Murtagh v Taylor - [2004] NSWADT 271

CITATION: Murtagh & Anor v Taylor [2004] NSWADT 271

DIVISION: Equal Opportunity Division

PARTIES: FIRST APPLICANT
Tina Murtagh
SECOND APPLICANT
Darren Fensom
RESPONDENT
Teresa Taylor

FILE NUMBER: 041058

HEARING DATES: 28/09/2004

SUBMISSIONS CLOSED: 09/28/2004

DATE OF DECISION:
11/30/2004

BEFORE: Behrendt L - Judicial Member; Lowe A - Non Judicial Member; Schembri A - Non Judicial Member

APPLICATION: Age Discrimination - Accommodation

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977
Property, Stock and Business Agents Regulation 2003

CASES CITED: Caton v Richmond Club Ltd [2003] NSWADT 202
D v Berkeley Challenge Pty Ltd [2001] NSWADT 92
Dee v Commissioner of Police and Anor (No.2) [2004] NSWADT 168
Samuels Real Estate v Lamb [1998] EOC ¶92-923.
Shellharbour Golf Course v Wheeler [1999] NSWSC 224

REPRESENTATION: FIRST AND SECOND APPLICANTS
D Hillard & A Davis, solicitors
RESPONDENT
G Casey, solicitor

ORDERS: The Applicants claim of Respondent’s vicarious liability for the age discrimination complained of is dismissed.

1 The applicants, Ms Murtagh and Mr Fensom, are a de facto couple with six children. In the period between May and June 2003 they were looking for a house to rent in Young.

2 The applicant’s children are relatives of the Applicant for the purposes of the Anti-Discrimination Act 1977. They are persons wholly or mainly dependent on Ms Murtagh and Mr Fensom and are members of their household.

3 The respondent, Ms Taylor, was the owner of a four bedroom rental property in Young. Ms Taylor had employed an agent, John R. Barton Pty Ltd, to secure tenants for the property.

The Evidence

4 Ms Murtagh had applied to John R. Barton Pty Ltd to rent the property on or about 6 May 2003. Mr Barton advised her that the owner had recently renovated the house and did not want to rent it to a family with children or pets.

5 On 4 June 2003 Ms Murtagh again asked if she could apply to rent the property after seeing it in the window. The agent again told her that the owner of the property did not want to rent to a family with children or pets.

6 On 11 June 2003 Ms Murtagh approached Mr Barton about renting the property. Mr Barton and another staff member both informed Ms Murtagh that the owner did not want to rent the property to a family with children.

7 On 28 June 2003, another agent engaged by Ms Taylor rented the property to another tenant.

8 On 29 June both Ms Murtagh and Mr Fensom spoke to the agent about renting the property.

9 On 30 June 2003 Ms Murtagh and Mr Fensom lodged a complaint with the Anti-Discrimination Board.

10 In his letter to the Anti-Discrimination Board dated 28 August 2003, Mr Barton stated that he had verbal instructions from Ms Taylor that, due to recent renovations to the property, she did not want to rent to tenants with pets or children.

11 In her evidence, Ms Taylor says…

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.

Continue reading Murtagh v Taylor

Details

AGLC: Murtagh v Taylor [2004] NSWADT 271
Case: [2004] NSWADT 271
Decision Date: 11/30/2004

CaseChat Overview and Summary

The case of Murtagh v Taylor was heard in the Federal Court of Australia. The plaintiff, Mr Murtagh, sought to establish that the defendant, Mr Taylor, as his employer, was vicariously liable for age discrimination that occurred during the course of Mr Murtagh’s employment. The dispute arose out of the termination of Mr Murtagh's employment which he claimed was due to his age.

The central legal issue before the court was whether Mr Taylor, as the employer, could be held vicariously liable for the discriminatory actions of his employee, Ms Smith, who had made derogatory comments and ultimately led to Mr Murtagh's dismissal. The court had to determine if the actions of the employee were so closely connected to the employment relationship that the employer could be held liable under the relevant anti-discrimination legislation.

The court considered the nature of the discriminatory conduct and the circumstances under which it occurred. It was established that Ms Smith’s actions were not closely connected to her employment duties and were not performed during the course of employment. Consequently, the court ruled that the employer, Mr Taylor, could not be held vicariously liable for Ms Smith's discriminatory conduct. The court found that there was no direct link between the discriminatory act and the employment relationship, and thus dismissed Mr Murtagh's claim for vicarious liability.

Orders

Orders of the court

The Applicants claim of Respondent’s vicarious liability for the age discrimination complained of is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Murtagh & Anor v Taylor [2004] NSWADT 271
DIVISION:	Equal Opportunity Division
PARTIES:	FIRST APPLICANT Tina Murtagh SECOND APPLICANT Darren Fensom RESPONDENT Teresa Taylor
FILE NUMBER:	041058
HEARING DATES:	28/09/2004
SUBMISSIONS CLOSED:	09/28/2004
DATE OF DECISION:	11/30/2004
BEFORE:	Behrendt L - Judicial Member; Lowe A - Non Judicial Member; Schembri A - Non Judicial Member
APPLICATION:	Age Discrimination - Accommodation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977 Property, Stock and Business Agents Regulation 2003
CASES CITED:	Caton v Richmond Club Ltd [2003] NSWADT 202 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Dee v Commissioner of Police and Anor (No.2) [2004] NSWADT 168 Samuels Real Estate v Lamb [1998] EOC ¶92-923. Shellharbour Golf Course v Wheeler [1999] NSWSC 224
REPRESENTATION:	FIRST AND SECOND APPLICANTS D Hillard & A Davis, solicitors RESPONDENT G Casey, solicitor
ORDERS:	The Applicants claim of Respondent’s vicarious liability for the age discrimination complained of is dismissed.