Gitau & Ng'ang'a v De Soysa Walsh Pty Ltd, Walsh & Boles - [2023] QCAT 189

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Gitau & Ng’ang’a v De Soysa Walsh Pty Ltd, Walsh & Boles [2023] QCAT 189

PARTIES:

JACKSON GITAU
ROSE NG’ANG’A

(applicants)

v

DE SOYSA WALSH PTY LTD
DAVID WALSH
LEACHIA BOLES

(respondents)

APPLICATION NO/S:

ADL054-20, ADL055-20, ADL024-21

MATTER TYPE:

Anti-discrimination matters

DELIVERED ON:

22 May 2023

HEARING DATE:

3, 4 and 5 April 2023

HEARD AT:

Brisbane

DECISION OF:

Member Gordon

ORDERS:

1.     De Soysa Walsh Pty Ltd and David Walsh did directly discriminate against Jackson Gitau and Rose Ng’ang’a in the accommodation area on the basis of pregnancy by, in emails of 27 and 30 March 2020, threatening eviction proceedings if they brought their baby home after the birth.

2.     De Soysa Walsh Pty Ltd and David Walsh did directly discriminate against Jackson Gitau and Rose Ng’ang’a in the accommodation area on the basis of race by:

(a)     in emails of 27 and 30 March 2020, threatening eviction proceedings if they brought their baby home after the birth; and

(b)     between 27 March and 2 June 2020, conducting a campaign against the tenants of surveillance, being constantly picked on, losing the use of a facility, being served with numerous unjustified notices, declining to assist with utilities, being spoken to in humiliating and offensive ways, and by obstructing access.

3.     All other complaints in ADL054-20 and ADL055-20 are dismissed.

4.     The sexual harassment counter complaint in ADL024-21 is dismissed.

5.     ADL054-20 and ADL055-20 shall be listed for a directions hearing on a date to be fixed, to enable the tribunal to decide the question of remedy.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where tenants asked the lessor for a break lease because they were having a baby and needed somewhere bigger – where the lessor threatened eviction proceedings if they were to bring the baby home – whether the threat was direct discrimination in the accommodation area on the basis of pregnancy and/or race

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – DIRECT DISCRIMINATION – where tenants were of African origin – where the lessor started a campaign against the tenants of surveillance, being constantly picked on, losing the use of a facility, being served with numerous unjustified notices, declining to assist with utilities, being spoken to in humiliating and offensive ways, and by obstructing access – whether direct discrimination in the accommodation area on the basis of race or another attribute

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – INDIRECT DISCRIMINATION – whether lessor imposed a ‘no children’ term on the tenants

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – RACIAL VILIFICATION – where a tenant publicly suffered oral racial abuse – where it is said one of the respondents falsely publicly claimed that the tenant was threatening her – whether the acts were racial vilification

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – SEXUAL HARASSMENT – where a cross complaint of sexual harassment was made some months after the tenants’ complaints – whether there was sexual harassment

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – VICTIMISATION – where the lessors’ campaign continued after allegations of discrimination made by tenants – whether the campaign was because of the allegations

Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 11, s 83, s 119, s 124A, s 130, s 131A, s 133, s 204

Burns v Dye [2002] NSWADT 32

Catch the Fire Ministries v Islamic Council of Victoria Inc [2006] VSCA 254
Matthews v Woombye Pub Trading Pty Ltd [2022] QCAT 301
McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243
Petrak v Griffith University & Ors [2020] QCAT 351
Ritson v The Giving Network Pty Ltd & Anor [2021] QCAT 81
Sivananthan v Commissioner of Police, New South Wales Service [2001] NSWADT 40
St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16

Sunol v Collier (No 2) [2012] NSWCA 44

APPEARANCES & REPRESENTATION:

Jackson Gitau:

Duncan Marckwald (counsel) instructed by DWF (Australia)

Rose Ng’ang’a:

Laura Dawson (counsel) instructed by Legal Aid Queensland

De Soysa Walsh Pty Ltd

By its sole director David Walsh

David Walsh

Self-represented

Leachia Boles

By David Walsh

REASONS FOR DECISION

This discrimination, racial vilification and victimisation complaint, and an associated sexual harassment counter complaint, concern what happened during a tenancy of a unit in a suburb in North Brisbane.
The tenants were Jackson Gitau and Rose Ng’ang’a. They had a fixed term residential tenancy from the first respondent, De Soysa Walsh Pty Ltd, a company controlled by the second respondent, David Walsh. The tenants’ unit was one of six in a block of units converted from a suburban house about 60 years ago. The third respondent, Leachia Boles, is Mr Walsh’s wife and during the currency of the events was a joint owner of the block of units.
For ease of reference, in these reasons I refer to the three respondents as ‘the respondents’ although when deciding the question of liability I treat them separately.
About half way through the fixed term, Ms Ng’ang’a told the respondents that she was pregnant and that they wanted to break the lease because they needed somewhere larger. It was agreed that if a new tenant could be found, then the tenancy would be terminated early.
A new tenant was not found, and the tenants indicated to the respondents that they would need to stay to the end of the fixed term.
The baby was due just over six weeks before the end of the fixed term and about a month before the baby was due, the respondents told the tenants that if the baby was brought to the unit it would be an unauthorised occupant and eviction proceedings would be commenced.
The tenants allege that at about the same time the respondents started to put them under surveillance, constantly picked on them, withdraw a facility, served them with numerous unjustified notices, interfered with their utilities and declined to assist with the utilities, obstructed their access, humiliated them, called them offensive names, and on one occasion physically attacked one of them.
The tenants allege that these things happened because of their baby, and because they were of African origin. The tenants sought help from Tenants Queensland and lawyers. Steps were taken to protect the tenants’ rights to remain in the premises by applying to the tribunal, bearing in mind the baby was due soon. The tenants say that despite this, the respondents continued their campaign against them.
Finally, a couple of days before the end of the fixed term tenancy, and when the baby was five weeks old, the tenants moved out of the premises.
The counter complaint is for sexual harassment. One of the respondents, Ms Boles, says that she was subject over several weeks to unwanted comments and gestures of a sexual nature by Mr Gitau which she found offensive and threatening.

The hearing

At the commencement of the hearing I discussed with the parties whether it was appropriate to try to hear the evidence in support of remedy, or whether the hearing should be limited to liability in the first instance. I decided that the hearing should be limited to liability in the first instance.
A witness, a neighbour, was not at the hearing but had filed two affidavits.[1] I decided that I could read these.
[1]In ADL022-20, affidavit of 14 May 2020. In ADL024-21, affidavit of 25 March 2022.

The complaints in more detail

The governing legislation is the Anti-Discrimination Act 1991 (Qld) (ADA).
The first complaint made to the Queensland Human Rights Commission (QHRC) was made on 6 April 2020 by Ms Ng’ang’a for discrimination on the basis of pregnancy. This was joined by a complaint made by Mr Gitau.
On 24 April 2020 the tenants obtained a temporary restraining order from the tribunal because the lessor had said that if the baby was brought to the unit it would be an unauthorised occupant and eviction proceedings would be commenced.
Subsequently the complaint of 6 April 2020 was referred to the tribunal and it was later joined by Ms Boles’ complaint of sexual harassment.
A history of the proceedings and relevant directions and orders is given in:
Schedule 1 – history of the proceedings
The tenants’ complaints as amended and permitted to proceed in the tribunal appear in the Amended Statement of Facts and Contentions filed on 6 September 2021 in ADL054-20 (for Mr Gitau) and the Amended Statement of Facts and Contentions filed on 10 March 2021 in ADL055-20 (for Ms Ng’ang’a).
It is important that in this decision I keep strictly to the complaints because I only have jurisdiction to deal with the complaints made originally to QHRC as amended with the tribunal’s leave. In this respect it is important for me to note that not all complaints in ADL054-20 and ADL055-20 are made against all the respondents, some acts referred to in the evidence are not relied on in the complaints at all, and some acts referred to in the evidence are relied on in some complaints but not in other complaints.
Two of the acts complained of as less favourable treatment are in the contentions in ADL055-20 but not in the contentions in ADL054-20.[2] They are however, in the amended complaint made to QHRC in both those proceedings and therefore are within my jurisdiction. They seem to have been omitted from the contentions in ADL054-20 in error. I am going to treat these complaints as being in both these proceedings, because it would not be unfair to the respondents to do this (the respondents have had to answer these complaints anyway).
[2]The allegation that on 5 April 2020 Ms Boles filmed a food delivery to the unit and the allegation that on 18 April 2020 Mr Walsh mocked Ms Ng’ang’a about packing, resulting in a breach notice served by the tenants on 22 April 2020.
In final written submissions one of the complaints is expressly not ‘pressed’.[3] Some other complaints are implicitly not pressed by being omitted from the submissions. The way the final written submissions are constructed show that they are intended to be the final statements of case for the tenants and since they are prepared by counsel it is right for me to take it that only the complaints referred to are now relied on.
[3]Mr Gitau’s complaint of racial vilification against Mr Walsh.
The complaint of direct discrimination is made in the area of accommodation because of the attributes of pregnancy, parental status, family responsibilities and race.[4] In the amended contentions, the less favourable treatment is divided into the relevant description of the area of accommodation and is said to be less favourable treatment:[5]
[4]Relying on the area of accommodation in section 83, and the attributes in section 7 of the ADA.
[5]I have amalgamated the complaints made by Mr Gitau and Ms Ng’ang’a, and adjusted wording and numbering slightly to make the allegations slightly easier to follow.
(a)varying the terms of the accommodation and denying a benefit associated with the accommodation by:
(i)      interfering with the water and electricity supply to the unit;
(ii)      safe access to the unit;
(iii)     impairing access to the unit and common areas/amenities; and
(iv)     seeking access to the unit on multiple occasions.
(b)treating the tenants unfavourably in connection with the accommodation by:
(i)      informing the tenants that their child, once born, would not be authorised to reside at the unit;
(ii)      informing the tenants that bringing their child to reside in the unit would be a serious breach of the rental agreement and would result in eviction proceedings;
(iii)     seeking multiple entries into the unit to intimidate and harass the tenants; and
(iv)     issuing multiple notices alleging breaches of the rental agreement.
(c)treating the tenants unfavourably in connection with the accommodation by, on 19 and 25 May 2020, using ‘racially discriminatory comments and language towards’ Mr Gitau and by association, Ms Ng’ang’a.
Allegations (a) and (b) are made only against the company and Mr Walsh. Presumably this is because it is said that only the company and Mr Walsh acted ‘in connection with accommodation’ and this is not said about Ms Boles. Allegation (c) is made only against Ms Boles.
Racial vilification and/or serious racial vilification complaints against Ms Boles. This is for the incidents on 19 and 25 May 2020. It is said that Ms Boles publicly called Mr Gitau a ‘monkey’ on 19 May 2021 and a ‘nigger’ on 25 May 2021 and on that day falsely alleged that he was threatening her.
In Mr Gitau’s amended contentions it is said that these things amounted to racial vilification in contravention of section 124A of the ADA and serious racial vilification in contravention of section 131A of the ADA.
In Ms Ng’ang’a’s amended contentions the same matters are said to be racial vilification and serious racial vilification on the basis of her association with Mr Gitau. However, in final submissions filed on behalf of Ms Ng’ang’a it is only calling Mr Gitau a ‘monkey’ on 19 May 2021 and a ‘nigger’ and ‘bush nigga’ on 25 May 2021 that are relied on (falsely alleging that he was threatening her is not relied on).
Racial vilification and/or serious racial vilification complaints against Mr Walsh. In the amended contentions filed on Mr Gitau’s behalf, there were racial vilification complaints against Mr Walsh. There was a complaint that Mr Walsh publicly called Mr Gitau a ‘piece of shit’ on 19 May 2021, and on 25 May 2021 threatened Mr Gitau and hit him with a golf club. These were said to be acts of racial vilification and serious racial vilification of Mr Gitau. However, in final written submissions filed on Mr Gitau’s behalf, these complaints are not pursued.[6]
[6]Final written submission dated 28 April 2023 filed on Mr Gitau’s behalf paragraph 145.
The amended contentions filed on Ms Ng’ang’a’s complained that the name calling on 19 May 2021, and the incident on 25 May 2021 were acts by Mr Walsh of racial vilification and serious racial vilification of Ms Ng’ang’a on the basis of her association with Mr Gitau. Again in final written submissions, these complaints do not seem to be pursued.[7]
[7]Final written submission dated 28 April 2023 filed on Ms Ng’ang’a’s behalf paragraph 151.
The sexual harassment complaint appears in a Statement of Facts and Contentions filed by Ms Boles on 5 April 2022 in ADL024-21, referring to her complaint of 13 December 2020 and her affidavit of 30 March 2022. In those documents Ms Boles says that when she was alone, and in February and March 2020 Mr Gitau would invade her personal space, look her up and down, focus particularly on her breasts and crotch area and would smirk at her as she turned away to leave. Towards the end of March 2020 the harassment became verbal, offensive and threatening and in April and May 2020 Mr Gitau would intercept her in the garden at the rear of the property and say:
you're a good looking woman. I like women who have a good figure
you’re in good shape for a woman of your age
I really like pretty black women like you
What’s wrong with you? Don’t you like a nice strong black man like me?
Ms Boles says that she used to tell Mr Gitau to leave her alone when he approached her, but after that instead of speaking to her he would leer at her and make low grunting noises when he walked past her.
Ms Boles is also relying on incidents on 19 and 25 May 2020 as acts of sexual harassment. I have described these incidents elsewhere in these reasons.
The complaint of victimisation relies for the ‘protected acts’ on communications on behalf of the tenants from Tenants Queensland and their lawyers to Mr Walsh which described some events as discriminatory or which if treatment continued could be victimisation, and also relies on the discrimination complaints made to QHRC.[8]
[8]Mr Gitau’s Amended Statement of Facts and Contentions paragraph 59, and Ms Ng’ang’a’s Amended Statement of Facts and Contentions paragraph 63.
In the victimisation complaint brought by both tenants, it is said that, because of the protected acts, all three respondents acted to the tenants’ detriment by continuing to seek to inspect the unit and issuing breach notices. These allegations end on 1 May 2020.
In Mr Gitau’s amended contentions however, all the incidents from 27 April 2020 to 25 May 2020 seem to be added as detriments relied on in the victimisation complaint,[9] and in Ms Ng’ang’a’s amended contentions the incidents of 19 and 25 May 2020 seem to be added as detriments relied on in the victimisation complaint.[10] In final written submissions filed on behalf of both tenants however, these added detriments are no longer relied on.
[9]Mr Gitau’s Amended Statement of Facts and Contentions paragraph 58.
[10]Ms Ng’ang’a’s Amended Statement of Facts and Contentions paragraph 62.
Mr Gitau has his own discrete victimisation complaint. He says that because of the protected acts Ms Boles made the complaint of sexual harassment but the complaint was ‘entirely without basis’.
The complaint of indirect discrimination is also made in the area of accommodation. It is said that the company and Mr Walsh imposed a term that ‘no dependent child or children were to reside in the unit’. It is said that a higher proportion of those who were not pregnant such as Ms Ng’ang’a and not a parent, and who did not have family responsibilities such as applied to the tenants, would be able to comply with the term compared with persons not in those categories, and that the term was not reasonable.
The company’s vicarious liability is said to arise from Mr Walsh’s actions under section 133 of the ADA, that is to say that when he contravened the ADA he was acting in the course of work or while acting as agent for the company.

How I have decided these complaints

There are four separate tribunal files which were not consolidated.[11] There was much material in the referral documents, and evidence was provided not only in affidavits and statements of evidence but also (by the respondents) in contentions. Each tenant has separate contentions which only partly match, and which do not wholly accord with final written submissions. There is much duplication of material. Untangling the various complaints and the acts relied on, and the evidential sources was difficult.
[11]That is, ADL022-20 (for the interim order), ADL054-20, ADL055-20 and ADL024-21.
Helpfully, the lawyers put all the material into one hearing bundle with tabs and page numbers starting within each tab. In these reasons, the references to tab numbers refer to the hearing bundle.
There is much dispute between the parties about what happened, and this requires some careful findings of fact. The hearing was some three years after the events and although Mr Walsh had a good recollection of the events, the other witnesses did not. For the respondents, the earliest material filed was generally more spontaneous and less tainted by semantic argument, thought, and in some cases imagination, than the later material.[12] For the tenants, since they were legally represented from an early stage, their filed material in most cases was consistent but some of it suffered from lack of detail. In both cases, contemporaneous documents were helpful.
[12]An affidavit from Ms Boles dated 24 March 2023 was filed, and contained much information not previously submitted which sometimes differed in important respects from earlier material. The earlier material is likely to be more accurate and I have treated the contents of this affidavit with caution.
In finding the facts, I was assisted by an examination of the credibility of, in particular, Mr Gitau and Ms Boles.
As explained in Petrak v Griffith University & Ors [2020] QCAT 351,[13] although in the direct discrimination complaint it is necessary to compare the treatment of the tenants with that of a comparator because of the wording used in the ADA, the reason why the respondents acted in the way they did is central to resolving the complaints.
[13][40].

I have concluded that although the respondents have tried to justify the way they treated the tenants, this was not sufficient to explain that treatment. I have concluded that instead, there were pressures upon Mr Walsh from his wife Ms Boles, which caused him unconsciously to treat the tenants unfavourably on the basis of race. I was led to that conclusion from Ms Boles’ own evidence, which unusually but frankly describes how she regards African males generally, and how she regarded the tenants. The frankness is explained by Ms Boles belief, as expressed in her submissions, that there is nothing wrong with a person speaking negatively about people on the grounds of their race if this is based on known facts.
To make these reasons easier to follow I have put each step of the analysis above into schedules at the end of these reasons.
Firstly I have needed to concentrate on misleading evidence given by Mr Gitau and by Ms Boles, which has affected their credibility. These appear in:
Schedule 2 – credibility of Mr Gitau
Schedule 3 – credibility of Ms Boles
With the assistance of those considerations I have been able to make my detailed findings of fact which are in chronological order in:
Schedule 4 – detailed findings of fact
Having reached those detailed findings of fact, it was possible to identify a campaign conducted by the respondents against the tenants. Some of the events complained of were not part of the campaign, but most were. I have identified in schedule 4 which events were part of the campaign.
My analysis of the reasons given for the campaign and whether the reasons were sufficient to explain it are given in the next section of these reasons. The evidence and submissions of Ms Boles which led me to conclude that the real reason for the campaign was race are in:
Schedule 5 – what the respondents say about racial terms
Schedule 6 – Ms Boles’ stated view about African men
I found that one aspect of unfavourable treatment, that is the direct threat to evict the tenants if they brought their baby to the unit, was on the grounds of pregnancy, but I also think that it was on the grounds of race.
Finally I was able to reach conclusions on the complaints of racial vilification, sexual harassment, victimisation and indirect discrimination.

The respondents’ campaign against the tenants and the reason for it

The campaign

From the detailed factual findings in schedule 4 it is possible to identify a definite pattern of behaviour on the part of the respondents, which for the purpose of this complaint can be regarded as having started on 27 March 2020 (when there was a discussion about the clothes dryer) and which continued until the tenants left.
It is right to describe this pattern of behaviour as a ‘campaign against the tenants’, whereby the respondents put the tenants under surveillance, constantly picked on them, withdrew a facility, served them with numerous unjustified notices, ignored their requests for help with failed water and electricity, spoke to them in humiliating and offensive ways, and attempted to impede their access to the unit and to the car port.
There is no doubt that the campaign was unfavourable or less favourable treatment. It caused the tenants a considerable amount of misery and upset in the last few weeks of their tenancy at a time when they had better things with which to be concerned, such as preparing to have their baby and all the consequences of the birth.
In deciding the direct discrimination complaint, I am interested in the substantial reasons for the campaign.[14] In considering this, it should be borne in mind that the real reasons for less favourable treatment may not be known or recognised, and may be covert or unconscious. So it may be necessary to consider what, unknowingly, had influenced those reasons and caused the campaign to be implemented.
[14]Section 10(4) of the ADA, which provides that where there are two or more reasons why a person treats another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
The respondents have attempted to state their reasons for the campaign. I shall consider whether or not these are the real reasons for the campaign.

The stated reasons for the campaign

The stated reasons for the campaign appear mainly from the Response to Contentions filed on 10 November 2020 in ADL054-20,[15] but the stated reasons are boosted by a considerable amount of hindsight in later documents, in the filed evidence, in evidence given in the hearing and in the final written submissions.
[15]Tab 9 page 12.
The stated reasons need to be understood in the context of the developing pandemic at the time. On 29 March 2020 an announcement was made by the Australian Prime Minister that the National Cabinet, representing the Commonwealth, its Territories and States, had agreed that there would be a moratorium on evictions on persons who were in financial distress as a result of Covid-19 for the next six months.[16]
[16]Tab 9 page 16.
In Queensland this was implemented by the Residential Tenancies and Rooming Accommodation (COVID-19 Emergency Response) Amendment Regulation 2020 (Qld) which provided a moratorium on eviction for tenants in Covid hardship even if their fixed term ended. For those tenants not in Covid hardship a notice to leave at the end of the fixed term would still be effective.
When at the end of his evidence I asked Mr Walsh to explain the ‘reason why’ he made much of the tenants’ alleged breaches of the rental agreement, in particular the noise emanating from their unit, and the allegation that while the respondents were away in the USA they had someone else living in the unit. This is also explained in detail in the respondents’ final written submissions.[17]
[17]Sent on 21 April 2023 paragraphs 23f.
The tenants accept that soon after moving in they had some friends over and there was some noise and possibly rudeness, but they say that the person who was seen coming and going to the unit when the respondents were in the USA was a relative who merely visited from time to time.
I have not resolved the factual disagreements about those earlier alleged breaches because even at their highest they do not explain the campaign. The alleged breaches were in the past and any repeat of such alleged breaches could be managed. For example, with respect to noise, the tenants apologised the first time this happened, and responded to later complaints.
In any case, there was no point in the campaign if it were conducted because of past breaches because the tenancy was due to end on 12 June 2020 anyway.
In final written submissions the respondents make much of what is said to be a ‘demand’ made by the tenants for a break lease in emails of 20 December 2019, and on 28 March 2020. It is said that the fact of the ‘demand’ required the campaign against the tenants. The difficulty with this argument is that no such demand can be found in the tenants’ written material, and it is not consistent with the meeting on 27 January 2020 where it was agreed that the unit was not suitable for a couple with a baby, and that the tenants were to find a replacement tenant for the unit, which of course would relieve the respondents from this task at the end of the fixed term.
In final written submissions the respondents make much of the tenants’ failure to find another tenant, showing that they did not really intend to leave before the birth of the baby, and that this justified the campaign. But this is not correct. There is nothing to show that the tenants had any expertise in finding a new tenant. Mr Walsh provided some assistance when it was agreed at the meeting on 27 January 2020 that the tenants could look for a new tenant by advertising on Gumtree giving Mr Walsh’s contact details. When that did not work, it was Ms Ng’ang’a who sought the help of a real estate agent to market the unit for rent. It was only when that did not work either and the date of the baby was approaching, that the tenants decided to stay in the unit until after the birth of the baby and to move out at the end of the fixed term.
The respondents say that one of the reasons why the respondents started the campaign was because they believed that the tenants ‘were positioning themselves to make financial demands upon the respondents’, which is referring to financial advantage having agreed to a break lease.[18] But this is not correct because the agreement reached on 27 January 2020 dealt with the consequences of the break lease if a tenant were found. When on about 9 March 2020 the real estate agent was engaged, there was the added expense of the letting fee. But Mr Walsh made it clear to Ms Ng’ang’a that she would have to pay this.[19] Although the advertising cost of finding a new tenant was raised with Mr Walsh by Tenants Queensland in a telephone call, no agreement was reached about this,[20] and Mr Walsh would have been aware that the tenancy agreement provided that on a break lease the lessor was entitled to reasonable costs incurred by the lessor in reletting the premises,[21] which benefit the respondents were not relinquishing. So this does not explain the campaign.
[18]As said in one of the early documents, the response to contentions, tab 9 pages 17 to 20, in particular paragraph 38.
[19]Affidavit Mr Walsh tab 1 page 148 with emails at tab 1 page 187.
[20]Tab 21 page 273.
[21]Clause 7(2).
At the end of his evidence, Mr Walsh suggested that a reason was that the tenants appeared to be seeking ‘compensation’. In final written submissions this has been explained as meaning that the tenants were ‘angling for unwarranted or unjustified financial benefits’. This is not Mr Walsh admitting to having conducted any part of the campaign because the tenants had made a complaint to QHRC, but is the same as the stated belief that the tenants were positioning themselves to make financial demands upon the respondents dealt with in the paragraph just above.
In final written submissions the respondents say that when they became aware that the tenants were abandoning the search for a new tenant on about 6 April 2020, they were concerned that the tenants might try to stay in the unit past the end of the fixed term.[22] This is unlikely to be a reason because the respondents had served a notice to leave which would normally mean, as Mr Walsh was well aware, that a termination order could quickly be obtained from the tribunal. The only impediment might have been the Covid-19 eviction moratorium, but this could only be engaged in the case of Covid-19 hardship, and there was nothing to suggest to the respondents had such hardship. Mr Gitau was still working and the rent was still being paid. In addition to this, through Tenants Queensland in an email of 22 April 2020 the tenants confirmed their intention to leave at the end of the fixed term.[23]
[22]As Mr Walsh put it in cross examination: ‘they were attempting to create a situation where they were trying to build a way to stay in the property past the end of their lease’.
[23]Tab 20 page 241.

Was there another reason for the campaign?

None of the stated reasons for the campaign can be accepted when viewed from an objective standpoint, but that does not mean by itself that there was another reason for the campaign.
I am led to look at the possibility of another reason for the campaign by two things.
The first is that the campaign against these tenants was in marked contrast to how the respondents treated another tenant at about the same time. There were issues with this other tenant with unpaid rent, noise, and frequent visitors. But Mr Walsh renewed his lease. Then soon after, when the respondents had evidence that he was dealing with drugs from the premises, instead of going to the police about it, Mr Walsh had a private discussion with him and showed him the evidence that the respondents had gathered (photos, car registrations and dates gathered over the previous 6 weeks). Then man left the premises voluntarily a matter of days later.[24] There were no notices, and it appears from the evidence there were no other confrontations with this tenant.
[24]As was explained by Mr Walsh in cross examination. The written evidence supports this: respondents’ submissions in ADL022-20 paragraph 17, affidavit of Mr Walsh dated 15 May 2020 tab 1 page 151, and affidavit of Ms Boles 24 March 2023 paragraphs 40, 41. This shows that the tenant left on 4 May 2020 having been given a new lease. This contrasting method of dealing with this tenant overlapped the treatment of the tenants.
Although the drug dealer tenant cannot be considered to be a direct comparator because his circumstances were quite different, the difference in treatment makes it more likely that there were other unstated reasons for the campaign.
The second arises from the respondents’ evidence tending to show that there was a total mistrust of the tenants. When analysed, the mistrust seems to be misplaced and therefore, without more, unexplained.
The mistrust is repeatedly demonstrated from the respondents’ written material and oral evidence. Some clear examples are:
(a)Ms Boles considered that the tenants were deceitful and dishonest upon first meeting them and even before entering into the tenancy agreement. The suggestion was that Ms Ng’ang’a had not mentioned she had a boyfriend earlier on the telephone or in her email and tried to hide this at the viewing on 6 June 2019.[25]
[25]Affidavit of Ms Boles of 24 March 2023 paragraphs 4, 25. This is contrary to Ms Ng’ang’a’s evidence that she told Mr Walsh on the telephone she had a partner: signed but unsworn affidavit of 7 May 2020. It is notable that Ms Boles’ account in this affidavit of what was said on the tenants’ viewing of the premises on 6 June 2019 differs from what was said on 15 May 2020 by Mr Walsh. He says that Ms Ng’ang’a was accompanied on the view by a male she introduced as ‘Jack’ and she stated that he was her ‘boyfriend’. From this it can be seen that Ms Ng’ang’a was not trying to hide the fact she had a boyfriend. It is likely she did mention him to Mr Walsh on the telephone as she says.
(b)In December 2019, Mr Gitau failed to respond to Mr Walsh’s question whether he too wanted to break the lease because they were having a baby. To the respondents, this was suspicious.[26]
(c)In recent submissions, the respondents say that the tenants ‘demanded’ a break lease and made only ‘parlous’ attempts to find a replacement tenant, the implication being that they were pretending that they wished to leave earlier than the end of fixed term. As discussed above, these things are incorrect.
(d)Mr Gitau said in his email of 28 March 2020 that ‘with everything else going on at the moment (corona and expecting a new born) we cannot afford to pay rent here and get a new house’. The respondents viewed this at the time, and later in their written material, as exploiting Covid-19 as a means to avoid the lease terms and to gain financial benefit,[27] as ‘unacceptable bad faith behaviour and dishonest’,[28] and as a ‘total lack of bona fides’.[29]
(e)When Mr Gitau said in his email of 28 March 2020 that we want ‘to leave this place peacefully so we are open to fair negotiations’, the respondents regarded this as a threat of physical violence if terms favourable to the tenants could not be reached.[30]
(f)In the view of the respondents, the complaint to QHRC of 6 April 2020 was not that the tenants felt aggrieved about the apparent campaign, or needed protection from eviction on discriminatory grounds, but was for ‘an ulterior and improper purpose, that is, to obtain benefit from the respondents and to avoid meeting the obligations they had contracted pursuant to their lease’.[31]
(g)When on 14 April 2020 the tenants’ NBN contractor was rude to Mr Walsh, the respondents believed that tenants were being rude to Mr Walsh because in some way the tenants were responsible for the acts of the NBN contractor.[32]
(h)When on 17 April 2020 Mr Gitau complained of no water in the unit saying that ‘with corona and not being able to flush the toilet is making things difficult’ this, according to Mr Walsh in an email at the time, was a deceitful and ludicrous attempt to exploit the current national crisis for personal benefit.[33]
(i)When on 20 April 2020 Tenants Queensland asked Mr Walsh on the telephone whether he would agree to a break lease by agreement, this was the tenants ‘not acting bona fide and attempting to manipulate the situation to gain an unfair and improper financial advantage while ignoring their lease obligations’.[34]
(j)When on 7 May 2020 the tenants complained of no electricity in the unit, the respondents thought that this was not because there was no electricity in the unit but was because the tenants were ‘dishonest and deceitful people who can’t be believed’.[35]
(k)The baby was born on 5 May 2020. This was 9 days after the date the tenants originally gave Mr Walsh. Mr Walsh therefore said that the original date was ‘inaccurate’ and that it could have been to mislead him in order to gain some advantage with the dates.[36]
[26]Mr Walsh’s email of 22 December 2019 tab 14 page 91. In fact, there was nothing suspicious about this because Ms Ng’ang’a explained that both of them wished to move out, and then Mr Gitau participated in a meeting in the unit on 27 January 2020 about the terms of the break lease and sent an email of 28 March 2020 confirming they were looking to break the lease, explaining that they wanted to avoid having to pay two rents at the same time.
[27]Response to Contentions tab 9 page 20.
[28]Mr Walsh’s email of 30 March 2020 tab 1 page 33 for a full copy.
[29]Respondents’ final submissions sent on 21 April 2023 paragraph 81.
[30]Response to Contentions tab 9 page 18 and Ms Boles’ affidavit of 24 March 2023 paragraph 53. This was an extreme interpretation of what was said by Mr Gitau. On my finding there was nothing sinister intended. As Mr Gitau explained in cross examination, his poor use of words was because English is his third language. It should have been obvious to the respondents that Mr Gitau’s English was not perfect because he referred in this email to the unit as a ‘house’.
[31]Mr Walsh’s response of 22 June 2020 to QHRC complaint.
[32]Mr Walsh said in cross examination that he believed that the contractor had been indoctrinated by Ms Ng’ang’a so that he was ‘hair trigger ready’ to launch his stream of invective and abuse against him.
[33]Mr Walsh’s email of 17 April 2020 where he suggested that the hot water tank could be used to fill the cistern.
[34]Response to Contentions tab 9 page 23.
[35]Affidavit of Ms Boles dated 24 March 2023 paragraph 59.
[36]Cross examination of Mr Walsh day 3 late morning.
The way it is put in the respondents’ final written submissions is:[37]
The lessor’s reasonably held view as at the end of March, given their reaction to the served Form 12, was that the applicants had demonstrated a propensity to deceive and dissemble. The applicants were not acting bona fide. They could not be believed, from an objective assessment, prepared to play both sides against the middle to gain any advantage they thought they could.
and
It is the lessor’s reasonably held view the applicants had flagged they intended to stay at the property as long as possible, cause as much disruption to the lessor as possible in that time and in so doing, extract as much money as possible from the lessor as the price to get the applicants out of the premises and off the property.
[37]Respondents’ final written submissions sent on 21 April 2023 paragraphs 29 and 145.

In the written material and oral evidence referred to above it is possible to discern that the respondents had a distorted perception with things relating to these tenants. Since there is no evidence that the respondents had distorted perceptions about things not relating to these tenants, this leads to an enquiry why the respondents had this distorted perception. This is the key to understanding the real reason why the respondents conducted the campaign, and therefore why the respondents treated the tenants unfavourably.

The real reasons for the campaign

I do not think the baby was the reason for the campaign. In this respect I agree with Mr Walsh that the baby was ‘irrelevant’,[38] and with Ms Boles when she said in evidence the baby had ‘nothing to do with it’. This differs therefore from the threat made in the emails of 27 and 30 March 2020 which as I have found elsewhere, was about the baby.
[38]Submissions in ADL022-20 paragraph 12.
I do not think the reason for the campaign was some misunderstanding of the chances of obtaining a warrant for possession. Mr Walsh had practiced as a solicitor for about 10 years in total, and had 30 years’ experience in property letting in Queensland and his paperwork in this complaint reflects this. His breach notices and notices to leave demonstrate that he knew his way around the applicable law, and there was an abundance of information available on the internet for tenants and lessors.[39]
[39]In the Response to Contentions tab 9 page 21 Mr Walsh said that he had examined the relevant legislation [referring to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld)].
I think that the real reason appears from the respondents’ own evidence about Ms Boles’ attitude towards Africans, to African men in particular, and towards the tenants. In schedule 6 it can be seen that she mistrusted the tenants from the outset because they were from Kenya. She must have told Mr Walsh at that time because she says that he answered:
being from Kenya was no reason to discriminate against the applicants
She considered that the tenants exhibited the same type of poor behaviour and attitudes as she had perceived from Africans when she lived in the USA. This is why she called Mr Gitau a ‘bush nigga’ who would be a person she would not trust and was dishonest and disreputable.
When at the end of his evidence I asked Mr Walsh about the influence of Ms Boles on his decision making, although he skirted round this he did finally accept that he would have taken her views into account. Although he denied that it would not have altered his decision making, I think he underplayed this. Ms Boles has an obvious strong character[40] and knows how to influence Mr Walsh as shown by what happened on 25 May 2020. In the hearing this manifested itself as her repeated prompting of him when he was cross examining the witnesses. Her own evidence shows that she has influence on Mr Walsh on matters concerning tenants.[41] These things and her intense dislike of African men and intense mistrust of the tenants leads me to find that she did influence Mr Walsh on his decision making. Effectively, Mr Walsh’s suspicions about the tenants being dishonest and disreputable were fed by Ms Boles.
[40]In final written submissions filed on her 28 April 2023 on her behalf it is said that she is not a ‘shrinking violet’: paragraph 38.
[41]Affidavit of 24 May 2023 paragraphs 47 to 50.
In any case, this must be my conclusion by reaching an inference in the circumstances. When this can be done was explained in McCauley v Club Resort Holdings Pty Ltd (No 2) [2013] QCAT 243.[42] In the absence of a more probable explanation for the campaign and by a process of rational deduction (and not mere speculation, guesswork or assumption) to support the inference, it may properly be inferred that the reason why the respondents held the tenants in such suspicion and why they were considered to be so dishonest and disreputable, and hence that it was necessary to conduct the campaign, was Ms Boles’ views. There is no other plausible explanation.
[42][34].
I cannot say that Mr Walsh intentionally acted on the basis of race. I believe he was alert to the possibility of race discrimination, as can be seen from his remark to Ms Boles when she expressed reservations about the tenants when she first met them.[43] However, section 10(3) clearly makes it irrelevant that the perpetrator has no such intention. The reason is that the perpetrator may well act unconsciously.
[43]He said that being from Kenya was no reason to discriminate against the Applicants: affidavit of Ms Boles 14 May 2020 tab 4 page 23.
On my finding therefore the campaign was conducted on the basis of race. In this respect I note that the attribute of ‘race’ includes colour, descent or ancestry, ethnicity or ethnic origin and nationality or national origin.[44] As required by section 10 of the ADA I ask whether the respondents would have conducted the campaign against tenants in the same circumstances as the applicant tenants but who were not of African origin and I answer this in the negative.
[44]Dictionary in the schedule to the ADA.
Having regard to my findings of fact it is now possible to decide the various complaints.

The direct discrimination complaints against the company and Mr Walsh

The threat of eviction in emails of 27 March 2020 and 30 March 2020

The emails of 27 March 2020 and 30 March 2020 read together make the extraordinary statement that the baby when born was not authorised to be at the premises, that this would be a serious breach of the lease, and that it would result in eviction proceedings.
Irrespective of the precise legal rights which applied to the situation, the threat of eviction if the tenants brought their baby home after the birth was undoubtedly unfavourable treatment. As he explained when giving evidence, this threat caused Mr Gitau to seek help. He explained that he did not know how the law worked, and he was concerned that the family would be turned out of the premises. In the circumstances it was reasonable for him to seek help.
On the face of it, the threat of eviction was made because of the pregnancy. It might be said that the pregnancy merely provided an opportunity to be forthright about the effect of the birth on the tenancy, but bearing in mind that at that time the tenants were clear that they wanted to leave before the end of their fixed term, there was no reason to describe that effect. In Mr Walsh’s response to contentions, it is suggested that the threat was a reservation of rights should the tenants not leave at the end of the fixed term, it being uncertain whether they would leave, or possibly to show that the respondents were not going to be intimidated in any way.[45] Again there was no need to reserve such rights or to show such strength. It was the threat that was the unfavourable treatment and there was no need to make such a threat.
[45]Tab 9 pages 20, 21.
Assessing this by applying the terms of section 10 of the ADA, it is necessary to ask whether the respondents would have made this threat to tenants in the same circumstances as these tenants, but who were not about to have a baby. The answer is clearly no.
Section 10(4) of the ADA contemplates more than one ‘substantial reason’ for less favourable treatment. I have found above, and immediately below, that the campaign against the tenants was motivated by race. I regard the emails of 27 and 30 March 2020 as part of the campaign and they were therefore also motivated by race. Both the fact of the pregnancy and race were ‘substantial reasons’ for those emails. In the terms of section 10 of the ADA, I ask whether the respondents would have made the threat in the emails to tenants without the attribute of race, and the answer is no.
Hence I find that the company and Mr Walsh did discriminate against the tenants on the basis of pregnancy and race by making the threat in the emails of 27 March and 30 March 2020 that they would be evicted if they brought the baby to the unit.

The campaign against the tenants

I have found that there was a campaign against the tenants, and that Mr Walsh was strongly influenced by Ms Boles’ mistrust of the tenants because of their race and this is why the campaign was conducted.
As explained in schedule 4 not all the events complained of by the tenants should be considered as part of the campaign, and not all the events are in fact relied on.
It is my finding therefore that the company and Mr Walsh did directly discriminate against the tenants on the basis of race (in addition to the threat of eviction proceedings in the emails of 27 and 30 March 2020) by conducting a campaign against them consisting of a breach notice dated 29 March 2020 issued about the clothes dryer, locking the tenants out of the laundry room on 30 March 2020, issuing a breach notice about the bin collections on 1 April 2020, filming Ms Ng’ang’a on 5 April 2020, issuing a breach notice about water being thrown off the balcony on 11 April 2020, issuing a breach notice about allegedly false complaints about loss of water on 14 April 2020, not dealing quickly with the tenants’ problems with water on 14 April 2020, issuing a breach notice about repeated breaches on 16 April 2020, not dealing quickly with the tenants’ problems with water on 16 April 2020, speaking mockingly to Ms Ng’ang’a on 18 April 2020, issuing a breach notice about a visit by an NBN contractor on 20 April 2020, by an inspection of 24 April 2020 and the issue of a breach notice on 24 April 2020, filming Ms Ng’ang’a on 27 April 2020, not dealing quickly with the tenants’ problems with electricity on 7 May 2020, calling Mr Gitau a piece of shit on 19 May 2020, placing an iron sheet near the front of the car port and placing a trailer in an inconvenient position for the tenants and not responding to Mr Gitau’s emails of 19 and 22 May 2020 about this, and obstructing the car port with a trailer on 2 June 2020.
By itself such discrimination is not actionable. It must come within one of the areas of the ADA for there to be an actionable contravention. Here it can be seen that all the acts of direct discrimination come within either section 83(b) (denying or limiting access to any benefit associated with the accommodation) or section 83(d) (treating a person unfavourably in any way in connection with the accommodation.
The liability of the company arises from the provisions of section 133 of the ADA that is to say that when he contravened the ADA he was acting in the course of work or while acting as agent for the company.
Agent as used in section 133 are defined in the schedule to the ADA as:
agent means a person who has actual, implied or ostensible authority to act on behalf of another
Mr Walsh agreed when giving evidence that in making the residential tenancy agreement the company was acting as trustee for the De Soysa Family Trust. Since the company was the named lessor in the residential tenancy agreement and Mr Walsh was its sole director and shareholder, in anything to do with the tenancy he was obviously acting as the agent of the company, and section 133 is obviously engaged.
Mr Walsh however, submits that section 133 does not apply because he was not an agent for the company, that the company’s only role was as corporate trustee of the trust.[46] Since the company was the lessor, and therefore had given the tenants the right to occupy the unit, and a company must act through other people,[47] I cannot see how these submissions can succeed.
[46]Submissions tab 10.
[47]Small business guide in the Corporations Act 2001 (Cth), Section 1.7.

Complaints made against Ms Boles

From the evidence it can be seen that Ms Boles holds deeply held prejudices against, and stereotypical views about African people, and African men in particular. She had a deep distrust of African men. She had ‘reservations’ about the tenants upon first meeting seemingly because they were from Kenya,[48] and from her perception these views were reinforced as time went on so that at least by 25 May 2020 she openly called Mr Gitau a ‘bush nigga’ which in her understanding meant that he was completely disreputable and unworthy.
[48]She expressed those reservations to Mr Walsh who said that being from Kenya was no reason to discriminate against them: affidavit of Ms Boles 14 May 2020 tab 4 page 23.
Ms Boles was remarkably frank and open about her views to the tribunal. This is rare. Usually such views are not openly expressed in a formal setting. And in many cases such views are not even recognised and understood by those holding them, but are acted upon unconsciously.
The reason why Ms Boles was so frank and open was because she sees nothing wrong with expressing her views. She believes her views state the truth. This is reflected in her submission that expressing negative views about Africans, where such views are as a result of personal experiences and direct knowledge, should not be labelled as racist.[49]
[49]Applicant’s response to respondent’s response to contentions filed in ADL024-21 paragraph 7.
The premise of this submission does not accurately describe the position in Queensland nor does the submission itself reflect the law of Queensland which I need to apply.
This is because there is no room for any defence of ‘justification’ or ‘truth’ when making offensive remarks about somebody which would not be made about somebody of a different race.
The whole point of direct discrimination law is that such views should not disadvantage a person on the basis of an attribute in the areas of the ADA, however justified the perpetrator thinks it is to hold those views. One difficulty of course is that the views may be completely wrong. Another difficulty is that it is quite unfair to apply such views to all Africans. So instead, the views must be suppressed and not acted on. This is enforced by the direct discrimination law and is the only way to stop such disadvantage from happening.
Ms Boles’ submission alone demonstrates that in all likelihood decisions and actions by Ms Boles adverse to these tenants were racially motivated.
Such decisions and actions are only actionable as discrimination if they are in an ‘area’ of the ADA. The relevant area is that covered by section 83 of the ADA:
83 Discrimination in accommodation area
A person must not discriminate against another person—
(a) in any variation of the terms on which accommodation is supplied; or
(b) in denying or limiting access to any benefit associated with the accommodation; or
(c) in evicting the other person from the accommodation; or
(d) by treating the other person unfavourably in any way in connection with the accommodation.
So when deciding whether any direct discrimination that Ms Boles subjected the tenants to amounts to actionable discrimination, I will need to decide whether the discrimination comes within section 83.
It can be noted that section 82 of the ADA protects people with an attribute from disadvantage when applying for accommodation, section 84 protects people with an impairment who need to alter accommodation, and section 85 protects people when applying for or who are in accommodation who rely on a guide hearing or assistance dog.
Section 83 covers people with an attribute who are already in accommodation. The clear intention of subsections (a), (b) and (c) is to ensure that victims are not disadvantaged in the ways set out in those subsections. In this context subsection (d) seems to be a ‘catch all’ provision for circumstances similar to, but not covered by (a), (b) or (c). In legal terms it would appear that the interpretation ought to be ejusdem generis (of the same kind).
In no matter prior to 19 May 2020 is it said on the tenants’ behalf that decisions and actions of Ms Boles were in the accommodation area of the ADA.
It is said that she treated the tenants unfavourably ‘in connection with accommodation’, and therefore within section 83(d) on 19 and 25 May 2020 by using ‘racially discriminatory comments and language towards’ Mr Gitau and by association, Ms Ng’ang’a.
The complaint for 19 May 2020 is that she called Mr Gitau a monkey, but I have found in the relevant part of schedule 4 that this did not happen. Although Ms Boles volunteers that she used the expression ‘bush nigga’ towards Mr Gitau on 19 May 2020, this does not form part of the complaint and I do not think the expression is sufficiently close to the word monkey for it to be substituted in the complaint in my decision.
The complaint for 25 May 2020 is that she called Mr Gitau a ‘nigga’ or ‘nigger’ and ‘bush nigga’. I have found that Ms Boles did use these words to Mr Gitau on that day. I have considered the meaning of these words and their variations from the evidence presented in schedule 5, and I have found that to Mr Gitau the words were very offensive and racist and that it was reasonable for him to regard the words in that way. Using the words was clearly less favourable treatment of Mr Gitau on the basis of race.
The real difficulty here however, is whether on 25 May 2020 Ms Boles treated Mr Gitau ‘unfavourably in any way in connection with the accommodation’ within the terms of section 83(d).
Although Ms Boles was not legally the tenants’ lessor (the company was) she was a joint owner of the block of units and so she had a direct interest in the block and who lived in it. As spouse of Mr Walsh, who was the sole director of the company she was in a position of influence, which as I have found above, she exercised. She was not however, a beneficiary of the trust of which the company was the corporate trustee.
The incident on 25 May 2020 however, was not about the accommodation. The offending words used by Ms Boles was in response to Mr Gitau approaching her and speaking to her. He did not speak to her about the accommodation. She did not use the offending words because of the accommodation or by reference to the accommodation. She did not use the offending words as lessor, or as the lessor’s agent. Hence using the offending words was not ‘in connection with the accommodation’. If it is said that shouting out that she was being threatened was a disadvantage uttered on the basis of race, again I would say that this was not ‘in connection with the accommodation’ either.
When considering this, I have regard to the fact that there is no provision for racial harassment in the ADA, as can be found in many other jurisdictions and which would probably have made the use of the words that day actionable. This is in contrast with the fact that there are provisions protecting against sexual harassment, that is done with the intention or effect of offending, humiliating or intimidating the other person. It is clear that a contravention of section 83 is quite different from such harassment, and it would be wrong to try to read section 83 to include it.

Racial vilification

This complaint is now only against Ms Boles. By section 124A of the ADA it is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person (of relevance here) on the ground of the race of the person. Section 131A of the ADA (serious vilification) applies when the vilification results in a threat of physical harm.
Of importance here, it is the ‘incitement’ which needs to be ‘on the ground of the race of’ the person vilified, in the sense that there must be a causal connection between the hatred or serious contempt incited by the act and the race of the person.[50]
[50]Neave JA in Catch the Fire Ministries v Islamic Council of Victoria Inc [2006] VSCA 254, [143].
The complaint for 19 May 2020 is that she called Mr Gitau a monkey, but I have found in the relevant part of schedule 4 that this did not happen. Although Ms Boles volunteers that she used the expression ‘bush nigga’ towards Mr Gitau on 19 May 2020, this does not form part of the complaint and I do not think the expression is sufficiently close to the word monkey for it to be substituted in the complaint in my decision.

Looking at this evidence, I agree with Mr Gitau that there would be a safety hazard in the yard if there were no lights. The trailer could easily have been positioned further away from the stairs. And it is right that the photograph shows there is an iron sheet so close to the front of the car port, that as seemed to have happened, required Mr Gitau to reverse into the car port rather than drive in forward. Viewed in the context of other attempts to disturb the tenants, it is my finding that this was done as part of the respondents’ campaign against the tenants.

25 May 2020 nigga and bush nigga comments

It is common ground that on 25 May 2020 Ms Boles made comments to Mr Gitau after he asked her about the monkey comment. This can be seen and heard on video 1 and is recited in Ms Boles’ evidence:[160]
what you nigga, you nigga, you bush nigga
[160]Affidavit 30 March 2022 tab 29 page 25.
She said in cross examination that this was more of a ‘statement’ than a conversation. She probably means by this, that she did not respond to anything said by Mr Gitau, which is probably one way to view this.
She said in cross examination that when she said ‘nigga’, she was really saying ‘bush nigga’ which was not a racial insult. However, it can clearly be heard on the video that she called him a nigga or nigger and then bush nigga or bush nigger.
Ms Boles denied that she used the words ‘nigger’ or ‘nigga’ as an insult or to ridicule or humiliate Mr Gitau. She denied that ‘bush nigga’ is a racial insult. Instead she said that a ‘bush nigga’ to her is:
the sleaziest kind of person with no character, they have no moral context, they will do anything, they’ll throw a stone and hide the hand, they always want something for nothing
In the amended contentions, the use of these words by Ms Boles is relied on by both tenants as direct race discrimination, an act of racial vilification, and as a detriment for the purposes of the victimisation complaint. In final written submissions neither tenant relies on the words as detriment in the victimisation complaint. I have dealt with these allegations earlier in these reasons under ‘racial vilification’, ‘The direct discrimination complaints – Ms Boles’ and victimisation complaints.
I cannot see that the use of these words were part of the campaign against the tenants conducted by the company and Mr Walsh because they were not said by the lessor or on the lessor’s behalf.

25 May 2020 attack by Mr Walsh

Video 2 shows Mr Walsh running towards Mr Gitau shouting obscenities and attacking him with a golf club in his hands. In this incident Mr Gitau received an injury to his hand. I reject the suggestion by Mr Walsh that he was acting in self defence at any time during this incident. Undoubtedly as can be seen from the video he was the aggressor.
In the amended contentions, this attack is relied on by both tenants as an act of racial vilification and as detriment for the purpose of the victimisation complaint. It is not relied on as an act of direct race discrimination. In final written submissions the attack is not relied on by either tenant as racial vilification or victimisation.

2 June 2020 blocking Mr Gitau’s carport with a trailer

It is alleged that on 2 June 2020 Mr Walsh deliberately put his trailer in a position to block the car port which was being used by the tenants. This was added to the QHRC complaint when it was amended the day after, on 3 June 2020 and it was included in Mr Gitau’s evidence.[161]
[161]Affidavit tab 20 page 243.
The affidavit also referred to another time when Mr Walsh obstructed the tenants. That was on about 10 June 2020 when Mr Walsh parked his car in the driveway allegedly causing a lot of difficulty to the tenants because they had to move out items such as a refrigerator, couch and bed and ‘caused a lot of stress’. During his cross examination[162] Mr Gitau described this he said that Mr Walsh had blocked the entrance to the property with his car and refused to move the car when asked.
[162]At the beginning of day 2.
In the amended contentions, only the incident of 2 June 2020 was relied on in the complaint, as direct discrimination and (by Mr Gitau) as detriment for the purpose of the victimisation complaint. In final written submissions the incident of 2 June 2020 is not pressed as detriment for the purposes of the victimisation complaint.
Mr Walsh denies the incident on 10 June 2020[163] but has no written evidence about the 2 June 2020 incident. Mr Walsh’s point of view about this, which came out clearly in his cross examination of Mr Gitau, was that the tenants had no right to use the car port anyway.
[163]Tab 9 page 36 paragraph 86.
I find that Mr Walsh did intentionally obstruct the car port with his trailer on 2 June 2020 and that this was part of the campaign against the tenants.

Schedule 5 – what the respondents say about racial terms

This needs to be examined because Ms Boles admits calling Mr Gitau a ‘bush nigga’, and possibly a ‘nigga’ or ‘nigger’, and this is relied on as an act of direct race discrimination, racial vilification and as the case was originally set out in the contentions, as a detriment for the purpose of the victimisation complaint.
In cross examination and in her written evidence,[164] Ms Boles sought to say there was a difference between the words ‘nigga’ and ‘nigger’ and between ‘nigga’ and ‘bush nigga’, the word ‘nigger’ being an insult and the word ‘nigga’ not being an insult. She says that it is acceptable and not racist in certain circumstances, to call someone a nigga or a bush nigga.
[164]Tab 34 page 53.
Dictionary evidence has been filed by the respondents seeking to support the suggestion that there is a difference between the word ‘nigger’ which is offensive to African Americans and the word ‘nigga’ in Black English which is used by African Americans when referring to each other and which is not offensive.[165] But there seems to be some confusion, because another dictionary entry provided by the respondents says that the word ‘nigger’ is commonly used in ‘black English vernacular’ and is only otherwise abusive.[166] And in her earliest contentions Ms Boles describes her understanding of the word ‘nigger’ and does not refer to ‘nigga’ at all, and therefore makes no distinction between the two words.[167]
[165]Annex 1 to Applicant’s Response to Respondent’s Response to Contentions filed in ADL024-21 filed on 15 June 2022 tab 34 page 57.
[166]Appendix G to affidavit Ms Boles 24 March 2023.
[167]Response to contentions filed on 10 November 2020 tab 11 page 43 paragraphs 1h and 17.
As pointed out to Ms Boles in cross examination the obvious problem with suggesting that there is a difference between ‘nigger’ and ‘nigga’ when the words are spoken is that it is difficult to tell which spelling is being used. I think this must be even more difficult when the word is used as an expletive as here.
Mr Gitau said in evidence he could not tell the difference and he did not know whether the two words were in fact the same.
Overall, my view is that the examination of the differences between the word ‘nigger’, ‘nigga’ and ‘bush nigga’ are no assistance at all to decide whether the use of the words were unfavourable or less favourable or to the detriment of Mr Gitau when he heard them. That is because in discrimination law, although an unjustified sense of grievance cannot be a detriment,[168] whether particular treatment is unfavourable or less favourable or to the detriment of a person, is considered objectively in the context of previous interactions between the complainant and the alleged perpetrator, and in the particular circumstances of the complainant.
[168]St Helens Metropolitan Borough Council v Derbyshire [2007] UKHL 16, [27], (House of Lords) Lord Hope of Craighead, and Sivananthan v Commissioner of Police, New South Wales Service [2001] NSWADT 40, 41.
As Mr Gitau said in evidence, to him the words were very offensive and racist, and as a person born in Kenya and who came to Australia in 2007,[169] it was reasonable for him to regard the words in that way.
[169]Signed but not witnessed affidavit of 8 May 2020 tab 3.

Schedule 6 - Ms Boles’ stated views about African men

Ms Boles describes herself as an American Negro from Alabama.[170] It is a stark fact that in this case Ms Boles has gone out of her way to file material to explain her mistrust and dislike of African men, and she repeated this when giving evidence. Part of the reason for her mistrust comes from her experience of a previous marriage to a Nigerian man.[171]
[170]Response to contentions filed on 10 November 2020 tab 11 page 49 paragraphs 30, 34.
[171]Affidavit of 14 May 2020 tab 4 and 11 February 2022 tab 24 page 342.
Ms Boles’ evidence discloses that she regarded the tenants as exhibiting the same type of poor behaviour and attitudes as she had perceived from Africans when she was in the USA.
I pick out some relevant paraphrased passages from the evidence and contentions:
After we first met the Applicants when they applied to live at (the unit) and before they stated they wanted a lease, I expressed my reservations about them to my spouse David Walsh ... He understood my concerns ... he said to me that being from Kenya was no reason to discriminate against the Applicants.[172]
I know from my knowledge of African men that they are misogynistic. On average they do not place any importance on monogamy and it is not unusual for Africans to have multiple wives if they can afford it. They believe they are entitled to have sex with other women if their girlfriend partner or wife is pregnant[173]
It is beyond dispute that Kenyan society has objectively high levels of misogynistic attitudes and actual sexual violence[174]
I was in regular contact with people of African ethnicity who regarded Negros as lesser people[175]
Some Africans can have, and will express, derogatory and racist views about Negros[176]
I had social interactions with Africans who had moved to the USA. Without exception I found these Africans to be consistently racist and discriminatory towards American Negros. They regarded us as inferior to them because we weren’t ‘pure African’[177]
I worked in property management in Houston for 25 years and throughout that time I rented properties to African applicants. At best I found them to be barely polite and more usually condescending and dismissive towards myself and other Negro women with whom I worked.[178]
My belief that the Applicants have a racist attitude towards myself is reinforced by the fact that both the Applicants fail to mention in their affidavits that I was present with David and participated with him in the pre-lease meeting that we had with the Applicants.[179]
[172]Affidavit of 14 May 2020 tab 4 page 23.
[173]Affidavit of 30 March 2022 tab 29 page 21 paragraphs 6, 7.
[174]Response to respondent’s response to contentions filed in ADL024-21, tab 34 page 44 paragraph 9.
[175]Response to contentions filed on 10 November 2020 Tab 11 page 43 paragraph 1k.
[176]Response to contentions filed on 10 November 2020 tab 11 page 49 paragraph 26.
[177]Affidavit of 14 May 2020 tab 4 page 22.
[178]Affidavit of 14 May 2020 tab 4 page 22.
[179]Affidavit of 14 May 2020 tab 4 page 25.
When describing her attempts to ask the tenants on 16 March 2020 (Ms Ng’ang’a) and 7 April 2020 (Mr Gitau) whether they had found a new tenant and whether they were going to leave the unit, she said the tenants said it was none of her business and:
I found the behaviour of the Applicants disgusting as well as being deeply upsetting. Their behaviour has been consistent with the racist attitudes and behaviour I have experienced during my life at the hands of the vast majority of all Africans I have ever met in the USA.[180]
[180]Affidavit of 14 May 2020 tab 4 page 25.
In the affidavit of 14 May 2020 Ms Boles said that the tenants acted with ‘pernicious racism towards’ her.[181]
[181]Affidavit of 14 May 2020 tab 4 page 25.
At least by 25 May 2020 and I think most likely well before that, Ms Boles had decided that Mr Gitau was what she would describe as a ‘bush nigga’. She explained when giving evidence that as far as she was concerned this meant that he was:
the sleaziest kind of person with no character, they have no moral context, they will do anything, they’ll throw a stone and hide the hand, they always want something for nothing
Later in evidence she said that a bush nigga meant:
It’s a person who wants something for nothing, they’re a sleazy person, underhanded person, they’ll lie in wait, they’ll manipulate circumstances to get what they want. I agree it can be insulting if that’s what they want to take it to be, but it is not racist. It’s not about a race or ethnicity it’s not about a colour, it’s about a person’s character. You can have crackers as bush niggas, you can have swamp niggas, you can have coon-asses – they can all be bush niggas – it’s how you act and how you carry yourself. I’ve seen a few bush niggas here.
Ms Boles was asked in cross examination about how she had felt around Nigerian men (in the USA) and she said:
isolated – the way they believe is that women should be seen and not heard
Ms Boles was asked in cross examination why she had referred to the tenants having ‘a bunch of African men around’ on 28 June 2019.[182] She said:
to tell what type of people was there
[182]Affidavit of 24 March 2023 paragraph 54.
Ms Boles was asked in cross examination about the use of the word ‘nigger’ (in her upbringing in the USA) and she said:
No, we don’t use that. That’s an insult. The only time I hear .. or black people or Negros use the word nigger to each other or about each other - the same reasons the Caucasians will use nigger – they will use it the same way: they don’t want to be around them either. It’s implying they don’t want to be around those type of people – they give them a bad name, a bad reputation. A nigger is the type of person no anybody want to fool with. They don’t want to do anything - they’re lazy people. And it’s a characterisation of a particular group of people which was lazy people, they didn’t want to do anything, no moral compass.
It is notable that in the above passages Ms Boles does not limit her views to African men, although she does not seem to say that she holds anything against African women in general.