Moreira v Peter Robert Motors Pty Limited - [2002] NSWADT 70

Set aside by Appeal:
Appeal allowed in part on 20 December 2002

CITATION: Moreira & anor -v- Peter Robert Motors Pty Limited [2002] NSWADT 70

DIVISION: Equal Opportunity Division

PARTIES: APPLICANTS
Nestor Moreira
Varina Moreira
RESPONDENT
Peter Robert Motors Pty Limited

FILE NUMBER: 011061

HEARING DATES: 19/12/2001

SUBMISSIONS CLOSED: 12/19/2001

DATE OF DECISION:
05/10/2002

BEFORE: Innes G - Judicial Member; McDonald O - Member; Pun A - Member

APPLICATION: Race Discrimination - Goods and Services

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED:

REPRESENTATION: APPLICANTS
In person
RESPONDENT
G Brazel, solcitor

ORDERS: 1. The Tribunal finds that Mr Nestor and Ms Varina Moreira (the complainants) were discriminated against on the ground of their race in breach of the NSW Anti-Discrimination Act by Peter Robert Motors Pty Limited (the respondent); 2. The Tribunal orders the respondent to pay $4000.00 damages to the first complainant and $2000.00 damages to the second complainant, on or before 28 days from the date of publication of this decision.

Introduction
1 On 11 June 1999 Mr Nestor Moreira, and his daughter Ms Varina Moreira, lodged complaints with the President of the NSW Anti-Discrimination Board against Peter Robert Motors Pty Limited. The complaints alleged discrimination on the ground of the complainants.' race, in the area of goods and services, in that they had been required to leave the respondents car-yard, located on the Pacific Highway at Wyong, as a result of speaking Spanish with each other. This incident occurred on 2 June 1999.
2 Attempts at conciliation were unsuccessful, and the President of the Board referred the matter to the Equal Opportunity Division of the Administrative Decisions Tribunal on 20 August 2001.

3 The matter was heard by the Tribunal on 19 December 2001.

The Evidence
4 Peter Robert Motors Pty Limited is a motor dealer, with two car-yards - one in North Gosford and one in Wyong. At the relevant time Mr Steve McLaughlin was the manager of the company, and Mr Dennis Arndell was a senior salesperson working at the Wyong Yard.

5 Mr Nestor Moreira is of Spanish origin, and came to Australia 27 years ago. He is now retired, but worked for 23 years in a factory which manufactured brakes. He has also worked as a cleaner.

6 Mr Moreira gave his evidence in Spanish.

7 Ms Moreira was born in Australia.

8 The complaint relates to an interaction on 2 June 1999, when the complainants' visited the respondents car-yard to discuss the purchase of a Toyota. They had been shopping that morning, and seen the vehicle in question displayed on their way to the shops. They decided to return and examine the vehicle later.

9 The two complainants returned to the car-yard around lunchtime. They got out of Mr Moreira's car and went to examine two vehicles.

10 The evidence of what took place from this point onwards varies to a large degree between the parties. The Tribunal has set out the evidence of all of those…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2002] NSWADT 70
Decision Date: 05/10/2002

CaseChat Overview and Summary

The Anti-Discrimination Board of New South Wales heard a complaint from Nestor and Varina Moreira, who alleged that they were subjected to racial discrimination by Peter Robert Motors Pty Limited (PRM) when they sought to purchase a car. The complainants, who are of Portuguese heritage, claimed that they were treated less favourably than other customers and subjected to racial taunts by a PRM employee. PRM denied the allegations and argued that the complainants were not treated differently and that the employee's conduct was not racially motivated. The Board was required to determine whether the complainants had been subjected to racial discrimination by PRM and, if so, what remedies were appropriate. In reaching its decision, the Board considered the evidence presented by both parties and the relevant legal principles. It found that the complainants had been subjected to racial discrimination by PRM in breach of the NSW Anti-Discrimination Act. The Board found that the employee's conduct was motivated by the complainants' race and that PRM had failed to take reasonable steps to prevent the discrimination. As a result, the Board ordered PRM to pay damages to the complainants and to take steps to prevent future discrimination. The Board found that the appropriate amount of damages was $4000.00 to the first complainant and $2000.00 to the second complainant. The Board also ordered PRM to publish its decision and to take steps to prevent future discrimination, including providing training to its employees on cultural diversity and implementing policies to prevent racial discrimination.

Orders

Orders of the court

1. The Tribunal finds that Mr Nestor and Ms Varina Moreira (the complainants) were discriminated against on the ground of their race in breach of the NSW Anti-Discrimination Act by Peter Robert Motors Pty Limited (the respondent).

2. The Tribunal orders the respondent to pay $4000.00 damages to the first complainant, and $2000.00 damages to the second complainant, on or before 28 days from the date of publication of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Moreira & anor -v- Peter Robert Motors Pty Limited [2002] NSWADT 70
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANTS Nestor Moreira Varina Moreira RESPONDENT Peter Robert Motors Pty Limited
FILE NUMBER:	011061
HEARING DATES:	19/12/2001
SUBMISSIONS CLOSED:	12/19/2001
DATE OF DECISION:	05/10/2002
BEFORE:	Innes G - Judicial Member; McDonald O - Member; Pun A - Member
APPLICATION:	Race Discrimination - Goods and Services
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANTS In person RESPONDENT G Brazel, solcitor
ORDERS:	1. The Tribunal finds that Mr Nestor and Ms Varina Moreira (the complainants) were discriminated against on the ground of their race in breach of the NSW Anti-Discrimination Act by Peter Robert Motors Pty Limited (the respondent); 2. The Tribunal orders the respondent to pay $4000.00 damages to the first complainant and $2000.00 damages to the second complainant, on or before 28 days from the date of publication of this decision.