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austlii:nsw/NSWADT/2009/261
defendant. Application dismissed.
The applicant said that the real estate agent’s handling of a delayed air-conditioner remote repair, and other tenancy-related incidents, reflected race discrimination. The Tribunal accepted that the repair took several months and caused inconvenience, but found that the agent had taken steps to resolve the problem and did not know the applicant’s race during the relevant period. It was not satisfied that a person of a different race would have been treated better or that race was a reason for the respondent’s conduct. The application was dismissed. The Tribunal also noted the applicant’s earlier CTTT award of $250 for the inconvenience.
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2,038 words · generated 02/10/2026
Omar Faruque complained to the Anti-Discrimination Board that TFT Pty Ltd, trading as L J Hooker Westmead, had discriminated against him because of his race while providing services connected with a rental property. He identified his race as Bangladeshi, including his skin colour and national origin ([2]). The Tribunal heard the matter on 14 August 2009 and gave ex tempore reasons that day.
1 cited instrument linked from this judgment.
The main event concerned an air-conditioner remote control that was not working between 14 August 2007 and late January 2008. The air conditioner itself could be operated manually. The Tribunal accepted Mr Faruque’s evidence that he had to stand on a table to reach the controls ([3], [12]). It was not disputed that he reported a problem in August 2007, and a repairer attended shortly afterwards. The repairer restored the air conditioner to working order but advised that the remote control was faulty ([12]).
The respondent’s evidence described a series of steps taken to resolve the issue, including contacting the strata manager about warranty matters, the builders, the owner, an air-conditioning business and the manufacturer. The respondent also sought information from Council and obtained details about the unit ([13]). The Tribunal accepted that the relevant agent, Ms Rafidi, did not know Mr Faruque’s racial background until she received his complaint to the Anti-Discrimination Board ([14]).
There had also been an earlier CTTT proceeding about the tenancy. The CTTT awarded Mr Faruque $250 for the inconvenience of not having a working remote control for about five months ([8]–[11]). The Tribunal considered that result under s 88B of the Anti-Discrimination Act 1977 (NSW), which it quoted as requiring regard to relevant proceedings elsewhere and their outcomes ([10]–[11]). The discrimination complaint was dismissed ([20]).
The Tribunal treated the central question as whether Mr Faruque had established direct race discrimination under ss 19 and 7 of the Anti-Discrimination Act 1977 (NSW). Section 19, as reproduced in the reasons, concerns discrimination by a service provider in refusing services or in the terms on which services are provided ([4]). The respondent did not dispute that it provided services during the relevant period, but denied that its conduct amounted to discrimination on the ground of race ([5]).
The Tribunal identified two elements of direct discrimination. First, it required differential treatment: the applicant had to be treated less favourably than a person of a different race in the same or not materially different circumstances. Second, it required causation: race had to be a reason for the treatment ([18]–[19]). The Tribunal cited Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 as authority for the causation requirement ([18]). Its reasons do not set out the case’s facts or broader reasoning.
Mr Faruque did not identify an actual comparator. The Tribunal therefore considered a hypothetical comparator: whether L J Hooker would have treated a person not of his race differently in comparable circumstances ([18]). It concluded that the evidence did not establish that the hypothetical person would have been treated differently. It relied on its findings that the respondent took steps to deal with the repair, and that Ms Rafidi did not know Mr Faruque’s race during the period when the repair issue was being addressed ([15], [19]).
The Tribunal also considered three other matters relied on by Mr Faruque: the respondent’s refusal to participate in negotiation connected with the CTTT claim, a request that he clean cupboards and carpet when leaving the property, and a request that he contact the air-conditioner repairer himself ([16]). It concluded that those circumstances did not show unfair conduct, much less establish race as a reason for the delay in repairing the remote ([17]).
Section 4A was relevant to the causation question. The Tribunal noted that if an act is done for two or more reasons, it may be taken to be done for an unlawful-discrimination reason where one reason is unlawful discrimination, even if that reason is not dominant or substantial ([7]). The Tribunal was nevertheless not satisfied that race was any reason for the treatment ([19]). Its decision therefore turned on the evidentiary findings, not on a requirement that race be the only or principal reason.
The decision applies the statutory provisions as the Tribunal set them out in 2009. It does not purport to change or comprehensively explain the law of direct discrimination. Its significance within the reasons is its application of the statutory elements to a service-related dispute involving a tenancy.
The Tribunal stated that the applicant needed to establish both a comparison showing less favourable treatment and a causal connection between race and the treatment ([18]–[19]). It also applied the statutory rule that race did not need to be a dominant or substantial reason, provided it was one of the reasons for the act ([7]). The reasons thus distinguish two questions: whether the applicant was treated less favourably than a person of another race, and whether race was a reason for that treatment.
The decision also records the function of s 88B in the circumstances before it. A person was not prevented from making a discrimination complaint merely because proceedings about the same facts had occurred in another jurisdiction. However, the Tribunal had to take account of those proceedings and their outcome ([10]). It did so by noting the CTTT’s compensation award for inconvenience ([11]). The award addressed the tenancy-related inconvenience described in the CTTT decision; the Tribunal separately assessed whether the facts established race discrimination.
The supplied judgment contains no account of subsequent statutory amendments, later cases applying this decision, or any later change in doctrine. It would therefore be unsafe to infer from this judgment alone what the law’s present state is or how later courts or tribunals have treated the decision. The “after” position that can be stated from this source is limited: the Tribunal dismissed this application and did not announce a new legal test.
At [18], the Tribunal described the two elements: “The first is differential treatment” and “The second requirement is causation.” In plain English, an applicant had to show both that someone of a different race would have been treated better in comparable circumstances and that race was at least one reason for the treatment. Establishing delay or inconvenience alone would not answer either question.
The Tribunal noted that Mr Faruque had not identified an actual comparator and said it would use a hypothetical one ([18]). This meant the comparison was not with a named tenant whose treatment could be examined. Instead, the Tribunal asked whether the respondent would have acted differently towards a person of another race in materially similar circumstances.
At [15], the Tribunal explained why it rejected the comparator argument. It referred to evidence that the respondent took steps to repair the remote and accepted Ms Rafidi’s evidence that she did not know Mr Faruque’s racial background until the discrimination complaint was made. That knowledge finding was an evidentiary consideration supporting the Tribunal’s conclusion; the reasons do not state it as a standalone rule that lack of knowledge always defeats a discrimination claim.
At [19], the Tribunal separately addressed causation. It was not satisfied race was a reason for the treatment, relying on the same findings and its assessment of the other incidents. This is important because the reasons did not treat failure to prove differential treatment as the only issue.
Finally, at [20], the Tribunal called the case “plainly lacking in substance” and referred to the respondent’s “reasonable and credible explanation”. In ordinary terms, the Tribunal considered the repair history and the respondent’s explanation persuasive in the circumstances. That was its assessment of the evidence in this particular case, not a general standard for all service-provider repair delays.
The decision is most directly relevant to a complaint of direct race discrimination where a service provider is said to have treated a customer or tenant less favourably in the provision of services. The specific context here was a real estate agent managing a residential tenancy and a delayed repair to an amenity. The Tribunal treated the agent as providing services for the purposes of the complaint, a point the respondent did not dispute ([5]).
The reasoning may be useful where the alleged conduct is a delay or failure to resolve a service issue, but the applicant also needs to establish a race-based comparison and causal connection. The decision illustrates that evidence of inconvenience or an unsatisfactory service experience does not, without more, establish race discrimination. The CTTT’s $250 award recognised inconvenience, while the discrimination tribunal separately considered whether race explained the respondent’s conduct ([9]–[11], [18]–[19]).
The case also illustrates the use of a hypothetical comparator where the applicant has not identified an actual person of a different race who received different treatment ([18]). The comparison must concern the same or not materially different circumstances, using the statutory language reproduced in the reasons ([6]).
The limits matter. The decision depended on accepted evidence that the agent did not know the applicant’s race during the repair period and on the Tribunal’s view that the respondent had taken steps to address the problem ([13]–[15]). It should not be read as deciding how a different pattern of evidence, such as evidence of explicit racial comments or materially different treatment of a known comparator, would be assessed. Those facts were not before the Tribunal in the judgment supplied.
The judgment identifies Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 as authority for the causation element of direct discrimination ([18]). It does not cite any later decision applying or distinguishing Faruque. The source supplied therefore does not establish how later courts or tribunals have treated this judgment.
Within the reasons themselves, Aldridge is used narrowly: as authority for the proposition that causation is an element of direct discrimination. The Tribunal does not give a fuller account of that decision, nor does it identify any other precedent relationship. It would be inappropriate, based only on this text, to attribute a broader doctrinal rule or later judicial significance to Faruque.
For research purposes, the judgment supports a limited proposition about how this Tribunal applied ss 7 and 19 to the evidence before it. It is not, on the source provided, evidence of a later line of cases or an appellate endorsement. Any claim about subsequent treatment would require later authorities not included in the judgment.
The reasons do not explain in detail how the Tribunal evaluated each step in the respondent’s repair chronology, beyond recording the evidence and accepting that reasonable steps were taken ([13]–[15]). They also do not set out a detailed framework for deciding when a hypothetical comparator is sufficiently defined. The decision says no actual comparator was identified and proceeds to a hypothetical comparator, but it does not elaborate on the method beyond applying the statutory comparison.
The judgment refers to the agent’s lack of knowledge of the applicant’s race and treats that as important to its factual assessment ([14]–[15], [19]). It does not consider other possible ways of establishing a connection between race and treatment when the individual agent lacks that knowledge. Those questions were not necessary for the outcome on the facts the Tribunal accepted.
The reasons also do not discuss the full relationship between the CTTT award and any possible discrimination remedy. They state that s 88B required the Tribunal to have regard to the earlier proceedings and outcome, and record the $250 award ([10]–[11]). They do not decide questions about how compensation in one jurisdiction might affect the assessment of another claim beyond that consideration.
Lastly, this is an ex tempore decision with concise reasons. The supplied text does not provide a separate transcript of all evidence or submissions, and it does not address later legal developments. These limits mean the judgment is best understood through its stated findings and statutory reasoning, rather than as a comprehensive account of every potentially relevant issue.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
CITATION: Faruque v TFT Pty Ltd trading as L J Hooker Westmead [2009] NSWADT 261
DIVISION: Equal Opportunity Division
PARTIES: APPLICANT
Omar Faruque
RESPONDENT
TFT Pty Ltd trading as L J Hooker Westmead
FILE NUMBER: 091059
HEARING DATES: 14 August 2009
SUBMISSIONS CLOSED: 14 August 2009
EXTEMPORE DECISION DATE: 14 August 2009
BEFORE: Hennessy N - Magistrate (Deputy President); Weule B - Non-Judicial Member; Hayes E - Non-Judicial Member
LEGISLATION CITED : Anti-Discrimination Act 1977
Residential Tenancies Act 1987
CASES CITED: Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
REPRESENTATION: APPLICANT
In Person
RESPONDENT
N Toft, agent
ORDERS: Application dismissed.
REASONS FOR DECISION
EX-TEMPORE DECISION
HER HONOUR: We have listened to the evidence and the submissions in this matter and we have made a decision. The decision is to dismiss the complaint of race discrimination and I will give some oral reasons that will probably take about 15 minutes to deliver.
Mr Faruque complained of race discrimination to the Anti-Discrimination Board. His complaint was against L J Hooker Westmead which was the real estate agent in relation to a property that he rented. Mr Faruque is from Bangladesh and says that he was discriminated against on the ground of his race, namely his skin colour and his national origin that is, Bangladeshi.
The period of the complaint is from 14 August 2007 to 31 January 2008, during which time the remote control operating Mr Faruque’s air conditioner was not working. The air conditioner itself was able to be operated manually, but we accept Mr Faruque’s evidence that he needed to stand on a table in order to switch the air conditioner on and off. Our finding is that the air conditioner was working throughout that time but it could not be operated by a remote control. The remote control was fixed in late January 2008.
Mr Faruque makes his complaint under s 19 of the Anti-Discrimination Act 1977 (AD Act) which states: ‘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.’
L J Hooker does not dispute that they were providing services to Mr Faruque during the relevant period but says that none of their conduct amounted to discrimination on the ground of Mr Faruque’s race.
In order to make out a complaint of direct race discrimination, Mr Faruque needs to satisfy the provision of s 7 of the ADA. That provision states that: ‘(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.’
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.’
Before making our findings of fact we note that Mr Faruque made a complaint to the Consumer, Trader and Tenancy Tribunal (CTTT) about the bond when he vacated the premises. He applied to the CTTT on 13 August 2008 for compensation from the owners of the property, Francoise and Garda Kordahji. On 10 November 2008, the CTTT made orders pursuant to the Residential Tenancies Act 1987. The Tribunal’s reason for decision set out Mr Faruque’s evidence as follows: ‘Mr Faruque gave evidence that the remote control for the air conditioner did not work. He notified the managing agent and a serviceman attended. The problem was diagnosed, but there was a period of 5 months or so before a working remote was supplied. In the intervening period, he had to stand on a table or chair to operate the controls on the air conditioner itself. He was concerned that by so doing he may have fallen on his young daughter nearby. There was no such event.’
The CTTT made the following findings; ‘I found that the provision of the working air conditioner was a part of the residential tenancy agreement and that the failure to provide a working remote was a breach of agreement. This caused some inconvenience to Mr Faruque, to which he was entitled for compensation. That inconvenience was not great, and while Mr Faruque may have had worries about falling on his daughter, those worries were not substantial and further that there had been no incident. Thus any compensation was also minor.
I consider that $250.00 was proper compensation for such a minor inconvenience.’
Under s 88(B) of the AD Act, a person is not prevented from making a complaint because he or she has also taken proceedings in relation to the same facts in another jurisdiction. However, s 88(B) goes onto say: ‘The Tribunal must have regard to any such proceedings, and to the outcome of any such proceedings, in dealing with or determining the complaint.’
We consider that Mr Faruque has taken proceedings in relation to the same facts in another jurisdiction, namely the CTTT. We must take into account the outcome of those proceedings, namely that Mr Faruque was awarded $250 to compensate him for the fact that he did not have a remote control for his air conditioner for about five months.
I turn now to the factual matters. It was not in dispute that Mr Faruque notified L J Hooker in August 2007 of problems with the air conditioner. A repairman attended shortly after that time and was able put the air conditioner into working order. However he advised Mr Faruque that the remote control was not working. It is common ground that Mr Faruque had to operate the air conditioner by using the switch and that the air conditioner was too high to reach without standing on something to operate the switch. Mr Faruque says that he does not recall contacting L J Hooker during the period from August to January at which time he wrote a letter to L J Hooker complaining that his air conditioner remote control had still not been fixed.
Ms Rafidi gave evidence for L J Hooker of the steps that they took, after Mr Faruque complained that the air conditioner was not working. I will not recite that evidence in detail because Mr Faruque did not submit that these steps had not been taken. Basically Ms Rafidi’s evidence was that during the period from 4 August 2007, when the work order was put into the computer, to the date that it was finally fixed in January, numerous steps were taken to address the problem including: a) contacting the strata manager about the warranty;
b) contacting the builders;
c) obtaining proof of purchase and details of the model and serial number;
d) contacting the owner about the repair;
e) instructing A1 Air Conditioning to attend the apartment and diagnose the problem;
f) speaking to Carrier Air Conditioning, the manufacturers of the air conditioning unit and receiving a response from them;
g) obtaining the occupation certificate; and
h) contacting both Council and the builders in order to obtain further information.
Ms Rafidi gave evidence that she was unaware of Mr Faruque’s racial background until she received the complaint that Mr Faruque wrote to the Anti-Discrimination Board. Her evidence was that it was unfortunate that the repair had taken so long to finalise, however, they were diligent in their following up of the repair request and that at no time was any decision made on the basis of Mr Faruque’s racial background. There is no significant factual dispute in this case, apart from the question of whether race was a reason for the way Mr Faruque had been treated.
Mr Faruque set out in his submissions that he felt that L J Hooker would not have treated a person from a Caucasian background in the same manner as he was treated. We do not accept that submission for several reasons. First of all, it is obvious, from the evidence given by L J Hooker, that they did take reasonable steps to repair the air conditioner remote control between August 2007 and January 2008. Secondly, we accept Ms Rafidi’s evidence that she was unaware of Mr Faruque’s racial background until a complaint was made to the Tribunal. Thirdly, the circumstantial evidence that Mr Faruque put forward as supporting his claim of race discrimination does not, in fact, support that claim.
Mr Faruque outlined three matters which he said supported his assertion that the way he was treated was based on his race. First, he asserted that he attempted to negotiate in relation to the CTTT claim but that L J Hooker refused to participate in that negotiation. Secondly, he said that when he left the property he was asked to clean the cupboards and the carpet and that was an unreasonable and demeaning request. Thirdly, he said that he was asked to contact the repairer of the air conditioner himself and that would not have happened had he not been Bangladeshi.
Mr Faruque also asserted that he was submissive in his relationship with L J Hooker and that he did not want to obtain an adverse reference. The circumstances of these matters were provided in more detail by Mr Faruque but it is suffice to say that none of these incidents indicate any unfair conduct on the part of L J Hooker, far less any imputation that race was a reason for the delay in the remote control being repaired.
Applying those facts to the law in this case, there are two elements that need to be made out to prove direct race discrimination. The first is differential treatment which involves a comparison between the way a person was treated with the way the person not that race was or would have been treated in circumstances which are the same or not materially different. The second requirement is causation and the authority for that is Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5. Mr Faruque did not identify an actual comparator, so we must make a decision on the basis of a hypothetical comparator. It cannot be said that L J Hooker treated Mr Faruque any differently from the way they would have treated a person not of his race.
Faruque
TFT Pty Ltd trading as L J Hooker Westmead [2009] NSWADT 261
Application dismissed.
That finding is supported by the findings that we have already made, that is, that Ms Rafidi did not know Mr Faruque’s race during the period of time when she was addressing the repair issue and secondly, that none of the circumstantial events that Mr Faruque pointed to disclose unfair behaviour on the part of L J Hooker. The second element of direct discrimination is that at least one of the reasons for the treatment was Mr Faruque’s race. Again, for the same reasons we are not satisfied that Mr Faruque has made out that case.
This is a case which is plainly lacking in substance and for which L J Hooker had a reasonable and credible explanation and in those circumstances we dismiss the application.