Hinder v Clayton - [2017] SAEOT 1

EQUAL OPPORTUNITY TRIBUNAL
(District Court Administrative and Disciplinary Division)
HINDER v CLAYTON
[2017] SAEOT 1
Judgment of Her Honour Judge Cole, Member Ms A Bachmann and Member Ms H Jasinski
15 June 2017
HUMAN RIGHTS - DISCRIMINATION - GROUNDS OF DISCRIMINATION - SEX DISCRIMINATION - FAMILY RESPONSIBILITIES AND PARENTAL STATUS
The complainant, Ms Hinder, brought proceedings against the respondent, Mr Clayton, for the refusal of the respondent to lease a property to the complainant. The property is owned by Top Fact Pty Ltd, of which the respondent is the sole director and shareholder. The complainant alleged discrimination on the grounds of her sex, marital or domestic partnership status, and her association with a child. The complainant sought damages for economic loss and injury to feelings.
Held by Members Bachmann and Jasinski (agreeing):
1.The respondent did not discriminate against the complainant on the grounds of her sex, marital or domestic partnership status, nor her association with a child. (at [126]).
2.The complainant is not entitled to compensation for economic loss or for injury to her feelings ([at 127]).
Held by Cole DCJ (in dissent):
1.The respondent unlawfully discriminated against complainant by refusing to dispose of a leasehold interest in land on the basis of her sex and her caring responsibilities, contrary to s 38 and 85ZF of the Equal Opportunity Act 1984 (at [53]).
2. I would have awarded compensation to the complainant for economic loss in the sum of $1,400 and compensation for injury to her feelings in the sum of $1,000.00 (at [54]).
Equal Opportunity Act 1984 (SA) ss 5, 29, 38, 40, 85F, 85T, 85ZF, 96, referred to.

HINDER v CLAYTON
[2017] SAEOT 1
COLE DCJ:

The complainant, Ms Hinder, lodged a complaint against Mr Clayton with the Commissioner for Equal Opportunity (“the Commissioner”) on 27 May 2015. The complaint was referred to this Tribunal by the Commissioner in January of 2016.
At the hearing of the complaint, evidence was given in the complainant’s case by the complainant, her father Mr Nash, and her friend Ms Higginson. Mr Clayton gave evidence in his own case.
The complaint
On the complaint form, Ms Hinder wrote, in response to the prompt:
I think I have been discriminated against because of my
·        association with child
·        marital or domestic partnership status
·        sex
The factual context for the complaint was the leasing of a property in Windsor, South Australia (“the property”). The property is owned by Topfact Pty Ltd. Mr Clayton is the sole director and shareholder of Topfact Pty Ltd and managed the process of the leasing of the property.
The summary of the complaint on the complainant form lodged by Ms Hinder read as follows:
During the tribunal hearing Mr Clayton verbally told the court via phone after being sworn in that he revoked my contract to rent his property for 12 months bond paid rent in advance paid contract signed signed sealed delivered moving date arranged kids schools changed time off work etc all the bits that go into moving house … because im a single mum! How was I going to look after his property with out a man in my life …!!!
What factors motivated you to lodge this complaint?
Fed up with being the brunt of societies stigma as a sole parent … ive been a widow for 17 years. ive rented for 16 years. I have had enough of being denied things in life due to peoples poor attitude against sole parents when he did this … that was the last straw for me … this situation snowballed into a massive headache for me and my kids, near ending up living out of our car due to the last minute revoke of the lease by him. It has cost us as a family dearly. And financially.
What have you done to try to resolve your complaint?
I allowed Mr Clayton to contact my personal friends and family to check up on my character ask what ever he seemed fit to satisfy his need to understand im a competent strong willed capable of looking after his property etcm offered to meet with him persronally. Offered him lump sum amounts of the rent in 3 monthly lots to help secure the lease on this property. Offered him more weekly in value for the property than he was originally asking.
What would you like to see happen that would resolve this complaint?
I want financial compensation. Its 2015 I have rights. I want him to realise he cant just go around destroying peoples lives. He signed a contract with the real estate giving them permission to rent his property out. He was shown my application and oked it. The lease (a legal binding document) was signed, the bond paid (signs the deal) you can NOT reneg on a contract. You cannot do so out of reason the person is a sole parent. I want my rights I want justice.
Mr Clayton denied the claim.
The Act
5—Interpretation
child means a person who is under the age of 18 years;
(3)     For the purposes of this Act—
(a)     a person has caring responsibilities if the person has responsibilities to care for or support—
(i)a dependent child of the person; or
(ii)any other immediate family member of the person who is in need of care and support; and
(b)     an Aboriginal or Torres Strait Islander person also has caring responsibilities if the person has responsibilities to care for or support any person to whom that person is held to be related according to Aboriginal kinship rules or Torres Strait Islander kinship rules, as the case may require.
29—Criteria for discrimination on ground of sex, sexual orientation or gender identity
(2)For the purposes of this Act, a person discriminates on the ground of sex—
(a)     if he or she treats another unfavourably because of the other's sex; or
(b)     if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons of the opposite sex complies, or is able to comply, with the requirement than of those of the other's sex; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's sex, or on the basis of a presumed characteristic that is generally imputed to persons of that sex; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
(2a)For the purposes of this Act, a person discriminates on the ground of gender identity—
(a)     if he or she treats another unfavourably because the other is or has been a person of a particular gender identity or because of the other's past sex; or
(b)     if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons who are not persons of a particular gender identity comply, or are able to comply, with the requirement than of those of the particular gender identity; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of a particular gender identity, or on the basis of a presumed characteristic that is generally imputed to persons of a particular gender identity; or
(d)     if he or she requires a person of a particular gender identity to assume characteristics of a sex with which the person does not identify; or
(e)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
(3)For the purposes of this Act, a person discriminates on the ground of sexual orientation—
(a)     if he or she treats another unfavourably because of the other's sexual orientation or past sexual orientation; or
(b)     if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different sexual orientation complies, or is able to comply, with the requirement than of those of the other's sexual orientation; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of the other's sexual orientation, or presumed sexual orientation, or on the basis of a presumed characteristic that is generally imputed to persons of that sexual orientation; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
38—Discrimination by person disposing of an interest in land
(1)It is unlawful for a person to discriminate against another on the ground of sex, sexual orientation or gender identity—
(a)     by refusing or failing to dispose of an interest in land to the other person; or
(b)     in the terms or conditions on which an interest in land is offered to the other person.
(2)This section does not apply to the disposal of an interest in land by way of, or pursuant to, a testamentary disposition or gift.
40—Discrimination in relation to accommodation
(1)It is unlawful for a person to discriminate against another on the ground of sex, sexual orientation or gender identity—
(a)     in the terms or conditions on which accommodation is offered; or
(b)     by refusing an application for accommodation; or
(c)     by deferring such an application or according the applicant a lower order of precedence on a list of applicants for that accommodation.
(2)It is unlawful for a person to discriminate against a person for whom accommodation has been provided on the ground of sex, sexual orientation or gender identity—
(a)     in the terms or conditions on which accommodation is provided; or
(b)     by denying or limiting access to a benefit connected with the accommodation; or
(c)     by evicting the person; or
(d)     by subjecting the person to other detriment.
(3)This section does not apply to discrimination in relation to the provision of accommodation if the person who provides, or proposes to provide, the accommodation, or a near relative of that person, resides, and intends to continue to reside, in the same household as the person requiring the accommodation.
(4)This section does not apply to discrimination on the ground of sex in relation to the provision of accommodation by an organisation that does not seek to secure a pecuniary profit for its members, if the accommodation is provided only for persons of the one sex.
85T—Criteria for establishing discrimination on other grounds
(1)In this Part—
discriminate means—
(a)     discriminate on the ground of marital or domestic partnership status; or
(b)     discriminate on the ground of the identity of a spouse or domestic partner; or
(c)     discriminate on the ground of pregnancy; or
(d)     discriminate on the ground of association with a child; or
(e)     discriminate on the ground of caring responsibilities; or
(f)    discriminate on the ground of religious appearance or dress,
and discrimination has a corresponding meaning.
(2)For the purposes of this Act, a person discriminates on the ground of marital or domestic partnership status—
(a)     if he or she treats another unfavourably because of the other's marital or domestic partnership status or past or proposed marital or domestic partnership status; or
(b)     if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons of a different marital or domestic partnership status comply, or are able to comply, with the requirement than of those of the other's marital or domestic partnership status; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons of that marital or domestic partnership status, or on the basis of a presumed characteristic that is generally imputed to persons of that marital or domestic partnership status; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
(3)For the purposes of this Act, a person discriminates on the ground of the identity of a spouse or domestic partner if he or she treats another unfavourably because of the identity of the other's spouse or domestic partner, or former or proposed spouse or domestic partner.
(4)For the purposes of this Act, a person discriminates on the ground of pregnancy—
(a)     if he or she treats a woman unfavourably because of her pregnancy or potential pregnancy; or
(b)     if he or she treats a pregnant woman unfavourably because she does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of women who are not pregnant comply, or are able to comply, with the requirement than of those who are pregnant; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats a pregnant woman unfavourably on the basis of a characteristic that appertains generally to pregnant women, or on the basis of a presumed characteristic that is generally imputed to pregnant women; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
(5)For the purposes of this Act, a person discriminates on the ground of association with a child—
(a)     if he or she treats another unfavourably because the person is breast feeding or bottle feeding an infant, or proposes to do so, or is, or proposes to be, accompanied by a child; or
(b)     if he or she treats another unfavourably because a relative or associate of the other is breast feeding or bottle feeding an infant, or proposes to do so, or is, or proposes to be, accompanied by a child.
(6)For the purposes of this Act, a person discriminates on the ground of caring responsibilities—
(a)     if he or she treats another unfavourably because of the other's caring responsibilities or proposed caring responsibilities; or
(b)     if he or she treats another unfavourably because the other does not comply, or is not able to comply, with a particular requirement and—
(i)the nature of the requirement is such that a substantially higher proportion of persons without caring responsibilities comply, or are able to comply, with the requirement than of those with caring responsibilities; and
(ii)the requirement is not reasonable in the circumstances of the case; or
(c)     if he or she treats another unfavourably on the basis of a characteristic that appertains generally to persons with caring responsibilities, or on the basis of a presumed characteristic that is generally imputed to persons with caring responsibilities; or
(d)     if he or she treats another unfavourably because of an attribute of or a circumstance affecting a relative or associate of the other, being an attribute or circumstance described in the preceding paragraphs.
(7)For the purposes of this Act, a person discriminates on the ground of religious appearance or dress—
(a)     if he or she treats another unfavourably because of the other's appearance or dress and that appearance or dress is required by, or symbolic of, the other's religious beliefs; or
(b)     if he or she requires a person to alter the person's appearance or dress and that appearance or dress is required by, or symbolic of, the other's religious beliefs; or
(c)     if he or she treats another unfavourably because of the appearance or dress of a relative or associate of the other and that appearance or dress is required by, or symbolic of, the relative or associate's religious beliefs.
85ZF—Discrimination by person disposing of interest in land
(1)This section applies to discrimination on the ground of marital or domestic partnership status, identity of spouse or domestic partner, pregnancy or caring responsibilities.
(2)It is unlawful for a person to discriminate against another—
(a)     by refusing or failing to dispose of an interest in land to the other person; or
(b)     in the terms or conditions on which an interest in land is offered to the other person.
(3)This section does not apply to the disposal of an interest in land by way of, or under, a testamentary disposition or gift.
The Complainant’s Case
The complainant is a 42 year old woman with four children.[1]
[1] Exhibit C1, Affidavit of Lisa Marie Hinder sworn on 21 December 2016, paras 1 and 2.
In June 2014, the complainant and her children were living in a rental house in Owen, South Australia. At the time, one of the complainants children was 17 years old, two children were 16 years old and one was 11 years old. The complainant had three horses at the time. In June 2014, she wished to find a property to rent at which she could also stable her horses.
On about 17 July 2014, the complainant saw the property at 229 North Parham Road, Windsor (the property), advertised for lease on the website realestate.com.au. The advertisement said that the property had three bedrooms and a self-contained granny flat together with land, horse stables and other features. The agent listed was Lisa Kotsano of Raine & Horne Two Wells.
On about 17 July 2014, the complainant submitted to the agent an application to rent the property.[2] On the application form, under “other occupants”, the complainant listed the names and ages of her four children. The complainant said, on the application form, that she was employed at “alltype paints” [sic]. She wrote:
I’m on a carer’s pension for my three teenage boys oldest autistic (hence working casual/part time) twin boys are employed at alltype paints also under certificate 3/home school traineeship and have their own income they pay me $50 a week in board each professional reps you require is not possible as it’s a family business all employees are family.
[2] Exhibit C1, Affidavit of Lisa Marie Hinder sworn on 21 December 2016, Attachment B.
The complainant said, in her affidavit:[3]
7.Within days of submitting my application, I attended an inspection of the property. The agent informed me that the entire property was available for rent for $360.00 per week.
8.At the inspection, I indicated to the agent that I was interested in renting the entire property.
9.On or around 22 July 2014, I received a telephone call from the agent to discuss my application. The agent indicated that the owner was concerned about renting the property to me because I was a single parent and I did not have the support of a male partner. On this basis, the owner did not consider I was able to adequately care for the property. I stated to the agent that I was capable of maintaining the entire property.
[3] Exhibit C1, Affidavit of Lisa Marie Hinder sworn on 21 December 2016.

The agent and the complainant had a text exchange in the following terms:[4]
Hi Lis landlord is just awaiting on answer from ex otherwise he is happy for you have it he will call me def tomorrow with final answer
Sorry on the wait
No that’s cool love thanks
House yours
[4] Exhibit C1, Affidavit of Lisa Marie Hinder sworn on 21 December 2016, Attachment B.
On 28 July 2014, the complainant executed a residential tenancy agreement over the property giving her a one year lease from 15 August 2014 to 14 August 2015.[5] The agent signed the residential tenancy agreement on behalf of the landlord.
[5] Exhibit C1, Affidavit of Lisa Marie Hinder sworn on 21 December 2016, Attachment D.
On about 29 July 2014, the complainant paid the bond and two weeks’ rent for the property to the agent.
The complainant made arrangement to move, including arranging to take the period from 4 August to 20 August 2014 off work.
On about 6 August 2014, the agent telephoned the complainant and told her that the landlord had demanded that the lease be revoked and had cancelled his contract with the agent.
On 8 August 2014, the complainant made an application to the Residential Tenancies Tribunal (“RTT”). At the hearing of the application at the RTT, the respondent did not attend but was contacted by telephone. Ms Hinder was present in the RTT hearing room and could her the telephone call with the respondent. Ms Hinder said, in her affidavit:[6]
18.On 13 August 2014, the matter was brought before the Tribunal. The Respondent did not attend the hearing and as such, he was contacted by telephone. At the hearing, Mr Clayton, the Respondent, commented that I was an unsuitable tenant to look after the premises because I was a sole parent with no man in my life.
19.I was incredibly upset and traumatised to hear this from the Respondent.
20.During the tribunal hearing, I spoke directly to the Respondent and stated that I had rented multiple properties for over 16 years, my rental history was excellent and that he was welcome to contact my references to verify that I manage just fine with no man in my life. I also commented to the Respondent during this hearing that I had friends with machinery and knowledge, who were willing to help me maintain the acreage by means of weed control, ploughing and slashing.
21.The Tribunal asked the Respondent to reconsider my application and contact my references. Shortly after that time, the matter was adjourned.
[6] Exhibit C1, Affidavit of Lisa Marie Hinder sworn on 21 December 2016, para 18.
The complainant heard nothing further from the respondent. In August 2014, she found another property, but it did not have room for her horses. She paid $350 per week rent for the house, but had to spend $100 per week to agist her horses elsewhere.
The agent for the property repaid to the complainant the $720 she had paid in rent and arranged for the refund of the bond to the complainant.
Mr Nash, Ms Hinder’s father, gave evidence.[7] Mr Nash said that he recalled the complainant telling him that she had been accepted to lease the property. She subsequently told him that the lease had been revoked by Mr Clayton. Mr Nash said that he made several attempts to contact Mr Clayton by telephone. In mid-August he succeeded in speaking to Mr Clayton. Mr Nash said, in his affidavit:[8]
7.In approximately mid-August 2014, I finally spoke with Mr Clayton. I recall Mr Clayton saying to me that he was concerned that Ms Hinder could not afford his property as she was a single mother receiving some benefits and a small income from part time work. I assured Mr Clayton that Ms Hinder would be capable of paying the rent. Mr Clayton continued to express concerns about her being able to afford the property. I offered to pay three months’ rent in advance on her behalf and indicated that I would do so again in another six months’ time if he leased the property to her. Mr Clayton declined the offer and my final words to him were to have a think about it, business man to business man, and get back to me.
8.I have had no further contact with Mr Clayton since this phone call.
[7] Transcript p 66; Exhibit C4, Affidavit of Robert Nash sworn on 19 October 2016.
[8] Exhibit C4, Affidavit of Robert Nash sworn on 19 October 2016 paras 7 and 8.
Mr Clayton conceded that he had a telephone conversation with Mr Nash and that Mr Nash offered him money.[9] However, Mr Clayton said that “It was never about the money”.[10] Mr Clayton cross-examined Mr Nash, and the following exchange occurred:[11]
[9] Transcript p 72.
[10] Transcript p 72.
[11] Transcript p 73.
QI didn’t say she was a single mother.
AWhy did you refuse her the property? Why did you cancel out on the lease?
QShe could not manage that property.
AWhy not? ‘Cos she didn’t have a man in her life, that’s what she said.
QThrough my experience, -
AThrough your experience?
QThrough my experience, living on the –
AYeah, you’re an expert.
Q– living on the land for 20 years knowing that’s involved, -
AYes.
Q– she could not handle that property.
AIs that right?
QThere’s a lot of guys can’t handle that property.
Ms Higginson, a friend of Ms Hinder,[12] gave evidence.
[12] Transcript p 78; Exhibit C5, Affidavit of Rebecca Higginson.
In her affidavit, Ms Higginson said the following:[13]
[13] Exhibit C5, Affidavit of Rebecca Higginson paragraphs 3-13.
3.On approximately 13 August 2014, I received a telephone call from Mr Clayton He wanted to discuss Ms Hinder’s application to rent his property. During the phone call, Mr Clayton asked me about Lisa and her children. Mr Clayton asked me if they were tidy people, if Lisa’s children respected things and if I would let them live in my house if I was renting it out. I responded by saying that they are a clean and respectful family and that I would indeed be confident in renting my property to them.
4.During the telephone conversation, Mr Clayton asked, what does her partner do?
5.I told Mr Clayton that Lisa’s husband had passed away and that she had no current partner.
6.Mr Clayton then questioned me as to how I thought Lisa was going to manage his large property.
7.I explained to Mr Clayton that Lisa had come to me to discuss the management of his property, before she had applied for it. We asked our friends who are farmers if they would assist in harrowing and seeding/ weed control of the property, if Lisa was to be approved. I informed Mr Clayton that our friends had indicated that they were more than happy to assist in any way they could.
8.I then explained to Mr Clayton that I personally had land before and that both Mr [sic] Hinder and I were competent in fence repairs and basic maintenance.
9.Mr Clayton responded by saying that it would be hard without a man around.
10.I reiterated that this would not be an issue as between Lisa’s family, my family and our friends, his property would be well looked after, if not improved in areas.
11.Mr Clayton asked me how many horses Ms Hinder had. I indicated that there would be 3-5 I indicated to Mr Clayton that it was my understanding that his property was set up to accommodate horses and it was an ideal property for Ms Hinder.
12.At the end of the conversation, Mr Clayton said that he thought it all sounded okay, but that he would need to talk to his wife.
13.I have had no further contact with Mr Clayton since this phone call.
Ms Higginson denied Mr Clayton’s statement that their conversation was brief.
The agency agreement between Mr Clayton and the agent was tendered in Ms Hinder’s case.^[14]
[14] Exhibit C6, Residential Property Management Agreement.
The owner of the property is recorded on the Certificate of Title as Topfact Pty Ltd. As I have mentioned above, Mr Clayton is the secretary and sole director and sole shareholder of Topfact Pty Ltd.[15]
[15] Exhibit C12, Further ASIC document.
The respondent’s case
Mr Clayton gave evidence. He agreed that, as the sole director of Topfact Pty Ltd, he had authority to enter into arrangements on its behalf.
Mr Clayton said that, on 1 July 2014, he signed a document giving Raine & Horne Two Wells “sole rights to find me a suitable tenant and I was locked into that agreement for 12 months”.[16]
[16] Transcript p 96.
Mr Clayton said that on 22 July 2014 he called into the agent’s office. He said:[17]
I was shown an application, I read the application and I made it quite clear that it was unsuitable. Ms Kotsanos made it quite clear that she said the – I showed some concerns. I did show concerns, yeah.
[17] Transcript p 96.
Mr Clayton said in evidence that the application from Ms Hinder that he saw listed a partner as well as naming all the children. He was asked whether he had a copy of that application and he said:[18]
That copy has never, ever come to light.
[18] Transcript p 98.
In evidence, Mr Clayton said that he terminated his agency agreement with the agent on 6 August 2014. He said that, at that time, he did not know that a lease had been signed over the property. Mr Clayton said that the next relevant thing that happened occurred on 13 August 2014. He said:[19]
[19] Transcript pp 101-104.
AI was home on 13 August, I was in bed, 9.30, and I had a full-time carer and I have chronic diseases and I have full medication, and I was rang up at 9.30 in the morning and I was asked why I was not in attendance at the Residential Tenancy Tribunal because there was a hearing going on, and I had no notification of that.
QNo email.
ANo email, no telephone call, nothing.
QNothing from the agent.
ANothing from the agent.
QNothing by mail.
ANothing by mail.
QAll right, and what did you do in response to that telephone call.
AThe telephone call was to the presiding member, which is Judge Johns, and I cannot remember the content of that conversation because of the condition that I was in. I was medicated, I felt ambushed, it was more like an interrogation. What I said at that meeting, I can’t remember.
QSo you might have said that you didn’t think that Ms Hinder could cope with the property.
AYes, I could have said that.
QYou might have said that she would have trouble without a man around.
ANo, I didn’t say that.
QAll right. You might have said that you didn’t think she could afford it.
AI did say that, I didn’t have the information.
QAll right, but you might have said that you didn’t think she could handle the property.
AYeah.
QAnd what would have been the basis for that.
ASee, like I’m saying I can’t remember what I said.
QAll right, but you might have said that.
AYear, I might have said that.
QWhy do you think you might have said that.
ABecause I was in comatose condition and I had a person ringing me over the telephone interrogating me why I didn’t allow the lease to be allowed to go to Ms Hinder, so I was a little bit – I was a little bit short, I guess. I was in no frame of mind to be discussing that in the condition that I was in, What I said, I have no idea. I could have said –
QHad you formed the view that Ms Hinder couldn’t handle the property.
AOn 22 July when she made the application, yes.
QAnd what was the basis for that.
AIt’s a large property, it has massive infrastructure. It’s got lots of conditions, you know it’s got toxic weeds it has to complied with, the Mallala rules and regulations. I’ve been there for 20 years and I’ve run horses on it, it’s a massive – and I was working there at least 12-14 hours a day. I didn’t have children, I didn’t have a job, I was a full-time person looking after horses.
QHow many horses were you looking after.
AI was looking at anything up from four to 10. I was breeding them, raising them, selling them, syndicating them, it was a full-on operation.
QAnd what led you to form the view that Ms Hinder couldn’t cope with that.
ABecause of the lack of experience.
QWhy did you think she lacked experience.
ABecause of the size of the property, she hadn’t –
QNo, no, what was it about Ms Hinder, why did you think she lacked experience. What was the basis for your assumption that she lacked experience.
AExperience being involved in the tenancy and letting of properties you make an assumption, you make a call.
QWhat was the basis for your assumption that Ms Hinder couldn’t handle the property.
ABecause it was too much for her.
QWhy, why did you think that.
AShe has six children – there were six people involved on the property – there were six people involved on the property, none of them were experience, four of them were kids.
QWhy did you think she wasn’t experienced. What was the basis for that assumption.
AShe didn’t give me anything to – she didn’t give me anything to suggest that she knew how to look after that property.
QDid you ask her for anything.
AShe never asked me, she never once rang me –
QDid you ask her for anything.
AI never asked her for anything, that was the job of the agent.
QAnd the agents didn’t, on your instructions, ask her for anything.
ANo.
QNo.
AAgent never asked – never asked, never looked, never seeked for any terms and conditions which I could have put in.
Mr Clayton denied telephoning Ms Higginson or Mr Nash on 13 August 2014. He said that two or three weeks after 13 August 2014 he received documents from the Residential Tenancies Tribunal by post. He said that he became concerned for Ms Hinder’s welfare when he read those documents. He said that he rang Mr Graham Nash (Ms Hinder’s brother) and Ms Higginson at this time, somewhere between 24 August and 3 September 2014. He said that he also tried to ring Ms Hinder. He said that he had spoken to Mr Robert Nash a little earlier.[20]
[20] Transcript pp 106-107.
Mr Clayton said that he had no recollection of the content of his conversation with Ms Higginson. He said that the conversation was very brief.
Mr Clayton agreed that, in their conversation, Mr Robert Nash offered him a lump sum on account of rent for the property should Ms Hinder occupy it. Mr Clayton said in evidence:[21]
[21] Transcript pp 109-112.
AHe made an offer to pay money for the property in lump sums. He offered to.
QYes. What else happened.
AWell by that time, you know, it was irrelevant. It was a non-event because she was, Ms Hinder was never ever accepted, and doesn’t matter how much, how much money was offered, it, it was not acceptable.
QWhy.
ABecause Ms Hinder didn’t qualify to look after a hundred acres, with all the infrastructure that was on it, in my experience.
QAnd by the time you spoke to Robert Nash, what was your basis for saying that.
ASaying what, your Honour?
QThat Ms Hinder couldn’t handle the property.
AI didn’t say that, I didn’t say that to Robert Nash.
QAll right, so you said that you’d formed that view and that no amount of money would be enough to have you rent the property to Ms Hinder; and you say that by the time you had the conversation with Mr Robert Nash, that was the view that you had come to. What was the factual basis for that view.
AThe factual basis was it was water under the bridge. This was, this was, this – we’re going back to 22 July and onwards, and all of a sudden Ms Hinder’s father rang me up and put a proposition like this to me. To say I wasn’t interested – it was no concern of mine, because a lot of water got under the bridge. It was not, she was not accepted –
QI understand that; I’m asking you why. What was the factual basis for your non-acceptance of Ms Hinder as a tenant at that stage, at the stage where her father is saying ‘I’ll guarantee six months rent’.
AI think I’ve already said the fact that Ms Hinder is not experienced or qualified enough –
QNo I understand that that was your belief, -
AThat’s my belief, yeah.
Q–I want to know what the factual basis for that belief was. What was the foundation for that belief.
AI can’t answer that.
QWhy not.
AI don’t know what reason I’m supposed to give.
QWell, had you heard something about Ms Hinder; were you aware of some incapacity of hers, or –
ANo.
QNo.
ANo.
QSo why did you form the belief that she was unable to manage your property.
AAt the time, I made that decision. It was my choice and that’s what I did.
QYes, but I’m asking you what the basis for that choice was.
ATo look after a 100 acre property with all the –
QI understand the size of –
AThat was the reason.
Q– I understand the size of the challenge.
AThat was the reason.
QI understand the size of the challenge; I’m asking you why you thought that Ms Hinder wasn’t up to that challenge.
AThere are water pumps, there are dams in there, -
QI get that.
AShe couldn’t handle that.
QWhy.
AWhy couldn’t she handle it?
QYes.
ABecause she wasn’t experienced enough.
QHow do you know.
AExperience taught me that a person of that age, that would not be able to handle that property.
QWhat age.
ANo, I don’t want to answer that on the grounds that it might incriminate me.
QIncriminate you.
AI can’t give any more answers to what I’ve given. I have a whole list of people that I vet to look after my properties or I rent, and I say yes and I say no. Sometimes I’m right, sometimes I’m wrong. When I’m wrong it’s very, very, very costly.
QDo you apply criteria to the people that you rent to.
ANo, I don’t, I don’t, and I have documentation – I’ve had, I’ve had single parents in there, I’ve had married people with children, I’ve had Afghanistans in there, I’ve had refugees; I’ve had, you know, different preferences religiously, different preferences sexually – I don’t judge and I don’t judge people on those standards.
QHave you ever had a single woman manage one of your properties.
AThere’s one in there right now.
QSo you have.
AYep.
QYes, A property of this size.
ANo, she’s limited. The conditions when she looked up and when she applied for it, right, she just used the house. There’s a caretaker in there, which is Shane Fraser, and I continually go backwards and forwards to see that it’s run, and she also has a male partner which works in the mines and stays there occasionally. I have met them and, yeah.
QSo she’s not single, she’s got her male partner.
ARight.
QIn relation to one of your rural properties with yard work, with farming work, have you ever leased one of those to a single woman.
ANo.
QNo, right.
ABut close to it – there’s a single woman but she had a partner with two children.
QAll right.
AHe used to go away, he was a jockey and he used to go away interstate and all the rest of it, and she was looking – and she had horses – and just caused untold damage. I mean, they were only there four months and they were evicted because they couldn’t handle the property. They did so much damage to the septic system; they damaged the house, they didn’t pay the rent, and the tribunal evicted them. So that’s –
QAnd how did that influence your decision in relation to Ms Hinder’s application.
AI have to be careful, I have to be cautious who I let it to.
QYes. And did you think that Mas Hinder posed the same sort of danger as that woman.
AI wasn’t happy with her application.
QI understand that. I’m asking you how your experience with the previous tenant influenced your decision in relation to Ms Hinder’s application.
ANo, it didn’t influence me.

Mr Clayton indicated that the purpose of his telephone calls to Ms Higginson, Mr Graham Nash and another person was to satisfy himself as to Ms Hinder’s welfare.
Mr Clayton ultimately leased the property in late December 2014. He gave an account of that process in evidence:[22]
[22] Transcript pp 113-116.
AI leased the property in about late December 2014.
QWho did you lease it to.
AMs Janine Wanganeen and her partner which was Ben Newman and they recently had a child, probably 12 months ago.
QSo the property was vacant from, well before –
AIt would have been March approximately when the other ones were evicted. From March until December, yeah, the property was empty. That’s why the – we had – I’ve known Shane for 20 years, we’ve grown up together and he’s helped me no end on the farm and we do a lot of things together and he was running sheep and he was looking after the property for me. And I too was living backwards and forwards from where I am now, to Parham, you know, just to keep tabs on the place.
MEMBER JASINSKI
QSorry, who did you say was running sheep and looking after the property.
AShane F-R-A-S-E-R.
HER HONOUR
QAnd until Ms Wanganeen and Mr Newman made an application, had you received any other applications apart from Ms Hinder’s.
ANo because I hadn’t given it to an agent until1 July, so that was halfway through because it was vacant from February, March, April, May, June, so yeah. Then I gave it to Raine & Horne on 1 July.
QYes. I’m asking what applications to rent it, you had. You had Ms Hinder’s appliation.
AYeah.
QDidn’t you. And did you have any other applications before December.
ANo, because I went to another agent.
QRegardless of which agent you were with, were there any other applications.
ANo.
QAnd Ms Wanganeen’s experience, what’s that.
AShe’s a Torres Strait Islander and she lives in the country and –
QNo, I’m asking what her experience is with farming.
AAs far as I know she was just a housewife.
QAnd Mr Newman, what’s his experience.
AHe works in agriculture. He works in mining, agriculture, he’s very hands-on, he builds things, he drives things, he’s into heavy machinery.
QHow do you know this.
ABecause I’ve seen him, I’ve been to his place. I’ve been to 229 North Parham Road and he’s done quite a lot of renovations and work and –
QSo you learned these things after he took up residence.
AYeah.
QWhat information did you have at the point where he made an application to you to rent. What information did you have about Mr Newman’s experience farming.
AI gave the property to Century 21 down at Plympton and when they made the application I went down to the office and I met them. I met both Janine and Ben and we spoke together and yeah, he was successful in his application.
QHe was but what information did you have about his farming experience at that time.
AWe spoke quite deeply because we hit it off straightaway and that wasn’t the only conversation we had. We had another conversation after that before he moved in and in that conversation – he lived mainly in North Queensland and he was telling me about all the kind of work that he did there and that was ideal for him and Janine because of – it was conducive to their lifestyle.
QWhat did he tell you about his experience farming. I’ve asked you that three times now. I wonder if you’d answer.
AHe said he’d used heavy equipment, farming like tractors and like building dams and runoffs, tree lopping, ploughing, sowing, reaping.
QWhen did he tell you this.
AIt was, like I said, there was two times that I met him, one was in the office of Century 21 at Plympton and –
QDid he tell you this then.
ANo, but be –
QHe didn’t.
ANo but he indicated that then.
QWhat do you mean.
AHe indicated it – he did mention it to me.
QWhat did he mention.
AAll those things that I just said to you or part of those things that I just mentioned.
QWhich part.
AHe talked about he came from North Queensland and he was in the rural part of Queensland and he was on to the land and he was into growing stuff and building things.
QAt what point did you accept their application.
AWell, I didn’t accept it then, it was the second time that I met them. I met them a second time.
QWhere was that.
AThat was at my place. They came to my house.
QYes.
AThey were keen and they made it very clear that they could do all the things because, you know, we sat down and we spoke and we had a cup of tea and a bit of cake and that, and I got to know them a lot better and I accepted them.
QWhy didn’t you give Ms Hinder the opportunity to speak to you about her experience.
AMs Hinder, in two-and-a-half years never ever once –
QNo, just listen to the question. I’ve asked you why you didn’t give Ms Hinder the opportunity to tell you about her experience.
AI never met Ms Hinder, I never spoke to Ms Hinder and in my experience that she wasn’t successful to manage that property.
Mr Clayton said that he was unaware that Ms Hinder had paid rent in advance and a bond in relation to the property.
In evidence, Mr Clayton said that he had, just prior to July 2014, spent a considerable sum on replacing the septic system at the property. He said that he was concerned that the septic tank would not be able to manage six people living on the property. Mr Clayton tendered documents concerning the replacement of the septic system.[23] There is no indication from those documents that six people, or five people, would overload the system.
[23] Exhibit R3, Folder of documents with respect to septic tank.
Mr Clayton tendered several photocopies of the residential tenancy agreement signed by Ms Hinder and the agent. One of those photocopies had the initials missing from page 2 of 8. Mr Clayton suggested that this was significant in some way.
Assessment of evidence
Ms Hinder gave evidence in a straightforward and direct manner. Her account of events was internally consistent. There was a discrepancy between her account of the dates for which she sought leave to move house and her father’s recollection of those dates, but this is not critical. I prefer Ms Hinder’s evidence regarding those dates to Mr Nash’s. Mr Nash frankly conceded that he could not recall dates accurately.
Mr Clayton was discursive and evasive. He repeatedly tried to subject Ms Hinder to a quiz about her knowledge of farming and land management. As to the photocopied version of the residential tenancy agreement[24] from which the initials are missing on the second page, I find that there are many possible explanations for that, most of which involve the photocopying process, and none of which implies any version of facts favourable to Mr Clayton.
[24] Exhibit R1, two copies of the residential property tenancy agreement, one with initals missing from p 2.
Mr Clayton claimed to have no recollection of several important components of the relevant facts regarding this matter, including the content of his telephone attendance at the Residential Tenancies Tribunal and the content of his telephone conversation with Ms Higginson. I do not believe that he was unaware of the existence of the residential tenancy agreement until two or three weeks after the 13 August 2014. Putting to one side how unlikely it is that the agent would have neglected to mention it as he terminated his agency agreement, it must have been obvious from the telephone attendance at the Residential Tenancies Tribunal that there was a residential tenancy agreement in existence. I also note that Ms Hinder’s evidence was that the agent told her on 6 August 2014 that “the landlord had demanded that the lease be revoked”.[25]
[25] Exhibit C1, Affidavit of Lisa Marie Hinder sworn on 21 December 2016 paragraph 16.
I do not accept Mr Clayton’s evidence that there existed an alternative application by Ms Hinder for the property which Mr Clayton saw in the agent’s office and which said that Ms Hinder had a partner. I find that the content of the application which Mr Clayton saw was the same as the content which appeared in the application tendered in Ms Hinder’s case.[26]
[26] Exhibit C1, Affidabit of Lisa Marie Hinder sworn on 21 December 2016, Attachment B.
At the time when he was considering Ms Hinder’s application, Mr Clayton apparently knew only her age, her sex, the age and sex of her children and some information about her employment and financial circumstances. Mr Clayton stated clearly at the hearing that his reservation about Ms Hinder as a tenant did not relate to money. He formed the view that Ms Hinder could not handle the property at a time when the only things he knew about her were her age and her sex and the age and sex of her children. I do not accept that Ms Hinder’s age was a factor in Mr Clayton’s reasoning at the time that he refused to allow her to occupy the property. Mr Clayton offered it as an explanation a little wildly, on impulse, in evidence. Taking the evidence as a whole, I consider that there is an inescapable inference that Mr Clayton refused to honour the lease of the property to Ms Hinder both because she is female and because of her caring responsibilities to her children. Clearly, he believed that these two factors rendered her unable to manage the property.
I do not accept Mr Clayton’s submission that the capacity of the septic tank played any role in his decision-making process. There is no basis for thinking that the septic tank would be inadequate. The property includes a three-bedroom house and a granny flat.
A folder of medical information was tendered by Mr Clayton.[27] I have read the contents of that folder. The information contained in that folder does not assist me in deciding this matter.
[27] Exhibit R4, Folder of documents with respect to Mr Clayton's health.
Mr Clayton breached s 38 and s 85ZF of the Act in refusing to honour the lease of the property to Ms Hinder.
Compensation
The Act provides, in s 96(1)(a), (b) and (3):
96—Power of Tribunal to make certain orders
(1)The Tribunal may, on determining that the respondent in proceedings under this Part has acted in contravention of this Act, make one or more of the following orders:
(a) subject to this section, an order requiring the respondent to pay compensation (of such amount as the Tribunal thinks fit) to a person for loss or damage arising from the contravention;
(b) an order requiring the respondent to refrain from further contravention of the Act;
…
(3)The damage for which a person may be compensated under subsection (1) includes injury to his or her feelings.
In her particulars, Ms Hinder sought damages for economic loss, damages for injury to feelings and an order requiring the respondent to refrain from further contravention of the Act.
Her rent for the property under the residential tenancy agreement would have been $720 per fortnight ($360 per week). The property Ms Hinder ultimately rented in Banksia Park was $350.00 per week. The fee to agist her horses at Barabba was $100 per week, which included food and water. Ms Hinder also had to drive from Banksia Park to Barabba daily to tend to the horses. Ms Hinder lost the benefit of two weeks at work. There was some inconsistency in the evidence as to the amount she was earning per week at the time. Her wages seem to have fluctuated from $50 to $200 per week.[28]
[28] Transcript p 69, evidence of Mr Nash.
I accept that the refusal by Mr Clayton to honour the residential tenancy agreement caused considerable hurt and distress to Ms Hinder and created a situation where she had to expend considerable energy managing the disappointment of her children, particularly her son with autism.
In terms of economic loss, Ms Hinder paid $10 less rent per week at Banksia Park for the year which was to have been the term of the lease. However, she had to pay $100 per week to agist her horses. This included food and water. Ms Hinder argued that the property would have yielded sufficient feed for the horses, and water was available. I acknowledge those things, but note that Ms Hinder would have had to pay for the water and possibly some other costs to do with feeding the horses. The management and maintenance of an 85 acre property would also have cost her more than the maintenance of a single house. Doing the best I can, I would allow for economic loss of $1,400.00. In relation to injury to Ms Hinder’s feelings, I would allow $1,000.00 under s 96(1) and (3). I do not consider that it would be appropriate to make any order under s 96(1)(b).
Summary and conclusion
Mr Clayton unlawfully discriminated against Ms Hinder by refusing to dispose of a leasehold interest in land to her on the basis of her sex and her caring responsibilities, contrary to s 38 and s 85ZF of the Act.
I would have awarded compensation to Ms Hinder on account of economic loss in the sum of $1,400.00 and compensation on account of injury to her feelings of $1,000.00.
MEMBERS MS A BACHMANN & MS H JASINSKI:
On May 27 2015, Lisa Hinder “the complainant,” lodged an on-line complaint with the Equal Opportunity Commission against Mr Denis Clayton “the respondent” alleging that on August 13 2014 during a Residential Tenancies Tribunal “RTT” hearing, the Respondent told the Court via telephone that he revoked a contract to rent her a property because she was a single mother. In her application to the RTT on August 6 2014 all she could say was “I have a gut feeling he has done this because I am single.”[29]
[29] Exhibit C1, Document F.
Up until then she did not know why she had been unsuccessful as a potential tenant of property “the property” situated at 229 North Parham Road, Windsor, South Australia, owned by Top Fact Pty. Ltd., of which the respondent was the sole director. In further particulars filed on July 6 2015, the grounds of the complaint were expanded to include further bases for discrimination; that she is a female and/or sole parent.
Ms Hinder and her case.
Ms Hinder who was represented by Counsel, gave evidence in this matter. In addition, an affidavit sworn on December 1 2016 was tendered.[30] She called two witnesses, Robert Charles Nash, her father who was also her employer and Rebecca Jane Higginson, a friend.
[30] Exhibit C1.
Ms Hinder's story was that in June 2014, she was living in Owen South Australia with her four teenage children but needed to find alternative accommodation as the then agistment arrangements for her horses would no longer be available in the Owen area after August 31 2014.
On 17 July 2014, the complainant saw an advertisement for property at 229 North Parham Rd Windsor, South Australia and completed an on-line tenancy application to Lisa Kotsano, “Agent” at Raine &Horne, land agents, Two Wells South Australia.[31]
[31] Exhibit C1, Document B.
Within days after, the complainant inspected the property.
The complainant said that on 22 July 2014, she received a telephone call from the agent, telling her the owner had concerns about renting the property to her. The agent was not called to give evidence.
On 23 July 2014, the complainant received a text message on her mobile phone from the agent telling her the landlord was happy for her to have the property but was waiting for an answer from his “ex”.
On July 24 2014, the agent sent the complainant another text message advising her that the house was hers.[32]
[32] Exhibit C1, Document C.
She entered into a lease agreement for the property on July 28 2014 with the agent signing on behalf of the respondent. The date of the commencement of the lease was 15 August 2014.[33]
[33] Exhibit C1, Document D.
The landlord’s address on the lease and s 48 notice, filled out by the agent, was 32B Trigg Street Blair Athol.
She arranged to take time off work for the relocation from 4-20 August 2014 and was earning $200 a week as a casual employee.[34]
[34] Exhibit C1, para 15.
On or about August 6 2014, the agent contacted the complainant by telephone to say that the landlord revoked the lease and the contract with the agency. Ms Hinder said in her affidavit: “I was shocked and upset by this phone call and could not understand why I was no longer able to rent the premises”.[35]
[35] Exhibit C1, para 16.
She filed an urgent application in the Residential Tenancies Tribunal 2 days later on August 8 2014.[36] She gave the address of the respondent in that application, as 32B Trigg St Blair Athol SA 5501. The complainant said in the application that the respondent had privately sold the property on the weekend.[37] She said also “I have a gut feeling he has done this because I am single.”[38]
[36]   Exhibit C1, Document F.
[37]   Exhibit C1, Document F p 22.
[38]   Exhibit C1, Document F.
Five days later on August 13 2014 the matter came on for hearing. The respondent was not there but was contacted on the telephone by the Presiding Member. According to the complainant, the respondent told the Presiding Member that the complainant was not able to look after the property because she was a sole parent without a man in her life. She was upset and traumatised by this remark.[39] In cross examination, she said:
“Your statement over the phone in the tribunal that day, ‘How on earth are you meant to look after my property without a man in your life?’, that’s why we’re here, Mr Clayton. That was discriminative, that was what annoyed me and that is why I’ve taken it this far.”[40]
[39] Exhibit C1, para 19.
[40] Transcript p 62 lines 13-17.
The complainant said that she spoke with the respondent during the RTT and welcomed him to contact her references.[41] She asserts that the respondent was asked to reconsider her application and contact her references but that: “He would not come to any agreement within that courtroom to reconsider honouring that lease”. [42]
[41] Exhibit C1, para 20.
[42] Transcript p 58 lines 15-16.
When asked what the formal outcome was, she said that: “It was left in the hope that Mr Clayton would change his mind”.[43]
[43] Transcript p 58 lines 25-26.
The application by Ms Hinder to the RTT was dismissed.[44]
[44] Transcript p 58 lines 9-34.
The complainant remained for an extra 6 weeks at the property in Owen[45] and or about August 20 2014, the complainant found premises to rent at Banksia Park; secured it in mid-September 2014 and moved there in mid-October 2014.[46] She did however have to agist her three horses in Barabba for 1 year for $100 a week. She is claiming economic loss for the agistment and compensation for distress, hurt and humiliation caused by the discrimination.
[45] Transcript p 42 lines 15-16.
[46] Exhibit C1, paras 24-27.
Mr Robert Nash
Mr Robert Nash, the complainant’s father and employer gave evidence and an affidavit affirmed by him on 19/10/16 was tendered.[47] He was also the author of an letter dated July 27 2016 addressed to “whom it may concern”.[48]
[47] Exhibit C4.
[48] Exhibit C1, Document E.
In his affidavit he said he gave the complainant unpaid leave from 25/8/14 to return to work on 8/9/14 so that she could shift from Owen to Windsor in South Australia.
He was told by the complainant that the respondent had revoked her lease and in approximately mid-August 2014 (he was unsure of the date)[49] he telephoned Mr Clayton and offered him 2 lots of 3 month’s rent in advance with a review in 6 months. He wanted to help his daughter secure the property as he was told by Ms Hinder that the respondent had reservations about renting to her. Mr Nash said that the respondent declined the offer and said as a single mother she couldn’t afford the rent and without a man around the place she probably couldn’t keep the property up to the repairs that he required.[50]
[49] Transcript p 77 lines 13-19.
[50] Transcript p 66 lines 24-28.

Mr Nash thought that the respondent would not be swayed in his decision but asked him to reconsider the offer. The respondent still said no. Mr Nash said the respondent had made up his mind not to reconsider the offer.[51]
[51] Transcript p 75 lines 25-33.
Rebecca Jane Higginson
Ms Higginson was a friend of the complainant and referee for the lease. She gave evidence. Her affidavit affirmed on December 1 2016 was tendered and marked exhibit C5.
She said that on approximately 13/8/14 the respondent telephoned her to discuss the complainant’s application to rent the property at Windsor. She said she answered the respondent’s questions about the complainant’s suitability as a tenant and in response to a question about: “what does her partner do”, told him that the complainant’s husband died and that she didn’t have a current partner.[52] She said the call was lengthy, about 20 minutes.[53]
[52] Exhibit C5, paras 4 and 5; Transcript p 79 lines 27-31.
[53] Transcript p 81 lines 12-14.
She said in her affidavit[54] and in evidence[55] that: “at the end of our conversation, Mr Clayton said that he thought it all sounded okay, but that he would need to talk to his wife.” The inference being that he would reconsider accepting the complainant as a tenant but after consultation with his wife.
[54] Exhibit C5, para 12.
[55] Transcript p 81 lines 23-24.
Mr Denis Clayton and his case.
The respondent Denis Clayton was unrepresented and gave evidence in this matter.
He said that on July 1 2014, he signed a sole agency agreement with Raine and Horne, Two Wells South Australia for the lease of property at 229 North Parham Rd Windsor, South Australia, owned by Top Fact Pty. Ltd., of which he was the sole director. It was his understanding that as landlord, he had the right to “approve” a tenant before the agent drew up a lease.
The complainant’s Counsel tendered the Residential Tenancies Property Management Agreement between Mr Clayton and Raine & Horne.[56]
[56] Exhibit C6.
In the “Terms and Conditions” of that agreement, the agent is obligated to negotiate the terms and conditions of a tenancy in accordance with the landlord’s instructions and prepare and execute the lease and any other documents on behalf of the landlord.[57]
[57] Exhibit C6, “Terms and Conditions”, clauses 5.1.4 and 5.1.5.
The Respondent tendered a Residential Tenancy application, digitally signed by the complainant on July 17 2014, which included two pages of “Terms and Conditions” and has “Raine & Horne” printed on page 1 of the application and on page 1 of the terms and conditions.[58]
[58] Exhibit R2.
It is essentially the same document as document B attached to the complainant’s affidavit, exhibit C1, except that exhibit R2 contains the complete set of terms and conditions, including the remainder of page 1 and all of page 2 that contains paragraph 2 which was not included in the documents attached to the complainant’s affidavit, C1.
In paragraph 2 of those terms and conditions, headed “Tenant Declaration” the complainant acknowledged that:
“this is an application to lease the property for which I am applying and that my application is subject to the owner’s approval and the availability of the premises on the due date. No action be taken against the landlord or agent should the premises not be ready for occupation on the due date or if any application is unsuccessful.”
When the respondent had not heard anything from the agent, he went to see her on 22 July 2014. He was shown the complainant’s application,[59] read it and did not find the complainant a suitable tenant to look after the property.[60] He did not give any reason.[61]
[59]   Exhibit R2.
[60]   Transcript p 96 lines 34-36.
[61]   Transcript p 97 lines 1-2.
On 23 July 2014, he received a phone call from the agent who told him he was wrong and could not choose his tenant. He again told the agent that the complainant was not acceptable to him.[62]
[62] Transcript p 98 lines 31-36.
On 24 July 2014 he received another call from the agent and made it clear to her that the complainant was not accepted and that he did not give his consent to put the complainant into the property.[63] There was a disagreement between the respondent and the agent as they did not see eye to eye. He said it was “on the cards that he was going to break the agency agreement.”[64]
[63] Transcript p 98 lines 36-38.
[64] Transcript p 99 lines 37-38; Transcript p 100 lines 1-13.
On August 6 2014 he formally terminated the engagement of Raine & Horne and as far as the respondent was concerned, that was the end of the matter.
On August 13 2014, the respondent, due to the state of his health, was medicated and in bed when he received a telephone call at 9.30am from the Presiding Member of the RTT enquiring why he was not in attendance. He said he spoke only to the Presiding Member.[65]
[65] Transcript p 104 lines 22-23.
He has little memory of the call but thinks he could have said that the complainant could not handle the property. He denied saying that she would have trouble without a man around. The respondent said that the conversation with the Presiding Member was short and brief and that no narrative was entered into.[66]
[66] Transcript p 104 lines 19-25.
He did not receive notification of the hearing nor did he receive any of the documents, including the lease until approximately 2 weeks after the RTT hearing. He said that as he did not have any of the documents he could not have said that she could not afford the property.[67]
[67] Transcript p 101 line 26 – p 103 line 3.
The respondent said that he did not know of the existence of a Residential Tenancies Agreement until he eventually received it and other papers in the mail from the RTT somewhere between August 23 and September 3 2014. Up until that time he had not seen the lease dated July 28 2014 nor did he know that the complainant paid two weeks rent in advance or a bond on July 29 2014.[68]
[68] Transcript p 116 lines 33-38; Transcript p 117 lines 14-21.
At some stage after the hearing about 5, 6 or 7 days before receiving the papers from the RTT he was telephoned by Robert Nash, the complainant’s father[69] who made him an offer to pay 6 months of the complainant’s rent in advance. The respondent had made up his mind on July 22 2014 that the claimant was not able to handle the property and chose then not to approve the application. He rejected Mr Nash’s offer but did not say to him that he refused the complainant the property because she was a woman without a husband, a single mother, but because he thought she could not manage the property.[70]
[69] Transcript p 107 lines 5-6; Transcript p 109 lines 2-3.
[70] Transcript p 72 lines 35-38; Transcript p 73 lines 1-20.
When he received the documents from the RTT, especially the complainant’s handwritten addition to the application to the RTT, he became “concerned and alarmed”[71] for the complainant and her children’s welfare because she said she was homeless and had no-where to go. He telephoned each of the 3 people whose names appeared in the documents to enquire about the complainant’s wellbeing. Graham Nash, the complainant’s brother, Shaun Silkstone, the complainant’s landlord and Rebecca Higginson, the complainant’s referee. He tried unsuccessfully to speak to the complainant but did not get a response when he rang her landline or mobile number. He satisfied himself that the complainant’s situation was not desperate; that she and the children and her animals were provided for and for him then, that was the end of the matter. All conversations were short and to satisfy himself that the complainant would not be left homeless.
[71] Transcript p 106 lines 10-11.
The respondent leased the property to other tenants in late December 2014.[72]
[72] Transcript p 113 line 32.
Assessment of evidence.
Ms Hinder gave conflicting evidence about the number of horses she owned and had to agist at the relevant time. The numbers went from 2, to 3 to 5 then 6. In her application to the RTT a matter of weeks after signing the lease, she claimed she had six horses.[73] In evidence she eventually told us that she had 3 horses.[74]
[73] Exhibit C1, Document F.
[74] Transcript p 37 line 7.
There was a discrepancy too as to what her wages were at the relevant time. In the Residential Tenancies application[75] she said she was earning $100/wk. This is supported by the letter of her father/employer[76] yet in the affidavit in support of her claim in this Tribunal, she asserted that at the time she was earning $200/wk as a casual employee.[77] Ms Hinder’s inflated assertions as to the number of horses she had and would have to agist and her wages (doubling from $100 to $200 a week) together with the time she had to take off work could have inflated her quantum for economic loss.
[75]   Exhibit C1, Document B.
[76]   Exhibit C1, Document E.
[77]   Exhibit C1, para 15.
Ms Hinder filled out and signed an online Residential Tenancies Application acknowledging in its terms and conditions that:
“this is an application to lease the property for which I am applying and that my application is subject to the owner’s approval and the availability of the premises on the due date. No action be taken against the landlord or agent should the premises not be ready for occupation on the due date or if any application is unsuccessful”.[78]
[78] Exhibit R2.
In Ms Hinder’s copy of this document, attached to her affidavit[79] the full terms and conditions were not tendered. It is a curious exclusion. It is clear that her application had to be approved by the landlord and that no action could be taken against the landlord if she were not approved.
[79] Exhibit C1, Document B.
It is also clear that both the claimant and the agent knew this, given the exchange of text messages between them, especially this one: “Hi Lis landlord is just awaiting on answer from ex otherwise he is happy for you have it he will call me def tomorrow with final answer Sorry on the wait”.[80]
[80] Exhibit C1, Document C.
This is evidence that:
1.The complainant knew that the approval of the owner was required for the property to be rented.
2.That the agent was seeking the landlord’s consent for the tenancy.[81]
[81] Exhibit C1, Document C.
The agent was not called by the complainant. We accept that Mr Clayton did not have an “ex” but was a widower[82] and that as sole director of the company that owned the property he had exclusive rights to approve or not a prospective tenant without seeking the assent of anyone else. It throws some doubt about the veracity of the content of the sms message. We accept that when the respondent was shown the complainant’s application on 22 July, he read it and did not approve the complainant as a suitable tenant to look after the property.[83] He did not give any reason.[84] He did not have to.
[82]   Transcript p 61 lines 31-36; Transcript p 82 lines 5-10.
[83]   Transcript p 96 lines 34-36.
[84]   Transcript p 97 lines 1-2.
Mr Clayton maintained throughout that he never gave his approval for the tenancy and it is a plausible explanation for the respondent’s actions. There were 2 calls to him from the agent in the following 2 days and we accept that the agent and he had a falling out. He said that he made it clear to her that the complainant was not accepted and that he did not give his consent to put the complainant into the property.
We find that Mr Clayton tried his best to put his case, was forthright and believe him when he says he never approved the complainant as a tenant. We also believe that he did not give a reason at that time. The inference is, that he did not authorise the agent to enter into a lease with Ms Hinder.
In any event, the agent signed a lease and Ms Hinder believed that she had a valid lease and that the respondent had revoked it on August 6 2014. She was understandably unhappy and distressed when she received the agent’s call and we accept her evidence when she says “I was shocked and upset by this phone call and could not understand why I was no longer able to rent the premises”.[85] In her application to the RTT on 6 August 2014, she said: “I have a gut feeling he has done this because I am single.” We find that Ms Hinder had no evidence why she had been rejected and there is no evidence that Hinder or Clayton even spoke to one another during this time.
[85] Exhibit C1, para 16.
At the hearing of the RTT matter on August 13 2014, the respondent was not present. We find that the RTT was given the incorrect address of the respondent both by the complainant when she filled out her application to the RTT dated August 6 2014 (but date and time stamped by the Tribunal registry at 2.30pm on August 8 2014)[86] and on the Residential Tenancy Property Agreement and s 48 notice, filled out by the agent.[87] The address for Mr Clayton on all these documents was 32B Trigg Street Blair Athol. The respondent gave evidence that his address was 38B Trigg St Blair Athol.[88] This is corroborated by the ASIC Company extract, Exhibit C12.
[86]   Exhibit C1, Document F.
[87]   Exhibit C1, Document D.
[88]   Transcript p 105 line 37; Transcript p 106 lines 5-6.
This supports the respondent’s story that the he did not have notice of the hearing on 13 August 2014 and did not receive the RTT documentation including the lease until later. It is plausible that it was between August 23 and September 3 2014.
On August 13 2014, the respondent was telephoned by the Presiding Member of the RTT. Ms Hinder in her affidavit told us that she spoke to the respondent on the phone at the hearing and invited him to speak to her references.[89] Mr Clayton said that he spoke to the Presiding Member only and that the conversation was brief.[90] The complainant asserted that the respondent made a discriminatory remark to her when he said that he had refused the tenancy because she was single without a man in her life. In evidence, she asserted he said ‘How on earth are you meant to look after my property without a man in your life?’ In evidence before us she said the comment “annoyed” her and that is why she took the matter to the Equal Opportunity Commission.[91]
[89]   Exhibit C1, para 20.
[90]   Transcript p 104 lines 19-25.
[91]   Transcript p 62 lines 13-17.
On this vital piece of evidence, there is no corroboration or any evidence in support, just an assertion by Ms Hinder that Mr Clayton made this remark. Mr Clayton does not have a good recollection of what he said but thinks he could have said that the complainant could not handle the property. He denied saying that she would have trouble without a man around.[92] Ultimately, it is the complainant who has to discharge the onus and make out to the reasonable satisfaction of the Tribunal, on a balance of probabilities, that the fact she asserts, exists. There is no independent evidence to help us. She also asserted in her RTT application that the respondent had sold the property on the weekend and again there was no supporting evidence to substantiate this. We believe Mr Clayton when he said he eventually rented the property to another tenant in December 2014.[93]
[92] Transcript p 102 lines 18-20.
[93] Transcript p 113 line 32.
Ms Hinder claims that the comment about her being a sole parent with no man in her life affected her in that she was “Incredibly upset and traumatised to hear this from the Respondent”.[94] Again, this is just an assertion without proof, and the complainant did not issue proceedings in the Equal Opportunity Commission until some eight months later. In cross examination she said only that she was annoyed.
[94] Exhibit C1, para 19.
At the end of the RTT hearing, the matter was dismissed and Ms Hinder was hopeful that Mr Clayton would change his mind even though he said that he would not reconsider.
We find that the respondent was still of this mind when Mr Nash, the complainant’s father rang him some days later.[95] Mr Nash said in evidence that he thought the respondent was going to be unmovable and that on speaking to Mr Clayton, he still said no and had made up his mind not to reconsider.
[95] Transcript p 75 lines 25-32.
Mr Nash said that in the conversation with Mr Clayton, the respondent told him he was concerned that Ms Hinder could not afford the property as she was a single mother receiving some benefits and a small income The respondent denied that he had any information about the complainant’s financial situation to have this conversation and as we found that he had not received any of the docs from the RTT until somewhere between 23 August to approximately 3 September 2014, we prefer the evidence of Mr Clayton to Mr Nash on this topic.
Rebecca Higginson’s evidence about a conversation she had with the respondent on or about 13 August 2014 relating to the complainant’s suitability as a tenant has a number of problems.
One aspect is that she said the respondent asked her what Ms Hinder’s partner did. If Ms Higginson is to be believed, then the respondent asking about Ms Hinder’s partner is inconsistent with the complainant’s allegations that the respondent discriminated against her because she was a single parent and didn’t have a male partner.
She told the Tribunal that the conversation lasted 20 minutes and that: “at the end of our conversation, Mr Clayton said that he thought it all sounded okay, but that he would need to talk to his wife”.[96] We accept the respondent’s evidence that he was a widower at the time and did not have a wife[97] and we therefore question Ms Higginson’s account of the conversation.
[96] Exhibit C5, para 12; Transcript p 81 lines 23-24.
[97] Transcript p 82 lines 5-10.
Both Ms Hinder and Mr Nash said in evidence that at no stage after August 6 2014, did the respondent waver in his resolve to not grant the claimant a lease to the property.[98]
[98] Transcript p 58 lines 15-16; Transcript p 75 lines 25-33.
If as Ms Higginson says, the respondent telephoned her on or about August 13 2014,[99] it is irreconcilable with Ms Hinder’s evidence that earlier that day at the RTT he told the Presiding Officer that he would not come to an agreement to reconsider honouring the lease[100] and then later that day, show to Ms Higginson, a willingness to entertain changing his mind but would need to ask his “wife” first. Although the respondent cannot recall much of the conversation with Ms Higginson, he said it was very very brief and we believe him.[101]
[99] Exhibit C5, para 3.
[100] Transcript p 58 lines 15-16.
[101] Transcript p 79 lines 26-27.
Mr Nash said that he tried to telephone the respondent several times and that it took him some days to contact him; that he did not have his phone number initially, that he telephoned both a land line and mobile phone and left messages for Mr Clayton. He was unsure of the date he spoke with the respondent but the inference is that it was several days to a week after the RTT hearing.
On the complainant’s case, the respondent had concerns about renting her the property on 22 July 2014 and 2 days later changed his mind after consulting with his “ex”, then changed his mind again on August 6 2014 and revoked the lease. Ms Hinder said that Mr Clayton maintained that he would not consider her as a tenant on the morning on 13 August in the RTT, but in the afternoon, after talking to Ms Higginson, was prepared to reconsider Ms Hinder as a tenant after talking to his “wife”. Then some days later or even on the same day, he again changed his mind and rejected the complainant as a tenant when Mr Nash telephoned him and offered him an incentive of 6 month’s rent in advance.
If as the respondent says, the conversation with Ms Higginson took place much later in August, after he received the papers from the RTT, and having already spoken with Mr Nash, it is even less plausible that he would have a lengthy conversation with Ms Higginson about the suitability of Ms Hinder as a tenant when previously Mr Nash had generously offered the respondent 6 months rent in advance and the respondent had declined the offer. We do not accept Ms Higginson’s version of the conversation or the date on which she says it occurred. The respondent’s version of what happened has an inherent consistency and we believe that he telephoned Ms Higginson to find out about the complainant’s welfare after he received and read the documents sent to him by the RTT which had initially been sent to the wrong address.

We have evaluated all the evidence and taken as a whole, we are unconvinced, on the balance of probabilities that Ms Hinder has made out her case; that the discrimination she asserted, happened. We find the respondent credible and accept his version of what happened is the more plausible and likely.
Conclusion
The respondent did not discriminate against the complainant on the grounds of her sex, marital or domestic partnership status, nor her association with a child, contrary to sections 38 or 85F of the Equal Opportunity Act 1984.
The complainant is not entitled to compensation for economic loss or for injury to her feelings.