Nabin Gyawali (the Applicant) is Nepalese and he rents an apartment on the Pacific Highway in Hornsby which is managed by Polaris Real Estate. Polaris Real Estate is the trading name of Peniazeff Pty Ltd (the Respondent) and is managed by Nicholas Peniazeff (Mr Peniazeff). The Applicant alleges that he requested repairs to his apartment in the period 25 February 2020 to 25 March 2020 and that these requests were ignored or not responded to quickly enough by the Respondent because of the Applicant's race. The Applicant also alleges that when Mr Peniazeff attended his apartment in person to carry out a repair on 25 March 2020, Mr Peniazeff used racially offensive and aggressive language towards him.
The Applicant complained to the Anti-Discrimination Board (the ADB) on 16 July 2020 alleging race discrimination in the area of accommodation. Following correspondence with the Respondent and Applicant, and an unsuccessful conciliation on 10 September 2020, the ADB referred the complaint of to the Tribunal on 14 October 2020 pursuant to s 93C of the Anti-Discrimination Act 1977 (the AD Act).
The Applicant provided the Tribunal on 16 November 2020 with written statements from himself and his brother, Subin Gyawali, who was witness to the incident on 25 March 2020, and a letter outlining his complaint and his reasons for pursuing it in the Tribunal. At the Tribunal's case conference on 18 November 2020 the Tribunal made the following orders:
2) Nabin Gyawali to give to the Tribunal and all other parties the following material: application to amend the complaint, any evidence in support of amendment application, including statements and documents and submissions by 16 December 2020.
3) Peniazeff Pty Ltd trading as Polaris Real Estate is to give to the Tribunal and all other parties the following material: response to the application to amend the complaint, any application for summary dismissal of the complaint, any evidence including statements, documents and submissions on or before 27 January 2021.
4) Nabin Gyawali is to give to the Tribunal and all other parties the following material: all evidence in reply including statements, documents and final submissions if any on or before 11 February 2021.
His solicitor, Ms Janny Ip of DnD Legal Practice (Ms Ip), provided the Tribunal with some additional documentation on 16 December 2020 which included a request to amend the complaint, additional statements from the Applicant and his brother Subin Gyawali, a page from the rental agreement with Mr Peniazeff's signature as landlord/agent, and a tax invoice from "Mr Nice Plumbing" dated 29 January 2020 for $136.40.
The Respondent sent the Tribunal an email on 11 February 2021 which Mr Peniazeff clarified at the hearing on 18 February 2021 was intended to constitute the Respondent's submissions. Mr Peniazeff also provided the Tribunal with the same invoice from "Mr Nice Plumbing", and two pages extracted from the ADB complaint which had been annotated in handwriting by him. The Respondent otherwise relied on his responses to the ADB which were contained in the ADB President's Summary of the Complaint (the President's Summary).
It was uncontroversial that the Respondent was liable for the conduct of Mr Peniazeff as the director and manager of the Respondent, pursuant to s 53 of the AD Act.
[2]
Identifying the Complaint
The President's Summary identified the period of complaint from 24 February 2020 to 25 March 2020, and identified the complaint as "Race discrimination in accommodation - sections 7, 20, 53". The President's Summary described the complaint as:
The complainant alleges he sought repairs to the property he rents from his Real estate Agency, Polaris Real Estate. He alleges that when the managing Real Estate Agent, Mr Peniazeff, visited his property to make the repairs he made racist remarks about Indians.
…
The Respondent disputes Mr Gyawali's allegations and claims that one of the Directors was required to attend the property for a minor matter about a loose internal door handle due to their locksmith self-isolating at the time. The complainant got too close and remarks were made but no racial hatred or racism of any kind was involved.
…
The complainant disputes the respondent's version of events and asserts that he had to contact the respondent when, after previously advising the respondent of the problem, he became trapped in his bedroom due to the faulty door lock. He further asserts the respondent made racists comments.
At the hearing on 18 February 2021 the Tribunal clarified with Ms Ip that the correspondence sent by her to the Tribunal on 16 December 2020 was intended to constitute the Applicant's Application to Amend the complaint. The correspondence stated the following:
THE MATTER COMPLAINED OF
Mr Gyawali is a talent in a rental apartment managed by Polaris Real Estate (Polaris). He signed a rental agreement with Polaris where Mr Peniazeff, Director of Polaris, is the agent who in-charges of the administration and repair work of the property. Mr Gyrawali was treated less favourably by Mr Peniazeff on numerous incidents since he moved into the apartment in 2018. The complaint arises out of Mr Peniazeff's conducts listed below:
1. Intentionally delayed repair works which was reported on the Inspection checklist since 2018 without an acceptable reason;
2. Procrastinated work order beyond a reasonable period;
3. Constantly ignoring or neglecting Mr Gyawali's requests and inquiries in relation to the apartment and the outstanding repair items;
4. Demanded Mr Gyawali to make payment of repair work which was under the landlord's liabilities and responsibilities;
5. Used offensive, aggressive and discriminative languages towards Mr Gyawali and his brother in an incident happened on 25 March 2020; (details of the incident is described in Mr Gyawali's Personal Statement and Witness Statement) &
6. Expressed hatred, acted inappropriate and unprofessionally towards Mr Gyawali and his brother;
7. Treated Mr Gyawali less favourably whether in person or by other means of communication.
s4A Act done because of unlawful discrimination and for other reasons
Mr Gyawali believes that Mr Peniazeff has breached s4A of ADA under the provision of services and acted towards him less favourably resulted from Mr Gyawali's nationality, skin colour and race within the meaning defined in s4 of ADA.
It is unlawful for a person to do act, whether for a dominant or substantial reason, which discriminate another person. Where an act is done for two or more reasons and one of the reasons is the race, colour, descent, national or ethnic origin of another person.
s7 What constitutes discrimination on the ground of race
The acts done by Mr Peniazeff was listed in the above points 1-7 which are characterised and appertained to race discriminatory within the meaning of s7(2) of ADA. Mr Peniazeff discriminated against Mr Gyawali because of Mr Gyawali's race, within the meaning of s7(1) of ADA, by treating Mr Gyawali materially different and less favourably than other talent in the same circumstances.
s19 Provision of goods and services
Mr Peniazeff indirectly refused to provide Mr Gyawali the services required under the rental agreement and demanded Mr Gyawali to pay fee which beyond the standard terms of the Rental Agreement. (copy of rental agreement attached)
It is unlawful for a person who provides services, either refuse or in different terms, to discriminate against another person on the ground of race.
s20 Accommodation
Mr Gyawali is entitled to exclusive enjoyment of the rental apartment. The apartment itself must be in a reasonable stage of repair which allows Mr Gyawali to enjoy the benefit directly or associated with the occupation of the apartment.
s20(2)(a) of ADA states that it is unlawful for a person to discriminate against another person by denying or limiting the person's access to any benefit associated with accommodation occupied by the person on the ground of race.
The complaint is made by Mr Gyawali after numerous encounters with Mr Peniazeff and his experience of inequal treatment. The words used by Mr Peniazeff, in particular, on 25 March 2020, with the clear and explicit indication of 'INDIA' is a direct expression of Mr Peniazeff's racism. Even though Mr Gyawali does not come from India, he is a Nepalese of skin colour and accent similar to the people from India. Mr Peniazeff made an assumption that Mr Gyawali is an Indian by judging him by his skin colour and accent. Mr Peniazeff specifically said that Mr Gyawali is an Indian, despite Mr Gyawali's real nationality is Nepalese.
Mr Gyawali believes that the legislation promotes equality in anit-discrimination in Australia and contains features that operate to protect people from different races against certain forms of discrimination in different circumstances. Despite the existence of the legislation, Mr Gyawali and his brother or their friends still experienced discrimination in their daily life.
We accept that Australia is a multi-cultural nation. Under the legal system, people from different background or places should be treated equally to enjoy their rights and freedom living in Australia. Race discrimination is against the law and any discriminative act, either direct or indirect, should not be allowed or tolerated in the community.
Mr Gyawali raised the complaint in Australian Human Rights Commission in March 2020 and Anti-Discrimination Board referred to the case to the Tribunal under s93C of the Act. Mr Gyawali is seeking a written apology from Mr Peniazeff and the legal costs associated with his claim. Mr Gyawali has given Mr Peniazeff many opportunities to settle the complaint in a better and less expensive way but Mr Peniazeff refused.
For maintaining a fair and harmonious cultural status in the community, Mr Gyainwali sincerely hope that the Tribunal may uphold justice, make favourable judgment to Mr Gyawali and rectify any wrong act done by the perpetrator.
[3]
Legal principles
Section 103 of the AD Act provides:
103 TRIBUNAL MAY AMEND COMPLAINT
(1) The Tribunal may, on the application of a party to a complaint or on its own motion, at any stage in proceedings relating to the complaint, amend the complaint.
(2) A complaint may be amended to include additional complaints and anything else that was not included in the complaint as investigated by the President.
(3) An amendment may be made subject to such conditions as the Tribunal thinks fit.
The Tribunal may exercise its discretion to amend a complaint in broad terms as set out in s 103 of the AD Act. The relevant considerations to be taken into account when exercising its discretion are addressed in Thompson v Rail Corporation NSW [2008] NSWADT 329 (Thompson) and McCrystal v Commissioner of Police, New South Wales Police Force (2018) NSWCATAD 299 (McCrystal) at [10]- [12]:
In Zhang v Blinds Pty Ltd trading as Blinds by Peter Meyer [2008] NSWADTAP 24 (Zhang), an Appeal Panel of one of NCAT's predecessors, the Administrative Decisions Tribunal (ADT), considered the scope of the power conferred by s 103. The Appeal Panel rejected the proposition that s 103 only authorises the Tribunal to add complaints where these arise out of complaints that have been investigated by the President, citing the decision of the Appeal Panel in Chand v Rail Corporation of New South Wales [EOD] [2007] NSWADTAP 54 (Chand) at [37]- [38].
The Appeal Panel in Chand at [38] commented that relevant considerations when deciding whether to exercise the discretion to add a complaint are the age of the additional complaint and its relationship with the complaint that has already been referred.
In Thompson v Rail Corporation NSW [2008] NSWADT 329, after considering Zhang and Chand, I considered the factors that may be relevant to the exercise of the power to amend a complaint, at [13]:
The Act does not stipulate the matters the Tribunal should take into account when exercising its power to amend a complaint. The factors to be taken into account will vary from case to case and the weighting to be given to each a matter for the Tribunal. In addition to those factors listed in Chand, the following factors may be relevant:
• Whether the proposed amendment falls within one of the grounds for declinature available to the President (section 89B(2) and section 92(1)(a)).
• Whether the proposed amendment is futile because it seeks to pursue claims that are untenable.
• Whether the proposed amendment might obviate the need to lodge a new complaint with the President and avoid possible duplication of proceedings and additional costs.
• Whether the proposed amendment raises any issue of joinder.
• Whether the allegations contained in the proposed amendment forms part of a complaint lodged with the President that has yet to be determined or referred.
• Whether if refused/granted, any party might be prejudiced.
• Whether the party making the application is in default of previous orders.
The objects of the Civil and Administrative Act 2013 (NSW) (CAT Act) at s 3 and its guiding principle at s 36 are also relevant considerations for the Tribunal in determining whether to exercise its discretion.
Section 7 of the AD Act 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."
Section 4A of the AD Act states:
If--
(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.
Section 4 of the AD Act provides:
"race" includes colour, nationality, descent and ethnic, ethno-religious or national origin.
"services" includes--
(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,
(b) services relating to entertainment, recreation or refreshment,
(c) services relating to transport or travel,
(d) services of any profession or trade,
(e) services provided by a council or public authority,
(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.
Section 19 of the AD Act 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.
To establish a complaint of direct race discrimination under sections 7 and 19 of the AD Act, the Applicant would need to establish:
1. That the Respondent treated him less favourably, in the same or similar circumstances, than it treated, or would have treated a person who was not of his race (differential treatment); and
2. That one of the reasons for that less favourable treatment was because of his race, a characteristic that generally appertains to, or is generally imputed to persons of his particular race (causation).
To determine whether there has been differential treatment, the Tribunal must consider a 'comparator', being a person without the relevant characteristics of the aggrieved person against whom the unfavourable treatment can be compared: Purvis v New South Wales [2003] HCA 62; 217 CLR 92 (Purvis) at [222]. The comparator may be a real person, for example where it is demonstrated that the Applicant was treated differently to another person in the same circumstances, or a hypothetical person: Boehringer Ingelheim v Redropp (1984) (EDT) (NSW), No 16 of 1981, 29 October 1982, unreported; Haines v Leves (1987) 8 NSWLR 442. Where hypothetical, it is common for the issues of differential treatment and causation to be conflated: Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [63].
In addition to identifying the correct comparator, the aggrieved person's race must have had a causal effect on the decision to commit the discriminatory act, as indicated by the words "on the ground of" in s 19(a) of the AD Act. The difficulty in characterising the "ground" on which a discriminatory act occurs was referred to by Kirby J in Haines v Leves (1987) 8 NSWLR 442 (at p 76, 842):
"the words of connection 'on the grounds of' require judgment and the characterisation of conduct in terms of its causation. Most activities of life have multiple causes. The assignment of the 'grounds' of the less favourable treatment requires of the Tribunal the characterisation of the relevant causally operative factor resulting in the less favourable treatment. In some cases, where multiple possible causes for discrimination are presented, the task of characterising the 'grounds' is a difficult one which calls for judgment and discernment".
As identified in Choi v Deloitte Touche Tomatsu [2016] NSWCATAD 3043, the Tribunal is required to ascertain the "real", "genuine" or "true" reasons for the differential treatment:
"one of the reasons for the less favourable treatment the Applicant received was 'on the ground of, 'because of, and 'by reason of her disability, to use the language of the majority decision in Purvis v New South Wales ('Purvis') that she had tuberculosis. This was one of the 'real', 'genuine' or 'true' reasons for the differential treatment received by the Applicant. The Applicant was treated less favourably than a hypothetical comparator due, at least in part, to her tuberculosis".
It is the grounds or the reasons for a Respondent's action, as opposed to his or her intentions or motives for so acting, which are relevant: see Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 at [47]; Purvis at [160] and IW v City of Perth [1997] HCA 30; (1997) 71 ALJR 943 (IW) at 975 per Kirby J.
The meaning of the term 'services' has been considered by the High Court in Waters v Public Transport Corporation (1991) 173 CLR 349; [1991] HCA 49 and IW; by the NSW Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432; by the NSW Supreme Court in Director-General, Department of Community Services and Anor [2003] NSWSC 1241 and Commissioner of Police, NSW Police Service v Estate Edward John Russell & Ors [2001] NSWSC 745; by Appeal Panels of the ADT in Commissioner of Corrective Services v Dezfouli [2008] NSWADTAP 85; State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27; and by an Appeal Panel of NCAT in State of New South Wales v Whiteoak [2014] NSWCATAP 99. Whilst the term 'services' is generally given a broad meaning, as noted in IW by Kirby J at [69] - [70] it is important to identify "the relevant "services" in sufficiently concrete terms to enable the decision-maker to determine whether or not there has been the unlawful refusal to provide the "services" as alleged". This should be done with 'sufficient precision' according to McHugh J in Waters at 404-405:
What is a sufficiently precise identification of the service in one case may be too general in another. If the discrimination alleged was the refusal to allow impaired persons to travel on trams to St Kilda, it would be meaningless to identify the service provided as "the public transport system". If, however, the discrimination alleged was the refusal to allow impaired persons to travel on trams generally, "transportation of members of the public by trams" might identify the service with sufficient precision to enable the relevant issues to be resolved.
Once the services have been identified with sufficient precision, the Tribunal can then consider whether there has been a refusal of those services pursuant to s 19(a) of the AD Act, or whether the services have been provided to the Applicant on different terms to another person pursuant to s 19(b) of the AD Act. As discussed in Hussein v Sydney Trains [2020] NSWCATAD 155 at [43], this could be a matter of inference rather than of direct evidence:
To determine that issue, the Tribunal would need to consider all of the available material, make findings of fact about what occurred, and then ask on the basis of the facts found whether the conduct of the "signal operator" could amount to a refusal to provide services. This may well be a matter of inference rather than of direct evidence.
Section 20 of the AD Act states:
(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race--
(a) by refusing the person's application for accommodation,
(b) in the terms on which the person offers the person accommodation, or
(c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.
(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race--
(a) by denying the person access, or limiting the person's access, to any benefit associated with accommodation occupied by the person, or
(b) by evicting the person or subjecting the person to any other detriment.
(3) 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.
The relevant discriminatory conduct in the context of accommodation must arise between the Applicant and the Respondent in circumstances where the Respondent is either participating as principal or agent: King v Meilman East Pty Limited [2004] NSWADT 46 at [66]; Kimble & Souris v Orr [2003] NSWADT 49 at [51]. This is undisputed in these proceedings.
There is little available authority on what does or does not constitute a "benefit associated with accommodation" in the context of s 20(2)(a) of the AD Act, or what would be considered a "detriment" pursuant to s 20(2)(c) of the AD Act. In Sutherland v Tallong Park Association Incorporated [2006] NSWADT 163 this Tribunal's predecessor considered the term in the context of s 49N(2) of the AD Act referring to disability discrimination to incorporate access to a pool complex, and in Blakeley v Wattle Residential Parks Pty Ltd [2020] NSWCATAD 165 the Tribunal determined that the argument that a parking access card could be considered a benefit under s 49N(2)(a) and its withholding could amount to a detriment under s 49N(2)(c) was not untenable, for the purpose of an application to amend a complaint under s 103 of the AD Act.
[4]
Complaint amendment
The Applicant made no submissions as to how the proposed amendments differed from the original complaint, or why the Tribunal should exercise its discretion to amend the complaint pursuant to s 103 of the AD Act. The Respondent objected to the amendment application in the same terms that he objected to the substantive application.
At hearing the Tribunal sought clarification from Ms Ip for the purpose of defining the precise conduct being complained of by the Applicant with reference to the relevant provisions of the AD Act. Ms Ip was unable to provide any further detail or clarification than that included in the correspondence of 16 December 2020, and was unable to identify any evidence beyond the Applicant's statement that the Applicant had been "treated differently" to any other person, real or hypothetical. Doing the best it can in the circumstances, the Tribunal understands from the correspondence of 16 December 2020 and Ms Ip's submissions at the hearing that the references to "talent" should be understood as "tenant", and that the Applicant wishes his complaint to encompass the following allegations of fact:
1. That the Respondent through Mr Peniazeff delayed repairs to the Applicant's apartment from 2018 onwards;
2. That from 24 February 2020 to 25 March 2020 the Respondent procrastinated on work orders for the Applicant's apartment beyond a reasonable period, and constantly ignored or neglected the Applicant's requests and inquiries in relation to the apartment and the outstanding repair items;
3. That the Respondent required the Applicant to pay for repair works to a toilet which were conducted on or around 29 January 2020, which were the landlord's liability and responsibility;
4. That in an incident which happened on 25 March 2020 Mr Peniazeff used offensive, aggressive and discriminatory language, expressed hatred, and acted inappropriately and unprofessionally towards Mr Gyawali and his brother.
It is difficult for the Tribunal to identify with particularity which provisions of the AD Act are alleged to have been contravened by which specific conduct of the Respondent. Ms Ip's letter of 16 December 2020 does not assist in this task. Under the heading 's19 Provision of goods and services', Ms Ip states:
Mr Peniazeff indirectly refused to provide Mr Gyawali the services required under the rental agreement and demanded Mr Gyawali to pay fee which beyond the standard terms of the Rental Agreement. (copy of rental agreement attached)
The Tribunal could infer from that statement that the Applicant is claiming that Mr Peniazeff contravened s19 of the AD Act by the conduct identified at 24(1), 24(2), and 24(3) above.
Under the heading 's20 Accommodation' Ms Ip states:
Mr Gyawali is entitled to exclusive enjoyment of the rental apartment. The apartment itself must be in a reasonable stage of repair which allows Mr Gyawali to enjoy the benefit directly or associated with the occupation of the apartment.
The Tribunal could infer from that statement that the contravention of s 20 of the AD Act is alleged to be the Respondent's conduct in not keeping the apartment in a "reasonable stage of repair", thereby limiting his access to a benefit pursuant to s20(2)(a) of the AD Act.
However, the Tribunal was not invited to draw those inferences and there were no submissions made by the Applicant to that effect. In the circumstances, the Tribunal will adopt the approach suggested by this Tribunal's predecessor in Prakash v Bobb Borg Enterprises Pty Limited [1999] NSWADT 73 (Prakash) at [40]:
40 It appears for the purpose of the current exercise that the appropriate way forward is to consider both sections 19 and 20 of the Act and to ask whether there is any evidence to suggest that the Complainant has suffered any of the consequences set out in either section by reason of any action of the Respondent.
There was no reference made by the Applicant, Ms Ip or the ADB in any of the material to allegations of racial vilification under s 20C of the AD Act, presumably because there was no suggestion in evidence or submissions that the Respondent's conduct occurred in public.
The difference between the substance of the complaint before the ADB and the Applicant's proposed amendments is encapsulated by paragraphs 24(1) and 24(3) above. Prior to Ms Ip's letter of 16 December 2020 there had been no allegation made about intentionally delaying repair works "since 2018". The witness statements provided to the Tribunal with Ms Ip's letter included evidence from the Applicant and his brother of the Applicant's rental agreement and allegations that the Respondent failed to repair items identified in the property inspection checklist, but that issue had not been referred to in the statements filed by the Applicant in November 2020. Similarly the issue of payment for a toilet repair on 29 January 2020 was included in the Applicant's evidence filed in December 2020, but there was no reference made to this issue in November 2020.
In relation to the allegation expressed above at 24(1), there is no checklist provided as documentary evidence or reproduced in the Applicant's statement, and there is no evidence provided of any communications with Mr Peniazeff or the Respondent in relation to the checklist or requests for repairs. The only evidence beyond vague assertion is page 11 of the Applicant's rental agreement containing the signatures of Mr Peniazeff as landlord/agent, and the Applicant as a joint tenant with someone named 'Shudhansu Shrestha', which is dated 17 August 2019. Taking the Applicant's evidence at its highest by accepting the unsupported assertion that Mr Peniazeff failed to conduct repairs to items identified in the property inspection checklist, there is no evidence filed or referred to by the Applicant, or even an assertion made, which could support a finding that these failures were in any way causally connected to the Applicant's race, or a characteristic or attribute of his race, or that the Respondent had treated any other tenant differently, at all.
In relation to the allegation expressed above at 24(3), there was no dispute that the Applicant had asked the Respondent to have the apartment's toilet repaired, that the plumber who had conducted the repairs had issued an invoice for $136.40 to the Respondent for the repair on 29 January 2020, and that the Respondent had then forwarded the invoice to the Applicant for payment. The invoice contained the following description:
Called to investigate leaking toilet:
-Upon arrival removed the cistern lid and found 2 tubes of toothpaste n the cistern.
-Removed toothpaste and replaced cistern outlet valve washer.
-Adjusted flush button height to allow for a more thorough flush.
-Flushed toilet repeatedly to check for leaks and functionality with no further issues detected.
Mr Peniazeff gave oral evidence that he had forwarded the invoice to the Applicant as the tenant for payment because the invoice identified that the issue had been caused by the tenants putting toothpaste into the toilet cistern. His evidence of why he had forwarded the invoice was undisputed, with the Applicant's submissions focused on whether he should be liable for the repair costs. The Tribunal therefore accepts Mr Peniazeff's evidence.
There was no submission or suggestion by the Applicant that the Respondent would have treated or had treated any other tenant differently. The Tribunal questioned Ms Ip in relation to whether any evidence demonstrating or inferring the causal link between the conduct and the Applicant's race would be forthcoming, pursuant to ss 38(2) and 38(6) of the CAT Act but was told that there was no other evidence relied on.
Applying the factors referred to in Thompson and McCrystal, significant weight should be given to the consideration that the proposed amendments are futile because they seek to pursue claims that are untenable. The untenability of the claims is so great as to overshadow any of the other considerations referred to, including prejudice to the Applicant. The amendment application is therefore dismissed.
[5]
Repair delays 24 February 2020 - 25 March 2020
The Applicant's first complaint for determination by this Tribunal is whether the Respondent discriminated against the Applicant between 24 February 2020 and 25 March 2020 by procrastinating on work orders for the Applicant's apartment beyond a reasonable period, and constantly ignoring or neglecting the Applicant's requests and inquiries in relation to the apartment and the outstanding repair items.
The Applicant's evidence was to the following effect:
1. he had first identified items for repair in the property inspection checklist when he had first moved into the apartment in August 2019;
2. on 24 February 2020 he sent messages to the Respondent to request that the repairs be carried out but received no response;
3. Between 24 February 2020 and 24 March 2020 he contacted the Respondent on several occasions to request that repairs be carried out to a door handle to the second bedroom in the apartment, but claims he was ignored by Mr Peniazeff.
4. On 24 March 2020 he got locked inside the bedroom due to the faulty door handle and lock.
5. On 25 March 2020 he sent the Respondent another message in relation to the door handle repair and Mr Peniazeff attended the apartment on that day to conduct the repair work.
The Applicant stated "the Respondent ignored those personal requests for repair and did not reply to my phone messages… He treated us less favourably then other local Australian."
In his second statement the Applicant clarified:
I texted them about the issue on 24th feb 2020 but there was no response from them so couple of time I spoken to Nicholas Peniazeff personally and told about the issues but door lock was not fixed again I texted Nicholas on 25th March 2020 and I asked how long do I have to wait to fix simple door lock then he replied back and asked if i am home or not.
The Applicant did not provide any evidence to support the assertions in his statements, such as a copy of the property inspection checklist identifying the items for repair, copies of the text messages sent to the Respondent or Mr Peniazeff, or call logs. Such evidence would have been readily available to the Applicant. Nevertheless we accept the Applicant's evidence to the extent that it is not controversial. Specifically, we accept that the Applicant had identified the door handle as requiring repair by 24 February 2020 and that this was not completed until 25 March 2020. We also accept that he tried to make contact with Mr Peniazeff between 24 February 2020 and 24 March 2020 to chase up the repairs but he did not receive a satisfactory response, if at all. We accept that the Applicant became locked into the bedroom as a result of the faulty door handle on 24 March 2020 and that when he notified this to the Respondent, Mr Peniazeff made arrangements to attend the apartment the following day to repair the door handle.
Mr Peniazeff gave evidence to the effect that he had been notified of the faulty door handle. He said that the Applicant had made "incessant phone calls late at night" to him, and he had attempted to arrange for a tradesman to attend the Applicant's apartment to fix the door handle but was unable to find someone available to do it, because tradesman availability became limited around that time due to the Coronavirus Pandemic which was declared on 11 March 2020. The door handle repair was considered by him to be a "small job", and because it was an internal door he considered that it was low priority and not an urgent repair, especially in the context of a large apartment building in which the Respondent managed approximately 60 apartments.
Under cross examination Mr Peniazeff gave evidence to the effect that one month was a normal response time for a repair and that during the Pandemic response time had increased greatly because he couldn't find available tradesmen. He said that his "mobile phone is never off" because he works "24/7 as a Building Manager" and that he "answers everything that comes in". He conceded that it may be true that he didn't answer everything, because sometimes he couldn't answer or respond quickly.
In cross examination of the Applicant, Mr Peniazeff put to him:
How do you know that I treat other residents differently to you and your brother?
People are always complaining.
Maybe I treat everyone bad?
We accept Mr Peniazeff's evidence as being largely uncontradicted by the Applicant, and having made concessions where appropriate. We find on the balance of probabilities that Mr Peniazeff did not respond immediately to every request or inquiry likely made of him by the Applicant.
We accept the Respondent's evidence and submissions that the onset of the global coronavirus pandemic in early March 2020 impacted on the availability of tradesmen to conduct repairs, especially in circumstances where those repairs were not urgent. We find that it is likely that the Respondent, through Mr Peniazeff, did not consider the request for repair made by the Applicant in relation to an internal door "urgent" in the circumstances, until the Applicant informed the Respondent that he had been locked in the bedroom overnight on 24 March 2020. Once notified, we find that the Respondent immediately arranged the repair.
Taking into consideration the authorities discussed above, in the circumstances of Mr Peniazeff being either the Building Manager for the Applicant's apartment or the Respondent being its managing agent and thereby the Applicant's landlord, we find that the provision of repairs to the Applicant's rented apartment by the Respondent would fall within the definition of "provision of services" under s 19 of the AD Act.
With reference to s 20(2) of the AD Act, we consider that the conduct of repairs by a managing agent or landlord to rental apartments could be considered a "benefit" pursuant to s 20(2)(a) and the delay in providing those repairs could be considered as limiting the Applicant's access to that benefit. We consider that the delay, refusal or failure to provide those repairs could constitute "any other detriment" pursuant to s 20(2)(b) of the AD Act. We find that there was no refusal or failure by the Respondent to conduct the repairs, but it is arguable there was a delay which may constitute a detriment pursuant to s20(2)(b) of the AD Act.
There has been no specific comparator identified by the Applicant and so the Tribunal must refer to a hypothetical comparator. The Applicant's race, being Nepalese, and the characteristics of his race, being dark skin and having accented speech, are not in dispute. The Tribunal finds that the comparator in these proceedings would be a tenant requiring repairs to his apartment in late February/ March 2020, who was not Nepalese, or did not have dark skin or an accent.
On the evidence before the Tribunal, which included inquiries of the Applicant's representative as to whether additional evidence may be obtainable, the Tribunal has no basis to find that there was any differential treatment of the Applicant. There is also no basis on which the Tribunal could find that the Respondent treated the Applicant in the manner it did - by Mr Peniazeff not responding immediately to messages about repairs, and by not repairing the faulty door handle for a number of weeks - because the Applicant was Nepalese, or because he had dark skin, or because he had an accent. This complaint is therefore dismissed.
[6]
Incident of 25 March 2020
The Applicant's second complaint for determination by the Tribunal consists of what Mr Peniazeff said on 25 March 2020 when he attended the Applicant's apartment to conduct the repair of the faulty door handle. Ms Ip characterised this as "offensive, aggressive and discriminatory language", "expressed hatred", and "acted inappropriately and unprofessionally towards Mr Gyawali and his brother". The evidence does not support this characterisation of the conduct.
The Applicant described his complaint to the Tribunal as follows:
I texted Nicholas on 25th March 2020 and I asked how long do I have to wait to fix simple door lock then he replied back and asked if i am home or not. After 10 to 15 mins he came to our unit and he was so aggressive start talking rudely saying you guys always complain then he used couple of offensive language in front of my family, my brother was next to me. which I was not expecting from him, within a 5 to 10 min he fixed the door lock then he rudely said people in India are all like you guys always complaining, on reply I said you cannot say like that to us then he said this is free country he can talk whatever and however he likes then he left, though I am not from India but we Nepalese and Indian people look similar he thought I was from India and made comment towards someone's race and nationality which left me so disappointed.
In his second statement the Applicant clarified:
On 25 March 2020, Peniazeff finally replied to my messages and told me that he would be coming to fix the door handle. When he came, my brother was present in the apartment. Peniazeff did not request us to wear face mask but
we kept a distance of at least 1.5 metre between one another. We just stood there in a safe distance and observed how Peniazeff fixed the door handle without saying a word to disturb him. We could all see and feel that Peniazeff
was very reluctant in coming as his facial expression and what he said to us proved what we observed was right. Peniazeff spoke to us using aggressive and offensive language while he was fixing the door handle. He was very rude not only rising his voice but the tone as well. We was shocked of his behaviour and attitude towards us even we did not do anything but stood there watching him.
Peniazeff said words in the meaning of: 'People in India are all like you guys!'
in a very rude tone and manner. Both myself and my brother could see his
facial expression and how he despised about us because we are from India.
I replied to him with words in the meaning of 'You cannot say like that to us'
Peniazeff continued to say words in the meaning of 'This is a free country, I can talk whatever I like.'
He gave us a disdainful look before he left after fixing the door handle. He
seen to scorn us because of our race and our skin colour even we did not do or say anything agitated him. I did not even have a chance to tell him that he was mistaken as my brother and I are Nepalese not India.
The Applicant provided the following explanation for why he believed Mr Peniazeff was being discriminatory towards him:
I started to question myself whether Peniazeff treats all the tenants the same way or treated me differently. I discussed my experience with my neighbour downstair who comes from the same country. My neighbour told me that he
had the same experience and wondered if he was treated differently because of his race.
I recalled I heard Peniazeff complained about his other customers and he said
"some people always complain, assholes, bastard' in front of my brother and
me.
The Applicant's brother, Sabin Gyawali, was present at the time of Mr Peniazeff's attendance at the Applicant's apartment. His evidence was largely consistent with the Applicant's, with some additional detail:
On 25 March 2020 afternoon, while we were watching TV, the real estate agent, Mr Nicholas Penaizeff (Nicholas) came with a toolbox. As soon as he entered the unit, he stared at us and started using offensive language when he spoke to us. At that moment, I was shocked and didn't know how to react. I felt a bit scared even it was not the first time I saw him. Then Nabin showed him which door handle and lock needed repair. Nicholas started fixing but he was struggling with the lock. I understand he is just a real estate agent and not a qualified handyman. I thought I should help him but I need to comply with the social distancing rules during the Covid 19 situation. Both myself and Nabin clearly maintained our distance with him while Nicholas was repairing the door handle and lock.
After Nicholas finished the fixing, Nicholas said to us 'All people from India are like you guys always complaining.' In a despising tone of voice. At that moment, we were both shocked again, I replied to Nicholas 'We are not Indian, we are Nepalese.' Nabin said to Nicholas 'You can't say like that.' Nicholas replied 'Australia a free country you can say anything you like.'
In oral evidence Mr Peniazeff claimed that he didn't swear or use any derogatory language when he attended the Applicant's apartment. He conceded that he had been frustrated at having to conduct the repairs himself, after failing to find a tradesman willing to do it, and the incessant phone calls from the Applicant. He freely admitted that he made statements about the Applicant's assumed race, stating words to the effect of "You must be from India?" and "Is everyone from India so fussy, so demanding?" He said that after he had made that comment, which was "not meant to be offensive", that the Applicant had been aggressive towards him, stating "I pay rent, I demand service". He said that he "felt really uncomfortable", that he had been "exposed to unnecessary risk" in the context of the Coronavirus pandemic, where he was at high risk due to his mature age. He complained that the Applicant and his brother had not kept a safe distance. Under cross examination Mr Peniazeff stated that there were "very few Australians in the building. Eighty five percent are migrants from India, Nepalese, Chinese, Korean, Middle East". He said that he always asked the tenants where they are from, and that he didn't mean to be offensive, but that the Applicant "made a choice to be offended".
Mr Peniazeff submitted that there was nothing offensive about his comments towards the Applicant because Nepal was part of the Indian subcontinent, so all people living on that continent could be considered Indians. He had not intended to offend the Applicant and considered that "no one discussed race".
On the basis of the evidence before us, on the balance of probabilities, we find that Mr Peniazeff did make comments to the Applicant to the effect that "Indians are fussy and demanding" and / or that "Indians are always complaining", and that these comments were directed at the Applicant on the basis of his skin colour and accented speech. We find that Mr Peniazeff erroneously assumed the Applicant was Indian because of those same racial characteristics. On balance we find that Mr Peniazeff did not question the Applicant in words to the effect of "You must be from India?", but did make that assumption.
The comments "Indians are fussy and demanding" and "Indians are always complaining" were objectively offensive and were inappropriate. Mr Peniazeff's intention in making the comments is irrelevant in the circumstances. There is no evidence to support a finding that Mr Peniazeff acted aggressively towards the Applicant, or that he expressed hatred towards the Applicant.
In considering whether Mr Peniazeff's comments contravened s 19 of the AD Act, it is uncontroversial that the services - in these circumstances, the repair of a broken door handle in the Applicant's apartment by the managing agent / landlord - were not refused, so a contravention pursuant to s 19(a) of the AD Act on the basis of Mr Peniazeff's comments and conduct towards the Applicant on 25 March 2020 is not found.
Section 19(b) of the AD Act provides:
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.
Previously, s 19(b) of the AD Act stated:
19. It is unlawful for a person who provides, for payment or not, goods or services to the public or a section of the public to discriminate against another person on the ground of race -
(a) by refusing to provide the person with those goods or services; or
(b) by refusing to provide the person with goods or services -
(i) of the likely quality; or
(ii) in the like manner: or
(iii) on the like terms,
as are normally provided by the firstmentioned person to the public, or where the person requesting those goods or services belongs to a section of the public, to that section.
When considering that previous version of s 19 of the AD Act in Prakash in the context of a discrimination complaint alleging racial abuse in the context of accommodation, the Tribunal stated (emphasis added):
41 There is nothing in the evidence before the Tribunal to suggest that the Complainant suffered any of the consequences set out in sections 19(a), 19(b)(i), 20(1) or 20(2)(a). The relevant provisions would appear to be sections 19(b)(ii) and (iii) and that part of section 20(2)(b) which refers to "any other detriment". There is considerable overlap between these provisions for refusing to provide the Complainant with services "in the like manner" or "on the like terms" as are normally provided to the public (or a section of it) would seem to encompass much of what falls within subjecting the Complainant "to any other detriment" in the context of the provision of accommodation.
42 The relevant areas of activity in this case would appear to be providing services generally, or the services associated with the provision of accommodation. The Complainant alleges that he was subjected to abuse which was racially based. There is no doubt that he was abused and that some of the abusive comments contained a racial element. There is also no doubt that an argument commenced between the Complainant and Mr Curry, in a climate free from racial abuse, about the rent to be paid by the Complainant. The Complainant does not assert that there was any racial element in the disagreement about the rent. The racially based abuse took place once the argument was well underway.
43 Thus if we turn to the first question posed in paragraph 38 it is difficult to conclude that the Complainant has suffered any of the consequences in the relevant areas of activity governed by the Act, which we have identified as being sections 19(b)(ii) and (iii) and 20(2)(b). The Complainant was a participant in an argument during the course of which he was abused. That does not appear to constitute a failure to provide him with services in the like manner or on the like terms as are normally provided to the public, or to subject him to any other detriment in the context of the provision of accommodation. On his own evidence he was a willing participant in an argument which degenerated into a slanging match with both parties directing abuse at each other.
44 Had the abuse been gratuitous, or had the abuse taken place outside of the particular argument between these two men, then racially based abuse by a real estate agent to a client may well constitute one of the adverse consequences governed by the Act. In the fields of employment and the provision of educational services there are a number of cases in which racially based abuse has been held to constitute unlawful discrimination (see e.g. Ardeshirian v Robe River Iron Associates (1990) EOC 92- 299; Metwally v University of Wollongong (1984) EOC 92-030; Rugema v Gadsten Pty Ltd and Derkes [1997] HREOCA 34. Also there are cases in which racially based abuse has been held to fall outside the Act (see e.g. Hume v Mulheron [1996] NSWEOT; Gomez v Burgmann Seals Australia Pty Limited [1997] NSWEOT).
45 These cases well illustrate that it is not possible to make broad statements about the unlawful nature, or otherwise, of racially based abuse. In each case it will be necessary to determine whether the abuse caused the Complainant to suffer any of the adverse consequences in the areas of activity governed by the Act.
The comments made by Mr Peniazeff to the Applicant and the circumstances in these proceedings are not strictly analogous to those discussed in Prakash. Nevertheless, the comments made by Mr Peniazeff are objectively offensive, in that they verbalise unfavourable stereotypical attributes to a particular race. It is undisputed that the comments were directed at the Applicant because of the colour of his skin and his accent, irrespective of Mr Peniazeff referring to "Indians" when the Applicant is Nepalese.
The question is whether the comments have caused the Applicant to suffer the particular adverse consequences in the areas of activity governed by the AD Act. There was no evidence or inference submitted of any adverse consequences in "the terms on which" goods or services were provided to him by the Respondent, the evidence being that repair services were provided to all tenants without differentiation. Whilst there may have been adverse consequences in the manner in which those services were provided, "the manner in which services are provided" is no longer part of s 19 of the AD Act. As noted in Malouf v NSW Department of Communities and Justice [2021] NSWCATAD 69 at [25] in relation to s 49M of the AD Act, which is an analogous provision regarding disability discrimination:
Terms are the conditions on which the service will be performed; they are not part of the manner of actual performance (Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]). Section 49M does not extend to the performance of the service.
Even if the offensive comments were to be considered "the terms on which" the repair services were provided, the evidence supports the Tribunal finding that there was no differential treatment of the Applicant by Mr Peniazeff. The Tribunal accepts Mr Peniazeff's evidence to the effect that he generally engages in conversation with tenants in relation to their heritage and race and that he was extremely stressed on the day because of his fears in relation to his vulnerability to COVID-19. The Tribunal finds that it is likely the Applicant would have made offensive comments to any tenant in those circumstances, irrespective of race or characteristics of their race. Accordingly, a contravention of s 19(b) of the AD Act on the basis of Mr Peniazeff's comments and conduct towards the Applicant on 25 March 2020 is not found.
The Applicant did not articulate any basis upon which the offensive comments made by Mr Peniazeff on 25 March 2020 amounted to a detriment as referred to in s 20(2)(c) of the Act. Even if the Tribunal were to formulate that complaint in the absence of any such particularisation by the Applicant's representatives, there is no evidence to support a finding or even an inference that the Applicant was treated any less favourably than any other tenant in similar circumstances, or specifically that Mr Peniazeff would not make offensive comments to a tenant who was not Nepalese, or who did not have dark coloured skin or accented speech. Accordingly, a contravention pursuant to s20(2)(c) of the AD Act on the basis of Mr Peniazeff's comments and conduct towards the Applicant on 25 March 2020 is not found.
[7]
Conclusion
Having found that the complaints do not establish any contraventions of s 19 or s 20 of the AD Act, the correct and preferable decision is for the Tribunal to dismiss the Applicant's complaints pursuant to s 108 of the AD Act.
[8]
Orders
1. The Applicant's complaints against the Respondent are dismissed.
[9]
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: 26 May 2021