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[2014] NSWCATAD 6
NCAT Administrative and Equal Opportunity
2013-08-14
Original judgment source is linked above.
Introduction 1Mr Guo owns a house in Hurstville which he rents to several individuals on a room by room basis. On 22 August 2012 Mr Kyriakou and Mr Guo signed a handwritten lease for Mr Kyriakou to rent a room in the house. The term of the lease was six months from 26 August 2012. 2Mr Kyriakou, who is originally from Greece, complains that Mr Guo discriminated against him on the ground of his race by: (1)accepting and acting on complaints about him from Chinese tenants when those complaints were not justified; (2)writing to him on 15 October 2012, asking him to leave by 17 November 2012 because Council was only allowing him to have four people remain as tenants; (3)accepting and acting on further complaints from Chinese tenants after Mr Kyriakou responded to Mr Guo's letter of 15 October 2012; (4)writing to him on 24 October 2012 threatening legal action if he did not vacate the room by 7 November 2012 and serving him with a Notice to Terminate Tenancy Agreement on the same day. 3The President of the Anti-Discrimination Board (ADB) declined Mr Kyriakou's complaint as lacking in substance: Anti-Discrimination Act 1977 (AD Act), 92(1)(a)(i). Mr Kyriakou is required to obtain leave from the Tribunal before the complaint can proceed: AD Act, s 96. 4The Court of Appeal set out the principles to be applied by the Tribunal in determining whether to grant leave in Jones v Ekermawi [2009] NSWCA 388. The Tribunal has a discretion to grant or refuse permission for a complaint to go ahead. That discretion is to be guided by what is fair and just in the circumstances of each case. The onus is on the applicant to persuade the Tribunal that leave should be granted. 5The President gave the following reasons for declining the complaint: (a) The complainant has failed to provide any evidence that he was treated less favorably in terms of his tenancy on the basis of race other than mere assertion. (b) The complainant has provided only unsupported conjecture as to his race being the reason why his lease was terminated. (c) Information provided by both parties supports the respondent's reasons for its actions and do not equate with discrimination. 6Mr Kyriakou suspects that the President of the Anti-Discrimination Board declined his complaint because he insisted on providing a 105 page response to Mr Guo's submission. He draws that inference because an officer from the Anti-Discrimination Board expressed concern when he said that he intended to provide a 105 page response. When providing his response, Mr Kyriakou said in an email to the ADB dated 24 April 2012 that he felt it necessary to provide a lengthy response because he may be criticised if he did not provide detailed information in support of his complaint. 7It is not the Tribunal's role to review the President's decision and determine whether it was influenced by any irrelevant considerations such as the length of a response. Rather, the Tribunal must assess the merits of Mr Kyriakou's complaint and determine whether it is fair and just for it to proceed.
The alleged conduct 8The house owned by Mr Guo has three levels with a granny flat on the lowest level. There are three shared bathrooms and, at the time that Mr Kyriakou took up residence, two shared kitchens. 9In summary, the conduct about which Mr Kyriakou complains is that: (a) Mr Guo passed on complaints that other tenants had made about Mr Kyriakou including that he: (1) did not flush the toilet after use; (2) parked his car in a manner "obstructing the Chinese persons from entering or leaving the premises"; (3) used the shower or bathroom after 11:00pm and this "caused a disturbance to some of his Chinese tenants" even though Chinese tenants were allowed to shower after that time; and (4) left all his kitchen items on the dining table "obstructing the other Chinese persons from using the dining table". (b) terminated the lease early; (c) accused him of trying to "break into the room of a Chinese girl with a view to bringing harm" to the girl and then issued a further Termination Notice based on this incident; (d) refused him permission to use a second kitchen or store equipment in the kitchen he was allowed to use.
Relevant legislation 10To substantiate his complaint, Mr Kyriakou would have to prove that Mr Guo has breached s 20 of the AD Act. Mr Kyriakou appears to be relying on s 20(2)(a) and (b): (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. 11Section 4 defines "race" to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Mr Kyriakou is Greek. There is no dispute that his race comes within the definition in s 4 of the AD Act. 12Race discrimination is defined in s 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, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator: (a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race, or (b) 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 such 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. 13I understand Mr Kyriakou to be relying only on direct race discrimination as defined in s 7(1)(a). 14In order to substantiate his complaint, Mr Kyriakou would have to prove that: (1)Mr Guo denied him access, or limited his access to a benefit associated with the accommodation, evicted him or subjected him to "any other detriment"; (2)the treatment was less favourable compared to how Mr Guo would have treated a person of a different race in circumstances which are the same or not materially different; and (3)the treatment was "on the ground of" his race.
Denied or limited access to a benefit and/or subjected to a detriment/evicted 15Mr Guo agrees that he evicted Mr Kyriakou but says that he did not deny him access to any benefits associated with the accommodation or subject him to any other detriment. Mr Kyriakou has alleged that Mr Guo did so. In particular he says that he accepted and acted on complaints from other tenants which were not justified. Whether that conduct, if proved, constitutes denying Mr Kyriakou access to any benefit or subjecting him to a detriment is a matter for the Tribunal if the complaint goes ahead. Any doubt about that issue does not justify refusing leave for the complaint to proceed.
Discrimination? 16If Mr Kyriakou were able to establish that Mr Guo's conduct comes within s 20(2)(a) and (b) he would have to go on to prove that the treatment was less favourable compared to how Mr Guo would have treated a person of a different race in circumstances which are the same or not materially different. This aspect of discrimination is sometimes called the differential treatment test. He must also prove that the treatment was on the ground of his race. This aspect of discrimination is sometimes called "causation". 17The President's Report and the parties' submissions contain allegations, assertions and submissions about several matters including the use of the bathroom and the driveway, storing equipment in the kitchen and the termination of the lease. Information has also been provided about matters which may or may not be relevant including Mr Kyriakou's behaviour after the lease was terminated, an application by Mr Guo for an Apprehended Violence Order against Mr Kyriakou and a decision of the Consumer Trader and Tenancy Tribunal, as it then was, in relation to the lease. The parties' versions of events differ significantly in many respects. 18There is no direct evidence that Mr Guo treated Mr Kyriakou differently from other tenants because of his race. The only way Mr Kyriakou can establish that connection is by identifying other primary facts which would allow the Tribunal to draw an inference to that effect. An inference must be logical,Sophiecat01 19 reasonable and establish a "probable connection" with race. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70]. 20According to Mr Guo, both Chinese and non-Chinese tenants complained about Mr Kyriakou's behaviour. Following those complaints, Mr Guo asked Mr Kyriakou to change his behaviour. Mr Kyriakou does not consider these complaints to have been justified. When Mr Guo served the initial termination notice he says that two other tenants of Chinese descent were also given notice. Mr Kyriakou disputes that assertion. Mr Guo explained his reasons for sending the final termination notice on 24 October 2012 by saying that he received a complaint from another tenant who said that Mr Kyriakou had used insulting language and tried to get into her room that morning. Again Mr Kyriakou disputes at least part of that assertion. Mr Guo also alleges that Mr Kyriakou swore at him and threatened him after he received the termination notice. 21Because of the animosity between Mr Guo and Mr Kyriakou and the seriousness of the allegations that they have made against one another, the merits of Mr Kyriakou's complaint cannot easily be assessed. There is a difference of view as to whether there is a relevant comparator for the purposes of the differential treatment part of the test for discrimination and whether an inference can be drawn that race was a reason for the treatment. Until the Tribunal determines who is the more credible witness and makes relevant factual findings those matters cannot be easily resolved. 22In those circumstances it is not fair or just to refuse leave. Given the extent of the factual dispute, Mr Kyriakou should not be denied an opportunity to prove his case. But both parties should be aware that while the general rule is that each party pays his or her own legal costs, the Tribunal may order one party to pay the other party's costs if it is fair to do so. Two factors that may be taken into account are whether either party has made a claim which has no tenable basis in fact or law or has attempted to deceive the other party or the Tribunal: Administrative Decisions Tribunal Act 1997, s 88.
Order
Kyriakou
Guo