Hu v Stansure Strata Pty Ltd and Ors - [2014] FCCA 905

FEDERAL CIRCUIT COURT OF AUSTRALIA

HU v STANSURE STRATA PTY LTD & ORS

[2014] FCCA 905

Catchwords:
HUMAN RIGHTS – Racial discrimination – residential dispute – whether the applicant was discriminated against because of her Asian ethnicity – no evidence to demonstrate racial motivation for any alleged discrimination – application dismissed – costs awarded.

HUMAN RIGHTS – Racial discrimination – strike out certain complaints before the court – s.46PO(3) Australian Human Rights Commission Act 1986 (Cth).

Legislation:

Australian Human Rights Commission Act 1986 (Cth), s.46PO

Body Corporate and Community Management Act 1997 (Qld), s.7
Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld)
Evidence Act 1995 (Cth), s.140
Peace and Good Behaviour Act 1982 (Qld)
Racial Discrimination Act 1975 (Cth), ss.9, 10, 11, 12, 18C

Barnes v Northern Territory Police [2013] FCCA 30
Briginshaw v Briginshaw (1938) 60 CLR 336
Burke v Tralaggan (1986) EOC 92-161
Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531
Desouza v Secom Australia Pty Ltd [2013] FCCA 659
Dye v Commonwealth Securities Ltd(No.2) [2010] FCAFC 118
Lamb v Samuels Real Estate Pty Ltd (1996) EOC 92-790
Lynton v Maugeri (1995) EOC 92-754
Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8
McMahon v Bowman [2000] FMCA 3
Qantas Airways Ltd v Gama [2008] FCAFC 69
Sidhu v Raptis [2012] FMCA 338

Applicant:

LOUISE HU

First Respondent:

STANSURE STRATA PTY LTD

Second Respondent:

MARGARET ROSE HOLMES

Third Respondent:

BODY CORPORATE FOR JARRAH COURT CTS 8533

File Number:

BRG 80 of 2012

Judgment of:

Judge Burnett

Hearing dates:

2, 4 September 2013 and 16 October 2013

Date of Last Submission:

16 October 2013

Delivered at:

Brisbane

Delivered on:

14 May 2014

REPRESENTATION

The Applicant appeared on her own behalf

Counsel for the First Respondent:

Ms H. Blatmann

Solicitors for the First Respondent:

Success Law

Counsel for the Second Respondent:

Ms A. Coulthard

Solicitors for the Second Respondent:

Minter Ellison

Counsel for the Third Respondent:

Ms A. Coulthard

Solicitors for the Third Respondent:

Minter Ellison

ORDERS

That the application filed on 25 January 2012 be dismissed.
Subject to application being made for any other order within seven days of the date of this order, order that the Applicant pay the Respondents’ costs of and incidental to the application, including reserved costs, to be taxed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 80 of 2012

LOUISE HU

Applicant

And

STANSURE STRATA PTY LTD

First Respondent

MARGARET ROSE HOLMES

Second Respondent

BODY CORPORATE FOR JARRAH COURT CTS 8533

Third Respondent

REASONS FOR JUDGMENT

Introduction

In 2007 the Applicant, a woman of Asian ethnicity, purchased and entered into occupation of a lowset unit in a unit complex known as Jarrah Court. Almost immediately she complained that she was subject to racial discrimination by the Chairperson of the body corporate, Margaret Holmes (Second Respondent), the Body Corporate itself (“Body Corporate”) (Third Respondent) and the third-party provider of professional body corporate services (“Stansure”) (First Respondent). The…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] FCCA 905
Decision Date: 14 May 2014

CaseChat Overview and Summary

The applicant, Ms. Hu, brought proceedings against Stansure Strata Pty Ltd and other respondents, alleging racial discrimination in relation to a residential dispute. The matter came before the Federal Court of Australia.

The primary legal issue before the Court was whether Ms. Hu had been discriminated against on the basis of her Asian ethnicity. This involved determining if there was sufficient evidence to establish racial motivation for the actions of the respondents. The Court also considered whether certain complaints should be struck out pursuant to s 46PO(3) of the *Australian Human Rights Commission Act 1986* (Cth).

Judge Burnett found that there was no evidence presented by the applicant to demonstrate that racial motivation underpinned any of the alleged discriminatory conduct. Consequently, the application was dismissed. The Court also awarded costs to the respondents.

Orders