Dahdal v HH Property Pty Ltd t/as McGrath Real Estate Hunters Hill

[2011] NSWADT 229

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Dahdal v HH Property Pty Ltd t/as McGrath Real Estate Hunters Hill [2011] NSWADT 229

Hearing dates:

13 September 2011

Decision date:

23 September 2011

Jurisdiction:

Equal Opportunity Division

Before:

Magistrate N Hennessy, Deputy President

Decision:

1. Leave for the applicant's complaint to proceed is refused.

2. The respondent's application for costs is refused.

Catchwords:

LEAVE - whether disposal of an interest in land comes within the definition of a "service"

Legislation Cited:

Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Racial Discrimination Act 1975 (Cth)
Sex Discrimination Act 1984 (Cth)
Disability Discrimination Act 1992 (Cth)

Cases Cited:

Jones and Anor v Ekermawi [2009] NSWCA 388
Waters v Public Transport Corporation [1991] HCA 49
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

Texts Cited:

New South Wales Law Reform Commission, Report 92, Review of the Anti-Discrimination Act 1977 (NSW)

Category:

Principal judgment

Parties:

Helen Dahdal (Applicant)
HH Property Pty Ltd t/as McGrath Real Estate Hunters Hill (Respondent)

Representation:

H Dahdal (Applicant in person)
Jemmeson & Fisher (Respondent)

File Number(s):

111076

REasons for decision

Introduction

1. Ms Dahdal, who is Lebanese, complained to the President of the Anti-Discrimination Board that she had been discriminated against on the ground of her race by McGrath Real Estate Hunters Hill (the real estate agent). A property in which she was interested sold to another purchaser prior to auction for $1.15 million. She says that the real estate agent did not submit her offers to purchase the property to the vendors in a timely manner due to her Lebanese background. The real estate agent maintains that they competently and correctly represented Ms Dahdal's offers to purchase the property and it was the vendors who then made the decision to accept another purchaser's offer.

1. Ms Dahdal has applied to the Tribunal for permission for her complaint of race discrimination to go ahead even though the President of the Anti-Discrimination Board declined the complaint as lacking substance: Anti-Discrimination Act 1977 ( AD Act ), s 96. The Tribunal has a discretion to grant or not to grant permission ('leave') for the complaint to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. The onus is on Ms Dahdal to satisfy the Tribunal that leave should be granted.

1. The President of the Board gave the following reason for declining the complaint:

There is no evidence to support Ms Dahdal's allegations that the respondent's treatment of her (a) in the manner it in which it conducted itself and (b) in relation to the sale of the property to a buyer other than Ms Dahdal, was unlawful discrimination on the ground of race.

Conduct

1. When asked to identify the precise conduct about which she was complaining Ms Dahdal said that the agent purposely mislead the vendors into thinking that she was not a genuine buyer. She said that despite the fact that the agent knew that she could afford to pay up to $1.4 million for the property, the agent nevertheless allowed the vendor to accept an offer of $1.15 million.

1. It is not in dispute that Ms Dahdal conveyed an offer of $1.15 million to the agent. The ultimate purchasers matched that offer and the vendors decided to sell to them. Despite the fact that Ms Dahdal said she was prepared to offer $1.4 million at auction, she did not make any higher offer as the contracts were exchanged before she had the opportunity to do so. The real estate agent says that all offers were communicated to the vendor.

1. There is a statement from the vendors in the material saying that Ms Dahdal's offer was conveyed to them prior to exchanging contracts but they had already decided to sell to another purchaser.

1. Ms Dahdal has drawn the inference that the agent must have told the vendors that she was not a genuine buyer. The evidence that she relies on to support that inference includes a telephone conversation that her solicitor had with an assistant to the vendor's solicitor. Her solicitor told her that the assistant said, "Your client can't afford the property." Ms Dahdal infers that the agent must have made that remark to the assistant.

Legal requirements to substantiate complaint

Summary

1. In order to substantiate a complaint of direct race discrimination, Ms Dahdal would have to prove that:

(1)   she is of a member of a race as defined in s 4 of the AD Act ;

(2)   the real estate agent refused to provide her with a service or provided her with a service on unfavourable terms; AD Act , s 19

(3)   in refusing that service or providing it on unfavourable terms, the real estate agent treated her less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; and

(4)   at least one of the reasons for that treatment was Ms Dahdal's race: AD Act , s 7 and s 4A.

1. Ms Dahdal would have the legal and evidential burden of proving her case if it proceeded to hearing.

Race

1. There is no dispute that Ms Dahdal is of Lebanese national origin and that that is a race as defined in s 4 of the AD Act .

Services

1. The President referred the complaint as potentially coming within s 19 of the AD Act which prohibits race discrimination in relation to the provision of goods and services.

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

1. Services are defined in s 4 to include:

"services" includes:

(a) services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b) services relating to entertainment, recreation or refreshment,

(c) services relating to transport or travel,

(d) services of any profession or trade,

(e) services provided by a council or public authority,

(f) services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

1. While real estate agents may provide services in some contexts, for example to owners of leased properties, it is not obvious what service, if any, is being provided to prospective purchasers of properties. The High Court has said that the term "services" must be construed liberally, but that the services in question must be identified precisely: Waters v Public Transport Corporation [1991] HCA 49 per McHugh J at 404-5. Ms Dahdal said that the service being provided in this case was for the real estate agent to consider her as a potential buyer of a property and to give general advice about the property market and investments. She said that the agent purposely misled the vendor into thinking that she was not a genuine buyer.

1. In 1997, parliament amended the AD Act to make sexual harassment unlawful in certain areas of public life. As well as making sexual harassment unlawful when providing or receiving goods and services, parliament made sexual harassment unlawful in the course of dealing with a person in connection with disposing of or offering to dispose of an estate or interest in land: AD Act , s 22H. The inclusion of this provision and the failure of the legislature to amend the AD Act by adding that area of activity in relation to any other ground of discrimination or harassment, suggests that parliament did not intend to cover it.

1. In 1999, the New South Wales Law Reform Commission considered this issue in its report entitled Review of the Anti-Discrimination Act 1977 (NSW ). The Commission said, at 4.273 that:

The ADA currently has no provision that prohibits discrimination in the disposal of interests in land. Consequently it is not unlawful to refuse to sell a property or other interest in land to a prospective buyer for discriminatory reasons. This is contrary to the position under the RDA, the SDA and the DDA and in most other jurisdictions.

1. The RDA, the SDA and the DDA are references to the Racial Discrimination Act 1975 (Cth), the Sex Discrimination Act 1982 (Cth) and the Disability Discrimination Act 1995 (Cth) respectively. The Commission's 28 th recommendation to the Attorney General in 1999 was to:

Include "disposal of interests in land" as an area of discrimination.

1. Parliament has not implemented that recommendation either in relation to vendors or their agents.

1. Even if a Tribunal hearing this matter found that the real estate agent was providing a service to Ms Dahdal, she would have to identify whether she was refused a service or provided with a service on unfavourable terms. My understanding of Ms Dahdal's complaint is that she was not refused a service, but that she was provided with a service on certain terms or in a certain manner. According to Rees, Lindsay and Rice in Anti-Discrimination Law; Text, Cases and Materials , The Federation Press, 2008 at 401, "The reference to terms or conditions appears to imply discrimination in the elements of the contractual relationship between the parties." The only contractual relationship involved in these proceedings is the contractual relationship between the vendor and the real estate agent. There was no contract between the real estate agent and Ms Dahdal as a prospective purchaser. Discrimination in relation to the manner in which services are provided is not prohibited by s 19.

1. It follows that it is likely that Ms Dahdal's complaint would be declined as not disclosing a contravention of the AD Act , if it were to proceed. In those circumstances, it would not be fair or just to grant leave for it to proceed. Nevertheless, I will go on to consider, in brief, the merits of the complaint if it does come within the definition of "services" and can be regarded as a breach of the terms on which the services were provided.

Differential treatment

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to the applicant must be compared with the treatment that would have been afforded to a person not of her race in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to Ms Dahdal, the differential treatment and causation requirements merge because the Tribunal could only reach the conclusion that the real estate agent treated Ms Dahdal less favourably than a hypothetical person of a different race by determining that race was a reason for that different treatment: 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.

Causation

1. To substantiate her complaint, at least one of the reasons for Ms Dahdal being treated in the way she was treated must be her race. For Ms Dahdal to prove "causation" she would have to rely on either direct evidence or seek to draw inferences from primary facts. There was no direct evidence linking the alleged conduct with Ms Dahdal's race.

1. Ms Dahdal connected the agents' alleged conduct with her race by referring to two incidents. The first was the fact that the agent asked her what her background was and described the other family who were also interested in purchasing the property as a very nice family with four children. The second incident occurred when Mrs Dahdal was talking to another employee of the real estate agency. She describes the conversation as follows:

I told him my brothers and other family members are buying and selling in this area so McGrath don't want to be in the bad books with our family. . . he said, "Oh, I should now be scared walking in a dark alley from your family!!!!!!!!" I was sooooo choked of his racial comment . . . and he was too. . . . as he must have realised what I meant was that McGraths would lose our business. He said " I misunderstood you . . . it's to do with the fact that English is my second language."

1. It is not possible to predict whether a Tribunal would find these incidents, if proved, were sufficient to raise an inference that race was one of the reasons for the alleged treatment. Ms Dahdal's evidence about those remarks would have to be taken into account together with any other evidence from other witnesses.

Conclusion

1. It would not be fair or just to give leave for this complaint to go ahead. Firstly, the evidence of the conduct complained of is circumstantial and is denied. Secondly, and more fundamentally, it is unlikely that a Tribunal hearing this matter would characterise the relationship between the real estate agent and Ms Dahdal as one of service provider. Thirdly, the evidence in relation to race being one of the reasons for the alleged conduct is indirect. In these circumstances it is highly unlikely that Ms Dahdal's would be able to substantiate her complaint.

Costs

1. The real estate agents applied for costs pursuant to s 88(1A) of the ADT Act . The general rule is that each party bear its own costs but costs may be awarded if it is 'fair' to do so taking into account the specific matters listed in s 88(1A) and any other matter that the Tribunal considers relevant. The matters which the real estate agent considered relevant were that:

1)   Ms Dahdal's complaint has no tenable basis in fact or law; and

2)   Ms Dahdal has vexatiously conducted the proceedings.

1. The real estate agent submitted that they took Ms Dahdal's complaint seriously and investigated thoroughly. No impropriety was found. Ms Dahdal has persisted in complaining to head office, to the Australian Human Rights Commission, to NSW Fair Trading and to the Anti-Discrimination Board. According to Mr Jemmeson, her complaint is mere speculation based on hearsay and casual conversations. The real estate agent has been put to considerable expense in responding to these claims.

1. Ms Dahdal's response was that she was never told by the Anti-Discrimination Board or the Tribunal that there was a chance that she would have to pay the real estate agent's costs. She maintains that her complaint is legitimate and she has not conducted the proceedings vexatiously.

1. I am not satisfied that it is fair to order Ms Dahdal to pay the real estate agent's costs. Ms Dahdal has the right, under the AD Act , to request that her complaint be referred to the Tribunal in circumstances where it has been declined. The issue relating to "services" was first raised by the Tribunal at the leave hearing. Nor am I satisfied that Ms Dahdal conducted the proceedings vexatiously. She genuinely believes that she has been the subject of discrimination on the ground of her race.

Order

1) Leave for the applicant's complaint to proceed is refused.

2) The respondent's application for costs is refused.

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Decision last updated: 23 September 2011