr El-Chaar was in any way representing himself to be a legal practitioner. Mr Tyrell continued in a tirade against Mr El-Chaar by using the words 'now please fuck off, you clown we have an SC READY TO GO'. Mr Tyrell went on by stating things such as 'You are, at this stage, a friend of a broke clown … 3 cafes a security company? 200 staff LOL … good luck you broke fuck … stop pretending to be a lawyer and threatening me … you sad, sad tosser … masquerading as a lawyer, for a midget … shame on you and your 200 strong security force … pretending to use legal terms does not give you a law degree …'.
Mr El-Chaar's claim is that he suffered distress and humiliation as a result of Mr Tyrells conduct, particularly alleging that he was impersonating a legal practitioner. It is a serious and damaging allegation. We are satisfied that the sending of the text messages caused Mr El-Chaar to suffer feelings of "stress, shock and humiliation". We find Mr El-Chaar suffered a detriment as a result of receiving the text messages.

Did the detriment occur "on the ground" that Mr Ajami did one of the things listed in s 50(1) of the Act?

We are satisfied that at least one of the 'real', 'genuine' or 'true' reasons for Mr Tyrell subjecting Mr El-Chaar to the detriment by sending the text message was that Mr Ajami had done something under or by reference to the ADA - namely that Mr El-Chaar was providing information in connection with proceedings brought by Mr Ajami against the respondent and Mr Tyrell under the Act (see s50(1)(b) of the ADA).
We find Mr El-Chaar's complaint substantiated.
Mr El-Chaar claims $890.00 in reimbursement of costs he incurred after consulting a psychologist between 11 November 2020 to 12 August 2021. He gave evidence that the consultations relate to the detriment he suffered which we accept. We find that this amount should be paid to Mr El-Chaar by the Respondent.
Mr El-Chaar incurred legal costs pertaining to his claim in the amount of $1,732.50. This amount also should be paid to him by the Respondent.
We also find that Mr El-Chaar should be awarded the sum of $4,000 for the hurt and humiliation he suffered as a result of the detriment inflicted upon him by Mr Tyrell.

Liability of the Respondent for the acts of Mr Tyrell

The correspondence passing between Mr Daniel Phillips on behalf of Car Advantage Pty Limited and Anti-Discrimination NSW (22 February 2021) infers that Mr Gary Tyrell was either an employee or agent of the Respondent. Further, an email between the same parties (19 April 2021) refers to Mr Ajami attempting to 'purchase a vehicle from us' and infers that he lied to Mr Tyrell about his financial situation. We find that the Respondent is liable and responsible for the acts of Mr Tyrell pursuant to s53 of the ADA.

Orders 1. Mr Edward El-Chaar is joined as a Applicant to the proceedings. 2. The claim by Mr Steven Ajami of discrimination made against the Respondent is substantiated. 3. The claim by Mr Edward El-Chaar of victimisation made against the Respondent is substantiated. 4. The Respondent is to pay Mr Steven Ajami the sum of $2,000 within 28 days. 5. The Respondent is to pay Mr Edward El-Chaar the sum of $6,622.50 within 28 days.

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: 08 March 2022

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