Murtagh v Taylor (EOD)

[2005] NSWADTAP 18

Appeal Panel - Internal

CITATION:	Murtagh & anor v Taylor (EOD) [2005] NSWADTAP 18
PARTIES:	FIRST APPELLANTS Tina Murtagh and Darren Fenson FIRST RESPONDENT Teresa Taylor SECOND APPELLANT Teresa Taylor SECOND RESPONDENTS Tina Murtagh and Darren Fenson
FILE NUMBER:	049052, 049051
HEARING DATES:	22/03/2005
SUBMISSIONS CLOSED:	03/22/2005
DATE OF DECISION:	05/02/2005
DECISION UNDER APPEAL:	Murtagh & Anor v Taylor [2004] NSWADT 271
BEFORE:	Chesterman M - ADCJ (Deputy President); Britton A - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	leave to extend to the merits - procedural fairness - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	041058
DATE OF DECISION UNDER APPEAL:	11/30/2004
LEGISLATION CITED:	Anti-Discrimination Act 1977 Property, Stock and Business Agents Regulation 2003
CASES CITED:	Carroll v Zielke [2001] NSWADT 146 Caton v Richmond Club Ltd [2003] NSWADT 202 D v Berkeley Challenge Pty Ltd [2001] NSWADT 92 Franks v Marco’s Italian Gourmet Café Pty Ltd [2004] NSWADT 87 Langley v University of New South Wales (1984) EOC 92-018 Murtagh & Anor v Taylor [2004] NSWADT 271 Shellharbour Golf Club v Wheeler [1999] NSWSC 224 Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25 University of New South Wales v Moorhouse (1974-75) 133 CLR 1 Webb v Newcastle Hire Cars Pty Ltd [2004] NSWADT 142 Y v V & X [2003] NSWADTAP 44
REPRESENTATION:	FIRST APPELLANTS & SECOND RESPONDENTS D Hillard, solicitor, A Davis, solicitor FIRST RESPONDENT & SECOND APPELLANT G Casey, solicitor
ORDERS:	1. Both appeals are dismissed; 2. Unless costs are applied for within 28 days of the date of these reasons, there will be no order for costs in either appeal.

1 In these reasons, we set out our decisions on two appeals. One of them, which we call ‘the principal appeal’ (file 049052), raises issues of liability under the Anti-Discrimination Act 1977. In a second appeal (file 049051), the issue raised is one of costs.

THE PRINCIPAL APPEAL

Factual aspects

2 The principal appeal concerns the circumstances in which the owner of a residential property may be liable for unlawful discrimination on the part of a real estate agent who has been retained by the owner to find tenants for the property.

3 The Appellants, Ms Tina Murtagh and Mr Darren Fenson, applied to the Tribunal for an order substantiating a complaint they had made to the Anti-Discrimination Board, to the effect that the Respondent, Ms Teresa Taylor, was vicariously liable for discriminatory conduct by Mr John Barton, a real estate agent whom she had instructed. They also sought an order that Ms Taylor should pay damages to them on account of distress that they had suffered and expenses that they had incurred.

4 In the decision under appeal (Murtagh & Anor v Taylor [2004] NSWADT 271), the Tribunal dismissed the application. Its findings, so far as relevant to the principal appeal, were as follows.

5 In May 2003, Ms Taylor asked Mr Barton to obtain tenants for her four-bedroom rental property in Young.…