Rankilor v Jerome Pty Ltd [2006] FMCA 922

A few days later I managed to talk briefly to Alan and he told me he would exchange sofa bed if I was not satisfied. On Thursday night (9th September, 2004) I looked at Barkers sofa beds at the Morley store and also at Anthony Murray's Furniture Store in Osborne Park. Neither store had anything similar in style or in cost. In fact, the sofa bed I brought from Morley was the last one and there were no more to be sold. I asked when I could speak to the boss. The lady working in the store told me she was not prepared to tell me when I could see him and I would have to work that out for myself.

On Friday 10th September, I went into Barkers Furniture store trying to see the boss, Alan. I was told he would be in the store after 2.30 pm. When I walked in to the store at approximately 4 pm. I was told that the boss had come in at 11.45 am and left at 1 pm. I asked when he would next be in and I was told he was flying to China and may be in on Saturday morning before leaving for China.

I returned on Saturday morning and was told that Alan would be in after lunch and I should come back and see him then. He was flying to China at 1.30 am.

I attended the store yet again and this time I saw an unfamiliar face. This was Alan. I approached him, prepared to talk the matter through. He pounced straight away. He told me my letter was an embarrassment. He told me at least eight times that they had done nothing wrong. He swore at me many times and was extremely antagonistic toward me. My letter was, according to him, superfluous (one of his rare, kinder words to me).

I note that this statement makes no reference to the content of the language used by "Alan". The applicant complains of being treated "disrespectfully and rudely" and to having been caused "a great deal of stress, time and money", but does not suggest that her gender was an explanation for this treatment. Her central complaint was that she had received a sofa bed of inferior quality and that the vendor's response to her complaints was unsatisfactory.

In the applicant's complaint to HREOC, she complained about the actions of two people: Alan Cohen who had "sold me a leather sofa bed (needed repairs same day)", and Jason Dymock who had "fixed sofa bed incorrectly on two separate occasions, including once without approval". She claimed to have been "discriminated against because of my sex", and gave the following further information:

PART 3 - REASON FOR COMPLAINT: I have been discriminated against because of my sex.

DATE OF EVENTS BEING COMPLAINED ABOUT: On 18/9/04 I saw Mr. Cohen who, at our meeting, gave his name as Mr. Smith. A male friend, Keith Cannon, had taken in personally a letter I had written to Mr. Cohen about problems with the leather sofa bed. He left the letter with an employee to be shown to Mr. Cohen, owner of the store.

DESCRIPTON OF THE EVENT: When I approached the manager, I was verbally abused even before I sat down. He called me a useless and uneducated woman who wouldn't be able to do anything right and also stated that I had no right to be in his store accusing him of anything. He told me I should have been ashamed of what I had written. He said everything in my letter was "superfluous". He also swore at me in front of customers in his store. When I asked him for an apology he replied, "why should I apologise to you, you're only a woman?" I asked him if he treated his male customers the same way. He did not respond? Again, I calmly asked him for an apology. He sighed, tore a piece of paper from a pad and in large capitol letters in red ink, wrote the word SORRY and shoved it in my hand. I looked at him and said that was not a satisfactory way of saying he was sorry. With that comment, he snatched the piece of paper from my hand and said, "I take it back". He then scrunched up the paper and threw it in the wastepaper bin. As I threatened to take legal action, he responded, "go ahead, you stupid woman, you'll be sorry".

PART 4 - LOSS OR HARM EXPERIENCED?: My self esteem has suffered, my well being and general health has suffered, I have regular headaches and I am having regular visits to the chiropractor.

PART 5 - DESIRED OUTCOMES / RESOLUTION?: I want $5999.00 in compensation. The leather sofa bed was part vinyl and broken since day of purchase. This matter has been ongoing since 6th September 2004. It has cost me a lot of time, a lot of money, a lot of stress. I have been angry with my children and they with me over all the time that has gone into resolving this matter. Despite all the time and cost there is still nothing in my loungeroom for my children and myself to sit on, except a broken sofa bed taking up space, to the point where I am unable to turn on my heater when the weather gets colder. All we have are a couple single chairs and a stool to sit on.

The applicant subsequently withdrew her complaints against Mr Cohen, who she said had died in August 2005, and against Mr Dymock. Her complaint to HREOC was continued only against their employer, the present respondent, as the entity vicariously responsible for the conduct of Mr Cohen on 18 September 2004.

The applicant's account of the incident on 18 September 2004 given in her affidavit sworn on 21 December 2005 was:

8. I returned at approximately 1.30 p.m. and managed to see a man I believed to be the owner. Before I had even sat down ready to discuss the problems with sofa bed, the man sitting behind the desk lashed out at me, telling me I should feel embarrassed and ashamed to have written the letter and that it was, according to him, "superfluous" (the letter was sitting on the desk to the right of him.)

9. Some of my letter had been hi-lighted in yellow hi-lighter. In my letter I asked Barkers Discount Furniture store for 10% discount on the wardrobe I had on lay-by. I asked for this due to all the trouble I had been put through and I also thought that 10% of $400 would be fairly close to the same cost that the store charged for returning damaged furniture to their warehouse.

10. The man I thought was owner was antagonistic toward me. When I asked if he was the owner, he said, "that's for me to know and you to find out." I asked his name and he said "Alan." I asked his surname. He wouldn't tell me. I asked again and he angrily replied, "Smith, my last name is Smith." I didn't believe him but he insisted it was "Smith."

11. I asked if I could look at the letter I typed, in particular the highlighted sections. He said "no" and then yelled and swore at me in front of other customers and told me at least eight times that he had done nothing wrong. I threatened "legal action" and he stated, "go ahead, you stupid woman, you'll be sorry." (This letter was missing from Small Claims Tribunal file. Rang Magistrate's court, Friday 9 December 2005 requesting copy of this "letter" (SM2004-000861) (Refer Document "A", letter from Magistrate's court, page 8).

12. At this time, I asked Mr. Smith (real name Alan Cohen) for an apology after his verbal attack on me. At this point, he tore a piece of paper from a pad on his desk, picked up a red biro and in capitol letters scrawled the word "SORRY" and handed it to me. I responded to him that I was not happy with an apology of that kind and he hastily snatched the paper out of my hand, scrunched it up and threw it in the wastepaper bin saying, "I take it back then, I take the apology back."

13. Mr. Smith (real name Alan Cohen) then called me a useless woman, an uneducated woman and a stupid woman. He also said, "what would you know, you're only a woman."

The variations between the applicant's three accounts of the 18 September 2004 incident were not explored by the respondent's representative in cross-examination of the applicant. The applicant was questioned about the identities and number of people who were claimed to have witnessed the scene. The applicant's evidence was that perhaps two or three customers of about six present in the store might have heard Mr Cohen's abusive language, and she tended to deny that any other members of the respondent's staff would have heard it.

The applicant's accounts of the incident on 18 September 2004, and of the surrounding circumstances, have varied in their details and focus, and I consider that they are unreliable in relation to some elements of the history. I also consider it likely that there has been a degree of exaggeration in her claimed general impressions of the abusive language which she now attributes to Alan Cohen, and of the gender-based element which she now alleges to have been part of it. I also consider that she has, following her lack of success in the Small Claims Tribunal, given greater significance to her own emotional responses to his language, and in particular to its gender-based element, than in fact she probably felt at the time. It is clear from all her narratives, and from her conduct immediately following the incident, that her principal and long term concern and distress has arisen from her perception that as an aggrieved customer she has received an unsatisfactory response from all the staff of the respondent in relation to her complaint concerning the sofa bed, rather than a perception that she had encountered discrimination on account of her gender. Within those dealings, it is only in her meeting with Alan Cohen that she has now identified an element of sex discrimination. There is an element of artifice in her present focusing upon that meeting as the foundation for a fresh attempt to obtain remedies as an aggrieved consumer which she has failed to achieve through the Small Claims Tribunal.

I have taken these reservations about the applicant's evidence into account both when considering whether any act of unlawful discrimination occurred for which the respondent is liable, and also when considering the extent of injury suffered by the applicant which should appropriately be compensated. As I shall explain below, I have decided that my reservations do not cause me to be unable to be satisfied that there was conduct in breach of s.22 of the SD Act, but they have significantly influenced my assessment of the appropriate order to be made by the Court.

The parties before me accepted the heads of unlawful discrimination which HREOC identified for consideration in relation to the applicant's complaint, and I agree with that identification. They identified the relevant head as one of the paragraphs of s.22 of the SD Act when read with ss.5, 8 and 106 of the SD Act. These provisions are:

(1) For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of the sex of the aggrieved person if, by reason of:

(b) a characteristic that appertains generally to persons of the sex of the aggrieved person; or

(c) a characteristic that is generally imputed to persons of the sex of the aggrieved person;

the discriminator treats the aggrieved person less favourably than, in circumstances that are the same or are not materially different, the discriminator treats or would treat a person of the opposite sex.

(1A) To avoid doubt, breastfeeding (including the act of expressing milk) is a characteristic that appertains generally to women.

(2) For the purposes of this Act, a person (the discriminator) discriminates against another person (the aggrieved person) on the ground of the sex of the aggrieved person if the discriminator imposes, or proposes to impose, a condition, requirement or practice that has, or is likely to have, the effect of disadvantaging persons of the same sex as the aggrieved person.

(3) This section has effect subject to sections 7B and 7D.

A reference in subsection 5(1), 6(1) or 7(1) or section 7A to the doing of an act by reason of a particular matter includes a reference to the doing of such an act by reason of 2 or more matters that include the particular matter, whether or not the particular matter is the dominant or substantial reason for the doing of the act.

(1) It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person's sex, marital status, pregnancy or potential pregnancy:

(a) by refusing to provide the other person with those goods or services or to make those facilities available to the other person;

(b) in the terms or conditions on which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or

(c) in the manner in which the first-mentioned person provides the other person with those goods or services or makes those facilities available to the other person.

(2) This section binds the Crown in right of a State.

(1) Subject to subsection (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:

(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part II); or

(b) an act that is unlawful under Division 3 of Part II;

this Act applies in relation to that person as if that person had also done the act.

(2) Subsection (1) does not apply in relation to an act of a kind referred to in paragraph (1)(a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

In relation to the vicarious liability of the respondent for the conduct of Mr Cohen on 18 September 2004, its representative did not argue against a finding that he acted "in connection with [his] employment" or "with [his] duties ... as an agent" of the respondent within s.106(1) of the SD Act (c.f. South Pacific Resort Hotels Pty Ltd v Trainor [2005] FCAFC 130; (2005) 144 FCR 402 at [41] and [70]). She also did not contend that I could find under s.106(2) that the respondent had taken "all reasonable steps to prevent" him from engaging in gender-based abuse or other discriminatory conduct towards a customer pursuing a consumer complaint. I find that the respondent is vicariously liable for any unlawful discrimination under s.22 of the SD Act committed by Mr Cohen or any others of its staff in relation to the incident now complained of.

In relation to paragraphs (a) or (b) of s.22(1) of the SD Act, the applicant contended that the actions of the respondent's staff had resulted in a "refusal to provide goods or services", or to recognise reasonably anticipated "terms or conditions", in relation to permitting the return of defective goods or the giving of recompense for defective goods. She contended that this occurred "on the ground" of her gender, since she was treated less favourably in this respect than would be a male customer in the same situation (c.f. s.5 of the SD Act). She suggested that her demands were obviously reasonable, and that the only explanation for their refusal was gender-based discriminatory attitudes by the management of the respondent, and Mr Cohen in particular.

However, I am not satisfied that these factual contentions have been made out on the evidence before me. I am not persuaded that a male customer of the respondent with a complaint concerning a sofa bed in the same situation as the applicant would have been treated more favourably in relation to the "after-sales" policies or practices followed by the respondent in relation to accepting returns or giving recompense. Indeed, looking at the evidence before me as to the whole course of the applicant's consumer complaint, I am not satisfied that she has received at any time a response to her complaints which is open to criticism on any ground, except for the language used by Mr Cohen in response to the applicant's letter of 9 September 2004 demanding a discount on another purchase. I am not persuaded that a male customer making the same requests as the applicant would not also have met a refusal.

In my opinion, the only complaint of discrimination established by the applicant on the evidence is that "the manner" in which Mr Cohen on 18 September 2004 conveyed his rejection of the requests made in the applicant's letter discriminated against the applicant, because this was attended by a level of public abuse, hostility and hurtful insults which would not have been inflicted on a male customer in a similar situation. I therefore consider that a breach of s.22(1)(c) of the SD Act can be found. Although the outcome of the applicant's consumer complaints may not have differed by reason of her gender, "the way in which something is done or takes place" differed (c.f. meaning 1. for "manner" in the Shorter Oxford English Dictionary, 3rd Ed.).

This assumes that the rejection of the applicant's request fell within activities covered by the SD Act's concept of the "providing of goods or services". Clearly this would include the sale to a consumer of an article of furniture. I also consider that "after-sales" activities in relation to consumer complaints handling would form part of the activity of "provides goods", although I am unaware of any authority on this point. The respondent's representative did not cite any authority to the contrary, and did not seek to argue against this interpretation.

Whether Mr Cohen in fact reacted more abusively because of the applicant's gender is not clear, but I have concluded on the balance of probabilities that he did. I accept that I cannot draw adverse inferences from his absence as a witness, since he has died. On the applicant's account there is no identifiable other witness. For both of these reasons there is therefore a need to assess her account of what was said with caution, also taking into account the aspects of her general evidence which I have pointed to above. However, within days of the incident the applicant referred to Mr Cohen's oral statements as involving swearing, being "extremely antagonistic", "disrespectful", and "rude". I accept that the applicant was confronted with behaviour capable of being so described, and that this was plainly inappropriate behaviour by any agent of the respondent responsible for complaints-handling.

The real issue therefore is whether I can find that the degree and content of the abuse given to the applicant was affected by her gender, so as to allow me to conclude that she was "treated less favourably" than a man. I consider that such a finding should be made, since I am satisfied that in the course of the abuse Mr Cohen referred to the applicant's gender in derogatory and insulting terms which revealed an attitude in relation to a female complainant which was unlikely to have influenced his reaction to a male complainant customer.

On the applicant's claims to HREOC and to this Court such an attitude was revealed in Mr Cohen's reference to "you stupid woman" and "you useless woman" and "you're only a woman". Weighing up all the applicant's evidence, including my assessment of her evidence under cross-examination, I accept her evidence that these terms, or similar language, were spoken and were directed at the applicant in a highly abusive and insulting manner.

I accept that Mr Cohen's hostility to the applicant was probably caused predominantly by his opinion that she was making unreasonable, even outrageous, demands in relation to the allegedly defective sofa bed, and that he would probably have shown a level of hostility to a male customer making similar demands. However, under s.8 of the SD Act, the presence of other "dominant or substantial" reasons for his abusive behaviour towards the applicant does not prevent a finding that his actions were also by reason of the applicant's gender. As I have found above, I consider that the extent and content of his abuse was probably influenced by her gender and probably also gave his actions a quality of hurtfulness which was "less favourable" than he would have treated a male customer in circumstances "not materially different".

I have considered, and reject, the submission of the respondent's representative, that Mr Cohen's reference to the applicant's gender was no more than a neutral reference to a personal identifier, and did not reveal a general attitude towards females which influenced the form and content of his behaviour. In my opinion, she was treated detrimentally with language and in a manner which a man would not have been treated (c.f. Chaisty v City of Perth (2004) EOC 93-323).

I therefore find that the applicant has established unlawful discrimination within s.22(1)(c) of the SD Act for which the respondent is liable under s.106 of the SD Act.

I must then turn to consider what appropriate order should be made under s.46PO(4) of the HREOC Act. That provision states:

46PO(4) If the court concerned is satisfied that there has been unlawful discrimination by any respondent, the court may make such orders (including a declaration of right) as it thinks fit, including any of the following orders or any order to a similar effect:

(a) an order declaring that the respondent has committed unlawful discrimination and directing the respondent not to repeat or continue such unlawful discrimination;

(b) an order requiring a respondent to perform any reasonable act or course of conduct to redress any loss or damage suffered by an applicant;

(c) an order requiring a respondent to employ or re-employ an applicant;

(d) an order requiring a respondent to pay to an applicant damages by way of compensation for any loss or damage suffered because of the conduct of the respondent;

(e) an order requiring a respondent to vary the termination of a contract or agreement to redress any loss or damage suffered by an applicant;

(f) an order declaring that it would be inappropriate for any further action to be taken in the matter.

In her application, the applicant claimed:

1. Monetary relief of $10,000 (see compensation page).

2. That Jerome Pty Ltd apologise to me for all that has taken place regarding my consumer rights, including discriminating against me due to my sex. (an apology without stipulations and regulations attached to it).

The "compensation page" listed the following items:

I am seeking $10,000 compensation from Jerome Pty Ltd. This compensation is made up as follows:

Letters and documents

(including typing of lengthy affidavit)

Phone calls including interstate calls

(consumer protection, courts etc)

Petrol (visiting, Barkers Disc. Store, Anthony Murray, Consumer protection, various furniture stores etc.)

Public transport (to various offices incl. Courts, legal advice, Consumer protection, ACCC etc.)

Book-binding

(for original affidavit and copies)

It would seem that many of these claimed expenditures and losses relate to activities engaged in by the applicant in the pursuit of her consumer claims in the Small Claims Tribunal, and would probably have been incurred even if the discriminatory conduct which I have found above had not occurred. In my opinion, the applicant's requests in relation to her sofa bed would still have been refused and she would still have pursued them, even if Mr Cohen's refusal had not been accompanied by some gender-based abuse. Since I have above been unable to be satisfied that the outcomes of her consumer complaints were affected by discrimination by reason of her sex, these claims for damages cannot succeed.

Moreover, no evidence was presented by the applicant in her affidavits to explain or verify this list of demands. The claims for chiropractic, physiotherapy and medical treatment were given no mention in her affidavits, and there was no substance given to the claim for "loss of earnings due to stress". This was pointed out to the applicant throughout the hearing, but she declined to apply for an adjournment to allow the necessary evidence to be presented in a manner which would give proper notice to the respondent. I find that the applicant has not established any of the items of loss or damage listed in her "compensation page" because of the unlawful discrimination which I have found above.

I am prepared to accept, without proper itemisation or verification, that she has had some relatively minor out-of-pocket expenditure in the pursuit of her complaint in HREOC which could properly be included in a compensation award. I have attempted to take such a claim into account when arriving at the global figure for suitable compensation which I shall determine below. Similarly, I have decided that, because of the absence of any itemisation of the applicant's out-of-pocket disbursements in the course of the present proceedings in this Court, I should make some further allowance for these in my global figure of compensation. I note that the applicant has been unrepresented, and has been exempted from court fees.

The evidence in the applicant's affidavit concerning the effects and significance to her of Mr Cohen's abusive behaviour on 18 September 2004 was:

30. This matter has caused me considerable stress and distress. I completed year 10 in 1967 in Melbourne. As a mature age student I returned to study, firstly doing TEE and then following this with a university degree. My degree was in Justice Studies and my three-year course was spread over a number of years due to bringing up two children from infancy (most of those years as a single parent). Barely two years after completing my course and believing myself to be of above average intelligence and contributing to society by way of volunteer work at two organizations, namely the Citizens Advice Bureau and the Office of Seniors, I experienced the misfortune of coming into contact with Mr. Alan Cohen.

31. At my initial meeting with Mr. Cohen (alias Mr. Smith) I was, for no reason at all, defamed by him and I felt, at the time, that my character was in question. It had taken many years to get the education I wanted and deserved, to achieve a better life for myself and my two children and Mr. Alan Cohen without thought and with no provocation on my part, chose to do what he did.

32. I have sought an apology from (Jerome Pty. Ltd.) T/A Barkers Discount Store from the very day I came face to face with the owner (if he was, indeed the owner of the store) and still I have not received one.

In her oral evidence, the applicant again emphasised that her feelings of distress arising from Mr Cohen's language could have been assuaged by an unconditional apology given at any time before or at the hearing. She criticised the apology which was offered in the course of HREOC's attempts to conciliate because in its expressed terms it was "without prejudice and not admitting liability". She pointed out that even this was extracted only after protracted one-sided correspondence with HREOC, that the respondent had throughout the proceedings treated her complaints with apparent disdain, and that even at the hearing no unconditional apology was offered. I consider that these points all have some merit, and that they should be taken into account when determining an appropriate amount of compensation for the applicant's hurt, humiliation and distress resulting from the gender-based abuse received from Mr Cohen. I reject the submission of the respondent's representative that the applicant should have accepted the apology offered during the conciliation, and should therefore not be awarded any monetary compensation.

The exact determination of the appropriate amount of compensation for the applicant's personal distress is never easy in these cases. Account must be taken of my assessment of the likely personal effects on this particular applicant of the discriminatory conduct, and an award should be arrived at which is "restrained" but not "minimal", taking into account the intangibility of an injury by way of hurt feelings and mental distress without an established medical injury (c.f. Hall & Ors v A&A Sheiban Pty Ltd & Ors [1989] FCA 72; (1989) 20 FCR 217 at 238, 256, 281).

I have already pointed to difficulties in identifying the distressing effects on the applicant of Mr Cohen's gender-based abuse, as distinct from other, unrelated but distressing aspects of her pursuit of her consumer complaints about her purchase of her sofa bed. It is apparent from her narrative of her experiences that she has found upsetting and frustrating the whole experience of attempting to obtain a resolution of her concerns about this purchase. I consider that most of this is likely to have occurred even if Mr Cohen had modified the language of his rejection of her demands, and had not abused the applicant by reference to her gender. I consider that a significant part of her mental upset arising from all her dealings with the respondent should not be attributed to Mr Cohen's language on 18 September 2004.

Taking into account all of the above considerations, I conclude that an appropriate award of compensation under s.46PO(4)(d) of the HREOC Act, including allowance for out-of-pocket expenses incurred in pursuing her discrimination complaint in HREOC and this Court, is $2,000.

The applicant did not strongly press her claim for the Court to order an apology from the respondent. I have considered whether this was appropriate, but have concluded that my award of compensation is a sufficient response to the applicant's hurt. Moreover, in view of the respondent's refusal to offer any apology without conditions and reservations, there would seem to be little achieved by the Court ordering this (c.f. Creek v Cairns Post Pty Ltd [2001] FCA 1007; (2001) 112 FCR 352 at [34], Grulke v K C Canvas Pty Ltd [2000] FCA 1415 at [4], and Jones v Toben [2002] FCA 1150; (2002) 71 ALD 629 at [106]).

I have considered the making of other orders such as are described in the other paragraphs of s.46PO(4) of the HREOC Act, but have concluded that no additional order is appropriate. My above findings should sufficiently identify the unlawful discrimination I have found. The evidence before me did not address whether the applicant's experience revealed any general and currently prevailing systemic failure in the practices and policies followed by the respondent in relation to its dealings with customer complaints. The particular person responsible for the discriminatory conduct found by me is now deceased, and there are suggestions that the ownership of the respondent company has changed. I am not satisfied that any general or specific injunction is now required to prevent a repetition of his conduct by any other employee or agent of the respondent.

I shall therefore order only that the respondent pay the applicant $2,000 inclusive of costs.

I certify that the preceding forty-six (46) paragraphs are a true copy of the reasons for judgment of Smith FM