Pham v Jones & Anor

Pham v Jones & Anor - [2012] VCAT 1161 - VCAT 2012 case summary — Zoe

[27]

Mr Pham claims that Mr Rachele and Ms Jones have breached the Equal Opportunity Act 2010 (the EO Act) by engaging in unlawful discrimination.
Mr Pham's application alleges that Ms Jones and Mr Rachele engaged in discrimination based on Mr Pham's race, physical features and employment activity in the areas of accommodation and provision of goods and services. He also alleges that Ms Jones and Mr Rachele authorised or assisted discrimination. The application does not distinguish between Mr Pham's claims against Ms Jones and his claims against Mr Rachele.
The particulars of Mr Pham's claim are set out in the application under the heading "What happened?" and in a document headed "submission of Le Tuan Pham".
Under the heading "What happened?", Mr Pham claims that Ms Jones refused to accept a document being served on McLennan and then dropped the document on the floor as if to say "pick it up Nigger".
In relation to Mr Rachele, Mr Pham claims that he:
- (a) Perverted VCAT orders in order to elicit more money from Mr Pham's landlady.
- (b) Colluded to engage in wilful and unlawful damage of Mr Pham's property and belongings.
- (c) Colluded to act unconscionably to cause damage to Mr Pham's health and cause Mr Pham injuries.
- (d) Engaged in verbal harassment, swearing and abuse.
- (e) Lied to VCAT.
- (f) Said to Mr Pham "I never seen a Gook like you".
Mr Pham also stated in his application that his health had been affected, his property had been lost and damaged and that he was seeking an order that Mr Rachele place a written apology on the front of his office. Mr Pham agreed during the hearing that any claim for compensation would not be dealt with until the Tribunal had made its decision in relation to whether or not Mr Rachele and Ms Jones had breached the EO Act.
The document headed "submission of Le Tuan Pham" (Mr Pham's submission) contains additional claims against Ms Jones and Mr Rachele and distinguishes between Mr Pham's claims against Ms Jones and his claims against Mr Rachele.
Paragraphs 1 and 8 of Mr Pham's submission allege that Ms Jones vilified Mr Pham and engaged in indirect discrimination based on his race and gender.
Paragraph 47 of Mr Pham's submission alleges Mr Rachele engaged in indirect discrimination based on his race and because he was unemployed.
He also made other allegations in relation to racial profiling, breaches of the Estate Agents Act 2010 and breaches of duty of care. The Tribunal has no jurisdiction to hear these claims under the EO Act.

[35]

Whilst Mr Pham's particulars of claim describe his claims against Ms Jones and Mr Rachele as indirect discrimination, it appears that he only did so because he claims that they discriminated against him in an "indirect" manner. That is, in the case of Ms Jones, Mr Pham alleges that she discriminated against him by throwing the VCAT application on the floor as if to say "pick it up nigger" but that she did not say those words directly to him. Similarly, most of Mr Pham's allegations against Mr Rachele can be described as "indirect" because he is alleged to have said and done things that on their face were not discriminatory but were done because of Mr Pham's race or physical appearance.
As stated in paragraph 17 above, direct discrimination occurs if a person treats, or proposes to treat, a person with one or more of the attributes referred to in section 6 of the EO Act unfavourably because of that attribute[6] in one or more of the areas of activity set out in Part 4 of the Act. Where the tribunal makes a finding that a person has discriminated against another person, it is often because of an inference drawn by the Tribunal in relation to the reason for the treatment rather than because of a direct statement made.
I consider that Mr Pham's claims against Ms Jones and Mr Rachele should be characterised as allegations of direct discrimination. That is, Mr Pham has claimed that Ms Jones and Mr Rachele treated him unfavourably because of his race, physical appearance, employment activity or gender.
Whilst Mr Pham has not claimed that Ms Jones and Mr Rachele engaged in direct discrimination in his particulars, he did so in his application. In addition, Mr Pham is a litigant in person and the Tribunal is obligated to assist him by endeavouring to ascertain the true legal character of the claims made and by assisting him to identify relevant legal issues.[7]
For these reasons, it is appropriate to consider whether Ms Jones and Mr Rachele engaged in direct discrimination.

[37]

A threshold question to be determined is whether Ms Jones and Mr Rachele were providing goods or services or accommodation to Mr Pham.
Mr Pham did not provide the Tribunal with any particulars or any evidence in relation to his claim that Ms Jones and Mr Rachele were providing him with goods or services or accommodation. However, as stated in paragraph 4 above, this claim arises out of Mr Pham's dealings with Mr Rachele and Ms Jones whilst he was living at the rented room and after he had been evicted from the rented room.
The EO Act provides that a person must not discriminate against another person by refusing to provide them with goods or services, in the terms on which goods or services are provided or by subjecting the other person to any other detriment in connection with the provision of goods or services[8].
Similarly, a person must not discriminate against another person by varying the terms on which accommodation is provided to the other person, by denying or limiting access by the other person to any benefit associated with the accommodation, by evicting the other person from the accommodation, by refusing to extend or renew the provision of accommodation to the other person, in the terms on which the provision of accommodation to the other person is extended or renewed or by subjecting the other person to any other detriment in connection with the provision of accommodation to that person[9].
There is no doubt that Mr Pham's landlord, Ms Nguyen was providing accommodation to Mr Pham. However, Mr Pham has not made any claim against Ms Nguyen.
As stated in paragraph 2 above, around early August 2011, Ms Nguyen appointed McLennan to act on her behalf. Ms Jones and Mr Rachele are both employees of McLennan.
Section 109 of the EO Act provides that a person may make an application against an employee or agent if that person in the course of employment or while acting as an agent discriminates against another person in one of the areas identified by the EO Act (such as provision of good or services and accommodation) or engages in any conduct that would, if engaged in by the person's employer or principal would discriminate against another person in one of the areas identified by the EO Act.
Accordingly, Mr Pham is able to make a claim against Ms Jones and Mr Rachele if they are employees or agents of Ms Nguyen and in the course of their employment or while acting as agents they discriminated against Mr Pham or if they engaged in conduct that, if engaged in by Ms Nguyen, would discriminate against Mr Pham in the provision of goods or services or accommodation.
I am satisfied that Ms Jones and Mr Rachele, as employees of Ms Nguyen's real estate agency, were acting as agents for Ms Nguyen during the time that they were dealing with Mr Pham. I am also satisfied that Mr Pham's claims against Ms Jones and Mr Rachele can be characterised as claims that they discriminated against Mr Pham in relation to his accommodation and claims that they engaged in conduct that, if engaged in by Ms Nguyen, would discriminate against Mr Pham in the provision of accommodation.
The provision of accommodation is also the provision of a service and presumably, this is the service Mr Pham is referring to in his application. I shall therefore proceed on the basis that Mr Pham's claim that Ms Jones and Mr Rachele discriminated against him in the area of provision of goods and services is identical to the claim that Ms Jones and Mr Rachele discriminated against Mr Pham in the area of accommodation.

[60]

Mr Rachele admitted making an application for a possession order on behalf of Ms Nguyen on 9 September 2011 after he had agreed to allow Mr Pham to reside at the rented room until 30 September 2011[10]. He explained that he did so because the application made on 9 September 2011 related to the Dandenong council's building order dated 15 July 2011 which required Ms Nguyen to "cease occupation and use of garage as a habitable room" whilst the consent order related to rent arrears. He also gave evidence that he made the application in order to comply with the Dandenong council's building order.
I accept Mr Rachele's evidence that he made the application on 9 September 2011 in order to comply with the Dandenong council's building order. This is consistent with the contents of the notice to vacate that was served on 10 August 2011 and which states that the reason for the notice was that the premises had been found to be unfit for human habitation and that under section 110 of the Building Act 1993 a person must not occupy a building in contravention of a current occupancy permit. I also accept Mr Rachele's evidence that he believed he was not breaching the consent order when he made the application because the subject matter of the proceedings were different. Mr Rachele's explanation for why he made the application is also consistent with the Tribunal's finding that the rented room was unfit for human habitation and the possession order made on 15 November 2011 (see R2011/35492 in paragraph 3 above).
Mr Rachele denied that any of his actions were racially motivated. He told the Tribunal that his job was to help people and that he never wishes to evict anyone. He gave evidence that had Mr Pham paid his rent regularly, Ms Nguyen would not have instructed him to make any applications for possession orders based on rent arrears. He also gave evidence that in his opinion, Mr Pham should have vacated his room in accordance with the notice of the City of Greater Dandenong that required Ms Nguyen to "cease occupation and use of garage as a habitable room". Mr Rachele also told the Tribunal that he had offered to find alternative accommodation for Mr Pham but that Mr Pham had not asked him to do so.
Mr Rachele has provided a cogent alternative explanation, which, whilst manifestly unpalatable to Mr Pham, is a more probable explanation than the version proffered by him. As stated in paragraph 62 above, I accept Mr Rachele's evidence that he considered that he was obligated to make the application on 9 September 2011 in order to comply with the Dandenong council's building order dated 15 July 2012 and that he believed he was not breaching the consent order when he made the application because the subject matter of the proceedings were different. I accept that explanation.
In any event, section 75 of the EO Act provides that a person may discriminate if the discrimination is necessary to comply with, or is authorised by, a provision of an act or enactment, other than an enactment under the EO Act. I consider section 75 to be a complete defence to any claim made by Mr Pham in relation to the application for the possession order on 1 September 2011. Ms Nguyen was required to comply with the Building Act 1993 and Mr Rachele, acting as her agent, applied for the possession order to achieve this. Essentially, Mr Rachele was just doing his job as required under the Building Act 1993 and by following the relevant section of the RTA.

[76]

Mr Pham gave evidence that the only reason Mr Rachele could have had for challenging the medical certificate that Mr Pham gave the CAV inspector in support of his request for additional time to remove his belongings from the room was that the doctor who wrote it was Asian.
Mr Rachele denied having challenged the medical certificate. However, he admitted that he had remarked that it appeared that the medical certificate had been written earlier that day by Mr Pham's "personal Asian doctor". Mr Rachele also gave evidence that the CAV inspector remarked that the medical certificate was just a general letter from a doctor that had only been written that day.
Mr Rachele told the Tribunal that the doctor's race was irrelevant, that the comment "just came out" and that he "meant no malice". Mr Rachele gave evidence that on the day in question, he was feeling stressed, that things had become "lightly heated" and that Mr Rachele said things that he regretted including making a reference to the race of Mr Pham's doctor. Mr Rachele gave evidence that he had previously given Mr Pham many opportunities to collect his belongings from the room and that on many occasions, Mr Pham had not even turned up when he said he would. I infer from Mr Rachele's evidence that he was frustrated by Mr Pham's failure to remove the belongings after nearly two months and did not want any further delays.
I accept Mr Pham's evidence that the making of the comment amounts to an attempt to "challenge" the medical certificate. This is because I am satisfied that Mr Rachele made the comments about the medical certificate in an attempt to persuade the CAV inspector that it should not be given much weight and that Mr Pham should not be given more time to collect his goods.
However, I am not satisfied that the reason for challenging the medical certificate was the race of the doctor. Whilst Mr Rachele's comments about the race of the Mr Pham's doctor were clearly unnecessary and inappropriate, I accept his evidence that the comment "just came out" in a heated situation and that it was irrelevant to the situation. It appears to me that Mr Rachele was extremely frustrated by the amount of time Mr Pham was taking to remove his goods from the rented room and that this motivated Mr Rachele to challenge the certificate, not the race of the doctor.
Mr Rachele gave evidence that on the day in question, he agreed with the CAV inspector to give Mr Pham seven days to collect his goods from the rented room. I accept Mr Rachele's evidence on this point because it is clear from the evidence of both parties that, after the meeting with CAV, Mr Pham made a time with Mr Rachele to collect his goods from the rented room with a trailer (see paragraph 87 below).
Accordingly, whilst I am satisfied that Mr Rachele initially challenged the medical certificate, he did not maintain that challenge and ultimately agreed to Mr Pham's request for more time to remove his goods. In these circumstances I am not satisfied that Mr Rachele treated Mr Pham unfavourably.
In any event, even if I were satisfied that Mr Rachele treated Mr Pham unfavourably when he challenged the medical certificate, I am not satisfied that he did so because of Mr Pham's race or physical features. As stated in paragraph 81 above, I am satisfied that Mr Rachele was extremely frustrated by the amount of time Mr Pham was taking to remove his goods from the rented room and that this motivated Mr Rachele to challenge the certificate, not the race of the doctor nor Mr Pham's race. This explanation for Mr Pham's behaviour is a more plausible explanation than that proffered by Mr Pham.

At a glance

Court

Decision date

Before

Source

Judgment (95 paragraphs)

Pham v Jones & Anor (Anti-Discrimination) [2012] VCAT 1161 (3 August 2012)

Parties

Legislation Cited (3)