Bates v BDG Properties Pty Ltd

[2013] NSWADT 285

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Bates v BDG Properties Pty Ltd [2013] NSWADT 285
Hearing dates:	3 December 2013
Decision date:	10 December 2013
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave for the applicant's complaint of homosexuality discrimination to proceed is refused.
Catchwords:	ANTI-DISCRIMINATION - leave requested to proceed with a declined complaint - alleged homosexuality discrimination against property owner and agent for not selecting applicant as tenant - whether fair and just for complaint to proceed - likelihood that complaint will be substantiated
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Category:	Principal judgment
Parties:	David Bates (Applicant) The Property Business Australia (1st Respondent) Danny Tang (2nd Respondent)
Representation:	D Bates (Applicant in person) B Rayner (1st respondent in person) Dr Tang (2nd respondent - No appearance)
File Number(s):	131109

reasons for decision

Introduction

1. Mr Bates and his partner applied to rent a property but their application was unsuccessful. Mr Bates complained to the President of the Anti-Discrimination Board (ADB) that both the owner of the property, Dr Danny Tang, and the agent, BDG Properties Pty Ltd trading as The Property Business Australia, had discriminated against him on the ground of homosexuality.

1. The Property Business says that after the inspection date three applications to rent were forwarded to the owner. He accepted the application which offered $50 more than the advertised weekly rental. Mr Bates complains that he and his partner were not asked whether they would consider paying more rent and have concluded from that fact and other facts that the reason they were rejected was their homosexuality.

1. The President declined the complaint as "lacking in substance" and Mr Bates has elected to have the complaint referred to the Tribunal. Before the complaint can go ahead the Tribunal must give its permission or 'leave'. The test is whether it is fair and just in all the circumstances to do so: Anti-Discrimination Act 1977 (AD Act), s 96; Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143. In this case whether it is fair and just to proceed depends on the likelihood that the complaint will be substantiated if it goes to hearing. If it is highly unlikely to succeed, leave should be refused.

1. My role is not to review the reasons for decision provided by the President of the Anti-Discrimination Board. Rather, I must come to my own view as to the merits of the complaint based on the material in the President's Report and what the parties told me at the hearing. I have decided to refuse leave for Mr Bates' complaint to go ahead because it is highly unlikely to succeed. There is no direct evidence that one of the reasons for not selecting Mr Bates and his partner was their homosexuality. An inference to that effect cannot be drawn where there is a more probable and innocent explanation. There is a more probable and innocent explanation in this case, namely that the successful applicants offered $50 more than the advertised weekly rental.

1. The second respondent, Dr Danny Tang, did not appear. I have decided the application against him in his absence, as I am satisfied that he had adequate notice of the hearing.

The law

1. Section 49ZQ makes discrimination on the ground of homosexuality unlawful in relation to an application for accommodation:

(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of homosexuality:

(a) by refusing the person's application for accommodation,

(b) in the terms on which he or she offers the person accommodation, or

(c) by deferring the person's application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.

1. Direct discrimination on the ground of homosexuality is defined in s 49ZG(1)(a):

(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of homosexuality if the perpetrator:

(a) on the ground of the aggrieved person's homosexuality or the homosexuality of a relative or associate of the aggrieved person, treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who he or she did not think was a homosexual person or who does not have such a relative or associate who he or she thinks was a homosexual person

1. Both Dr Tang, as the owner of the property, and The Property Business Australia, as the agent, are liable for any breach of the AD Act attributable to them. Dr Tang wrote to the Anti-Discrimination Board (ADB) on 6 September 2013 saying that he had delegated the responsibility of tenant selection and ongoing management of the property to The Property Business and had no input into tenancy selection. Mr Bates says that this assertion is inconsistent with information he was given by The Property Business. In particular he was told that three applications had been forwarded to Dr Tang and that he had not chosen Mr Bates.

1. It is not the Tribunal's role, at this stage of the proceedings, to make final findings of fact as to what did or did not happen. There are two possibilities. Either Dr Tang did have some input into the decision or he did not. In either case, The Property Business contends that the only basis for the decision was the offer of a higher rent by the successful applicants.

1. Ms Rayner's informal evidence was that there is strong demand for rental properties close to the Sydney Central Business District. She said there were 25 groups of people looking at the property on the day of the inspection. According to her, Dr Tang was invited to choose an application from three of the strongest applications, including Mr Bates' application. The successful applicants were also high income earners.

1. There is no dispute that Mr Bates and his partner are homosexual or that both respondents, either as principal or agent, refused his application for accommodation. To substantiate a complaint of discrimination Mr Bates would have to prove that:

(1)   in the same circumstances or circumstances which are not materially different one or both respondents would not have refused accommodation to an applicant who was not homosexual (differential treatment); and

(2)   at least one of the reasons for that refusal was Mr Bates' homosexuality (causation).

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Bates must be compared with the treatment that would have been afforded to a person who is not homosexual in the same or similar circumstances. Mr Bates makes the point that there is no evidence as to the sexual orientation of the successful applicants so he does not know whether they are a legitimate comparator. In the absence of an actual comparator, the Tribunal must consider, hypothetically, how either respondent would have treated a heterosexual person in the same or similar circumstances. That question cannot be answered without determining the reason for the treatment, that is 'causation': Shamoon v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 11; [2003] 2 All ER 26; Dutt v Central Coast Area Health Service [2002] NSWADT 133.

1. The second component of direct discrimination is 'causation'. There is no need to prove an intention to discriminate. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 the High Court confirmed that the test for causation in the context of anti-discrimination legislation is to ask why the aggrieved person was treated as they were. The focus is on the "true basis", the " genuine basis" (Gleeson CJ at 102), or the "real reason" (per McHugh & Kirby JJ at 144).

1. If an act is done for more than one reason, it is sufficient if one of those reasons is the person's homosexuality, whether or not it is the dominant or a substantial reason: AD Act, s 4A.

Merits of the complaint

1. There is no direct evidence that one of the reasons either respondent refused Mr Bates' application was his homosexuality. If the matter were to proceed to a hearing, Mr Bates would have to establish a connection by pointing to facts which would allow the Tribunal to draw an inference to that effect. The inference must be logical, reasonable and establish a 'probable connection' with Mr Bates' homosexuality. An inference cannot be made where more probable and innocent explanations are available on the evidence: Dutt v Central Area Health Services [2002] NSWADT 133 at [70].

1. The facts to which Mr Bates points as the basis for such an inference include:

(1)   he and his partner submitted a strong application indicating that they had a combined income of about $300,000 per year, that he had formerly been a police officer and that his partner was employed in the Defence Forces;

(2)   the suggestion that he was 'outbid' by another applicant is not credible in circumstances where it took 5 days to notify him of the decision;

(3)   despite inviting the agent to contact him if there was any further information he could provide to support his application, the agent did not contact him to ask whether he was willing to pay more than the successful applicant had offered in rent; and

(4)   a comment by an employee of The Property Business that, "If it had been up to us, I think you would have been successful."

1. Ms Rayner submitted that no such inference could be drawn because:

(1)   their contract with the owner obliges them to obtain the best rent and tenant for the property;

(2)   the basis for the decision to chose the successful applicants was that they had offered to pay $50 more than the advertised weekly rental;

(3)   two of The Property Business' employees who dealt with Mr Bates are homosexual.

1. I regard it as highly likely that Ms Rayner would be able to prove, if this matter went to hearing, that the basis for the decision was that the successful applicants had offered $50 more than the advertised weekly rental he agreed to offer them the lease.

1. A Tribunal is also likely to accept that, as Ms Rayner said, her agency does not enter into negotiations with other prospective tenants for a higher bid. She said the successful applicants made the offer on the day of the inspection. A more probable and innocent explanation for the fact that Mr Bates missed out on the property is that he did not make a similar or higher offer on the day.

1. None of the other facts put forward by Mr Bates suggest a different conclusion. The delay in being notified of the outcome is explicable, at least in part, because the person dealing with the property had been on sick leave. The comment by one of The Property Business' employees that, "If it had been up to us, I think you would have been successful" suggests that the final decision was Dr Tang's. I agree with Mr Bates that if the final decision was made by Dr Tang, there is no evidence from him as to the basis of that decision. While that leaves open the possibility that he was motivated by Mr Burns' homosexuality, that possibility is slight given agent's explanation.

1. I agree with Mr Bates that the fact that one or more of the employees of The Property Business is homosexual would be unlikely to persuade the Tribunal that homosexuality was not a factor.

1. Two of the three potential applicants missed out on the property. The significant feature that differentiated the successful applicants was the on the spot offer of extra rent. A Tribunal hearing this matter would be likely to find that that provides a more probable and innocent explanation for the decision than the fact that Mr Bates is homosexual. Although none of this evidence has been tested, the likelihood of the applicant substantiating his complaint is so slight that it is not fair or just to allow the complaint to proceed.

Order

Leave for the applicant's complaint of homosexuality discrimination to proceed is refused.

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Decision last updated: 10 December 2013