King v John McMahon Stock & Realty Pty Ltd - [2005] NSWADT 260

CITATION: King v John McMahon Stock & Realty Pty Ltd [2005] NSWADT 260

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Tina King
RESPONDENT
John McMahon Stock & Realty Pty Ltd

FILE NUMBER: 041046

HEARING DATES: 16/08/2005-17/08/2005

SUBMISSIONS CLOSED: 08/17/2005

DATE OF DECISION:
11/17/2005

BEFORE: Behrendt L - Judicial Member; Clayton S - Non Judicial Member; McDaniel M - Non Judicial Member

APPLICATION: Race Discrimination - Accommodation

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Bamblett v Keistow Pty Ltd trading as L J Hooker Cowra [2005] NSWADT 219
Chamberlain v The Queen (1984) 153 CLR 52
Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3
Edwards v Bourke Bowling Club Limited [2000] NSWADT 31
Samuels Real Estate v Lamb (1996) EOC ¶92-790
Sheather v Daley [2003] NSWADT 51

REPRESENTATION: APPLICANT
M McColl, Barrister
RESPONDENT
J Sewell, Solicitor

ORDERS: 1.That the Applicant’s claim that the respondent breached s. 20(1)(a) of the Anti-Discrimination Act 1977 be dismissed; 2.That the Respondent did breach s.20(1)(c) of the Anti-Discrimination Act 1977 as per the Applicant’s complaint; 3.That the Respondent pay to the Applicant $3000 by way of an award of compensation within 30 days of the publication of this judgement.

1 The applicant, Ms Tina King, is an Aboriginal woman from the Bundjalung community who resides in Casino. She had moved from Mt. Druitt to Casino after Christmas, 2001 with her de facto partner and four children aged between 9 and 14. She lived in the shed of her mother’s house as a temporary arrangement.

2 The respondent, John McMahon Stock& Realty Pty Ltd trades as J.M. Realty. Mr John McMahon is a Director and employee of John McMahon Stock and Realty Pty Ltd. Ms Anne Fathers and Ms Lyndal Naome (formally Ms Lyndal Dorrington) were employees of J.M. Realty during the period of 21 January 2002 to 15 February 2002. John McMahon Stock and Realty Pty Ltd is therefore vicariously liable for the acts of its employees, as per s.53 of the Anti-Discrimination Act 1977.

3 The respondents were originally named as J.M. Realty and John McMahon. The Tribunal made a direction on 16 August 2005, with the consent of the parties, that the correct respondent be named as John McMahon Stock and Realty Pty Ltd.

Ms King’s Complaint of discrimination of race in the provision of accommodation

4 Ms King claims that she approached J.M. Realty for rental accommodation on 21 January 2002. She spoke to Ms Lyn Dorrington (now Ms Lyn Naome) who advised that a number of properties were available for lease:

9 Oak St. at $115 per week

31 Oak St. at $115 per week

41 Oak St. at $110 per week

1 Boronia Cres. at $120 per week

Ms King was given an application form to complete.

5 On 30 January 2002, Ms King states that she completed the form and provided a reference to…

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.

Keep reading for free

Create a free CaseChat account to read King v John McMahon Stock & Realty Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2005] NSWADT 260
Decision Date: 11/17/2005

CaseChat Overview and Summary

The case of King v John McMahon Stock & Realty Pty Ltd was heard before the Anti-Discrimination Tribunal of New South Wales. The Applicant, King, brought a complaint against the Respondent, John McMahon Stock & Realty Pty Ltd, alleging breaches of the Anti-Discrimination Act 1977. Specifically, King claimed that the Respondent had discriminated against her on the basis of her race and, in addition, had retaliated against her for making a complaint about the discrimination. The Tribunal was tasked with determining whether the Respondent had indeed contravened the provisions of the Act and, if so, what remedy should be awarded to the Applicant.

The primary legal issues before the Tribunal were whether the Respondent had engaged in acts of racial discrimination and retaliation, both of which are prohibited under the Anti-Discrimination Act 1977. The Tribunal examined the evidence presented by both parties, including witness statements, documentary evidence, and the context of the interactions between King and the Respondent. The Tribunal also considered the relevant provisions of the Anti-Discrimination Act 1977, specifically sections 20(1)(a) and 20(1)(c), to ascertain whether these had been breached.

After considering all the evidence and arguments, the Tribunal found that the Respondent had not breached section 20(1)(a) of the Anti-Discrimination Act 1977, which pertains to discrimination based on race. However, the Tribunal did find that the Respondent had contravened section 20(1)(c) by retaliating against King for making a complaint about the discriminatory conduct. Consequently, the Tribunal ordered the Respondent to pay the Applicant $3000 as compensation for the breach of the Act. The Tribunal also directed that this payment be made within 30 days of the publication of the judgement.

Orders

Orders of the court

1.That the Applicant’s claim that the respondent breached s. 20(1)(a) of the Anti-Discrimination Act 1977 be dismissed; 2.That the Respondent did breach s.20(1)(c) of the Anti-Discrimination Act 1977 as per the Applicant’s complaint; 3.That the Respondent pay to the Applicant $3000 by way of an award of compensation within 30 days of the publication of this judgement.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	King v John McMahon Stock & Realty Pty Ltd [2005] NSWADT 260
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Tina King RESPONDENT John McMahon Stock & Realty Pty Ltd
FILE NUMBER:	041046
HEARING DATES:	16/08/2005-17/08/2005
SUBMISSIONS CLOSED:	08/17/2005
DATE OF DECISION:	11/17/2005
BEFORE:	Behrendt L - Judicial Member; Clayton S - Non Judicial Member; McDaniel M - Non Judicial Member
APPLICATION:	Race Discrimination - Accommodation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Bamblett v Keistow Pty Ltd trading as L J Hooker Cowra [2005] NSWADT 219 Chamberlain v The Queen (1984) 153 CLR 52 Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 Edwards v Bourke Bowling Club Limited [2000] NSWADT 31 Samuels Real Estate v Lamb (1996) EOC ¶92-790 Sheather v Daley [2003] NSWADT 51
REPRESENTATION:	APPLICANT M McColl, Barrister RESPONDENT J Sewell, Solicitor
ORDERS:	1.That the Applicant’s claim that the respondent breached s. 20(1)(a) of the Anti-Discrimination Act 1977 be dismissed; 2.That the Respondent did breach s.20(1)(c) of the Anti-Discrimination Act 1977 as per the Applicant’s complaint; 3.That the Respondent pay to the Applicant $3000 by way of an award of compensation within 30 days of the publication of this judgement.