King v Meilman East Pty Limited

[2004] NSWADT 46

CITATION:	King & Anor v Meilman East Pty Limited & Ors [2004] NSWADT 46
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Sandie King & Grant King RESPONDENT Meilman East Pty Limited APPLICANTS Sandie King & Grant King RESPONDENTS Matthew Johinke, Tanya Johinke, Meilman East Pty Limited
FILE NUMBER:	021079,021080, 021081, 021082
HEARING DATES:	25/08/2003-26/08/2003
SUBMISSIONS CLOSED:	09/15/2003
DATE OF DECISION:	03/05/2004
BEFORE:	Rice S - Judicial Member; McDonald O - Member; Weule B - Member
APPLICATION:	Race Discrimination - Accommodation - Race Discrimination - In work
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977 Racial Discrimination Act 1975 (Cth)
CASES CITED:	Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272 Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Martin v McKensey No 2 NSWADT [2003] 126 McLeod v Power ([2003] FMCA 2
REPRESENTATION:	APPLICANTS M Scott, solicitor RESPONDENT - Meilmain East Pty Limited W Harris, agent RESPONDENTS - Matthew Johinke & Tanya Johinke P Maloney, solicitor
ORDERS:	1.The complaints, not having been substantiated, are dismissed ; 2.Pursuant to s114 (1) Anti-Discrimination Act 1977 each party shall pay their own costs.

1 For the reasons given below the complaints, not having been substantiated, are dismissed.

Background

2 Mrs Sandie King, her husband Mr Grant King, and their children lived in a house on Meilman East Station (‘the property’) in southern New South Wales. The property was owned by a company, Meilman East Pty Limited (‘Meilman East’). At the relevant time – March to December 2001 – the property was managed by Mr Matt Johinke who lived on the property with his wife Mrs Tania Johinke. Mr Bill Harris was a director of Meilman East who took particular interest in the property.

3 There were four houses on Meilman East: one occupied by the Johinkes, one occupied by the Kings, one occupied by the Benham family and one used from time to time by the Harris family. Mr King had occupied the house for some 10 years prior to the relevant period. The Johinkes commenced as managers of the property in early 2001, succeeding a Mr Treglown.

4 On 25 January 2002 the Anti-Discrimination Board (‘the ADB’) received by facsimile a two-page letter, signed by Mrs King, complaining of discrimination on the ground of race. On 14 February 2002 the ADB received, under cover of a lawyer’s letter dated 6 February 2002, a complaint form signed by Mrs King.

5 Under cover of the same letter of 6 February 2002 the ADB received a complaint form signed by Mr King.

6 The letter of 6 February 2002, as well as enclosing the complaint forms signed by Mr and Mrs King, enclosed a number of documents in support of the complaints made. In the course of the investigation conducted by the President of the ADB, Mr and Mrs King provided further documents in support of their complaints.

7 The complaints were forwarded by the ADB to Mr and Mrs Johinke, and to Mr Bill Harris on behalf of Meilman East. Those people replied in writing, providing documents in support of their replies.

8 On 9 July 2002 the Acting President of the ADB formed the view that “these matters are not capable of being resolved through conciliation”. Consequently she referred the complaints to this Tribunal under section 94(1) of the Anti-Discrimination Act 1977 (ADA), for inquiry.

Complaints

9 In her letter of complaint faxed to the ADB on 25 January 2002 Mrs King complains that:

My family and I have been racially discriminated against. We have been evicted from our home in which we have rented for the past ten years on Meilman East.

10 Further Mrs King complains that:

I found . . . letters calling my family coons, my husband a coconut and then calling me a big gin, and how she wished for a man named Adrian to sort me out, as well as verbally abusing my children calling them “black c---s” [sic].

11 In her complaint of 25 January 2002 Mrs King foreshadowed a complaint which was made soon after by Mr King. Mrs King had said:

We have rented for the past ten years on Meilman East, as well as worked . . . my husband worked a little at the start until Matt [Johinke] showed signs of racism towards me and my family, after that my husband was refused all work and they started employing an invalid pensioner instead.

12 In the complaint form received by the ADB on 14 February 2002 Mr King said:

My complaint is of the constant abuse to my family and I, the harassment we receive and the denial of work. When Mr and Mrs Johinke arrived the work that I was accustomed to doing suddenly dried up. They employed a white pension recipient to do the work. They have called me a coconut and I am referred to in the racially sick letters attached. … My family has been abused - my children called “black bastards”, my wife called “black gin” and other offensive names. We have been called “abbos” [sic]. … These people have an incredible hatred of my wife, my family and I - all because of my wife and children’s Aboriginality … I have been evicted without reason from my home for ten years.

13 Mrs King is Aboriginal. Mr King is not Aboriginal; he is a relative or associate of a person who is Aboriginal, Mrs King: s.7 (1)(a) ADA.

14 It is apparent that Mr King makes the same complaints as to eviction and use of race-based language that Mrs King makes.

15 For ease of reference the complaints are referred to in this decision as

the language complaints, made by Mr and Mrs King

the employment complaint, made by Mr King

the eviction complaints, made by Mr and Mrs King.

16 The language complaints, if established, could constitute unlawful discrimination on the ground of race in the area of accommodation by limiting access to a benefit associated with accommodation, that is, the quiet enjoyment of the tenancy: sections 7(1)(a) and 20(2)(a) ADA. In his dealings with Mr and Mrs King as tenants on the property, Mr Johinke was exercising the authority of Meilman East as its employee. Mr and Mrs King say that the Johinkes and Meilman East are jointly and severally liable for the Johinkes’ conduct that is the basis of the language complaint: s53 ADA.

17 The employment complaint, if established, could constitute unlawful discrimination on the ground of race by association in the area of employment: ss.7 (1)(a) and 8(1)(b) ADA. In deciding who to employ to work on the property Mr Johinke was exercising the authority of Meilman East as its employee. Mr King alleges that Mr Johinke and Meilman East are jointly and severally liable for the conduct that is the basis of the employment complaint: s53 ADA.

18 The eviction complaints, if established, could constitute unlawful discrimination on the ground of race in the area of accommodation: ss7 (1)(a) and 20(2)(b) ADA. The premises occupied by Mr and Mrs King were on the property owned by Meilman East, and it was Meilman East who issued the notice of termination of the tenancy. It is Meilman East that Mr and Mrs King say is responsible for the conduct which is the basis of the eviction complaint. Mr and Mrs King allege that by their conduct Mr and Mrs Johinke are liable for having aided and abetted Meilman East in the eviction: s52 ADA.

Evidence

19 The Tribunal admitted into evidence the President’s report, which contained correspondence and documents received by the ADB. For the applicants the Tribunal heard evidence from Mrs King, Mr King and their daughter Alicia-May King.

20 Mrs King was cross-examined about the fact that details were provided in a statement given to the ADB, and not contained in either the original complaint or the complaint form she had previously submitted to the ADB. She denies that she made up those details, saying that the complaints she first made were brief with general comments to which she later provided detail.

21 For the respondents the Tribunal heard evidence from Mr and Mrs Johinke, and Mr Harris.

Matters of proof

22 It was not in issue that Mrs King is an Aborigine, that Mr King is not an Aborigine, or that Mr King is a relative or associate of Mrs King for purposes of the ADA.

23 In issue were questions of fact as to whether the applicants were subjected to the treatment they alleged, whether that treatment, if it occurred, was on the ground of the applicants’ race or race by association, and whether that treatment, if it occurred, was less favourable treatment.

24 The difficulty of proving discrimination, and race discrimination in particular, has been the subject of observation by this and similar tribunals (see eg Dutt v Central Coast Area Health Service [2002] NSWADT 133), and of academic commentary (see eg Hunyor, J., Skin-deep: Proof and Inferences of Racial Discrimination in Employment (2003) 25 Sydney Law Review 535). This matter presents the usual difficulties.

25 The Tribunal assessed the evidence according to the usual standard of proof without regard to the so-called Briginshaw test (see eg Dutt v Central Coast Area Health Service (EOD) [2003] NSWADTAP 3, and De Plevitz, L., The Briginshaw ‘Standard of Proof’ in Anti-Discrimination Law: ‘Pointing with a Wavering Finger’ (2003) 27 MULR 308)

Language complaint

26 Mr and Mrs King complain of discrimination on the ground of race by limiting their access to a benefit associated with accommodation, that is the quiet enjoyment of their tenancy.

27 At issue is whether Mr Johinkes used the race-based language which is said to have interfered with the quiet enjoyment of their tenancy. If they did then the further issue would be whether it was less favourable treatment on the ground of race.

28 In the complaint form submitted in February 2002 Mrs King provided details of her complaint of the use of race-based language:

Mr and Mrs Johinke have called me a black bitch, said things like “look at the fucking coons over there”. They have called me “a big black gin”. I have been threatened with words like “I will fix these black cunts”. Furthermore I have been accused of theft. My children have been told to “piss off you black bastards”. My children, who are aged 15, 11 and 10 are not allowed to play with their children.

29 Mr and Mrs King’s 17-year-old daughter Alicia-May King gave evidence, in the course of which she adopted a previous statement in which she had said:

One day after playing with the Johinke children Tania [Johinke] growled at the kids and told the “if you kids go playing with them cunts again I’ll flog yous”.

30 Ms King was not cross-examined on the contents of her statement but, rather, was questioned about the circumstances in which the statement was made. She said that she had made the statement shortly before the hearing based on contemporaneous notes she had kept of the particular incidents. Asked why she kept notes she said that she did so because when she heard Mrs Johinke refer to her family in a derogatory way she though she though she should record it.

31 Ms King denied having collaborated with her mother to write the statement and says that the statement is hers. Ms King did not disagree that her contemporaneous notes contained no reference to use of the term ‘black cunts’ although that allegation was made in her statement that was tendered to the Tribunal. She said that her diary notes were written at the time or soon after the incidents she recorded.

32 In relation to the use of language Mr Johinke wrote that as to “any allegations of myself calling anyone from the King family racial names, I deny.” In fact, Mr Johinke’s evidence is that the situation was the opposite. He gave evidence that he had seen Mr King verbally abuse his, Mr Johinke’s, wife, calling her a ‘fucking bitch’, ‘fucking white’, a ‘bitch’, and a ‘slut’. He said that this happened a lot, starting in September or October 2001. He said that he overheard the comments as he was coming and going, and he didn’t speak to Mr King about it.

33 Mr Harris said that he heard the Johinkes used mildly offensive language in relation to the Kings but never racist language.

34 As well as allegations of the use of race-based language generally, Mr and Mrs King rely on four incidents when they say that race-based language was used. These incidents, as well as being relied on as evidence of the use of race-based language, are relied on as evidence from which it can be inferred that the eviction was on the ground of race.

The orchard incident

35 Mrs King says that on Thursday 13 September 2001:

I was in the orchard … watering by farrow. Matt came in and put the sprinkler on. I asked him not to because it doesn’t water the trees properly. Matt said “too late now”. So I walked away back to our house and Matt said just loud enough for me to hear “I’ll do what I fuckin’ well like, you black bitch!”

36 In cross examination Mrs King agreed that she had come out of her house and approached Mr Johinke who was setting up the sprinklers, and had told him that they, the Kings, were looking after the orchard. She agreed that he had said that the flowers are falling off, and that Mr Johinke that he had put a sprinkler on. She says that she said to him only words to the effect “you can look after the orchard yourself” after he had abused her as she alleges.

37 Mr Johinke denies that he responded at all to Mrs King. He denies saying ‘black bitch’, or indeed anything, to Mrs King.

The blackout incident

38 In October 2001 there was a power failure. Mrs King said in her evidence that it was possible for her to hear in her yard what was being said in the Johinkes’ yard and, in the darkness and silence, she heard Mrs Johinke say to her children not to play “with the black cunts next door”. She says:

I heard Tania say to [her children] “I told you not to play with those black cunts”. I looked across at her, she was standing there glaring at me, I just shook my head and went inside.

39 Mrs King agreed that until the incident during the power blackout there had been no real problems between the Kings and the Johinkes. She agreed that her children played with the Johinkes’ but said it was only when they, the Johinke children, were allowed by their mother.

40 Mrs Johinke says she has no recollection of the incident regarding the blackout about which Mrs King gave evidence. Mrs Johinke denies having used the offensive language that Mrs King says she used, and denied that she ever uses those words when speaking to the King children. She denies swearing when speaking to her own children.

41 Mrs Johinke said that she did allow her children to play with Kings' children. She denied that the children’s playing together annoyed her and that she was angry with her children. She denies having told her children not to play with the Kings’ children and having referred to the Kings as ‘black cunts’. She denies ever saying the word “cunt”. In relation to the allegations regarding the children Mrs Johinke said:

To the allegations of myself calling the Kings’ children or themselves any sort of racial names, I deny.

42 Mrs King gave evidence elaborating on her statement where she said:

17th November [I think] Saturday afternoon, the water tank in our backyard had burst. I got Matt to come over and inspect the damage because some of the didgeridoos got damaged, approximately about $6000.00 worth. He came over with his brother-in-law Shaun. After I told him what happened, Matt yelled at me over the fence: “I wish that all you blacks cunts were dead, I wish all you black cunts were killed under it!”. Shaun said “Matt don’t be like that”. “Fuck them cunts” said Matt.

43 Mrs King telephoned the police, who attended but, she says, declined to take any action.

44 Mrs King denies having asked Mr Johinke for compensation for the didgeridoos which were damaged by the burst water tank.

45 She agrees that the comment by Mr Johinke, if made, that he wished they had all been killed was a horrible thing to say, and that it had not been reported by her in her initial complaint. She denied however that the later account she gave was fictitious. She agrees that when the tank burst she went to get Johinke, and that she told him he could not come in because of the apprehended violence order. She says that in accordance with her request he entered the property from around the back through the orchard.

46 In her statement in evidence Alicia-May King said:

When the storage tank in our yard burst we told Matt. He came through the orchard with his brother-in-law, and Mum told him that he couldn’t come in the yard as there was an AVO on my dad. Matt then got angry and stormed off to his house with his brother-in-law, saying … “I wish all you black cunts were killed under it”. At which he and his brother-in-law started to laugh. When they got to back to Matt’s house the whole family was laughing and joking about it.

47 Mr Johinke said that Mrs King came to him on the day he was celebrating Mrs Johinke’s birthday in late November to tell him that the tank had burst and that damage had been done. He went around the orchard with his brother-in-law and began to climb over the fence when Mrs King told him to get out because of the apprehended violence order. Mr Johinke said “fine”, and then yelled out “I’m not spending a cent on this house”. Mr Johinke’s version of events is that Mrs King, having asked him to inspect the tank, then told him to get out. Mr Johinke denies yelling out that he wishes the Kings had been killed under it, and denies having said anything alleged by Mrs King.

48 Mr Johinke saw the bursting of the tank incident as another saga he had to deal with. He denied he was angry.

Language used in letters

49 Mrs Johinke wrote letters to a friend and to her father. The letters had been sent by fax and the originals were torn up and disposed of. Mrs King was cross-examined about the manner by which she came into possession of the torn documents that she reconstructed. She says she found them at the ‘borrow pit’ which is used as a dump by all residents on the property, and did not find them among papers near the incinerator used by the Johinkes. She says she found them over a period of some weeks after first seeing a scrap of paper with a reference to her husband on it. The torn up originals were recovered by Mrs King.

50 The letters are evidence of Mrs Johinke’s use of race-based language, and are relevant to the issue of whether race-based language was used in the course of the Kings’ tenancy.

51 In one document Mrs Johinke had written:

Adrian must have some fresh native jokes for us by now.

52 Mrs Johinke was asked what she meant by the reference to “fresh native jokes”, and she replied that she means “just that”. She was asked if she was referring to jokes about Aborigines, and she replied that she was referring to jokes about “natives”. She was asked what the reference to “natives” was and she replied that it could have been a reference to “anything”. She was asked what “anything” could encompass and she replied “Aborigines, wild life, anything native”. In response to further questioning by the Tribunal Mrs Johinke agreed that in referring to “native jokes” she could have intended a reference to native flowers as much as to Aborigines, but said that she couldn’t recall what her intended reference was.

53 Mrs Johinke agreed that Adrian told jokes about Aborigines, and that she found those jokes funny. When asked whether she enjoyed making fun of Aborigines she replied that she enjoyed jokes in general, whether about Irish or Aborigines. She agreed that she enjoyed jokes about Aborigines.

54 In our view, in the circumstances of the matter, the reference to ‘native’ is clearly a reference to Aborigines. It is implausible to suggest otherwise and Mrs Johinke’s insistence that it was a reference to ‘anything native’, including possibly to native flowers is not only implausible but damaging to her credibility in our assessment of the evidence she gave.

55 Mrs Johinke was shown a copy of a letter in which she had written:

Bring earmuffs then you can’t hear idiot carrying on!

What’s the difference between a dead abo and an alive one? People like the dead ones!!!!

56 Mrs Johinke agreed that the reference to earmuffs and idiot were a reference to Mr King. She was asked if she was scared of Mr King and said “absolutely”. She was asked why she wrote the joke about dead Aborigines and said that she was pretty annoyed at the time, and “had had a skinful”. Mrs Johinke was asked why, if her father was religious, she had written that joke to him. Her reply was that she did not know whether he had received it. She was asked whether the joke referred to the Kings to which she replied that she didn’t think so. After confirming that she wrote it because she had “had a skinful”, Mrs Johinke was again asked whether the joke referred to the Kings. She said, no it didn’t. Mrs Johinke agrees that the Kings were the only Aboriginal family on the property but she pointed out that there were Aborigines elsewhere, such as in Wentworth where she had previously worked.

57 Mrs Johinke’s attention was drawn to the letter she wrote to the Anti-Discrimination Board in which, addressing the documents, she said “I cannot see any reference to them [the Kings] at all and . . . they seemed to be making references to people in general”. When asked whether it was not obvious that the documents referred to the Kings Mrs Johinke repeated that nowhere did the documents say “King”. Mrs Johinke agrees that the reference to earmuffs was a reference to Mr King but when pressed with the proposition that the joke regarding dead Aborigines was a joke about the Kings she replied again that the joke makes no specific reference to the Kings. She says that the joke was about Aborigines in general.

58 The documents among which the joke was told referred constantly to the Kings and to the situation of their tenancy and pending eviction. Mrs Johinke agrees that a reference in the sentence before the joke is told is a reference to Mr King as an ‘idiot’. Mrs Johinke agrees that in other documents she refers to the Kings as ‘coons’ and to Mrs King as a ‘big gin’. In the circumstances we are satisfied that Mrs Johinke was referring to the Kings when she related the joke, and her denial is damaging to her credibility in our assessment of the evidence she gave.

Findings

59 Taking account of the whole of the evidence and the view we take of Mrs Johinke’s credibility, we are satisfied that Mrs Johinke used race-based language towards Mr and Mrs King as alleged, that is, that reference was made to Mrs King’s race.

60 In our view the relations between the parties were such, and the preparedness of the parties to engage in abusive language was such, that offensive language was used by Mr and Mrs Johinke and by Mr and Mrs King. We are unable to say however that language used by Mr Johinke included reference to Mrs King’s race.

61 When allegations are made by the Kings of Mr Johinke’s use of race-based language, we are satisfied that the allegations are mistaken or exaggerated, possibly because of the knowledge of the use by Mrs Johinke of race-based language, and the keenly felt dispute between Mr King and Mr Johinke over employment, discussed below. We therefore make no finding that Mr Johinke used race-based language in relation to the Kings.

62 Because of, as we have found, the explicitly race-based nature of Mrs Johinke’s language it is not to necessary inquire into the grounds for her using that language. Even if there was more than one ground, a ground for Mrs Johinke’s having spoken to the Kings as she did was Mrs King’s race.

63 To assess whether Mrs Johinke’s having made the comment was “less favourable treatment” of the Kings, the material circumstances for purposes of identifying an actual comparator include that the comments were made to a neighbour and tenant with whom there were strained relations because of disputes over other matters, such as employment. There is no actual comparator and so the comparison is hypothetical.

64 A hypothetical comparator not of Mrs King’s race is a person who is white skinned. Particularly in light of the letters, we can reasonably assume that Mrs Johinke would not have made race-based remark to such a person: it is likely that she would have treated such a person more favourably in the same circumstances than she treated the Kings.

65 Mrs Johinke’s conduct was therefore discrimination as defined by the Act.

Unlawfulness of discriminatory conduct

66 For discriminatory conduct to be unlawful in the area of accommodation it must be conduct of either the principal or their agent, and Mrs Johinke was neither principal nor agent in relation to the Kings’ accommodation. The principal was Meilman East and the agent was Mr Johinke. There is no evidence on which we can find that Mrs Johinke was an agent of either Meilman East or Mr Johinke in her dealings with the Kings.

67 Although Mrs Johinke’s conduct was discriminatory it was not unlawful with the NSW Anti-Discrimination Act 1977.

68 Mr and Mrs King have therefore failed to substantiate this complaint.

Discriminatory conduct as vilification

69 The language used by Mrs Johinke in the letters raises the question of whether the letters constitute racial vilification. But a threshold question is whether, in writing and sending the letters by fax to a friend and to her father, Mrs Johinke engaged in a public act.

70 None of the different forms of conduct included in the definition of ‘public act’ in s20B of the Act covers the letters written by Mrs Johinke. Although the definition of ‘public act’ is not exhaustive it is clear that the term ‘public act’ is intended to identify conduct that is directed to or comes to the attention of the public. Doing something in ‘public’ is, in the equivalent but differently worded provision in the Racial Discrimination Act 1975 (Cth) (‘RDA’), to do something “otherwise than in private” (s18C).

71 What the Court said of s18C RDA in McLeod v Power ([2003] FMCA 2 at [71]) could as well be said of s20C of the Act: “It is clear that the legislation intends to protect private conversations from the reach of the RDA”.

72 At para 73 the Court went on to say

The circumstances and the quality of the act concerned must dictate whether or not an act is done "otherwise than in private". In a case where a conversation forms the act which is complained of under the RDA there will also be the issue of the quality of the conversation itself, that is whether it was intended to be a private conversation or heard by a more general audience or was one likely to be heard by a larger audience.

73 In a letter to the ADB addressing the allegations against her Mrs Johinke refers to the correspondence as “personal papers” and says that they “were never for public viewing or broadcast”.

74 In making the comments in the correspondence Mrs Johinke was not engaging in a public act. The comments were communicated in private as part of correspondence with a friend and with family. The fact that the correspondence later became known to a third party does not give them a public character in circumstances where the correspondence had in fact been disposed of after an attempt to destroy it.

75 Accordingly the letters cannot give rise to a finding of racial vilification.

Employment complaint

76 Mr King complains of discrimination on the ground of race by association in employment. There is no dispute that he is the husband of an Aboriginal woman, or that after a particular time he was not engaged to work on the property.

77 Whether the refusal was in the area employment in terms of the Act is a question that is addressed below. If it was, then at issue is whether the refusal was on the ground of race by association, and whether it was less favourable treatment

78 There was no evidence before the Tribunal of a comparator, although the evidence did indicate that there might have been a comparator: a Mr Michael Payne. In the absence of evidence of a comparator the question of whether Mr King was treated less favourably than a person not associated with Mrs King’s race would have been treated in the circumstances conflates with the question of whether the treatment was on the ground of being associated with Mrs King’s race (Dutt v Central Coast Area Health Service [2002] NSWADT 133; Martin v McKensey No 2 NSWADT [2003] 126).

79 There is no direct evidence that Mr King’s association with Mrs King’s race was a ground for his not being employed, and there is direct evidence of other grounds for his not being employed. There is however evidence from which it might be inferred that association with race was a ground for his not being employed.

Was the conduct in the context of employment?

80 The Act covers conduct prior to there being an employment relationship, that is, when an employer decides who should be offered employment (s8 (1)(b)). The question that arises in this matter is whether the prospective relationship between Mr King and Mr Johinke, on behalf of Meilman East, was an employment relationship such that Meilman East might properly be described as an employer for purposes of s8 (1)(b) of the Act.

81 The evidence as to the circumstances of Mr King’s work on the property is largely uncontested, but for an issue raised by the production of receipts, discussed below.

82 In about 1995 Mr King commenced doing casual labour for Mr Treglown, doing anything that was required. He recounted a range of activities including dealing with sheep, tree stumps, tractors, tanks, ploughs and so on. He worked on the property from time to time: there were no fixed times for work, nor any fixed duties. From about 1997 the work became more frequent and he used to do six to eight weeks of work per year for Mr Treglown as Mr Treglown’s own boys were less available

83 On the request of the manager – Mr Johinke and before him Mr Treglown – Mr King carried out tasks that required a degree of knowledge and skills. He was not paid for this work in cash, but the value of the work was set off against Mr King’s liability for rent at an agreed hourly rate of $12.00 an hour. He was never in arrears of rent and only worked towards payment of rent.

84 Mr King’s complaint is that Mr Johinke, having previously asked him to do some work on the property in the same way that Mr Treglown had done, ceased asking him and asked someone else.

85 When considering the question of whether an employment relationship existed in Commissioner of Police v The Estate of Edward John Russell & Ors [2002] NSWCA 272, the NSW Court of Appeal said:

[87] . . . the word "employee" appears in each of the provisions of the [Anti-Discrimination] Act rendering it "unlawful for an employer to discriminate against an employee" on the relevant ground, in the present case, race. For beneficial legislation, such as the Anti-Discrimination Act , a liberal interpretation is appropriate. This is reinforced by the purposive approach required by s33 of the Interpretation Act 1987. (See IW v City of Perth (1997) 191 CLR 1 esp at 11-12, 18, 22-23, 58.)

[88] . . . Insofar as persons do “work” in a context closely analogous to “employment”, the purpose of the legislation would be better served by extending the protection of the Act to such a relationship. There must be some element of regularity and permanence in the relationship, and also an element of direction and control of work, for it to fall within an extended sense of the word “employment”. But where such context exists, the Court should be slow to hold that the Act has no application.

86 The evidence in this matter is clear that as between Mr Johinke and Mr King there was direction and control of work. Over the years there was some element of regularity in that Mr King could count on his being asked to work when there was work to be done, such as ploughing fields, and some element of permanence in that Mr King had been working on these terms for some years.

87 Mr King agrees that he received a receipt whenever he paid his rent, and that he also received a receipt when rent was offset for work that he had done. It was suggested to him that the rent receipt book starting in 1993 showed that there were only four entries for work being set off against rent in a period of ten years from 1993 to 2003. Mr King said that the rent receipt was unreliable in that regard and that there were more occasions on which he worked. The documentary evidence was taken no further and was inconclusive, and does not dissuade us from finding that there was regularity and permanence in Mr King’s arrangement with Meilman East.

88 Having regard to the approach taken in Russell, we are satisfied that the evidence shows that Mr Johinke, on behalf of Meilman East, was an employer in relation to Mr King for purposes of s8 of the ADA.

Was there a refusal to employ?

89 When Mr Johinke began as manager he was introduced to Mr King and was that told that Mr King was available to work. King started work at 8am the next day and worked for 55 hours on that particular job. Mr Johinke agreed to set the work off against the rent at the rate of $13.00 per hour and appeared happy with the arrangement. In March 2001 the relationship was fine and Mr King and Mr Johinke went about their own business with no difficulty. However tension arose on the day, says Mr King, when he told Mr Johinke that he, Mr Johinke, was working the wrong paddocks as they had been planted in the previous two years. He says that Mr Johinke “went off his head” swearing that “no black cunt is going to tell me anything”.

90 Mr King says he reported this to his wife and they agreed to simply let it go. Mr King is not Aboriginal and did not think that the Johinkes thought that he was. It is the Johinkes’ evidence that they knew that he was not.

91 Mr King says that he did a week and a half’s further work and then was not required until after the crop went in, when he did 16 hours on the old tractor in about May 2001. He was not asked to do any work after then. He was aware that his work was done instead by Mr Payne.

92 Mr King says that he probably missed out on about two weeks work during winter through Mr Johinke’s decision not to use his services.

93 He denied that he was ever late for work. In response to a suggestion that when he was due to commence work at 7am he in fact commenced work at 11am he said that that was only on Wednesdays when had to attend hospital for his medication, and that Mr Johinke was aware of this. He denied that he was unreliable and he denied that he did not take directions. Mr King agreed that he declined stock work he was offered with sheep, as he has a disability that means he is unable to lift sheep.

94 Mr Johinke wrote to the ADB:

We did employ him [Mr King] on a couple of occasions to do very basic jobs, but did not pay him any money. Instead it was taken off their rent to help them out. Mr King was never a permanent full-time or part-time employee of Meilman East. I found that on the few times Mr King did do any work for us he was unreliable and found it hard to listen to and follow instructions. I have dry land farmed for over eight years and seem to have ongoing arguments with him on how things should be done. We are talking about expensive machinery that he was using and thought it better to wait until more suitable work on the farm became available. In the following weeks the abuse started and I thought to keep us as just neighbours for a while until the situation calms down . . . a retired friend of ours said that he would help out on a mainly volunteer basis, and my wife also found she could do a lot of the work Mr King could have done.

95 In evidence Mr Johinke said that on his arrival at the property, during the handover period, the previous manager, Mr Treglown had told him to use Mr King as a worker only if he had to. He employed Mr King on a couple of occasions to drive the tractor, and on a few occasions to plough and for weed removal. He had cause to tell Mr King to adjust the depth that he was ploughing to remove weeds but Mr King took no notice. Mr King told him that that was the depth that he and Mr Treglown had worked at.

96 Mr Johinke said that on several occasions he gave directions to Mr King which were not followed. On an occasion when Mr King told him he was in the wrong paddock he was merely following the directions that the outgoing manager Mr Treglown had given him. He then decided not to use Mr King again.

97 Mr Johinke denies having said to Mr King that ‘no black cunt could tell him how to do this’. As to punctuality he agreed that there was only one occasion when Mr King was late.

98 Mr Johinke agreed that Mr Payne works for him on a casual basis. He says he is not an invalid pensioner but is semi-retired with experience with sheep. He says that compared with Mr King Mr Payne is completely reliable and follows directions. He had agreed with Mr Harris that he would employ Mr Payne because of his reliability and his ability to follow instructions. He denied that he had not employed Mr King because he, Mr King, was associated with an Aboriginal person.

99 In written response to Mr King’s complaint relating to employment Mr Harris said “Meilman East Pty Limited has never formally employed Mr King. At times when he has fallen behind in rent . . . he has provided some assistance to the manager in lieu of rent. When Mr Johinke commenced managing the property in April 2001 Mr King asked if he could do some part-time casual work. The manager tried Mr King but was dissatisfied with Mr King’s work and attitude. He has not used him since.” In evidence Mr Harris conceded that reference to Mr King’s being behind in the rent was an error.

100 Mr Harris agrees that Mr Johinke called him to confirm whether it was all right that he did not employ Mr King, to which Mr Harris replied that it was up to Mr Johinke to employ the best person for the job.

101 While we are satisfied that Mr Johinke refused to employ Mr King, we are not satisfied that the refusal was on the ground of his race by association. There were other reasons which we accept were grounds for the refusal – principal among them Mr King’s refusal to follow Mr Johinke’s directions – and there is no evidence that his race by association was also a ground.

102 Mr King has therefore failed to substantiate this complaint.

The eviction complaint

103 Mr and Mrs King complain of discrimination on the ground of race by evicting them. There is no dispute that they were evicted: in his written response to the complaints when contacted by the ADB, Mr Harris agreed that Mr and Mrs King “were given two months notice from 19 December 2001 to vacate the premises”. At issue is whether the eviction was less favourable treatment within the meaning of the Act.

104 There is no evidence of a comparator, and the evidence did not indicate that there was a comparator. Other tenants on the property was not in the same or materially similar circumstances in that they did not have the same relationship and dealings as the Kings did with Mr and Mrs Johinke: that relationship and those dealings are integral to the circumstances of the conduct complained of. Accordingly the issue must be decided by reference to a hypothetical comparator.

105 As was noted above in relation to the employment complaint, the question of whether Mr and Mrs King were treated less favourably conflates with the question of whether the treatment was on the ground of Mrs King’s race, or of Mr King’s race by association.

106 There is no direct evidence that Mrs King’s race, or Mr King’s association with Mrs King’s race, was a ground for their being evicted, and there is direct evidence of other grounds for their being evicted. There is however evidence from which it might be inferred that race or association with race was a ground for their being evicted. That evidence relates to the other complaints dealt with above. Thus Mr and Mrs King rely on evidence that is directly relate to the language, and employment complaints as the basis for an inference that race was a ground for the eviction.

107 Meilman East, through its director Mr Harris, has stated its reasons for the eviction. In his written response to the complaints when contacted by the ADB, Mr Harris said that “Mr King’s family has not been requested to quit the premises without reason. It has been because of Mr King’s abusive behaviour to the manager’s family and other rental tenants living next to the cottage. Mr and Mrs King have also recently taken an obstructive attitude in terms of the efficient running of the farm.”

108 Mr Harris wrote that Mr King had “become threatening and verbally abusive to the manager, his wife and children. The police have been called on a number of occasions because of the threats of violence and intimidation. The courts have taken out an anti-violent order against Mr King.”

109 Mr Harris wrote of “the Kings’ recent disruptive practices and the abuse of the new manager and his family”. Mr Harris further wrote that “the reasons that the Kings leave the cottage resident [sic] are:

1. Mr King’s threatening, abusive attitude to and incompatibility with the manager and his family.

2. Mr King’s intimidatory, irrational and abuse behaviour.

3. The Kings deliberate attempt to constantly disrupt the activities of the farming enterprise, these have included:

a) trying to prevent farm stock from grazing areas along the Murray River because they were desecrating sacred Aboriginal sites.

b) trying to prevent irrigation being undertaken for pastures and cropping by contacting the water authority and making spurious claims.

c) requesting for an investigation of the property by Aboriginal heritage officers to support spurious indigenous claims, (resulting in all but one known site, which we have undertaken to fence off to avoid any possible interference).”

110 Mr Harris agreed that the Mr King had been on the property for over ten years and that there had been no real difficulties with the Kings beforehand. He agreed that the problems started after the Johinkes arrived. He agreed that he relied on Mr Johinke’s reports of the Kings’ disrupting the management of the property, and says that he talked to Mr Johinke about these issues. He said that he acted to evict the Kings because of their threatening behaviour which he saw as the last straw. In his view he had to support the managers.

111 In summary, Mr Harris says that there were three grounds for the eviction of Mr and Mrs King: Mr King’s language towards the Johinkes, Mr King’s behaviour towards the Johinkes, and the disruption caused to management of the property by Mrs King’s identification of Aboriginal sites.

112 If the Tribunal is satisfied that these were in fact the grounds for the eviction, it is still possible that race was a further ground. The questions to be answered are

whether the grounds claimed by Mr Harris were in fact the grounds for the eviction,

whether, on all or any of those grounds being established, there remains the reasonable possibility that race was a further ground, and, if so,

whether it can reasonably be inferred from the available evidence that race was in fact a further ground.

113 The first of the three grounds claimed by Mr Harris is that of Mr King’s use of offensive language towards the Johinkes. The evidence of Mr Johinke, and a concession by Mrs King that Mr King “always” swears when he speaks, satisfies us that Mr King did use offensive language to the Johinkes. The account that Mr King gives of his encounter with Mr Johinke on Sunday 4 November, described below, is implausible when judged by reference to the matters being discussed and the history of antagonism between the parties, and we prefer Mr Johinke’s account. We accept Mr King’s use of offensive language towards the Johinkes was a ground for Meilman East’s evicting the Kings.

114 The second of the three grounds claimed by Mr Harris is that of Mr King’s behaviour. Mr Harris’s evidence is that he was aware of the King’s engaging in intimidation and abuse, requiring Mr Johinke to return home from his duties when he received radio calls from Mrs Johinke. Mr Harris relies principally on two incidents, on 3 November and 4 November 2001.

The night of 3 November

115 Mr Harris gave evidence that on the basis of weekly reports he received from Mr Johinke and regular telephone hook ups, he was aware that the relationship between the Johinkes and the Kings was deteriorating. He decided that he had better go to the property to sort the situation out. He was aware of things deteriorating from September/October 2001. Mr Johinke told him that Mr King was not taking instructions, and he was aware of the occasional verbal altercation. He told Mr Johinke that he would come up to try and reconcile the Kings and the Johinkes.

116 Mrs Johinke said that the reason Mr Harris had come to visit the farm was because he had been asked to come and control Mr King’s language. She says that the only complaint she had was in relation to language. She says that she had told Mr Harris that another resident on the property had complained to her about the language. She said that it was only Mr King’s language which gave her reason to complain to Mr Harris. She has no recollection of having spoken to Mr Harris about the Blair report and Aboriginal sites on the land.

117 Mr Harris went to the property on Saturday 3 November 2001.

118 Mrs King’s evidence is that in the evening of 3 November Mrs Johinke walked out of her house saying “I’ll fix those black cunts now”. This was put to Mrs Johinke and she denied it. She denied that she was angered by noise emanating from the Kings’ residence.

119 Mr Harris says that he was having a general discussion with Mrs Johinke in his house on the evening of 3 November when Mr and Mrs King burst in, accusing him of talking about the Kings’ rent payments. Mr Harris says that there had been no discussion about rent payments. He tried to settle the atmosphere down and suggested that they discuss any issues in the morning.

120 Mrs King denies that she “burst in”. She says that Mr Harris opened the door to her. She agrees that her husband was agitated but says it was she, not her husband, who complained about Mr Johinke’s alleging to Mr Harris that the Kings were behind in the rent. She agrees that Mr King swore at Mr Johinke but says it was only after Mrs Johinke had denied alleging that they were behind in the rent.

121 Mr King agrees that he was “hot under the collar”. Mrs King agrees that her husband “always” swears when he speaks.

122 Mrs Johinke denies having said to Mr Harris that the Kings were late in paying their rent. To the contrary, Mrs Johinke says that on being asked by Mr Harris if the Kings were behind in their rent she said no, that they were never behind. She denies that she told Mr Harris that they were behind in their rent but agrees that the dispute with the Kings when they came into the house was about their payment of rent. She says that she does not know how it became an issue: she denies that she said that they were behind in the rent, and further denies that she said so as a means of getting the Kings off the property.

Sunday 4 November

123 On the next morning Mr Harris had a discussion with the Kings in which he told them that they were not needed on the property so if they were unable to live with the Johinkes they would have to go. He says Mrs King showed him the Aboriginal sites, and that the Kings said to him that they would discuss matters with the Johinkes. Mr Harris thought that it was best that the Johinkes and the Kings tried to resolve things themselves.

124 There was then an encounter between the Kings and Mr Johinke on the same morning. Mrs Johinke says she was worried for the sake of the children when she saw Mr King carrying what she thought was a bow and arrow. She thought it was ‘weird’ that he was carrying a bow and arrow, and was worried about the lambs in the irrigation paddock. She denied that she told Mr Johinke to go down to the Kings, and says that she simply told him what she saw and that he went down.

125 Mr Johinke says that he went down to check the sheep which was a standard thing for him to do, and saw Mr King with a compound bow and three or four arrows in a container. He confirmed that the incident occurred as he set out in his police statement.

126 He says that Mr King grabbed him by his shirt and was extremely aggressive, slamming the bow on the bonnet of the car. It shook him up, and alerted him that he may have a problem with Mr King. He says Mr King was agitated but, although drinking beer, appeared to be in control at that point. He says Mr King didn’t remain in control, and started yelling out about not getting any work. Mrs King started talking to him and Mr King came back and put his face six inches from Mrs Johinke’s face, screaming at him. He said Mr King’s conduct was repetitive and he went on asking the same question about work. Mr King accused him of race discrimination because he employed a white man and not Mr King. Mr Johinke in his evidence later agreed that he knew Mr King was not Aboriginal and that Mr King had never held himself out to be Aboriginal.

127 The incident with Mr King ended when Mr Johinke received a radio call from Mrs Johinke. He says that on numerous occasions Mrs Johinke had called him on the UHF radio to report verbal abuse from both Mrs King and Mr King.

128 He agreed that the incident with the bow was not violent but says that it was very confronting.

129 Mrs King says that in fact she and Mr King had a long and calm discussion with Mr Johinke despite Mr Harris’s having refused to arrange a conciliatory meeting among them all.

130 Mrs King says that she reached inside Mr Johinke’s car to turn the engine off and denies that Mr King had grabbed Mr Johinke and yelled at him to get out of the car and “talk like a man”. She denies that Mr King had yelled at Mr Johinke “Do I have to work?”. She denies that Mr King had grabbed the bow he was carrying and walked away yelling at Mr Johinke, returning and continuing to yell about obtaining work. She insists that there was no aggravation, no anger and that they had a “most quiet conversation”.

131 Mrs King agrees that Mr Johinke said that if Mr Harris agreed to employ Mr King then he would do. She agrees that Mr King challenged Mr Johinke for employing someone other than himself, but denied that Mr King had said “You’re employing a white man not me”. She says that Mr King said “You’re employing an invalid pensioner over me”. She denies that Mr King said words to the effect of “I’ll sue you for racial discrimination”. She denies that she demanded a key to the house, but agrees that she did ask for access to the phone and says that Mr Johinke agreed, saying he would give her a key but that his wife was not to know.

132 Mr King’s version is that he had a relaxed conversation with Mr Johinke where he acknowledged that Mr Johinke was a bigger man then he was for having approached him, Mr King, to “bury the hatchet”. Mr King agrees that on his own account of the conversation with Mr Johinke, Mr Johinke had had no reason to go the police and make the complaint that in fact he did make and that resulted in the issue of an apprehended violence order. Mr King was “flabbergasted” and “bamboozled” when the police showed up later that week.

133 Mr King denies that he had been aggressive and he denies Mr Johinke’s account in the statement to police. He denies that he is aggressive all the time but agrees that his wife is always trying to calm him down. He denies he made any reference to race discrimination, but says that instead he had queried Mr Johinke’s employment of “an invalid pensioner”. He denies having demanded a key but agrees that he asked for it. He denies having said that he would sue if he did not receive the key.

134 Mrs Johinke says that when Mr Johinke returned from having been down to see the Kings he was white as ghost. She said he simply shook his head and had a shower before telling her what had happened. She says that after Mr Johinke gave his account she suggested to him that they ask the Euston police what they thought could be done. She denied that she obtained an AVO herself. She said that her saying in her statement “held up by a bow and arrow” was a figure of speech.

135 Mr Harris recalls that Mr Johinke called him about the incident with the bow and arrows and Mr Harris said to Mr Johinke he saw little hope of sorting the issue out, and that he would have to do something about it. Mr Harris then spoke to his family and a solicitor and decided to evict the Kings to enable effective management of the property. Mr Harris says he got the impression that the Johinkes wanted the Kings to go. He says that Mrs Johinke told him that she was fed up.

136 Mr Harris agrees with the Johinkes that the Kings had never been behind in the rent, and says that it was his error in giving the solicitor the impression that that was the case when the solicitor prepared his statement for purposes of these proceedings.

137 As we said above, Mr King’s account of this encounter is implausible when judged by reference to the matters being discussed and the history of antagonism between the parties. We prefer Mr Johinke’s account. We are satisfied that on this occasion Mr King engaged in abusive behaviour towards the Johinkes.

138 On the question of Mr King’s behaviour more generally, and its relevance to the eviction, Mr Johinke wrote to the ADB “I can’t really comment [on the eviction] as it was a joint family decision by the owners of Meilman East Pty Limited. I do feel though it may have been based on the AVO and other abusive situations and would have been done for the safety of us and other families living on Meilman East”.

139 In cross-examination Mr Johinke agreed that he was sick and tired of the Kings and that he had had enough of the abuse. He agreed that he wanted them off the property. Some time prior to the two incidents described in detail above, the Johinkes constructed an expensive 1.8metre high fence around their house to separate it from the King’s house, an indication that there was a deteriorating relationship between the Johinkes and the Kings, and that the Johinkes were not at the time considering evicting the Kings.

140 Mrs Johinke refers in her written reply to the ADB to “harassment and petty allegations we have endured over the past six months”. Mrs Johinke said that “the decision was undertaken by the Harris family to protect all residents of Meilman East. The Kings had verbally abused and threatened not only myself and family over a period of time but also the other family residing on Meilman East”.

141 Mrs Johinke was asked by the Tribunal about her role in the decision to evict the Kings. She said that it was a decision made by all the owners, and her part had been to say to Bill Harris that something had to be done about the fighting and the bickering.

142 We are satisfied that that Mr King’s behaviour towards the Johinkes, or at least Mr Harris’s understanding of Mr King’s behaviour towards the Johinkes, was a ground for Mr Harris deciding to evict the Kings. Further we are satisfied on the evidence that Mr and Mrs Johinke aided and abetted Meilman East in the decision to evict.

Aboriginal sites

143 The third of the three grounds claimed by Mr Harris is the disruption said to have been caused to the management of the property. Mr Harris relies principally on the steps taken by Mrs King to identify Aboriginal sites on the property.

144 In her evidence Mrs King said that she had contacted the National Parks and Wildlife Service as she wished to confirm the status of sites on the property as Aboriginal heritage. Mr Randall Blair attended and reported on the property.

145 Mr Harris said he was aware that the Johinkes were startled because the claims came out of the blue. He characterised the Kings’ raising of Aboriginal sites issue as a deliberate attempt to generate friction with the water authorities.

146 Mr Johinke wrote to the ADB “I had never met [Randall Blair] or spoken with him before until he rang and requested a meeting with myself and my wife about some issues arising from sites on Meilman East. He then told us he had been contacted by a Mr and Mrs King.”

147 Mrs King says that she rang Mr Harris on receiving the eviction notice and was told by him that the notice had been issued because of her having commissioned the report by Mr Blair. She replied to him that she was merely looking after her heritage.

148 Mrs King denied that she, without authority, held herself out as having some official capacity in relation to the local indigenous community and sacred sites. She denied that she had told Mrs Johinke that she was an officer with authority to inspect sacred sites, she denied that she told the Johinkes that they could not farm on a part of Meilman East Station. She said she had been asked by her mother, chair of the Munutenga elders and native title claimants, to inspect pump sites.

149 Cross-examined by Mr Harris Mrs King agrees that she had shown him sites that she believed were Aboriginal sites but which were later established not to have been.

150 Mrs Johinke agrees that Mrs King’s assertion of rights in relation to the land angered her but says that her anger was limited to the restrictions that Mrs King purported to place on the farming activities. She says Mrs King said that sheep could not be put on the land subject to the claim until it was sorted out, and that Mrs Johinke was angry because of the interference in farming issues.

151 Mrs Johinke agrees that she welcomed the report by Mr Blair, and says that she thought the findings were fair. She recalls the findings to have been that there was one site of significance on the border of the property. She said that since the report they have not permitted campers on that part of the property and that it is fenced off. She said that the consequences of the report have no direct effect on her, and did not anger or distress her in any way.

152 When asked whether she was angered by Mrs King’s assertion of rights in relation to the land Mrs Johinke said that she considered that the land rights claim interfered with her husband’s work on the land.

153 There is no contest that Mrs King raised the question of aboriginal sites and called in the NPWS service, or that the existence of such sites restricted to some degree the farming use that can be made of the property. Mr Harris’s evidence is that the disruption caused by the issue of aboriginal sites was a ground for the eviction, and we are satisfied that that was the case.

Was race also a ground for eviction?

154 In light of the findings that the three grounds Mr Harris says that he relied on in evicting the King’s were in fact grounds he relied on, the further question is whether Mrs King’s race – and Mr King’s association with it – was a ground as well.

155 As noted above, in the case of a hypothetical comparator this is the same question as whether the treatment was less favourable than that of a hypothetical comparator not of Mrs King’s race in the same circumstances.

156 The circumstances for purposes of the comparison are that the person ceased to be useful as a worker, used offensive language to neighbours and the manager of the property, engaged in abusive behaviour to the manager of the property, and was active in attempting to ensure that any identified sites were protected.

157 In our view it is likely that a hypothetical comparator in these circumstances would be treated in the same way as the Kings were treated, that is they too would have been evicted. The Kings were not treated less favourably than a hypothetical comparator.

158 Mr and Mrs King have therefore failed to substantiate this complaint.

ORDERS

1. The complaints, not having been substantiated, are dismissed.

2. Pursuant to s114 (1) Anti-Discrimination Act 1977 each party shall pay their own costs.