Hu v Stansure Strata Pty Ltd and Ors
[2014] FCCA 905
•14 May 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HU v STANSURE STRATA PTY LTD & ORS | [2014] FCCA 905 |
| Catchwords: 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 |
| 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 complaints were extraordinary and perplexing in their apparent focus upon her in this otherwise diverse and multicultural group of unit holders. Her complaint could not be resolved by mediation and has required judicial determination. For reasons which follow, I am satisfied that the complaints are unfounded.
Jurisdiction
The Applicant’s claims are far reaching. Her initial complaint to the Australian Human Rights Commission (“AHRC”) was directed only to Stansure. However, it was apparent from the material attached to that application that her complaints extended to the Second and Third Respondents.
Pursuant to s.46PO(3) of the Australian Human Rights Commission Act 1986 (Cth) (“AHRC Act”), the unlawful discrimination alleged in the application:
“(a) must be the same as (or the same in substance as) the unlawful discrimination that was the subject of the terminated complaint; or
(b) must arise out of the same (or substantially the same) acts, omissions or practices that were the subject of the terminated complaint.”
In their submissions the Second and Third Respondents contend that the Amended Application filed on 8 March 2012 makes allegations that were not raised in the original complaint before the AHRC and which would not be captured on the basis that they are “the same as (or the same in substance as)” the conduct complained of. It is settled that the Court does not have jurisdiction to hear allegations to the extent that they do not satisfy the requirements of s.46PO(3): Dye v Commonwealth Securities Ltd (No.2) [2010] FCAFC 118 at [43]-[48]. The approach to be taken in considering this measure was explained by Nicholls J in Desouza v Secom Australia Pty Ltd [2013] FCCA 659, where his Honour summarised it as follows:
a)The complaint for consideration takes the shape which it has assumed at the time of its termination before the AHRC;
b)There is a balance to be achieved between “a degree of flexibility” as suggested by s.46PO(3) and the important “constraint” in raising a complaint before the Court not raised before the AHRC;
c)An applicant is permitted to allege “different facts” before the Court “provided, however, the facts now alleged are not different in substance from the facts formerly being alleged”;
d)In light of the flexibility permitted by s.46PO(3) of the AHRC Act the application of that section “should not be read with the same strictures as apply to a pleading in a court”; and
e)An alleged incident falls within s.46PO(3) where it is “capable of being characterised as an act that arose out of the same unlawful discrimination of which [the applicant] complained or it was the same in substance.”[1]
[1] At [46].
For the Second and Third Respondents it was submitted, and I accept, that for this application the Court should commence by considering the “parameters of the original complaint” that was terminated by reference to the shape it had taken by the time it was before the AHRC. This is effected by considering:
a)The complaint form and attached documents;
b)The letter dated 28 June 2011 that the Applicant wrote to the AHRC after the complaint had been lodged; and
c)The notice of termination and the accompanying letter from a delegate of the President of the AHRC dated 1 December 2011.
It was submitted that based on these documents the allegations of racial discrimination made in the complaint to the AHRC relate to:
a)An allegation that at the end of 2008 Stansure, by its employee Rebecca Claydon (Strata Manager), said that Jarrah Court “do not welcome Asian and children”; and
b)That there were restrictions regarding vehicles parked on the property.
Respectfully, I consider the Applicant’s complaints to have extended beyond those matters to also include:
a)Offensive conduct concerning renovations to a courtyard;
b)Conduct relevant to mail and its collection;
c)Conduct relevant to termite treatment;
d)Allegations of vandalism;
e)Damage to a front garden; and
f)Disturbing her peace by climbing upon her roof.
By reference to the documents attached to her AHRC application it was apparent that that the Applicant’s complaints extended beyond Stansure to include specifically the conduct of the Body Corporate Chairperson, Mrs Holmes, and the Body Corporate itself.
The Second and Third Respondents complain that the allegations alleged in paragraphs 2, 4, 10 and 12 of the Amended Application, together with those matters detailed in the Applicant’s affidavit filed on 8 August 2013 relating to acts done after 25 May 2011, and the allegations in her affidavit sworn 29 August 2013, should not be considered.
Paragraph 2 of the Amended Application provides:
“Margaret Holme also said, that it is by-law, that I have to writing to Stansure Strata to request to get authorizing with payment to be able to have my daughter living with me. I believe this is because I am an Asian, and I don’t know what’s by-law also.”
This allegation was not raised in the complaint nor in any other material provided to the AHRC before the President’s determination. In my view it is an allegation different in substance to that made by the complaint that “approval was required for visitors attending.” It does not satisfy the requirements of s.46PO(3).
The allegation in paragraph 4 of the Amended Application is that Stansure issued letters to assist Mrs Holmes in discriminating against the Applicant. The correspondence was attached to the application and its import is clear. As a matter of plain construction it is apparent that Stansure’s correspondence cannot be construed as a letter issued to assist Mrs Holmes’ discriminating against the Applicant. It follows that such an allegation was not raised in the complaint and nor is it related to any of the allegations of fact in the complaint to the AHRC. It is in substance a different allegation to that made in the complaint and accordingly does not satisfy s.46PO(3).
Paragraph 10 of the Amended Application concerns a complaint that Stansure caused someone to jump on her roof in an attempt to break it and cause a leak. There had been a history of an earlier leak and dealings between the Applicant and the Body Corporate in respect of it. In her letter of 28 June 2011 the Applicant made the complaint that:
“… 3 weeks ago, they had climb up to the roof, jump above my unit roof, said they need to check on something, to see if some work needs to be done. And was rough and rude to me when I asked them why doing that?”
Paragraph 10 of the Amended Application made two complaints. The first was that the Applicant was subject to discrimination because “… Stansure Strata can took 17 months to kick me around not to do the repair [of the leaking roof] based on my race.” The second concerns an allegation that “Stansure Strata was try to break my roof purposely … to make leak again … because I am an Asian.” The second of the two complaints was clearly raised in the letter of 28 June 2011. The first of those complaints fails to satisfy s.46PO(3).
Finally, there are a series of allegations now made by the Applicant which postdate events following her final expression of complaint dated 28 June 2011. These complaints do not fall within the jurisdiction of the Court on s.46PO(3): Charles v Fuji Xerox Australia Pty Ltd [2000] FCA 1531 at [41]. Those complaints are:
a)The allegation at paragraph 12 of the Amended Application that Stansure stole the Queensland Civil and Administrative Tribunal (“QCAT”) decision dated 10 February 2012 out of her mailbox;
b)Allegations in her affidavit filed on 8 August 2013 relating to acts done after 28 June 2011, being:
i)An allegation that Mr Ernest Odey (the current Chairperson of the Body Corporate committee) abused and threatened her on 30 November 2012;
ii)An allegation that Mario Mifsud, the husband of the previous chairperson of the body corporate committee, Mrs Lorraine Mifsud, damaged her property on 5 May 2013;
iii)An allegation that “they” (being a reference to unknown persons associated with the Body Corporate) poisoned her tree in October or November of 2012.
Finally, in affidavit filed 8 August 2013, the Applicant made further allegations which cannot be the subject of this application as they too relate to acts done after 28 June 2011. They are:
a)Allegations of conduct by Mrs Holmes designed to reduce compensation agreed at a mediation conducted on 8 October 2012;
b)Further allegations of damage to property, in particular the separation of a post;
c)Further allegations of poisoning of a tree.
Issues of credit
The Applicant’s complaints are unambiguous. There is no scope for subtlety in this application, and this is not a case where there can be misunderstanding or room for interpretation of nuanced conduct. Either the corporate respondents by their officers and agents and the Second Respondent are guilty of most egregious acts of discrimination based on race, or they are not. Given the polarised bodies of evidence, someone is simply wrong and that evidence is untenable. In this case I am satisfied that the witness in error here is the Applicant. For reasons which follow I have concluded that she is an inherently implausible and unreliable witness. Respectfully, I have concluded that she is delusional and detached from reality. While I accept that she genuinely perceives the matters she complains of, for reasons that can perhaps be best explained by others, there is no basis in fact for her perceptions.
The clearest illustration of her delusional behaviour concerns her cross-examination of the witnesses, Ms Rose Shaw, Ms Rebecca Claydon and Ms Hanna Tait, employees of Stansure. In short, she accused those witnesses of being imposters. These witnesses, who swore to their identity, were each minor functionaries employed by Stansure. The plain inference from her questioning was that they had engaged in a criminal conspiracy for reasons known only to the Applicant (who never revealed the source of her concerns) to perjure themselves in the application by each purporting to be another and giving evidence against the Applicant in the application. When she failed to succeed in cross examination she sought to attack their oaths as to identity. It was candidly all very puzzling.
Other matters that featured in my assessment of her credibility include her evidence concerning a wardrobe stored in her carport. It is not in contention that there was some dispute between the Applicant and the Body Corporate concerning her storage of furnishings in her carport. She made a complaint in her application that the Body Corporate’s attitude to her storage of furnishings in the carport was racially motivated, but the general circumstances of this complaint illustrate her unreliability.
After the Applicant related an exchange whereby she contended that Mrs Holmes told her that she needed permission to store furniture and other items in her carport, the cross-examination progressed as follows:
“Ms Coulthard: Okay. You don’t think you might have misunderstood what Margaret was trying to tell you about furniture being stored in a carport?
Ms Hu: No, ma’am.
Ms Coulthard: And Margaret didn’t speak to you again about the wardrobe, did she?
Ms Hu: No.
Ms Coulthard: No?
Ms Hu: But she had pushed my wardrobe against my car.”[2]
[2] 2 Sep 2013 T17 line 20-25.
Subsequently in cross-examination it was pointed out to the Applicant that she had stated in an affidavit that the wardrobe fell upon her car, at which point she acknowledged “I didn’t see who did it exactly.”[3] A short time later the following exchange then occurred:
[3] 2 Sep 2013 T17 line 37.
“Ms Coulthard: But you just said a moment ago that Margaret Holmes did it? [pushing the wardrobe onto the vehicle]
Ms Hu: I didn’t exactly say that.
Ms Coulthard : I thought – sorry. I’m – I thought you – I thought you did. Are you saying that Margaret Holmes did push the wardrobe onto your car?
Ms Hu: I would assume so.
Ms Coulthard: I would assume?
Ms Hu: But I didn’t see it.”[4]
[4] 2 Sep 2013 T18 line 1-10.
The incredibility of the Applicant’s initial evidence was made more so because of Mrs Holmes’ poor physical state. In her evidence she deposed to being 77 years of age and having a heart condition, being a sufferer of lifelong asthma and also currently suffering osteoarthritis, as well as bilateral lymphedema and arrecipolis.[5] She presented in Court as she appears on paper, as a fragile and physically diminished old lady aided by the use of a walking frame. Even if I were to ignore her presentation in court, I have no doubt that she lacked the physical capacity to push a wardrobe over as was initially stated or effect conduct of the kind complained of in the Applicant’s complaint under the Peace and Good Behaviour Act 1982 (Qld) including “damage my property” and “personal assault.”[6]
[5] 2 Sep 2013 T82 line 25-35.
[6] Affidavit of Louise Hu filed 1 June 2012 Annexure LH4.
In other instances the Applicant’s evidence was inconsistent and or contradictory. For instance, on the first day of trial she insisted that she had never attended a meeting of the committee of the Body Corporate and in particular that she had never attended the annual general meeting (“AGM”) on 29 September 2010.[7] Not only did minutes of the meeting record that she attended but when the minute was put to the Applicant she deposed to the record being false. Subsequently she did acknowledge having attended that AGM, stating that she had misunderstood the question and believed it to be a reference to the 2009 AGM.[8] It is difficult to understand how she could have been mistaken in her initial evidence given the heading of the minute[9] clearly indicates that it relates to the AGM for “Jarrah Court AGM Minutes - Wednesday, 29 September 2010.” Only four persons were present, one of whom was the Applicant.
[7] 2 Sep 2013 T15 line 29; T16 line 5-6.
[8] 2 Sep 2013 T32 line 6-8.
[9] Exhibit 2.
Another illustration of her inconsistencies and contradictions included her allegations concerning the stealing of a QCAT decision from her mailbox. Her initial allegation was that it was stolen by Stansure (without any particularisation). When cross-examined about that matter and requested to identify who from Stansure she alleged had stolen the decision, she stated “I didn’t say whom, but decision have never received and the letterbox was recently renewed.”[10]
[10] 2 Sep 2013 T42 line 38-39.
Aside from improbability and inconsistency, the Applicant was also prone to exaggeration. For instance, she identified the letters of 13 December 2007, 5 November 2007 and 18 March 2011 as illustrating correspondence from Stansure to her that constituted a threat. Concerning those matters, the following exchanged occurred under cross-examination:
“Ms Coulthard: Could we go on then, Ms Hu. You were pointing me to the letter of 13 December 2007, and you said that constituted a threat by Stansure. Are there any other of these letters in which you say Stansure has threatened you?
Ms Hu: This group of letters are all under threat and insult, abuse, actions under Discrimination Act from – leading from those group under leading by Margaret Holmes, and I have the original files with me if you would like to experiencing.”[11]
[11] 2 Sep 2013 T25 line 30-35.
The letters are self-explanatory. There is nothing in their content that could lead any reasonable reader to conclude that they were threatening, insulting, abusive or discriminatory in character.
The Applicant’s daughter, Ms Tam, also gave evidence in support of the application. In an affidavit that was devoid of any particulars she says that she recalled overhearing a conversation where a woman who she “later learned was Margaret – state that Jarrah Court did not welcome children and expressed that they (children) were noisy and would disrupt the elderly/retired neighbours.” Apart from the obvious fact that the statement alleged by Ms Tam does not appear to have any racial overtone, it was apparent from cross-examination that at the time the statement occurred she was 17 and was not required to recall these events until many years later, when she swore the affidavit on 26 May 2012. She did not see the person who made the statement but says she later came to know the person who made the statement to be Mrs Holmes. Respectfully, her evidence was very vague. No doubt given that Ms Tam is the Applicant’s daughter, and lived with her for a significant part of the material time involved in this dispute, I think it is fair to infer that her views have been influenced by the Applicant. Mrs Holmes denies that conversation and for reasons that follow I am satisfied with her denial.
In contrast, I consider the evidence of Mrs Holmes, Ms Hanna Tait, Mrs Lorraine Mifsud, Mr Ernest Odey, Ms Rose Shaw and Ms Rebecca Claydon is to be preferred. Except for the evidence of Mrs Holmes, which I will address in a moment, none of the other witnesses have any direct interest in the outcome. Mr Odey is another unit holder whose only involvement was simply to seek a resolution of the Applicant’s principal complaint and of her dispute concerning the Body Corporate levies. Ms Shaw is a director of Stansure, an entity that conducts a business as a professional body corporate manager. That includes the conduct of annual general meetings, preparation of minutes, issuing of levy notices, paying invoices and general correspondence as directed by the body corporate committees. Ms Claydon, who formerly worked for Stansure, was the Strata Manager for Jarrah Court. There was nothing about the testimony of those witnesses or the matters addressed in their cross-examination to suggest that they gave other than truthful and reliable evidence about matters relevant to the application. That conclusion is largely borne out by the body of correspondence which emanated from Stansure and which, as I have earlier noted, does not demonstrate any conduct on its part which could be described as threatening or offensive in the manner alleged by the Applicant. The oral testimony of those witnesses is consistent with the correspondence and other objective material. I have no reason to reject their evidence on any matter.
While it is open to contend that Mrs Holmes has an interest in the outcome of these proceedings because she is a respondent, I am satisfied that that factor has not influenced her testimony. She impressed me as a witness of truth who did not engage in embellishment or exaggeration. Initially she was the Chairperson of the Body Corporate and consistent with her role and good neighbourly practice she sought to engage appropriately with the Applicant. For instance, her note of 18 May 2007, written shortly after the Applicant settled on her purchase of the unit and at a time when she was probably not in residence because it was being renovated, illustrates that point:
“Dear Ms Hu
Would you please call at my home Unit 9 here to collect your mail.
Quite a lot of mail has arrived for you and delivered into letter box 7.
These letter boxes are very small and prone to letters being stolen.
As chairperson here I am responsible for all letter boxes where the owner/tenant is no longer living here, it is a safety protection for all mail.
Yours faithfully
Ms Margaret R. Holmes”
When difficulties arose concerning parking shortly after the Applicant entered into occupation, Mrs Holmes’ common decency and good manners were again apparent in her note of 7 June 2007, when she stated:
“Dear Louise,
I am very sorry if I offended you when I knocked on your door at 9.00pm on Tuesday evening. It wasn’t my intention to offend you or impose on your privacy. At times it can be rather difficult as chairperson, my only concern is the safety of your friends car and everyone else here. I sincerely hope we can be friendly neighbours from now,
Regards
Margaret Holmes”
Mrs Holmes impressed me as being well intentioned and neighbourly. She did not strike me as mischievous, aggressive or intrusive. Her testimony is generally consistent with the objective material. For instance, matters relevant to the Body Corporate can be measured against documents concerning issues raised by the Applicant, such as termites, access to the courtyard for maintenance purposes and roof repairs. Objectively, her interaction with the Applicant was relevant, appropriate and inoffensive.
In summary, I have rejected the evidence of the Applicant where it is inconsistent with that of Mrs Holmes and the other witnesses who gave evidence on behalf of the respondents. Ms Tam’s evidence was equivocal and unhelpful and the evidence of other two witnesses produced by the Applicant, Messrs Stillaway and Hogan, was simply irrelevant.
Background facts
The Applicant complains of numerous instances of unlawful discrimination between May 2007 and May 2013. For reasons addressed elsewhere this application is limited to those matters the subject of complaint to the AHRC up to and including 28 June 2011.
The complaints arise out of events that occurred at Jarrah Court following the Applicant’s purchase of Lot 7 in May 2007. Jarrah Court is a community title scheme governed by the Body Corporate and Community Management Act 1997 (Qld) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Qld) (“BCCM Regulation”).
The registered proprietor of the community title scheme is the Body Corporate for Jarrah Court CTS 8533. In accordance with s.7 of the BCCM Regulation, a body corporate committee had been established for the scheme. Mrs Holmes, who is the owner of Lot 9, was Chairperson in May 2007. She resigned from that position in July 2008 but resumed committee membership in 2009 before finally resigning in November 2010. Stansure was engaged as an independent contractor to provide body corporate services for Jarrah Court.
Each lot in Jarrah Court consists of a home unit. There are limited exclusive use areas for carports, but otherwise the remaining property remains common property, including a courtyard for each unit which runs between the fence at the back of each unit and the boundary behind units 1 to 10. In accordance with the Body Corporate’s authority the courtyards are fenced, but are generally accessible by interconnecting gates. They are not exclusive use areas. While the issue of whether or not courtyards behind each unit constituted common property was a vexed one and had been the subject of discussion at Body Corporate meetings, the result was that the proposal for the nomination as exclusive use areas was not supported and they remained common property.
Following the Applicant taking up residence at Jarrah Court she was engaged in a number of disputes with Stansure, the Body Corporate and Mrs Holmes. These included:
a)Locking and nailing shut the gate to her courtyard, resulting in the issue of a notice of continuing contravention of Body Corporate bylaws in May 2008;
b)In May 2008 the Applicant filed a complaint against Mrs Holmes in the Beenleigh Magistrates Court pursuant to the Peace and Good Behaviour Act 1982 (Qld);
c)In July 2008 the Applicant filed a complaint with the Office of the Body Corporate and Community Management Commissioner (Qld) in relation to damage caused by the roof above her unit leaking; and
d)The Applicant’s refusal to pay Body Corporate levies resulting in a QCAT determination on 10 February 2012 directing her to pay $2,314.30 plus costs.
As was contended for by the respondents, many of the Applicant’s complaints arise out of her belief that she owns the courtyard behind her unit, her confusion about body corporate law, the role of the body corporate committees and Stansure, and that Mrs Holmes personally exercises some control or power over Stansure. Stansure contends, and I accept, that these misunderstandings have led the Applicant to misconstrue some of the events at Jarrah Court and to elevate those misunderstandings to her claim of racial discrimination.
The Applicant alleges unlawful discrimination by the respondents contrary to ss.9(1), 9(2), 10(1), 11, 12(1)(d) and 18C of the Racial Discrimination Act 1975 (Cth) (“RD Act”). She bears the onus of proof in establishing her claims of racial discrimination: Qantas Airways Ltd v Gama [2008] FCAFC 69 at [65] (per French and Jacobson JJ) and [132] (per Branson J). The relevant standard is that in Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361-362) and s.140 Evidence Act 1995 (Cth). The standard is that of the balance of probabilities, accepting however that the strength of the evidence required to meet that standard “will vary according to the nature of what is sought to be proved”: Qantas Airways Ltd v Gama at [139] (per Branson J).
For the Second and Third Respondents, with whom the First Respondent joined, it was contended that the Applicant’s claims under s.9(1),s.9(2), s.10(1), s.11 and s.12(1)(d) must fail. I accept those submissions.
It was contended that s.10 RD Act is concerned with rights to equality before the law and “striking down” any provision in a law of the Commonwealth, State or Territory that may have a discriminatory effect by reason of a person’s “race, colour or national or ethnic origin.” The Applicant’s allegations do not identify any such law. To the extent that the Applicant’s allegations are concerned with the operation of the bylaws of Jarrah Court, I accept the respondents’ contention that even without determining whether the bylaws are a law of the State for the purposes of s.10, the section can have no application as the bylaws apply to all residents of Jarrah Court. It follows therefore that there can be no basis for arguing that the bylaws have a discriminatory operation or effect based on race, colour or national or ethnic origin.
Section 11 RD Act is concerned with refusing or restricting a person access to a place, or refusing to allow a person access to a place except on less favourable terms and conditions than those upon which he or she would otherwise be allowed by reason of a person’s race, colour or national or ethnic origin. Even on a most favourable consideration of the Applicant’s case it is difficult to see how any complaint under s.11 can be sustained. As the respondents’ submit, s.11 is limited in its application to places that members of the public are, or a section of the public is, entitled or allowed to enter or use. In this case the complaints concern common property within the Jarrah Court CTS area. It is private property and uninvited entry may constitute trespass. While there may be an implied licence for people to enter the land for a legitimate purpose, that does not mean that members of the public are entitled or allowed to enter the common property at will. In my view, this complaint is simply unsustainable.
Section 12(1)(d) RD Act makes it unlawful for a person, whether as a principal or agent, to refuse to permit a second person to occupy any land or residential or business accommodation for reason of race of that second person or any relative or associate of that person. As the respondents contend, complaints based on this section generally arise in the context of a refusal to allow a person to occupy rental accommodation.[12]
[12] See Lamb v Samuels Real Estate Pty Ltd (1996) EOC 92-790; Lynton v Maugeri (1995) EOC 92-754; Burke v Tralaggan (1986) EOC 92-161.
In their submissions the respondents address these complaints conceptually upon the premise that the Applicant’s evidence is accepted. As earlier determined, I do not accept the Applicant’s complaints. It follows that the question to be resolved is whether the Body Corporate, having regard to the evidence concerning its management practices or those of its agent, Stansure, contravened those provisions. The only matters relevant to that complaint concerned the parking of the vehicles in the courtyard. However, in my view there is nothing in those allegations that involved a refusal by the respondents to allow her to occupy her unit or any part of the common property to the extent that the Body Corporate allows. As the respondents contend, the restrictions that apply to access to the courtyard cannot come within the scope of s.12 as the courtyard is common property and so access to and use of it by the owners of units in Jarrah Court is regulated by the relevant legislation and bylaws and does not involve a refusal to occupy land by any of the respondents. In that regard I also accept their submission that the placing of restrictions on access to the courtyard, permission to renovate the courtyard or parking of vehicles on common property is not a refusal to permit occupation of land or residential accommodation. That is particularly so when, as I have found in this case, there can be no suggestion that any such restriction is by reason of the “race, colour or national or ethnic origin” of the Applicant, her relatives or associates.
Finally, the respondents’ contend that the Applicant’s complaints under s.18C RD Act must also fail in limine. Section 18C(1) makes it unlawful for a person to act, otherwise than in private, if it is reasonably likely, in all the circumstances, to offend, insult, humiliate, or intimidate another person or group and that act is done because of the race of the other person or of the group. Any complaint under this ground fails for two reasons. First, I do not accept the Applicant’s evidence that Mrs Holmes made any racially offensive statements of the kind asserted or at all. However, and more significantly for the purposes of this section, to be captured by s.18C the acts must not be done in private. Section 18C(2) provides that an act is taken not to be done in private if it:
a)Causes words, sounds, images or writing to be communicated to the public;
b)Is done in a public place;
c)Is done in the site or hearing of people who are in a public place.
“Public place” is defined in s.18C(3) to include “any place to which the public have access as of right or by invitation, whether express or implied and whether or not a charge is made for admission to the place.” In their submission the respondents provided a number of examples of a public place within the meaning of s.18C(3), including Barnes v Northern Territory Police [2013] FCCA 30 (acting public roadway); Sidhu v Raptis [2012] FMCA 338 (remarks made at a takeaway coffee/corner shop; yelling out of a car window on a public street); McMahon v Bowman [2000] FMCA 3 (remarks made on a public road).
As the respondents submit, all the acts which the Applicant complains of in this instance occurred within the confines of Jarrah Court, which is not a public place. There is nothing about the evidence suggesting that any offensive act, or otherwise, was done in circumstances where they would have been within earshot of members of the public. It follows that the complaints in this provision must also fail.
The respondents contend, and I accept, that the only provision of the RD Act under which the Applicant’s allegations could possibly fall to be considered is s.9 RD Act. Section 9 requires the Applicant to establish on the balance of probabilities that:
a)The respondent either did the act complained of;
b)The act involved a distinction, exclusion, restriction or preference based on race, colour, descent or natural or ethnic origin; and
c)The act had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
The respondents contend that the Applicant’s claim under s.9 must also fail. They submit that this must be so for three reasons:
a)The offensive acts simply did not occur;
b)To the extent that the acts complained of did occur (which they deny), none involved a distinction, exclusion, restriction or preference by the respondents or either of them and the act(s) did not have the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; and
c)The acts complained of were not based upon the Applicant’s race, colour, descent or natural or ethnic origin.
At the outset the respondents contend that the court must be satisfied that the acts complained of by the Applicant were not distinctions, exclusions, restrictions or preferences based on race. The phrase “based on” was subject to analysis in Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8. They submit, and I accept, that upon its consideration that case is authority for the proposition that whilst it is not necessary for the court to be satisfied of motive or intent, and that the phrase encompasses something broader and not necessarily causative, it is not enough for the Applicant to simply assert as she does that the acts are based on her race. Furthermore, s.9(2) provides that a reference to a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life includes any right of the kind referred to in Article 5 of the International Convention on the elimination of all forms of racial discrimination. Article 5, which is incorporated as a schedule to the RD Act, details those rights. For reasons which follow I am satisfied that there has been no conduct on the part of any of the respondents which could be said to be “based on race” or “which has the purpose or effect of nullifying or impairing … on an equal footing”[13] any human right.
[13] Article 1 of the International Convention on the elimination of all forms of racial discrimination.
The particular complaints
Given my earlier ruling concerning the ambit of this application following upon the scope permitted by operation of s.46PO(3) of the AHRC Act, the following matters complained of by the Applicant that require consideration.
Allegations that Mrs Holmes said to the Applicant that Asians and children are not welcome
This was the only substantive racially based allegation advanced by the Applicant. In her Amended Application, and consistent with her affidavit, she stated that on or about 10 May 2007 Mrs Holmes said to her “Stansure Strata said, Jarrah Court do not welcome Asian and children.” The Applicant contends that a similar statement was made on or about 19 May 2007. These allegations are denied. The Applicant’s evidence on these points is not corroborated. Although her daughter, Ms Tam, says she thought she overheard a lady on “19th/20th May 2007” say that children were not welcome. I am not satisfied that she has a reliable recollection of those matters. As I have noted, she was called upon to consider her evidence on this point many years after the event. Furthermore, given her closeness of association with the Applicant and my observation of the Applicant’s peculiar demeanour and proneness to misconstruction, it strikes me as highly probable that Ms Tam has been prevailed upon by the Applicant to recall the evidence in the manner in which she has. The only other evidence in support of this assertion was that of Mr Chan, who was not made available for cross-examination. I note from his affidavit that he says he merely “heard” an aged woman says words to that effect. His affidavit was dated 28 May 2012 and is in a form similar to that of Ms Tam and Messrs Stilllaway and Hogan. Given its vague nature and the length of time between the deposition and the events referred to, I consider it to be of dubious reliability.
In contrast, Mrs Holmes gave evidence about what she did say to the Applicant when she met her for the first time on 10 May 2007 and again on 19 May 2007. She denied making such statements. I accept her denials. Furthermore, her denials are consistent with her two handwritten notes dated about that time which are entirely reconciliatory and neighbourly in tenor. The statements attributed by the Applicant are entirely inconsistent with the sentiment evident in Mrs Holmes’ notes. I did not form the impression that Mrs Holmes was a person likely to say one thing and do another. I accept that her handwritten notes reflect her true character and sentiment and that she did not make the statements alleged against her which she denies. This complaint fails.
Allegation that Mrs Holmes said to the Applicant that permission was required for visitors to stay in her unit
This complaint gives rise to a direct credibility contest. Mrs Holmes says that she did not tell the Applicant any such thing. I accept Mrs Holmes’ evidence. However, more fundamentally, the complaint must fail because even at its highest the statement was not alleged to have been made because of race. The Applicant’s Amended Application reveals much of her inner thoughts and the basis for her complaints. She says, “I also believe this because I am an Asian.” The Applicant appears to have concluded that when certain events occurred which were unfavourable to her those occurrences were occasioned because of her ethnicity. As this instance and many others in this case illustrate, the Applicant’s perceptions were based upon her suspicions, but not based in fact. Respectfully, her perceptions on this matter were delusional. I am satisfied that no racially motivated statement was ever made or directed to the Applicant by any of the respondents or those who were associated with them. This complaint fails.
Allegation about furniture stored in the Applicant’s carport
As with the second complaint, I am satisfied that there is no credible evidence to support this complaint. The circumstances surrounding this complaint are as were stated by Mrs Holmes. There is simply no evidence of any act involving a distinction based on race.
Allegation that Mrs Holmes damaged the Applicant’s car
As with the second complaint, the Applicant’s evidence on this point is based upon a delusional belief that Mrs Holmes caused this to occur. I am satisfied that Mrs Holmes did not push a wardrobe onto the Applicant’s car. Furthermore, I am satisfied that Mrs Holmes did not instruct or cause some third party to cause the wardrobe to be pushed onto her car. While I accept that a wardrobe did fall upon the Applicant’s car, there is no evidence to demonstrate why that may have occurred. More importantly, there is no evidence to demonstrate that the event was one “based on race.” Her complaint on this matter fails.
Allegations concerning mail
As the respondents contended in respect of this complaint, it is difficult to understand precisely what the Applicant’s complaint was. In her application to the AHRC she stated:
“… Stansure Strata Pty Ltd power over me, above discriminating minded committee members, without asking why even my mail box matter to be an issue for committee member to report to Stansure Strata, because I am not collecting from my own mailbox.”
An email forwarded by Stansure to the Applicant on 1 April 2008 stated:
“Dear Ms Hu
Please be advised that it has been reported by a member of the Committee that your letter box located at the abovementioned complex if [sic] full of letters and it may be in your best interest that you check your mail box on a regular basis.
Yours faithfully
Rebecca Claydon”
There had been an earlier occasion when Mrs Holmes had cleared the Applicant’s letterbox and left her a note informing her of that action. However, that incident does not appear to be the subject of her complaint.
Irrespective of which complaint the Applicant seeks to prosecute, neither can succeed because the evidence does not demonstrate any footing upon which it can be inferred that the statements are based on the Applicant’s race or that the correspondence directed to her by Stansure was racially motivated. The complaint fails.
Allegations relating to visitor parking
In her application to the AHRC the Applicant complained that:
“My visitors was issue for committee member to knocking on my door to tell that I have to get approval from Stansure Strata before my visitors attending …”
This issue arose early after the Applicant entered into occupation. As noted earlier, when an issue arose concerning parking Mrs Holmes sent the Applicant an inoffensively worded note dated 7 June 2007. The matter was more formally addressed by the Body Corporate in a letter of 14 June 2007. However, these matters were plainly not resolved and continued to be a cause of irritation. The issue escalated to the Strata Manager, Ms Claydon, who wrote on 22 August 2007 to remind the Applicant of the by-laws and observe:
“We therefore request that motorbike which is parked on common property outside your lot be removed and relocated to the designated car park or on the street.”
The Applicant acknowledged under cross-examination that she had had a motor cyclist visitor or visitors. It is plain that the concerns of Mrs Holmes, the Body Corporate and/or the Strata Manager were not racially motivated.
The matter did not rest there as the evidence demonstrates that the issue was addressed again in the letter dated 26 September 2007. The letter incidentally addressed a deeper concern. Given that this letter typifies Stansure’s approach to what was plainly a very difficult situation, and is alleged by the Applicant to be one of the letters directed to her which evidences offensive correspondence, I will recite all relevant parts. It stated:
“Dear Louise,
RE: “JARRAH COURT” CTS 8533
We refer to your correspondence dated 21st & 22nd September 2007 which relates to concerns you have in relation to Margaret Holmes, the Chairperson of the abovementioned complex.
We wish to inform you that we have contacted Margaret Holmes in regards to your concerns and requested that all future correspondence come through our office to avoid further conflict.
Furthermore, we wish to advise that on a number of occasions it has been reported that either yourself or your visitors have been in breach of the Body Corporate By-Laws. It has been requested that all vehicles be removed from common property and be parked in the allocated garages or in the side street next to the complex. Please be advised that all residents must adhere to the By-Laws at all times and the Body Corporate Committee has a responsibility to ensure that same are abided by.
…
Regarding your request to remove Margaret Holmes from her position as Chairperson of the Body Corporate Committee, we advise that this can only be enforced if put forth at a General Meeting of all owners and furthermore, the majority of votes rule.
…”
Stansure’s letter not only reflects the high degree of civility with which I am satisfied it sought to address the Applicant’s complaints but it also demonstrates the fairness of its approach. It detailed its express recognition of the need to be even-handed in its dealings with all unit holders and certainly did not hint at any racial motivation on its behalf. The Applicant’s complaints in respect of this matter are simply unfounded.
Complaint about a gardener entering the Applicant’s courtyard
In her Amended Application the Applicant complained that Mrs Holmes instructed the gardener to break into her courtyard area stating “Don’t worry about [the Applicant] just go to do the mow lawn as Stansure arranged.” Further, she asserted that she had nailed the gate entering into her courtyard to prevent Mrs Holmes from breaking into her house and to stop her from throwing rubbish into her courtyard “because she doesn’t like me based on I am an Asian fact.” She said that because of that Stansure issued a letter to her supporting Mrs Holmes “to discriminate against my race without discussion with me, even if Margaret Holme had provide all lies to them, because I am an Asian.”
Mrs Holmes’ position is reflected in Stansure’s letter of 13 December 2007, which noted:
“…
It has been reported by the Body Corporate Committee that you were involved in an altercation with the gardener on 11 December 2007 at the abovementioned complex as he entered the common property courtyard to the rear of Lot 7 to carry out his regular garden maintenance.
It was reported that you verbally abused the gardener and instructed him to leave the rear courtyard. This behaviour is unacceptable. We have stated in previous letters that the rear courtyards are deemed common property, therefore it is the responsibility of the Body Corporate to maintain same.
The Committee is instructing you to adhere to the Body Corporate By-Laws at all times and further request that all side gates are left unlocked at all times enabling residents to leave the building quickly in the case of an emergency.
If you fail to comply with the above requests, the Committee are considering contacting Emergency Services to carry out a report to the rear courtyard gates. If these are found to be nailed shut then a fine may be incurred by that owner. Additionally, if you continue to restrict tradespeople from entering common property, the Body Corporate Committee may issue you with a Notice of Continuing Contravention and if this is not complied to, an Application of Conciliation may then be lodged with the Commissioner’s Office.
The Committee seeks your immediate cooperation in this regard.”
The courtyards are common property. Accordingly, the Body Corporate’s response to the Applicant’s conduct in refusing the gardener access and in nailing her access gate shut was not only appropriate but also lawful. She believes that the respondents’ conduct was “because I am Asian.” I am satisfied that there is no evidence to support that belief. It was unfounded and delusional on the part of the Applicant to continue to maintain her position. The objective evidence is entirely consistent with the position maintained by Mrs Holmes and the other witnesses that they were simply seeking to fulfil their obligations on behalf of the Body Corporate. I am satisfied that there was no racial motivation in their behaviour. This complaint fails.
Complaint concerning renovations to the Applicant’s courtyard
In her Amended Application the Applicant complained:
“… Stansure Strata had been on going discriminated against my race, and try to get me to pay to get my renovation done to my home, because they know they are not allow to collect this part of the payment, therefore, they did everything base on they oral statement of payment request while out with all sort of threaten letters to pressure me to pay them to allow to renovate to my courtyard in particular …”
The Applicant sought permission to put up two sheds in her courtyard behind her unit. Her request was set out in an email from her to Stansure dated 2 November 2007 which was replied to by letter dated 5 November 2007 setting out the procedure to make such application. The Applicant denies having received that letter although there is evidence that this process was applied to other residents who made similar requests for permission. There is no evidence that the Applicant was treated differently in respect of her request and, indeed, she subsequently erected the shed. As with the other complaints by the Applicant there is no basis in s.9 of the RD Act for her allegations.
As an incident of this allegation she is also alleges that she has been subjected to pressure to pay for renovation to her courtyard. The Applicant appears to have mischaracterised the cost of a flying minute for Body Corporate permission as renovation costs. Putting that mischaracterisation aside, the fact remains that the evidence demonstrates that the Applicant has not been treated differently from any other resident of Jarrah Court and, in particular, the Body Corporate’s request for a flying minute fee has no racial basis. This complaint also fails.
Allegation concerning termite damage
The Applicant’s complaint in her Amended Application is that:
“The termite issue was 100% located at courtyard of Unit 6, but Stansure Strata had to harass me to try to get extra payment off me base on my race …”
A letter dated 18 March 2011 from Stansure to the Applicant observed:
“Dear Owner
With reference to the most recent Annual General Meeting, please find enclosed a copy of a report received from Winchester Pest Treatment following a recent termite inspection carried out at the abovementioned complex.
We would like to draw your attention to the fact that LIVE TERMITE ACTIVITY WAS FOUND BETWEEN Lots 6 and 7 and strongly recommend the owners of these units liaise with the Body Corporate Committee and action any recommendations by Winchester Pest Treatment as soon as practicable.
Would owners kindly peruse the enclosed report and in particular the recommendations of Winchester Pest Treatment and take any action they deem necessary and advise our office in writing of the outcome in due course.
Assuring you of our best attention at all times.
Yours faithfully
Hanna Tate”
[Original emphasis]
It is difficult to understand how the Applicant can contend that Stansure’s correspondence concerning termite treatment was intended to harass and extort money from her on the basis of her race. Her complaints are simply without foundation. This complaint is dismissed.
Allegation that Mrs Holmes had the Applicant’s keys and entered her unit and stole clothes
The Applicant contends, based upon assumptions she has made, that Mrs Holmes had the keys to her unit, held over by her from a previous owner, and that she has used those keys to access her unit. Mrs Holmes denies the allegation. Candidly, the Applicant’s evidence is both incredible and ridiculous. I do not accept it. This complaint fails.
Allegation that Mrs Holmes threw rubbish and a pot plant into the Applicant’s courtyard
As the respondents contend, this is another example of an unsubstantiated allegation by the Applicant. It is simply an incredible allegation. Putting aside the question of whether or not Mrs Holmes was physical capable of throwing a pot plant over the fence, the fact remains that she denies it. I accept her denial. This complaint fails.
Allegation that Mr Mario Mifsud had a habit of yelling abuse at the Applicant
The Applicant complains that Mario Mifsud, another resident of Jarrah Court, yelled at her every time he saw her driving into the complex. Mr Mifsud is not a party to the proceedings, nor has he ever been a member of the Body Corporate committee. It is difficult to see in those circumstances how any of the respondents can be responsible for his actions. In any event, I accept the evidence that the only occasion that Mr Mifsud spoke to the Applicant concerning her driving was when he called out to her to slow down as she drove into Jarrah Court. It is plain that the issue had no racial motivation. This complaint fails.
Allegation that Mr Mifsud had jumped on the Applicant’s roof to damage it
The Applicant’s complaint was that Mr Mifsud jumped on her roof. There is no evidence that Mr Mifsud was jumping on the roof with the intention of damaging the Applicant’s property, nor that this occurred because she is Asian. The Applicant’s complaint on this matter is simply another illustration of a baseless inference drawn by her. There was no evidence of any racial motivation for Mr Mifsud’s being on the roof; he was there to fix a television antenna and check the gutters for cleaning. I reject the Applicant’s complaints on this matter.
Allegation that “they” had damaged plants and trees in the Applicant’s front yard
As the respondents contended, and I accept, this is another instance of an unsubstantiated allegation by the Applicant. There was no evidence of any damage to plants or trees in the garden at the front of unit 7 being caused by any of the respondents to these proceedings or anyone acting on their instruction. Nor was there any evidence to suggest that if the plants were intentionally interfered with the motivation was racially based. I reject the Applicant’s complaint on this matter.
Conclusion
In summary, the Applicant has made serious complaints of racial discrimination against the respondents. A number of the complaints postdate the decision by the AHRC to terminate her application to that body. Those matters are not within the jurisdiction of the court for resolution. Concerning the balance of the complaints raised by the Applicant, they each fail. The complaints fail because as a matter of fact I am satisfied that the events complained of by the Applicant never occurred. I am satisfied that at all times the respondents have acted properly and impartially. In particular, I am satisfied that Mrs Holmes did not make any racially motivated statement at any time and furthermore that none of the events complained of by the Applicant have any racial motivation. Those matters aside, the application must fail because as a matter of law the Applicant is unable to demonstrate any unlawful discrimination by the respondents under any of the relevant sections, being ss.9(1), 9(2), 10(1), 11, 12(1)(d) and 18C of the RD Act.
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.
I certify that the preceding seventy-nine (79) paragraphs are a true copy of the reasons for judgment of Judge Burnett
Date: 14 May 2014
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