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:

51 Hotham St. at $115 per week

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 J.M. Realty. Due to Ms King’s poor literacy skills, her mother completed her application on her behalf. Although Ms King had 4 children, her application for accommodation was for two adults and two children as her other two children were going to stay with Ms King’s mother.

6 Ms King claims that when she submitted her application she was informed by an employee of J.M. Realty that she would hear back from them in a couple of days and that Ms King had a “good chance” of finding accommodation. Ms King claims that some time after this she provided an additional reference to J.M. Realty.

7 Ms King further claims that she waited for about a week to hear from J.M. Realty about her application before she rang a few times and then attended in person to be told that they had not heard back from the owners. After this, Ms King says that she phoned J.M. Realty regularly about her application.

8 At no time, Ms King says, was she contacted by J.M. Realty. She was not advised as to whether her application or references were inadequate or had been refused. Nor was she at any time offered an opportunity to inspect any premises.

9 On 15 February 2002, Ms King’s brother-in-law, Mr Peter McKay, who is not Aboriginal, attended at J.M. Realty and inquired about rental properties for between $100-$150 per week. He said that he was asked by Ms King’s mother to make the inquiry but he was also interested in finding new accommodation for himself and his son. He was given written details of three houses for rent:

49 Hartley St. at $140 per week

18 Aspley St. at $140 per week

31 Laurel Ave. at $120 per week

He was also given a map showing him where the properties were. Although he didn’t ask for an application, he was given one and, in his own evidence, was told he would need references.

10 In his evidence to the Tribunal, Mr McKay said he was asked by Ms King’s mother to make the inquiry of J.M. Realty because she was concerned that Ms King was being discriminated against. After Mr McKay’s attendance at J.M. Reality, Ms King’s mother rang them but was told that the manager was too busy to take her call

11 At about 3.30pm on that same day, Ms King’s sister-in-law, Ms Kelly Wirth, also a non-Aboriginal person, attended J.M. Realty in person and asked about whether there were any houses available for rent. She was provided with written details of three houses available:

72 Hore St. at $125 per week

49 Hartley St. at $140 per week

1 Boronia Cres. at $120 per week

12 Immediately after Ms Wirth had attended J.M. Realty, Ms King and her mother entered their office and asked whether there were any houses available. Ms King says an employee advised that she would need to speak to the manager. The employee returned and asked how much Ms King was willing to pay. Ms King stated that she would pay between $100 and $150 per week. The employee informed Ms King that there were “no vacancies” or “nothing available”.

13 Ms King’s mother grew angry and stated that she was not going to “listen to her bullshit” and walked out of the J.M. Realty office. Ms King, however, gave evidence that she had not thought that her treatment by J.M. Realty was because of her race until her mother pointed it out to her.

14 Ms King’s mother, Jennifer, gave evidence to the Tribunal that she had asked Mr McKay and Ms Wirth to ask the staff at J.M. Realty about available rental accommodation to “catch them out” because she was concerned that they were discriminating against her daughter.

15 Unable to find rental accommodation, Ms King, her de facto, Mr Don Daley, and her four children continued to live in a shed at her mother’s house. It was hot in the summer and since her mother had other relatives staying with her, there were increased tensions amongst the family. Ms King gave evidence that she became depressed and suicidal during this time and asserts that she was angry and distressed as a result of her treatment by J.M. Realty. According to Ms King’s mother, these living arrangements also caused distress to Ms King’s children.

16 During this period, Ms King continued to look for accommodation with the Department of Housing, North Coast Community Housing and Bundjalung Tribal Council but was unsuccessful. Ms King would not find accommodation until some 8 or 9 months after the period covered by her complaint.

17 On 18 March 2002, Ms. King lodged a complaint with the Anti-Discrimination Board.

J.M. Realty’s Evidence that they did not treat Ms King in a racially discriminatory manner

18 In response to Ms King’s initial letter to the Anti-Discrimination Board, Mr McMahon disputed several aspects of Ms King’s complaint. He told the Tribunal that he had prepared this response by discussing the matter with both Ms Fathers and Ms Naome.

19 Mr McMahon noted that no prospective tenants are informed that they have “a good chance” as all applications are approved or declined by the respective landlord. He stated that it was the practice to show prospective tenants through a property before letting it. At no time was Ms King shown any property.

20 In relation to the inquiries made by Ms King’s brother-in-law and sister-in-law, Mr McKay and Ms Wirth, Mr McMahon stated that they were all advised of what houses were available but at no time did either of them indicate to J.M. Realty that any of the potential properties were suitable nor did they make an appointment to inspect any of the homes. Mr McMahon also indicated that if Mr McKay or Ms Wirth had requested accommodation within a higher price range, this would have led to a larger number of houses being available to them.

21 Mr McMahon said that, when Ms King’s mother expressed her frustration with J.M. Realty on 15 February 2005 as she left the office, she was angry and “stormed out”, leaving the staff with no way to resolve the problem.

22 Mr McMahon further explained that his office can sometimes be in a position where they have no vacancies on their books. He noted that when the First Home Owners Scheme was started, many landlords took advantage of the increased interest in home ownership and sold their investment properties.

23 Mr McMahon explained the procedure followed at J.M. Realty in regards to renting properties to tenants:

prospective tenants will request information on available properties

a book is maintained with available properties

a list is given to prospective tenants to peruse properties and an application form is given out for completion if interest is shown.

24 In relation to the properties given to Ms King on her first inquiry with J.M. Realty, Mr McMahon provided the following information:

51 Hotham St. – property was for sale and the owner asked that it not be rented so as to not put off an owner occupier;

31 Oak Ave. – the owner found his own tenant and withdrew the listing from the agency;

9 Oak Ave. – the keys were held with another agent and they would not release them to J.M. Realty;

41 Oak Ave. – the landlord lived in Brisbane and had not given the keys to J.M. Realty. He called and advised them that he would occupy the house himself.

1 Boronia Cres. – the owner advised that he was going to list the property for sale and wanted the property to remain empty.

25 In his oral evidence to the Tribunal, Mr McMahon stated that the owner of 1 Boronia Cres didn't know whether he wanted to rent or sell his property but eventually sold it.

26 Mr McMahon also informed the Tribunal that the Property Management Rent Roll at J.M. Realty holds over a hundred properties and noted that they are leased to people of different races and nationalities in the Casino community.

27 Ms Anne Fathers was the Property Manager at J.M. Realty in the period between 21 January 2002 and 15 February 2002. She gave evidence that she had the responsibility to look after the rental properties. At the time of the complaint, there was a high turnover of available rental properties with between two to five properties at any one time.

28 Ms Fathers estimated that she would receive approximately twenty applications from potential renters a week. These would come to her through the receptionist, Ms Naome, who would either hand Ms Fathers the applications or put them on her desk.

29 In assessing rental applications, Ms Fathers stated that she would give consideration to what the prospective tenant could afford to pay and their initial rental references. A tenant was required to give two good rental references. Personal references were only used in exceptional circumstances. Ms Fathers estimated that she would have deemed approximately half of the applications she received as unacceptable due to lack of information. Ms Fathers said that, in the event of an application being incomplete, she was not in the habit of chasing up applicants in that situation as she believed it was the tenant’s responsibility to provide a satisfactory application. So, if an application were incomplete, she would not take it any further. In most cases, Ms Fathers told the Tribunal, she would inform Ms Naome that an application was incomplete in case the applicant made a further enquiry.

30 If an application were to be successful, Ms Fathers would phone an applicant and invite them to drive past the property to see if they liked it and then, if they did, she would then arrange for an inspection. Ms Fathers said it was not her practice to hand out keys. Ms Fathers told the Tribunal she rarely had contact with potential tenants until after their application was satisfactory. It was Ms Naome who had the most contact with potential tenants.

31 Ms Fathers also told the Tribunal that she was not clear about what Ms Naome did but that she may not have had an up-to-date list. She said that, while J.M. Realty would not knowingly have given out listings that were no longer available but that this did happen. When asked whether it was likely that, of a list of five properties given to a potential tenant, none of the properties were available, Ms Fathers told the Tribunal “it could happen”.

32 She did not recall processing Ms King’s application but could identify that certain marks that were made on the document were in her handwriting. She noted that she had circled the level of rent, listed as “$100+” per week and noted that the application said that there would be two adults occupying the property. She noted that in such circumstances, she would require details and references from both adults. Ms Fathers had written the name “Don Daley” next to Tina King’s name and also noted on the application that she had rung him on 26 March 2002 and 28 March 2002. Given the passage of time, Ms Fathers could not recall making the calls or who Mr. Daley was.

33 Other problems with Ms King’s application were identified. Ms King had put the wrong unit number on her application form, putting her brother’s rather than her mother’s address. It was admitted that the application had been completed by Ms King’s mother due to Ms King’s poor literacy skills and that this was an honest mistake on Ms King’s mother’s part.

34 Ms Fathers also noted that the application did not indicate when the property was required and it was her usual practice to prioritise applications where properties were required immediately.

35 J.M Realty submitted to the Tribunal copies of two references that Ms King had submitted to support her application: one from Ms Wirth (which was a personal reference) dated 4 February 2002 and one from Bundjalung Tribal Society Ltd dated 6 February 2002. J.M. Realty gave evidence that Ms Wirth’s reference was misleading because she had said in her letter that she had lived next to Ms King for 2 years when that had in fact not been the case.

36 Ms Fathers gave evidence that, given the defects in the application, it would have been rejected. She did not have any recollection of any of the calls that Ms King claims she made to J.M. Realty but that, due to the heavy workload, she was generally unable to return phone calls.

37 Ms Naome gave evidence to the Tribunal that she was the person who Ms King had contact with on the occasions that she had entered J.M. Realty seeking accommodation. Ms Naome said that on each of those occasions Ms Fathers had just happened to be unavailable and in this way Ms King’s “timing wasn’t good”. Similarly, each time Ms King phoned, Ms Fathers was not available.

38 Ms Naome recalled Ms King’s attendance at J.M. Realty on 15 February 2002. Ms King had wanted to speak with Ms Fathers but she was not available as she was speaking with someone else at the back of the office. Ms Naome went to Ms Fathers and told her that Ms King was out the front. She could not recall what Ms Fathers said to her but Ms Naome asserted that, whatever it was, she relayed that message to Ms King.

39 Ms Naome said that when she repeated Ms Fathers’ comments to Ms King, Ms King’s mother made an accusation of discrimination against J.M. Realty. Ms Naome said that she was “dumbfounded” by this allegation.

40 Ms Naome said that she was employed as the receptionist. If someone came in to the office with an inquiry, Ms Naome would attempt to find a member of staff who could assist. She had no authority for rental applications but would ask potential tenants to fill out an application form and place them on Ms Fathers’ desk.

41 Ms Naome said that she recalled that during the period of Ms King’s complaint, Ms Fathers had a lot going on in her personal life and was not always focused on her work.

Issues

42 Ms King claims direct discrimination in relation to the provision of accommodation by J.M. Realty. Section 7(1) of the Anti-Discrimination Act 1977 defines discrimination on the ground of race for the purposes of the Act:

A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race

…

43 Sections 20 of the Anti-Discrimination Act 1977 prohibits racial discrimination in the provision of accommodation. Of relevance to Ms King’s complaint of racial discrimination are ss.20(1)(a) and 20(1)(c) which states the following:

20 Accommodation

(1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race:

(a) by refusing the person’s application for accommodation;

…

(c) by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.

44 In order to show racial discrimination for the purposes of the Act, Ms King is required to show that she was treated less favourably in the circumstances than a person who was not Aboriginal was or would have been. That is, she has to compare her treatment to that of a non-Aboriginal person in materially similar circumstances. The issues for the Tribunal to determine are:

(a) whether Ms King’s application for rental accommodation was refused on the basis of her race; and

(b) whether J.M. Realty accorded Ms King’s application a lower order of precedence than others for the same accommodation;

(b) if so, whether the reason for her application receiving less favourable treatment was because of Ms King’s race.

45 In proving any breach of the act, Ms King carries the burden of proof to the standard of the balance of probabilities. This standard was restated in Dutt v Central Coast Area Health Service; Central Coast Area Health Service v Dutt [2003] NSWADTAP 3 as being, in all civil cases, a requirement that the standard of proof to be met by the applicant is on the balance of probabilities.

Findings – Was the application refused on the basis of Ms King’s race?

46 Although Ms King did not receive formal notification that her application had been rejected, the Tribunal determined from the evidence given by J.M. Realty that they had formed such an intention. Ms Fathers, although she did not recall Ms King’s application, gave evidence that, in examining the application subsequently, it would have been considered incomplete and not taken further. She asserted that there were several aspects of the application that were faulty – namely, one of the references was a personal reference rather than a rental reference and that the applicant had said that there would be two adults living in the accommodation and this meant that an application had to be made in both adult names.

47 There were some inconsistencies between the approach that the staff took when processing applications – for example, Ms Fathers said that she never rang people who did not submit complete applications yet there was an annotation on the form that she rang. However, there was no evidence given to the tribunal that showed that similar applications by non-Aboriginal people received different treatment.

48 Ms King’s rental application was lodged with J.M Realty on 30 January 2002. She argues that the proper comparison of her treatment is with that of her brother-in-law, Mr McKay, and sister-in-law, Ms Wirth. However, the proper comparison in this situation is, as J.M. Realty submitted, that of other people, who are not Aboriginal, who have applications with J.M. Realty. Neither Mr McKay nor Ms Wirth submitted application forms so their treatment in relation to the rejection of the application was unable to provide such a comparison.

49 In the absence of such a comparison, the respondent cannot be found to have treated Ms King differently for the purposes of s.20(1)(a) and the Tribunal finds Ms King’s claim of a breach of that provision unproven.

Findings – Was Ms King’s application treated less favourably?

50 Ms King had submitted a written application with J.M. Realty on 30 January 2002. However, when she walked into their offices on 15 February 2002 and inquired after her application and again said that she was looking for rental accommodation priced between $100-$150 per week, she was making a further request for accommodation. The Tribunal finds that Ms King’s inquiry on 15 February 2002 was, in effect, a further application for accommodation within that price range.

51 In relation to whether J.M Realty’s treatment of Ms King’s inquiry on 15 February 2002 breached s.20(1)(c) of the Anti-Discrimination Act 1977, the proper comparison is other people, who are not Aboriginal, who made inquiries about accommodation on the same day. Here, the treatment of Mr McKay and Ms Wirth are proper and useful comparisons.

52 While Ms King had submitted an earlier, written application for accommodation, when she asked about her application and said that she was willing to pay between $100-$150 per week, she was told that there was nothing available. This is in stark comparison to Mr McKay who earlier on the same day was given a list of three houses in that price range and Ms Wirth who, only a few minutes earlier, had also been given a list of three possible rentals. Prices on the lists given to Mr McKay and Ms Wirth on 15 February 2002 were within Ms King’s price range.

53 Of note is that Ms King was not told in response to her inquiry about her written application that it was not successful or that it was considered incomplete. Ms King’s inquiry on 15 February 2002 was dismissed through her being told that J.M. Realty had nothing in her price range. . It is reasonable to assume that if Ms King was not eligible for accommodation because of the information she had provided on the application she had formally submitted, that information would have been conveyed to Ms King in the course of her inquiry on that day.

54 J.M. Realty explained that Ms King’s was in a different situation to Mr McKay and Ms Wirth because she had submitted an application while the others had not. While that prohibits their comparison in relation to s.20(1)(a), Ms King’s submission of an earlier, unsuccessful application has a different role in relation to assessment of her treatment on 15 February 2002. In Ms King’s case, her submission of an earlier application was evidence that she was more serious about her interest in accommodation than the casual inquiries off the street. In Samuels Real Estate v Lamb (1996) EOC ¶92-790, the fact that the Aboriginal applicant had submitted references when a non-Aboriginal applicant had not, led to the conclusion that, in that instance, rather than making the circumstances of the two women different, it “actually heightened the discrimination” towards the Aboriginal person because she had completed more steps in the application process than the non-Aboriginal person.

55 The Tribunal finds that, in relation to her treatment in relation to inquiry at J.M. Realty on 15 February 2005 about rental accommodation, Ms King was treated less favourably than other people who attended J.M. Realty on that day, looking for accommodation in the same price range.

56 In making this finding, the Tribunal notes that it found Ms King to be a credible and reliable witness. The witnesses for J.M. Realty did not have a clear recollection of the events and had conflicting accounts of the process by which applications and inquiries were answered. Much of the evidence submitted by J.M. Realty was focussed on what should have happened rather than what actually happened to Ms King.

57 To believe that there was nothing available at the time Ms King asked about accommodation on 15 February 2005 requires the Tribunal to believe that not one of the five rental properties that appeared on the lists given to Mr McKay and Ms Wirth that day were available. Further, J.M. Realty’s explanation also requires the Tribunal to accept that the property listed as 1 Boronia Cres was given to Ms King on 21 January 2002, the day of her original inquiry and continued to appear on lists given to potential renters up until 15 February 2002 even though it was actually not available. In making its finding that Ms King was treated less favourably than other people making applications for the same properties, the Tribunal finds the evidence given by J.M. Realty to be less persuasive than Ms King’s account.

Findings – Was the less favourable treatment of her application due to Ms King’s race?

58 Ms King has provided evidence that, when two non-Aboriginal people inquired after rental accommodation on 15 February 2002, they were given lists of available residences and when she inquired and expressed further interest in rental accommodation was told that J.M. Realty didn’t have anything available. This, Ms King argues, provides circumstantial evidence and can be used to infer that the reason for her being given less favourable treatment was because she was Aboriginal.

59 It is not unusual that in cases of discrimination such as this there is little direct evidence. In these circumstances, the applicant may find support for their case by drawing inferences from primary facts. Edwards v Bourke Bowling Club Limited [2000] NSWADT 31, Bamblett v Keistow Pty Ltd trading as L J Hooker Cowra [2005] NSWADT 219. It is also well established that an inference can be drawn from a combination of facts, none of which if viewed alone would support the same inference. Chamberlain v The Queen (1984) 153 CLR 521, Bamblett v Keistow Pty Ltd trading as L J Hooker Cowra [2005] NSWADT 219.

60 The Tribunal finds that Ms King, by comparing her treatment and that of two non-Aboriginal people making inquiries after accommodation in the same price range on the same day, made a prima facie case that the reason for the failure to provide her with any listings of available accommodation was because she was Aboriginal.

61 However, J.M. Realty said that there was no evidence that the reason why Ms King received less favourable treatment was that she was Aboriginal and they offered other explanations as to why she was treated less favourably.

62 J.M. Realty put forward evidence that Ms Fathers when assessing Ms King’s application, did not know that she was Aboriginal. Ms Fathers denied that she knew that “King” was a well-known Aboriginal name in the area or that she knew that the address given by Ms King was in an area well known for having a high number of Aboriginal people residing there. However, she agreed that, with a reference from Bundjalung Tribal Council, it would be obvious to her that the applicant was Aboriginal. The reference from Bundjalung Tribal Council was lodged with the respondent on 12 February 2002 and so it can be established that on 15 February 2002, Ms Fathers would have known that Ms King was an Aboriginal person.

63 While it is open to the Tribunal to draw inferences from primary facts, such an inference cannot be drawn where there is a “more probable and innocent” explanation available on the evidence.” Edwards v Bourke Bowling Club Limited [2000] NSWADT 31. J.M. Realty offered an alternative explanation for their treatment of Ms King on 15 February 2002. They argued that Ms King’s less favourable treatment was the result of “bad service” rather than because of her race. In putting this explanation forward, they relied on the evidence of Ms Naome who had observed that Ms Fathers was distracted by personal problems around 15 February 2002.

64 The Tribunal on this issue also finds Ms King to be a reliable and credible witness and her evidence honest and not contrived. It therefore gave more weight to her evidence than to that of the staff of J.M. Realty who did not remember the incident and gave evidence as to what the usual practice was rather than what happened on 15 February 2002.

65 The Tribunal finds that Ms King made out a prima facie case that her race was a factor in her being given less favourable treatment by J.M. Realty on 15 February 2002. It finds that the staff of J.M. Realty knew Ms King was Aboriginal by 15 February 2002. It finds that the explanation that the less favourable treatment was not more probable and innocent than the explanation put forward by Ms King. The Tribunal is therefore satisfied that Ms King, made out a prima facie case that her Aboriginality was a reason as to why she was accorded different treatment.

66 While Ms King did not directly accuse or identify either Ms Fathers or Ms Naome as the person who discriminated against her, it is enough that she has shown that the culmination of the actions of the employees of J.M. Realty led to Ms King receiving less favourable treatment when she asked about the availability of rental accommodation on 15 February 2002. It is from this different and lesser treatment in comparison to the inquiries of two non-Aboriginal people that she was able to infer that the behaviour of the staff at J.M. Realty was motivated, at least in part, by her race and that the behaviour of J.M. Realty towards her on 15 February 2002 breached s.20(1)(c) of the Anti-Discrimination Act 1977.

67 There was some argument by J.M. Realty to show that Ms King’s mother had contrived the complaint of discrimination and that Ms King, who was very naïve and trusting, did not believe she was being discriminated against until her mother raised the issue. Evidence was given that it was Ms King’s mother’s idea to send Mr McKay and Ms Wirth in to the offices of J.M. Realty to make inquiries about comparable rental accommodation.

68 Ms King’s mother’s proactive role in establishing evidence in this case does not prejudice Ms King’s case. This is a jurisdiction in which applicants face difficulties in relation to proof and steps that seek to establish a prima facie case of discrimination are understandable. Throughout her evidence, Ms King’s mother appeared to be a strong and protective advocate for her daughter’s interest. Given that Ms King had problems with literacy and did not appear to the Tribunal as very worldly, it was fortuitous that her mother took such an interest in how she was being treated. Just as a person’s belief that they are being discriminated against does not, in and of itself, amount to a breach of anti-discrimination laws, so too it is true that just because someone does not initially feel that they were discriminated against does not make an illegal behaviour legal.

Damages

69 Right to housing is a fundamental human right recognised by international human rights instruments and protected from violation by discriminatory practices by the Anti-Discrimination Act 1997. Ms King gave evidence that her failure to find adequate accommodation led to great hardship and emotional and mental difficulties for her. She sought an award of damages to compensate for this and for the hurt, disgust and humiliation she felt as a result of the discriminatory behaviour. Ms King’s claim for an award of damages was based on her claims that her inability to find housing and her experience of discrimination led to psychological damage rather than any financial loss.

70 Ms King had submitted a report dated 15 November 2004 from a psychologist, Mr James Alexander, to support her claim for damages. In his report, Mr Alexander stated that the primary psychological impact on Ms King of the perception that she had been racially discriminated against was that it led her to “a state of extreme anger and despair.” He went on to write:

To be treated in a manner which suggested racial discrimination over an issue of such importance to a family with 4 young children was experienced as an enormous affront and insult. Beyond the insult was the fact that her family of 6 were at the time trying to live in a garage with a roller door at one end and a single door at the other end and one window during the heat of summer.

71 Mr Alexander also reported some secondary psychological impacts of Ms King’s perception that she had been racially discriminated against. Her inability to find rental accommodation led to a sense of desperation that began to build up due to the overcrowding of her living quarters and the living situation also led to stress, arguments amongst the family and Ms King’s increasingly difficulties in parenting her children. This culminated during the period of her search for suitable accommodation in suicidal ideation and thoughts of harming her family to relieve her stress. Ms King reported these thoughts to her mother who was able to provide some support to her.

72 Mr Alexander identified that Ms King appeared to have experienced symptoms that were suggestive of her suffering from ‘Learned Helplessness’ which he described as “the psychological state which ensures that after a person has tried all actions within their repertoire to escape the punishment of a distressing situation to no avail, regardless of what they do, the punishment of the situation remains and it seems inescapable. The ultimate response seen in people is to sink into a state of despair in which the overwhelming perception is one of hopelessness.” Mr Alexander noted in his report that Ms King told him that she felt that she was “hitting brick walls” and that one potential reason for feeling that way was the perception of racism. In this way, her failure to find housing was seen as being a result of racism and there was nothing she could do about this and for this reason, when things were at their most desperate the only way she could see to get out of her situation was through murder and suicide.

73 Mr Alexander administered a test – the Depression Anxiety and Stress Scale (DASS) – by asking Ms King to answer the questions based on how she felt at the time of the living in her mothers garage (omitting four questions that he felt it would be difficult for Ms King to answer given the time that has elapsed). Based on her responses, Mr Alexander found that Ms King indicated that she was “highly anxious, stressed and clinically depressed”. Her score on the DASS indicated that Ms King’s depression was “extremely severe.”

74 Mr Alexander noted that Ms King had no mental health problems prior to the incident at J.M. Realty and this led to the reasonable assumption that Ms King’s psychological state was a result of that experience. At the time of his interview with her, Ms King appeared to have a much more positive outlook on life and that the negative effects of the incident were no longer apparent.

75 J.M. Realty submitted a psychological assessment of Ms King. Dr. Wayne Somerville prepared a report noting that when he interviewed Ms King in July 2005, Ms King was “not suffering clinically significant symptoms of psychopathology.” He noted that there were indications that Ms King had probably experienced clinically significant symptoms of depression during the time that she lived with her four children at her mother’s property. He identified many stressors that could have led to this including: overcrowded living arrangements, living in a cold shed, recurring friction with her brother, recurring incidents of her children being in trouble with the police, frustration at the inability to find suitable rental accommodation, being the sole parent of a son with Attention Deficit Disorder, regret over the physical punishment she administered to her children and perceptions of racial discrimination by real estate agents. Dr. Somerville also identified the possibility of some unresolved grief associated with the death of her infant child contributing to Ms King’s emotional distress at that time.

76 Dr. Somerville believed that Ms King’s earlier symptoms of an Adjustment Disorder were resolved soon after she acquired suitable accommodation. He gave further evidence that any symptom of psychopathology rests on a consideration of context, nature and the severity of the symptoms:

The probability of a direct link between a presenting symptom and a suspected causal experience is increased if: a) the suspected causal experience is sufficiently severe and intense to be likely to produce symptoms of the observed severity; b) the symptom and suspected causal incident are thematically linked (eg., perceptions of racial discrimination leading to nightmares of being discriminated against); c) the onset of the symptom occurs soon after the suspected causal incident, and d) there are no indications of other life experiences likely to be producing, or contributing to, the observed symptom.

77 Dr. Somerville agreed with Mr Alexander’s findings in October 2004 to the extent that when he interviewed Ms King in July 2005 she did not have any observable mental health conditions and that the effects of the negative circumstances were no longer present.

78 However, he disagreed with Mr Alexander’s finding that Ms King had the perception that prejudices against Aboriginal people were widespread and pervasive. Ms King had told Dr Somerville that she enjoyed friendly relationships with her non-Aboriginal neighbours and did not believe that all white-skinned people were prejudiced against Aboriginal people.

79 Dr. Somerville was also critical of the way in which Mr Alexander had administered the DASS test. Asking questions more than two weeks after a reference point will introduce memory distortions that can undermine the validity of the results. Given that Mr Alexander administered the test in October 2005 and the complaint period occurred in January and February 2002, Dr Somerville did not believe that the DASS test could provide a valid measure of Ms King’s emotional state. He believed that the results were further compromised by the use of non-standardised instructions and the deletion of four items from the questionnaire when Mr Alexander administered it.

80 Mr Alexander was available for cross-examination during the hearing but unfortunately Dr Somerville was not. As a result, more weight must be given to the evidence to reflect the fact that J.M. Realty had the opportunity to test Ms King’s evidence but Ms King did not have the same opportunity to test the evidence of J.M. Realty.

81 As a result, the Tribunal finds that Ms King did feel hurt, humiliation and disgust as a result of her treatment at J.M. Realty and accepts the evidence that this was a contributing factor in her mental state in the months in which she was unable to find accommodation for her family. It notes the stress that Ms King must have experienced living in a shed with a partner and four children.

82 The Tribunal also accepts that these effects disappeared when Ms King found accommodation for her family some 8 to 9 months after 15 February 2002. It further finds that the mental state that Ms King suffered from as a result of being unable to find suitable accommodation can only partially be attributed to the actions of J.M. Realty. Ms King had many other stressors in her life during the period in which she was suffering depression that were not related to her failure to find accommodation, including grief from the death of a child. Since the actions of J.M. Realty are only one factor that contributed to the harm suffered by Ms King as a result of her inability to find rental accommodation, any award of damages must take this into account.

83 Section 108(2)(a) of the Anti-Discrimination Act 1977 empowers the Tribunal to, if it finds a complaint substantiated in whole or in part, order the respondent to pay the complainant damages not exceeding $40,000 by way of compensation for any loss or damage suffered by reason of the respondent's conduct. The language of s.108(2)(a) makes it clear that an award under this section should provide appropriate compensation for any loss and is not designed to be punitive. Sheather v Daley [2003] NSWADT 51.

84 An award of damages for compensation of loss must be fair and reasonable in the particular circumstances of each case. In Ms King’s case, the Tribunal must assess the appropriate award of damages for the psychological injury suffered by the complainant, taking into account that Ms King’s psychological state during the period after the 15 February 2002 until she found appropriate rental accommodation was only partially a result of her treatment by J.M. Realty.

85 The Tribunal finds that the sum of $3000 would compensate Ms King for the psychological damage she suffered as a result of her treatment by J.M. Realty on 15 February 2002.

86 Ms King also made a request for a costs order against J.M. Realty. Section 88(1) of the Administrative Decisions Tribunal Act 1997 gives the Tribunal the power to make an order of costs but “only if it is satisfied that there are special circumstances warranting an award of costs.” Ms King did not identify any such circumstances that exist in this case that would cause the Tribunal to consider an award of costs.

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 the Applicant $3000 by way of an award of compensation within 30 days of the publication of this judgement.