respondent. Application dismissed; all discrimination and vilification claims against Ms Jones and Mr Rachele were not established and the respondents were found not to have authorised or assisted...
Key principles
To establish indirect discrimination under s9 of the Equal Opportunity Act 2010, an applicant must prove that a respondent imposed or proposed to impose a requirement, condition...
Direct discrimination under s8 of the Equal Opportunity Act 2010 requires proof that the respondent treated the applicant unfavourably because of a protected attribute;...
An employee or agent can be the subject of an application under s109 of the Equal Opportunity Act 2010 if, in the course of employment or while acting as an agent, the...
Section 75 of the Equal Opportunity Act 2010 provides a complete defence where discriminatory conduct was necessary to comply with, or authorised by, another act or enactment;...
Issues before the court
Whether respondents engaged in indirect discrimination under the Equal Opportunity Act 2010.
Whether respondents engaged in direct discrimination because of the applicant's race, physical features, gender or employment activity.
Plain English Summary
Pham alleged that two real-estate employees discriminated and vilified him during and after his tenancy. VCAT found the agents were acting for the landlord and thus could be sued, but after reviewing each allegation the Tribunal accepted the respondents' non-discriminatory explanations, found no evidence the conduct was because of Pham's race or other protected attributes, and held that conduct taken to comply with a council building order was protected by s75 EO Act. All complaints were dismissed.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
Deep Dive
1,791 words · generated 26/06/2026
What happened
This VCAT Anti-Discrimination decision resolves an application under the Equal Opportunity Act 2010 (EO Act) and the Racial and Religious Tolerance Act 2001 (RARTA) brought by Mr Tuan (Le Tuan) Pham against two employees of a real-estate agency, Ms Dimmity Jones and Mr Tony Rachele. Mr Pham, of Vietnamese descent, had rented a garage room from Ms Minh Nguyen. In or about August 2011 Ms Nguyen appointed McLennan Real Estate to act for her; Ms Jones and Mr Rachele were employees/agents of McLennan who then dealt with Mr Pham.
Whether respondents could be liable as agents/employees for discrimination toward the applicant in the provision of accommodation or services.
Whether section 75 EO Act (statutory compliance defence) protected the respondent's application for possession under Building Act orders.
Cited legislation
3 cited instruments linked from this judgment.
A complex series of Residential Tenancies Act proceedings, VCAT orders and unsuccessful appeals in superior courts culminated in Mr Pham being evicted from the rented room. After and during those events Mr Pham alleged discriminatory and vilificatory conduct by the two agents: refusing to accept a document and dropping it on the floor in a manner he said implied a racial slur; racist remarks by Rachele (such as "I never seen a Gook like you"); collusion with Dandenong council and Consumer Affairs Victoria; damaging or throwing his property; challenging the authenticity of a medical certificate against the backdrop of the doctor’s background; lying in tribunal and court hearings; and other conduct said to have caused loss and injury.
At hearing (22 May 2012) Member Julie Grainger analysed whether (a) the acts alleged amounted to indirect discrimination, (b) direct discrimination, (c) vilification under RARTA, or (d) authorisation/assistance of discrimination; whether the agents could be liable as employees/agents of the landlord under s109 EO Act; and whether statutory defences applied. The Member accepted that the respondents were agents of the landlord and therefore potentially subject to EO Act claims, but found that the applicant had not proved discriminatory motive or the necessary elements of indirect discrimination or vilification, and that where conduct (notably the application for possession) was taken to comply with a building order it was protected by s75 EO Act. The Tribunal dismissed the application.
Why the court decided this way
The Tribunal’s reasoning rests on three pillars: legal characterisation of the claims; evidentiary assessment (credibility and probative weight); and statutory defence by reason of compliance with other enactments.
Legal characterisation: The Tribunal identified that the applicant’s pleaded claims were described as "indirect discrimination" but that the substance was in many instances a complaint about unfavourable treatment alleged to be because of race or other attributes, i.e. direct discrimination. The Member explained the legal tests: indirect discrimination requires proof of an imposed or proposed requirement/condition/practice that disadvantages persons with the attribute (s9 EO Act); direct discrimination requires unfavourable treatment because of the attribute (s8 EO Act). The Tribunal therefore characterised the claims appropriately and proceeded to test them as direct discrimination where that was the true legal genre.
Evidentiary assessment and motive: For each core allegation the respondents gave alternative, non-discriminatory explanations which the Tribunal found plausible and better supported by evidence. Examples:
Ms Jones refused to accept/sign for a VCAT application because she did not know what it was; the document accidentally fell when she called Pham back; a child in the waiting area picked it up; she did not use or say any racial slur. The Tribunal accepted this as a cogent alternative to the applicant’s inference that the dropping of the paper signalled racial contempt.
Mr Rachele’s application for possession (9 September 2011) was made to comply with a Dandenong council building order that the garage was unfit for habitation. The Tribunal accepted Rachele’s evidence that he believed the subject matter of the proceedings was different from the earlier consent order and that he had to comply with the building order. The s75 defence was applied to that conduct.
Allegations of collusion with Council/CAV, perjury or lying in other courts were rejected because the Tribunal lacks jurisdiction to investigate alleged misconduct of that kind in superior court proceedings, and because no evidence supported the collusion allegations.
Alleged racist insults (e.g. "gook") and property damage were not proven; the Tribunal preferred Rachele’s denials and found Pham’s evidence on these counts vague and implausible.
Statutory defence: The Tribunal applied s75 EO Act which provides that discriminatory conduct is permitted where necessary to comply with or authorised by another enactment. Because the possession application complied with (or sought to comply with) the council’s building order and the Building Act, the Tribunal regarded s75 as a complete defence to that part of the complaint.
The Tribunal therefore dismissed both the indirect and direct discrimination claims, and found no vilification under RARTA because there was no evidence the conduct was racially motivated or likely to incite hatred/serious contempt/ revulsion or severe ridicule.
Before and after state of the law
Before this decision the statutory framework (EO Act and RARTA) and basic principles of direct and indirect discrimination, agent/employee liability and statutory defences were already set out in the legislation and prior practice. This decision applies those established statutory tests to the facts at hand; it does not create new legal principle. It reinforces three pragmatic points for practitioners:
Pleadings must identify the legal form of discrimination; the Tribunal will re-characterise claims where necessary but applicants risk failing if they do not plead the necessary elements for indirect discrimination (a requirement/condition/practice) or direct discrimination with supporting facts that point to causation by attribute.
The Tribunal will scrutinise motive and will accept plausible non-discriminatory explanations where supported by evidence.
Section 75 operates as a complete defence where respondents act to comply with other statutory requirements, such as building orders.
Thus the "before" legal framework remains the "after" framework; the decision provides an application of established law to fact patterns involving tenancy agents and eviction proceedings rather than altering doctrine.
Key passages with plain-English translation
"Accordingly, I find that neither Ms Jones nor Mr Rachele engaged in indirect discrimination."
Translation: The applicant did not plead or prove the kind of ongoing rule or practice (a requirement or condition) that the law requires for indirect discrimination. Isolated rude acts do not meet that statutory test.
"I consider that Mr Pham's claims against Ms Jones and Mr Rachele should be characterised as allegations of direct discrimination."
Translation: The Tribunal reclassified the applicant’s claims to the right legal category (direct discrimination) because on their face they are accusations that respondents treated him badly because of his race or other attributes.
"Section 75... 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... I consider section 75 to be a complete defence..."
Translation: If the agent was doing something the law required (for example complying with a council building order), that act is protected and cannot be turned into unlawful discrimination under the EO Act.
"Mr Rachele's evidence provides an entirely plausible reason for each and every step... and I am satisfied that Mr Rachele was not in any way influenced by considerations of Mr Pham's race."
Translation: The Tribunal preferred the respondent's explanations and considered that the applicant did not meet his burden to show racial motive.
What fact patterns trigger this precedent
This decision will be directly relevant where:
A tenant alleges that a landlord's agents engaged in discrimination during the course of tenancy management, particularly where the alleged acts include discrete incidents (refusing to accept documents, isolated rude comments, contested possession applications).
There is an overlap between tenancy enforcement (building orders, possession applications) and discrimination allegations. Where the agent's conduct is traceable to a statutory duty (e.g. building safety orders), s75 may provide a complete defence.
Claimants proceed in person and plead "indirect discrimination" without specifying a requirement/condition/practice, the Tribunal will expect the legal elements to be addressed.
Practitioners should note the importance of establishing motive or an inference to motive where discrete acts are alleged: without corroborating evidence, an isolated act is unlikely to attract a finding of unlawful discrimination.
How later courts have treated it
This is a single-member VCAT decision applying statutory tests and credibility assessment. It is an administrative tribunal decision and so persuasive but not binding on other tribunals or courts beyond VCAT members. The judgment applies and cites the EO Act, RARTA and VCAT practice considerations; it does not purport to overrule any authority or push a novel point of law. Later tribunals and courts assessing similar factual matrices will likely follow the same approach: require proof of legal elements, assess respondent explanations for plausibility and apply s75 where conduct was to comply with other enactments. Because this is not a Higher Court precedent, its weight is practical rather than doctrinally authoritative.
Still-open questions
Pleading and proof for indirect discrimination: The decision emphasises that an applicant must plead a requirement, condition or practice. Where systemic but diffuse conduct exists (for example multiple instances of different employees acting in similar ways), the boundary between indirect and direct discrimination can be contested. Practitioners should be careful to plead and prove the structural practice or prove an inference from recurring acts.
Limits of s75: The Tribunal accepted s75 as a complete defence where conduct was necessary to comply with a building order. Open questions arise where statutory compliance is discretionary or where statutory powers are exercised in a way that permits racialised decisions; for example, whether an agent's invocation of a statutory provision driven by racially-motivated misstatements by the agent could still attract liability if bad faith or improper motive were proved.
Remedies for conduct occurring in parallel judicial proceedings: The Tribunal reiterated it cannot retry or police conduct in superior courts. Where a party alleges that conduct in litigation was racially motivated (e.g. perjury, lying to the court), the appropriate forum remains the court concerned. The interaction of EO Act remedies and allegations about courtroom conduct therefore remains practically and jurisdictionally discrete; circumstances may arise, however, where courtroom conduct intersects with contemporaneous acts in the provision of accommodation/services and questions of overlap and admissibility could require careful handling.
Assessment of spontaneous comments: The decision treated an allegedly insensitive comment about the doctor's ethnicity as an inappropriate remark made in a heated moment and not as proof of a racially-motivated decision. Determining in practice when a spontaneous racial remark constitutes probative evidence of discriminatory motive rather than mere heat-of-the-moment impropriety will remain a fact-sensitive exercise.
Practical takeaway for practitioners: when alleging discrimination in tenancy contexts, identify the precise legal form of complaint (direct or indirect), gather evidence that speaks to motive or shows a discriminatory practice, and be ready to meet respondent explanations, especially where statutory obligations (building orders, regulatory inspections) plausibly drove the respondent’s conduct.
Judgment (95 paragraphs)
[1]
Pham v Jones & Anor (Anti-Discrimination) [2012] VCAT 1161 (3 August 2012)
In April 2011, Mr Pham, who is of Vietnamese descent, rented a garage in Virginia Street, Springvale (the rentedroom) from Minh Nguyen.
Initially, Mr Pham dealt with Ms Nguyen personally. However, around early August 2011, Ms Nguyen appointed McLennan Real Estate Pty Ltd (McLennan) to act on her behalf. From that date, Mr Pham dealt with the second respondent, Tony Rachele who is a senior property manager at McLennan.
Mr Pham was evicted from the rented room in November 2011 after a number of VCAT and Supreme Court hearings. The following is a chronology of the relevant applications and orders:
[5]
Application for a possession order under ss 322(1) and 246 of the Residential Tenancies Act 1997 (the RTA) for non-payment of rent (these sections apply to rented premises not rooming houses).
[6]
Dismissed on 19 July 2011 for the reasons given orally at the hearing.
[7]
Application for compensation under s 210 of the RTA made by Mr Pham against Ms Nguyen for successive breaches the RTA.
[8]
Consent order made 30 August 2011 whereby Ms Nguyen waived her claim for outstanding rent and Mr Pham agreed to vacate the rented room within one month during which time further rent was waived.
[9]
Application for leave to appeal VCAT order made 30 August 2011 made by Mr Pham.
[10]
Leave to appeal refused by Randall JA on 17 October 2011.
[11]
Application for a possession order under ss 323(a), 281 and 280 of the RTA for non payment of rent and disruption of quiet and peaceful enjoyment of other residents and orders under s 452 (general dispute) made by Ms Nguyen against Ms Pham.
[12]
Application for a possession order under ss 323(a) and 281 of the RTA for non payment of rent made by Ms Nguyen against Mr Pham.
[13]
Application dismissed on 30 August 2011 because the notice to vacate did not give Mr Pham 14 clear days to vacate the rented room.
[14]
Application for a possession order under ss 323(a) and 245 of the RTA because the premises were unfit for human habitation made by Ms Nguyen against Mr Pham.
[15]
Supreme Court application for leave to appeal VCAT order made 15 November 2011 made by Mr Pham.
[16]
Leave to appeal refused by Cavanough J on 29 November 2011.
[17]
Court of Appeal application for leave to appeal orders made by Cavanough J on 29 November 2011 made by Mr Pham.
[18]
Leave to appeal refused by Nettle JA and Kyrou AJA on 24 February 2012.
[19]
Application for a restraining order in relation to Mr Pham's attempts to retrieve his belongings from the rented room under ss 452 and 472 of the RTA made by Mr Pham against Ms Nguyen.
[20]
Order made on 16 December 2011 requiring Ms Nguyen and her agents to allow Mr Pham to collect his belongings from the rented room.
[21]
Order made 4 January 2012 requiring Mr Pham to collecting his belongings from the rented room by 13 January 2012.
[22]
Application dismissed on 18 January 2012 for non appearance of Mr Pham.
[23]
Application for bond under ss 417, 418 and 419 of RTA made by Ms Nguyen against Mr Pham
[24]
Application for compensation under s 210 made by Mr Pham against Mr Rachele and application for hearing de novo in relation to R2011/29545 and R2011/35492
[25]
High Court application for special leave to appeal the decision of Nettle JA and Kyrou AJA on 24 February 2012 made by Mr Pham
[26]
Mr Pham continued to have dealings with Mr Rachele after his eviction as he needed to retrieve his belongings from the rented room. This claim arises out of Mr Pham's dealings with Mr Rachele and the first respondent, his colleague, Dimmity Jones whilst he was living at the rented room and after he had been evicted from the rented room.
[27]
Mr Pham claims that Mr Rachele and Ms Jones have breached the Equal Opportunity Act2010 (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.
[28]
WHAT DOES MR PHAM NEED TO PROVE TO ESTABLISH THAT HE HAS BEEN DISCRIMINATED AGAINST?
[29]
Mr Pham needs to prove, on the balance of probabilities, that he has been discriminated against on the basis of one or more of the attributes set out in section 6 of the EO Act in one or more of the areas set out in Part 4 of the EO Act. The discrimination may be direct discrimination or indirect discrimination.
Indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute and that is not reasonable[1].
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[2] in one or more of the areas of activity set out in Part 4 of the EO Act.
[30]
Mr Pham alleges that he has been discriminated against based on his race, physical features, employment activities and gender. As stated in paragraph 1 above, Mr Pham is of Vietnamese descent.
All of these attributes are named in section 6 of the EO Act as being attributes on the basis of which discrimination is prohibited in the areas of activity set out in Part 4 of the Act[3].
[31]
Mr Pham alleges that he has been discriminated against in the areas of accommodation and provision of goods and services.
Part 4 of the EO Act[4] refers to both of these areas.
[32]
MR PHAM'S CLAIM THAT MS JONES AND MR RACHELE ENGAGED IN INDIRECT DISCRIMINATION
[33]
As set out above, indirect discrimination occurs if a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with an attribute and that is not reasonable[5].
Mr Pham's claim that Ms Jones and Mr Rachele engaged in indirect discrimination is misconceived. Even if the Tribunal accepted all of Mr Pham's evidence in relation to his dealings with Ms Jones and Mr Rachele, he does not make any claim that either of them imposed or proposed to impose a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging him and that is not reasonable.
Accordingly, I find that neither Ms Jones nor Mr Rachele engaged in indirect discrimination.
[34]
MR PHAM'S CLAIM THAT MS JONES AND MR RACHELE ENGAGED IN DIRECT DISCRIMINATION
[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.
[36]
WERE MS JONES AND MR RACHELE PROVIDING GOODS OR SERVICES AND ACCOMMODATION TO MR PHAM?
[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.
[38]
MR PHAM'S EVIDENCE IN RELATION TO HIS CLAIM AGAINST MS JONES
[39]
Mr Pham's claim against Ms Jones relates to an incident that took place at McLennan's business premises. On 29 April 2012, Mr Pham went to McLennan's business premises where Ms Jones worked in order to serve a VCAT application on Mr Rachele. Mr Rachele was not in the office at the time and Ms Jones refused to accept and sign for the application. These facts were not in dispute.
Mr Pham gave evidence that after Ms Jones refused to accept and sign for the VCAT application, he left it on the counter. He told the Tribunal that Ms Jones then threw the VCAT application on the floor "as if to say 'pick it up nigger' " although he admitted Ms Jones had not actually said these words or made any comments about his race during their conversation. Mr Pham explained that he believed that Mr Rachele had instructed Ms Jones to insult and vilify him because of his race. He also told the Tribunal that Ms Jones did not pick up the VCAT application or apologise to him because of his race. Mr Pham described this conduct as "indirect discrimination" and told the Tribunal that Ms Jones' actions had vilified him and that he felt offended, insulted, humiliated and intimidated.
[40]
Ms Jones gave evidence that she did not accept or sign for the VCAT application because she did not know what it was at the time and she did not know why she was being asked to sign for it. She told the Tribunal that when Mr Pham left the VCAT application on the counter, she called him back to take it with him and it accidentally fell on the floor. Ms Jones gave evidence that Mr Pham then quickly left the office. Ms Jones agreed that she had not picked up the VCAT application because this was done by a child in the waiting area. She also agreed that she had not apologised to Mr Pham. Ms Jones said this was because Mr Pham could have come back to collect the VCAT application but chose not to. Ms Jones denied having thrown the VCAT application on the floor and denied having vilified Mr Pham or having discriminated against him based on his race or gender. Ms Jones also denied that Mr Rachele had instructed her to insult or vilify Mr Pham.
[41]
Mr Pham did not provide any particulars about his claim that Ms Jones discriminated against him on the basis of his gender or give any evidence in support of this claim. Accordingly, I find that Ms Jones did not discriminate against Mr Pham on the basis of his gender.
Nor am I satisfied that Ms Jones discriminated against Mr Pham on the basis of his race. I accept Ms Jones' evidence that she refused to sign for the VCAT application because she did not know what she was signing. I also accept her evidence that the VCAT application accidently fell on the floor when she was calling Mr Pham back to collect it. Ms Jones' explanation for how and why the VCAT application fell on the floor is a cogent alternative explanation that is more probable than Mr Pham's version of events. I accept that explanation.
I am also satisfied that had Ms Jones deliberately thrown the VCAT application on the floor, Mr Pham would not have been able to prove that Ms Jones treated him unfavourably because of his race. There was simply no evidence that Ms Jones' actions were in any way influenced by considerations of Mr Pham's race.
[42]
As stated in paragraph 13 above, Mr Pham's particulars of claim allege Mr Rachele discriminated against him based on race and because he was unemployed, which Mr Pham has identified in his application as employment activity.
[43]
HAS MR RACHELE DISCRIMINATED AGAINST MR PHAM BASED ON HIS EMPLOYMENT ACTIVITY?
[44]
Mr Pham claimed that Mr Rachele tried to intimidate Mr Pham during a VCAT hearing before Member Kefford by stating "you don't work at all" when Member Kefford referred to Mr Pham's health care card. Mr Pham submitted that this is evidence that Mr Rachele discriminated against him based on his employment activity.
Mr Rachele denied having made the statement alleged by Mr Pham. Mr Rachele gave evidence that he was unaware whether or not Mr Pham worked but had raised the issue before Member Kefford because she had mentioned that Mr Pham's fees had been waived by the Tribunal, he was aware that the Tribunal only waived fees for poor people and Mr Pham had previously told him that he needed his computer because he had lots of work to do.
Mr Pham's claim that Mr Rachele discriminated against him based on his employment activity is misconceived. Employment activity is defined in section 4 of the EO Act as an employee making a reasonable request to his or her employer for information regarding his or her employment entitlements or communicating to his or her employer the employee's concern that he or she has not been, is not being or will not be, given some or all of his or her employment entitlements. As Mr Rachele does not employ Mr Pham, this claim must fail.
[45]
HAS MR RACHELE DISCRIMINATED AGAINST MR PHAM BASED ON HIS PHYSICAL APPEARANCE?
[46]
Mr Pham did not provide any particulars of his claim that Mr Rachele discriminated against him based on his physical appearance or give any evidence in support of this claim. Presumably, Mr Pham is referring to his physical features that identify him as being of Asian descent. I shall therefore proceed on the basis that this claim is identical to the claim that Mr Rachele discriminated against Mr Pham on the basis of race.
[47]
HAS MR RACHELE DISCRIMINATED AGAINST MR PHAM BASED ON HIS RACE?
[48]
Mr Pham's particulars of claim make many allegations that Mr Rachele has discriminated against Mr Pham based on his race. I have grouped Mr Pham's claims as follows:
[49]
Mr Rachele's actions whilst the tenancy was on foot
[50]
Mr Pham claimed that Mr Rachele discriminated against him whilst his tenancy was still on foot by:
(a) Failing to lodge Mr Pham's bond with the Residential Tenancies Bond Authority for three months
(b) Failing to install a smoke alarm in Mr Pham's room and not displaying any rules
(c) Failing to provide Mr Pham with Mr Rachele's contact details
(d) Failing to register the premises with the proper authorities
(e) Failing to comply with breach of duty notices served by Mr Pham
(f) Failing to remove dangerous wooden spikes from the garage
(g) Failing to serve notices that complied with the RTA.
[51]
Did Mr Rachele discriminate against Mr Pham whilst the tenancy was on foot?
[52]
Mr Rachele gave evidence that the matters raised in paragraphs (a) to (f) arose before he was appointed as Ms Nguyen's agent in late July or early August 2011 and were issues between Mr Pham and Ms Nguyen. Mr Rachele explained that he had no involvement in negotiating the terms of lease and had not received the bond or any rent from Mr Pham. He told the Tribunal that he was only appointed to act on Ms Nguyen's behalf around this time because she was having trouble dealing with correspondence from the City of Greater Dandenong (the Dandenong council) and Mr Pham's VCAT applications. He also gave evidence that he first met Mr Pham at a VCAT hearing on 30 August 2011 and that he did not see the inside of Mr Pham's room until the warrant of possession was executed in October 2011. Mr Pham did not dispute any of this evidence.
In relation to paragraph (g), Mr Rachele admitted that he had served some notices on Mr Pham that failed to comply with the RTA but explained that this was because Ms Nguyen had given him incorrect information.
I accept Mr Rachele's evidence in relation to paragraphs (a) to (g) above. I therefore find that there is no basis for this aspect of the claim for discrimination.
[53]
Claims about Mr Rachele's conduct in VCAT, the Supreme Court and the Court of Appeal
[54]
Mr Pham claimed that Mr Rachele discriminated against him based on his race when he:
(a) Lied to a member of VCAT in relation to whether or not the garage had been previously rented out and in relation to whether or not the Dandenong council had inspected the room.
(b) Lied to Justice Cavanough in the Supreme Court because he told him that Member Cremean made a possession order in front of Mr Pham.
(c) Failed to attend Mr Pham's hearing in the Court of Appeal, which he submitted showed total disrespect for the legal process.
Mr Rachele denied that he had lied to a VCAT member and denied that he had lied to Justice. Mr Rachele admitted that he had not appeared in the Court of Appeal.
[55]
Did Mr Rachele discriminate against Mr Pham in respect of his conduct in VCAT, the Supreme Court and the Court of Appeal
[56]
Mr Pham claims that Mr Rachele discriminated against him in the area of accommodation and the provision of accommodation services. Mr Rachele's conduct during a Supreme Court or Court of Appeal hearing is not conduct arising out of the provision of accommodation. In addition, only the Supreme Court can deal with Mr Pham's claim that Mr Rachele perjured himself during a Supreme Court hearing.
Similarly, Mr Rachele's conduct during a VCAT hearing cannot be characterised as conduct relating to accommodation and accommodation services. Mr Pham is essentially asking the Tribunal to reopen a hearing in order to examine a person's conduct during that hearing. This is not within the jurisdiction of the EO Act.
[57]
Claim about Mr Rachele's conduct in applying for the possession order on 1 September 2011
[58]
Mr Pham also alleged that Mr Rachele discriminated against him by depriving him of his right to quiet enjoyment of his rented room by making an application for a possession order (see R2011/35492 in paragraph 3 above) in breach of a consent order in which Mr Rachele agreed that Mr Pham could stay in the room for one month (see R2011/27556 in paragraph 3 above). Mr Pham has made a claim against Ms Nguyen and Mr Rachele seeking compensation for losses resulting from his eventual eviction (see R2012/9296 at paragraph 3 above).
[59]
Did Mr Rachele discriminate against Mr Pham when he applied for the possession order on 1 September 2011?
[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.
[61]
Claim about colluding with Dandenong Council to obtain possession order
[62]
Mr Pham claimed that Mr Rachele discriminated against him by colluding with the Dandenong council in order to obtain the possession order made on 15 November 2011. No evidence was provided in support of this claim other than the fact that the application had been made.
[63]
Did Mr Rachele discriminate against Mr Pham by colluding with Dandenong Council?
[64]
Mr Rachele denied that he colluded with the Dandenong council and gave evidence that he made the application for the possession order based on the Dandenong council's letter to Mr Nguyen dated 15 July 2011.
I accept Mr Rachele's evidence that he did not collude with the Dandenong council. Mr Pham was unable to provide the Tribunal with any evidence to support his claim for collusion and it is simply implausible that employees of the Dandenong council would issue a false building order for the purpose of evicting Mr Pham at the behest of Mr Rachele.
Having found that Mr Rachele did not collude with the Dandenong council as alleged by Mr Pham, it is unnecessary for me to consider whether he discriminated against him in relation to this matter. I also consider that section 75 of the EO Act provides a complete defence to this allegation to the extent that Mr Rachele and the Dandenong council employees were complying with their statutory obligations.
[65]
Claim about stating employees would lie for Mr Rachele
[66]
Mr Pham claimed that when he went to Mr Rachele's office to serve the Tribunal's order made on 16 December 2011, Mr Rachele swore in front of his employees and stated "do you think they won't lie for me", referring to his employees. Mr Pham claimed that by making this statement, Mr Rachele discriminated against him. No evidence was provided in support of this claim other than Mr Pham's oral evidence of what Mr Rachele said on the day in question.
[67]
Did Mr Rachele discriminate against Mr Pham by stating that his employees would lie for him?
[68]
Mr Rachele denied making this statement.
I accept Mr Rachele's evidence on this point. I consider it implausible that Mr Rachele would swear in front of his employees and state that they would lie for him. Mr Pham bears the burden of proving his allegations against Mr Rachele and I am not satisfied that such a statement was made.
Having found that Mr Rachele did not make the statements alleged by Mr Pham, it is unnecessary for me to consider whether he discriminated against him in relation to this matter.
[69]
Claim about colluding with Consumer Affairs Victoria to deny Mr Pham access to his goods
[70]
Mr Pham claimed that Mr Rachele discriminated against him by colluding with an employee of Consumer Affairs Victoria (the CAV inspector) in order to violate the order made by the Tribunal on 16 December 2011 allowing Mr Pham to collect his goods from the rented room. No evidence or details were provided in support of this claim other than Mr Pham's oral evidence that the collusion took place.
[71]
Did Mr Rachele discriminate against Mr Pham by colluding with CAV?
[72]
Mr Rachele denied that he had colluded with the CAV inspector in order to violate the order made by the Tribunal on 16 December 2011. Mr Rachele gave evidence that on 30 November 2011, he requested CAV to inspect the goods that Mr Rachele had left in the rented room after his eviction in accordance with the relevant sections of the RTA. He explained that the CAV inspector came to the rented room to inspect the goods on three occasions between late December 2011 and late January 2012 and that, in consultation with the CAV inspector, he had given Mr Pham numerous opportunities to collect his goods during this period. Mr Rachele also told the Tribunal that on many occasions, he opened the door to the rented room so that Mr Pham could collect his goods but Mr Pham failed to remove them.
I accept Mr Rachele's evidence that he did not collude with CAV to deny Mr Pham access to his goods. CAV has a duty under the RTA to inspect and value abandoned goods and I am satisfied that Mr Rachele only contacted CAV after Mr Pham had been evicted from the rented room. I also accept Mr Rachele's evidence that he and the CAV inspector gave Mr Pham numerous opportunities to collect his goods.
Having found that Mr Rachele did not collude with CAV to deny him access to his goods, it is unnecessary for me to consider whether he discriminated against him in relation to this matter. I also consider that section 75 of the EO Act provides a complete defence to this allegation to the extent that Mr Rachele and the CAV inspector were complying with their statutory obligations.
[73]
Claim about challenging medical certificate due to the race of Mr Pham's doctor
[74]
Mr Pham claimed that on the second occasion CAV attended the rented room, Mr Rachele told the CAV inspector that he disputed the veracity of a medical certificate because an Asian doctor had provided it.
[75]
Did Mr Rachele discriminate against Mr Pham by challenging a medical certificate due to the race of Mr Pham's doctor?
[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).
[77]
Mr Pham claimed that Mr Rachele damaged his property. Specifically, Mr Pham gave evidence that in late January 2012, he took a trailer to the rented room in order to collect his goods. Mr Pham told the Tribunal that Mr Rachele deliberately jumped on the door of his trailer, which caused his boxes to fall and spill. He also told the Tribunal that Mr Rachele had thrown his belongings into the rain.
[78]
Did Mr Rachele discriminate against Mr Pham by damaging his property?
[79]
Mr Rachele gave evidence that on the day in question, he had opened the door to the rented room for Mr Pham, left for some time and returned at 5:00pm. On his return, he discovered that Mr Pham had packed very few items so he offered to help him. Mr Rachele gave evidence that Mr Pham told him not to touch any of his belongings and that Mr Rachele accidently stepped on the trailer door as he was trying to get out of Mr Pham's way. Mr Rachele admitted that he and Mr Pham "had words" and claimed that Mr Pham assaulted him. Mr Rachele denied damaging any of Mr Pham's belongings. Mr Rachele told the Tribunal that he again left the property and returned around 6:30 pm. Mr Rachele gave evidence that Mr Pham and his trailer were gone so he locked the door to the rented room (a garage door) and went to the police station to report the assault.
I am not satisfied that Mr Rachele damaged Mr Pham's property as alleged by him. I prefer Mr Rachele's evidence as to the events that took place on the day in question, which was detailed and plausible. In contrast, Mr Pham's evidence was very brief and vague. I am satisfied that there was a verbal altercation on the day but Mr Pham has not been able to prove that Mr Rachele damaged his property on this occasion.
Having found that Mr Rachele did not damage Mr Pham's property, it is unnecessary for me to consider whether he discriminated against him in relation to this matter.
[80]
Mr Pham alleged that on the day he met Mr Rachele at the rented room in order to collect his goods, Mr Rachele remarked, "I've never seen a gook like you".
[81]
Did Mr Rachele call Mr Pham a gook and if so, did he discriminate against Mr Pham?
[82]
Mr Rachele told the Tribunal that he had not heard of the word "gook" before Mr Pham made his claim and that he would not have used such a word because he was a migrant himself and had been called many things in the past.
I accept Mr Rachele's evidence that he did not call Mr Pham a gook. Mr Rachele's evidence regarding his lack of knowledge of the word and why his was unlikely to use such a word was plausible and persuasive. Mr Pham's bare allegation was not persuasive.
Having found that Mr Rachele did not use racist language, it is unnecessary for me to consider whether he discriminated against him in relation to this matter.
[83]
The Racial and Religious Tolerance Act2001 makes it against the law to vilify a person or group of people in a public place on the grounds of their race or religion[11]. Vilification is behaviour that incites or encourages hatred of, serious contempt for, revulsion or severe ridicule of another person or group of people on the grounds of their race or religion. Examples of conduct that may be likely to be considered racial or religious vilification include publishing baseless allegations that a racial or religious group engages in serious criminal activities, encouraging violence against people who belong to a particular race or religion and the destruction of their property or promoting hatred of a racial or religious group in flyers, stickers, posters, in a speech or publication, or through websites or email.
In light of my findings in paragraphs 24, 43 and 44 above, I am satisfied that Ms Jones has not vilified Mr Pham on the grounds of his race. There is no evidence whatsoever that any of Ms Jones' actions were motivated by considerations of race.
[84]
HAS MS JONES OR MR RACHELE AUTHORISED OR ASSISTED DISCRIMINATION?
[85]
In light of my finding that Ms Jones and Mr Rachele have not discriminated against Mr Pham, I am satisfied that Mr Jones and Mr Rachele have not authorised or assisted discrimination.
[86]
It is perfectly understandable that Mr Pham is unhappy about the events that took place during and after the end of his tenancy. It is undisputed that Mr Pham was rented a garage that did not comply with the building regulations of the City of Greater Dandenong, that Mr Rachele made an application for a possession order shortly after he had agreed to consent orders giving Mr Pham one month to vacate the rented room and that Mr Pham was ultimately evicted from the rented room by the police. I am also satisfied that over time, Mr Pham's dealings with Mr Rachele became heated and acrimonious.
Mr Pham's explanation for all that occurred is that Mr Rachele is racist and discriminates against Asians and other races.
Mr Rachele's evidence provides an entirely plausible reason for each and every step taken by him from the time he was appointed as Ms Nguyen's agent and I am satisfied that Mr Rachele was not in any way influenced by considerations of Mr Pham's race. Similarly, I am satisfied that Ms Jones was not in any way influenced by considerations of Mr Pham's race or any other attribute.
For these reasons, I order that Mr Pham's claim against Ms Jones and Mr Rachele is dismissed.
[7] Paragraph 18, Practice Note PNVCAT3 Fair Hearing Obligation
[94]
[10] The application was dated 1 September 2011 and was served on Mr Pham on 1 September 2011 but was not filed with the Tribunal until 9 September 2011.
Application dismissed; all discrimination and vilification claims against Ms Jones and Mr Rachele were not established and the respondents were found not to have authorised or assisted discrimination.
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.
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.
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.
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.