Peter Roberts Motors Pty Ltd v Moreira & anor (EOD)

[2002] NSWADTAP 44

Appeal Panel

CITATION:	Peter Roberts Motors Pty Ltd v Moreira & anor (EOD) [2002] NSWADTAP 44
PARTIES:	APPELLANT Peter Roberts Motors Pty Ltd RESPONDENTS Nestor Moreira and Varina Moreira
FILE NUMBER:	029025
HEARING DATES:	27/08/02
SUBMISSIONS CLOSED:	08/27/2002
DATE OF DECISION:	12/20/2002
DECISION UNDER APPEAL:	Moreira & anor v Peter Robert Motors Pty Limited [2002] NSWADT 70
BEFORE:	Latham M - DCJ (Deputy President); Loukas C - Judicial Member; Alt M - Member
CATCHWORDS:	adequacy of reasons - evidence - mutually corroborative evidence - statutory interpretation
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	011061
DATE OF DECISION UNDER APPEAL:	05/10/2002
LEGISLATION CITED:	Anti-Discrimination Act 1977 Evidence Act 1995
CASES CITED:	Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29; 49 NSWLR 262 Jones v Great Western Railway Co (1930) 47 TLR 39 Carr v Baker (1936) 36 SR(NSW) 301 Layton v Vines (1952) 85 CLR 352 Lewis & anor v Registrar Consumer Claims Tribunal & anor [1999] NSWSC 381 Devries v Australian National Railways Commission (1993) 177 CLR 472 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Athens & anor v Randwick City Council [2002] NSWCA 83
REPRESENTATION:	APPELLANT B Vukedinovic, barrister RESPONDENT In person
ORDERS:	Date of Orders: 27/08/02; Appeal dismissed in part.; Appeal allowed as to the failure of the Tribunal to determine the issue of mitigation of damages.; Remitted to the Tribunal below to determine, on the evidence at first instance, whether there was an attempt to mitigate damages, and if so, the extent to which the award of damages is affected.

1 The Appellant, Peter Roberts Motors Pty. Limited, appeals against a decision of the Tribunal of the 10 May 2002. That decision found the Appellant had contravened the Anti Discrimination Act 1977 in that their employee discriminated against the Respondents on the grounds of their race, in the provision of services and/or in the terms under which those services were provided to the Respondents.

2 The evidence before the Tribunal is set out at paras 4 to 58 inclusive of the decision and the findings of fact are set out at paras 59 to 64 inclusive of the decision. In essence, the complainants/Respondents attended the Appellant’s car yard on 2 June 1999 with a view to purchasing a car after trade-in of their existing vehicle. The Appellant’s employee discussed a proposed trade-in price with Varina Moreira, who then communicated it to her father, Nestor Moreira, in Spanish, that being his dominant language. In the midst of that conversation in Spanish, the Appellant’s employee demanded that the Respondents leave the yard.

3 The Appellant alleges that the Tribunal below made the following errors of law:-

(i) The Tribunal misconceived the requirements of section 7 of the Anti Discrimination Act 1977 (the AD Act) in finding that the Appellant’s employee’s conduct constituted less favourable treatment.

(ii) The Tribunal misconceived the requirements of section 7 of the AD Act in finding a causal nexus between the Appellant’s employee’s conduct and the fact that the Respondents were speaking Spanish.

(iii) The Tribunal misconceived section 19 of the AD Act in finding that the Appellant’s employee was providing a service to either one or both of the Respondents at the time that he asked them to leave the premises.

(iv) The Tribunal erred in law in determining that the evidence of each of the Respondents was mutually corroborative.

(v) The Tribunal erred in failing to take into account and failing to make a finding in respect of the remedial actions of the Appellant in the period immediately after the conduct forming the basis of the complaint.

(vi) The Tribunal misconstrued Section 113 (b)(i) of the AD Act in that the Tribunal failed to make a finding as to loss and damage suffered by the complainants and accordingly awarded damages of a punitive nature.

(vii) The Tribunal’s reasons were insufficient at law.

4 Section 7 of the AD Act relevantly provides :-

1. 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 an associate of a different race.

5 The Appellant’s argument on this ground of the appeal centred on a submission to the effect that less favourable treatment could not be established in the absence of evidence upon which to base a finding that the Appellant’s employee would have treated other English speaking customers differently to the way in which he treated the Respondents. It was contended that the Tribunal was not entitled to conclude that if the Appellant’s employee had treated English speaking customers in the same manner that he had treated the Respondents, he would not have been employed by the Appellants.

6 This submission completely ignores the Tribunal’s summary of the evidence at paragraphs 26 to 30 of its decision. This account was accepted by the Tribunal in preference to that given by the Appellant/Respondent. The Panel sets out these paragraphs in full below, in order to place the Appellant’s argument on this ground in its proper context.

“Ms Moreira stated that while Mr Arndell [the employee] was showing them the car, she did all of the talking. She said that her father had asked her to ask Mr Arndell what he would give for Mr Moreira’s car, a Holden Astra, which she did. Mr Arndell went and looked at the car, opening doors and bonnet, and made a call on his mobile phone. He came back to them and offered $2000.00.

Ms Moreira said that she repeated this figure to her father in Spanish. Her father replied, also in Spanish, ‘It’s not enough, don’t worry about it, it’s alright, let’s go.’

Ms Moreira stated that at this point Mr Arndell started going red in the face and said ‘what, you don’t talk English’. Then Mr Arndell said ‘get out, get out, get out of my car yard’.

Ms Moreira stated that when these words, which were supported by gestures, were said, her father went pale. Then they started to leave. As they were leaving, Ms Moreira stated that she said ‘do you know what year it is ?’ to which Mr Arndell replied ‘der’. Ms Moreira stated that she then said, ‘you’re discriminating against us’ to which Mr Arndell replied ‘go and dob me in’.”

7 It is immediately apparent from this brief recitation of the evidence that the Appellant’s employee’s conduct towards the Respondents, namely “what, you don’t talk English…….get out, get out, get out of my caryard”, followed hard on the heels of a conversation between the Respondents in Spanish. In these circumstances it appears to the Panel eminently reasonable to draw the inference that it was the failure on the part of the Respondents to speak in English (thereby keeping the Appellant’s employee ignorant of the Respondent’s reaction to his trade-in offer) which triggered the employee’s command to the Respondents to leave the business premises. Moreover, upon the Respondents’ immediate complaint to the employee that he was discriminating against them, the employee in effect threw down the gauntlet. We shall return to this aspect of the matter when discussing Ground 2 below.

8 The Tribunal was, in the view of the Panel, justified in determining that the Appellant’s employee’s treatment of the Respondents was clearly less favourable treatment within the terms of section 7 of the AD Act, in the sense that other English-speaking customers would not have been treated in the same fashion in the same or similar circumstances. It is inherent in the Appellant’s employee’s conduct towards the Respondents that they would not have been directed to leave the yard if they had conversed between themselves in English. It is stretching credulity to assert that if he had behaved that way towards all, or even some, potential English-speaking customers, he would have been retained by the Appellant as an effective salesman.

9 Whilst it is true that at paragraph 68 of the decision the Tribunal makes a finding in relation to less favourable treatment by reference to a comparator of “other customers,” paragraph 70 of the decision makes it abundantly clear that the comparator in the circumstances of the decision, and for the purposes of the Tribunal’s ratio, was the English speaking customer, but more particularly the customer who could not converse in a language other than English. The latter characteristic was, according to the Appellant’s employee’s comments and behaviour towards the Respondents, a pre requisite to his willingness to negotiate a deal on his terms. In short, the Panel can discern no error in the approach adopted by the Tribunal to the application of section 7 (1) (a) of the AD Act.

10 A related submission criticised the Tribunal's approach at paras 65 to 70 inclusive of the decision, in terms of the order in which the Tribunal dealt with the provisions of the AD Act. It was said that the Tribunal had fallen into an error of approach identified by the decision of Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5. In short, the Tribunal had turned its attention to the requirements of s 7 of the AD Act (paras 66, 67, 68 and 69) before it considered the requirements of s 19. According to the Appellant, the decision in Aldridge mandates the reverse approach, that is, a consideration of s 19 before the requirements of s 7 arise. In this regard the Appellant relies on the following statement from Aldridge, namely "what the Tribunal should have done was determine whether each impugned act of the [respondent to the complaint] fell within the relevant substantive provision of the Act. Having done so the Tribunal should then have determined whether in respect of each impugned act, [the respondent] treated [the complainant] less favourably than it treated or would have treated a [person of a different race] in the same circumstances or in circumstances which were not materially different."

11 It should be noted that the substantive provision with which the Tribunal in Aldridge was concerned was s 8 of the AD Act. That section renders it unlawful for an employer to discriminate against a person on the ground of race. The substantive provision in the instant matter is s 19, which renders it unlawful for a person to discriminate against another person on the ground of race in the provision of goods or services and/or in the terms upon which the services are provided.

12 Whilst the Panel in Aldridge was entitled to express a view as to the preferred approach by the Tribunal in the circumstances of that particular case, we do not agree with the submission that a failure to follow that approach strictly will constitute error in every case, necessarily resulting in the vitiation of the decision. In the instant matter, assuming that the Tribunal were correct in determining that the Appellant was providing a service to the Respondents at the relevant time (see Ground 3), nothing turns on the Tribunal’s consideration of s 7 prior to its consideration of s 19 of the AD Act. This ground of the appeal fails.

Ground (ii) – On the Ground of Race

13 Section 7 (2) of the AD Act provides that for the purposes of sub section (1) (a) something is done on the grounds of a person’s race if it is done on the ground of a characteristic that appertains generally to persons of that race.

14 At paragraph 67 of the decision, the Tribunal determined that both of the complainants/Respondents spoke Spanish and that their native language was clearly a characteristic appertaining to their race. There was no issue taken with that aspect of the Tribunal’s decision.

15 The Appellant does take issue, however, with the Tribunal’s finding (at para 67) that the Appellant’s employee acted in the way he did because the Respondents were speaking to each other in Spanish whilst at the Appellant’s business premises. Whilst the grounds of appeal filed by the Appellant cast this ground in terms of a misconception of the requirements of s 7, the submissions on the hearing of the appeal complained that there was no evidence upon which a causal connection could be established between the employee’s conduct and the Respondents’ race (that is, in the circumstances of this matter, a characteristic of the Respondents’ race). In effect, said the Appellant, the Tribunal had engaged in mere speculation or conjecture.

16 Whether or not a sufficient causal relationship can be said to exist between the impugned conduct and the race of a complainant is very often a matter of inference for the tribunal of fact. It is rare in the field of anti discrimination litigation for there to be direct evidence of the basis upon which the respondent acts towards a given complainant. It is also trite law that proof of intention on the part of a respondent is not required. What is required is that the complainant establish to the appropriate standard that a reason for the impugned conduct is the complainant’s race, once less favourable treatment has been made out.

17 Whilst it has been observed that it may be difficult in the circumstances of some cases, which call for a finding on the issue of causation, to distinguish between inference and conjecture (see Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29 ; 49 NSWLR 262), the Panel is satisfied that this case is not one of them. Conjecture has been equated to “a mere guess” whereas “an inference in the legal sense …… is a deduction from the evidence, and if it is a reasonable deduction it may have validity as legal proof.” : per Lord Macmillan in Jones v Great Western Railway Co (1930) 47 TLR 39, cited with approval in Seltsam. Further, in Carr v Baker (1936) 36 SR(NSW) 301, Sir Frederick Jordan said (at 306) “the existence of a fact may be inferred from other facts when those facts make it reasonably probable that it exists”. In summary, provided that there are primary facts from which the inference can be made, and it is reasonable to draw the inference, there is no error of law (see also Layton v Vines (1952) 85 CLR 352 at 358).

18 The primary facts found by the Tribunal were that the Respondents were in the process of negotiating a trade in price with the employee of the Appellant ; the employee offered (in English) a sum of money as trade in ; the Respondents spoke to each other in Spanish in the presence of the employee ; the employee demanded that they leave the yard, commenting at the same time that they were not conversing in English ; the Spanish language is a characteristic of the Spanish race. Given those primary facts, the inference drawn by the Tribunal, that the employee behaved in that fashion towards the Respondents on the ground of the Respondents’ race, was reasonable. This ground of the appeal fails.

Ground (iii) - Provision of Goods and Services

19 The Appellant contends that there was no relevant refusal of a service to the Respondents. According to this submission, no such refusal was established on the evidence because no service was being provided once the Respondents decided to leave the yard. The proposition advanced by the Appellants on this ground might be restated as follows ; the service was terminated by the Respondents (albeit that decision to terminate was not communicated to the Appellant’s employee) and was not terminated by the provider of the service, on the evidence before the Tribunal. Inherent in this proposition is an acceptance that the Appellant, through its employee, was providing a service to the Respondents at the stage at which the Respondents commenced to converse in Spanish.

20 The Tribunal’s finding on this issue appears at para 70 of the decision. Two bases for a contravention of s 19 were established, namely, requiring the Respondents to leave the yard constituted a refusal of a service and requiring the Respondents to speak English constituted the provision of a service on discriminatory terms. Even if the Appellant’s contention, that the service was terminated by one of the Respondents before the alleged discriminatory act occurred, is accepted (a contention with which the Panel does not agree), it was nonetheless open to the Tribunal to conclude from the evidence that the Appellant’s employee was only prepared to provide a service on the condition that the Respondents spoke English. On any interpretation of the evidence, the Appellant was providing a service to the Respondents at least until they commenced to converse in Spanish. Regardless of the Respondents’ intention to continue to avail themselves of that service, the continued provision of the service was subject to a discriminatory term.

21 In any event, the Appellant’s submission on this ground misconstrues s 19 of the AD Act. It does not require proof of the fact that a service is being provided when the discriminatory act takes place – s 19 is directed to “a person who provides …. services”. The reference to “goods or services” is descriptive of the class of persons caught by the provision and says nothing as to whether services are in fact provided. This ground of the appeal fails.

Ground (iv) – Corroboration of the Respondents’ Evidence

22 This ground of the appeal may be dealt with shortly. The Appellant contends that the Tribunal erred in law in that it found that “Mr and Ms Moreira’s evidence is corroborative, and consistent with the complaint written by Ms Moreira and signed by Mr Moreira days after the events occurred. Whilst Mr Moreira cannot confirm all of the conversations, because of his inability to speak English, he can corroborate the events and the key words spoken, as well as the tone in which they were spoken, and the accompanying gestures.” (para 60)

23 The Tribunal is not bound by the rules of evidence. Even if it was, the Evidence Act 1995 (NSW) abolished the common law rules relating to corroboration. It is no longer a term with any particular legal significance. It appears to the Panel that the Tribunal meant to convey, by the comments quoted above, that Ms Moreira’s evidence generally supported Mr Moreira’s evidence and vice versa. There is nothing wrong with that observation in the context of providing reasons for preferring the evidence of the complainants/Respondents to that of the witnesses for the respondent/Appellant. No error of law is disclosed.

24 In support of this ground, the Appellant’s counsel took the Panel to a number of alleged minor discrepancies in the evidence, in order to persuade the Panel that the Tribunal’s use of the term “corroborative” was unjustified, and in order to support a submission that the Tribunal’s preference for the evidence of the complainants/Respondents was against the weight of the evidence. The reasons provided by the Tribunal for that preference are set out at paras 60 to 62 inclusive of the decision.

25 The answer to the latter submission is that a contention that findings of fact are against the weight of the evidence in a given case does not raise a question of law ; Lewis & anor v Registrar Consumer Claims Tribunal & anor [1999] NSWSC 381. Moreover, findings of fact based substantially on the credibility of a witness should only be set aside if the findings were “glaringly improbable” ; Devries v Australian National Railways Commission (1993) 177 CLR 472. We are not persuaded that the Tribunal’s findings can be characterised as such. Even if we were inclined to adopt a different view of the facts (which we are not), that would not be sufficient to warrant intervention. There is no substance to this ground of appeal.

Ground (v) – Mitigation of Damages

26 The Appellant submits that the Tribunal made no findings of fact in relation to attempts by the Appellant to mitigate the damages and accordingly, erred in failing to take account of mitigation in the assessment of the monetary sum awarded to the Respondents.

27 This submission has merit. The Tribunal related the evidence of Mr McLaughlin on this issue at para 38 of the decision, but failed to refer to it again. The Tribunal dealt exclusively with Mr McLaughlin’s evidence in terms of liability, but failed to indicate whether it accepted his evidence that he had apologised to Ms Moreira and offered to assist personally in any future negotiations. The evidence on this issue was in conflict ; Ms Moreira gave evidence that no such offer was extended to her (see para 32).

28 In the absence of a finding of fact on this aspect of the evidence, the Tribunal could hardly address its significance to the question of damages. Not having enjoyed the benefit of hearing and observing the witnesses at first instance, the Panel has no option but to uphold this ground of the appeal and remit the matter to the Tribunal below for a determination on the question whether mitigation is established, and, if it is, its impact on the assessment of damages.

Ground (vi) – Punitive Damages

29 Section 113(1)(b)(i) of the AD Act provides that the Tribunal may order the respondent to pay to the complainant damages by way of compensation for any loss or damage suffered by reason of the respondent's conduct.

30 The Appellant took issue with the award of damages to Ms Moreira on the basis that the Tribunal made no finding of any loss or damage suffered by her. In addition, the Appellant claims that the general damages award in respect of both complainants was excessive, given that the Tribunal found that the incident was brief and seemingly transient in its effects.

31 As to the alleged failure by the Tribunal to make a finding in relation to damage suffered by Ms Moreira, that submission overlooks the comments made at para 78 of the decision. The Tribunal refers to Ms Moreira's "anger and upset as a result of the incident". The Tribunal was entitled to have regard to Ms Moreira's evidence of her distress in this regard, immediately after the incident and arising directly therefrom, when considering the question of damages for hurt, humiliation and injury to feelings.

32 The amount of the award of damages in respect of each complainant is not so far outside the acceptable range that it might be said to demonstrate error. The Appellant relied upon the fact that the award in favour of Mr Moreira constitutes ten per cent of the maximum available in this jurisdiction, but the approach to the assessment of damages is not a mathematically precise exercise.

33 The Panel is not persuaded that the Tribunal did anything resembling the award of punitive damages. This ground of the appeal fails.

Ground (vii) – Failure to Provide Sufficient Reasons

34 This ground was developed during the hearing of the appeal. Whilst it was not part of the grounds filed with the notice of appeal, it arose out of counsel’s submission on grounds 1, 2 and 4.

35 The extent of the obligation to provide reasons has been expressed in terms of apprising “the parties of the broad outline and constituent facts of the reasoning on which [the tribunal] has acted, [rather than] to require that [the tribunal] detail the way in which [it] has reasoned step by step to [its] conclusion” ; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 273. More recently, it has been said that “the touchstone of ability to understand why the decision was made does not call for reference to all the evidence in the case, or for resolution of all conflicts of fact. Nor does it call for explicit description of every step in a chain of reasoning : indeed, in the decision-making process there are often judgmental steps which can only be stated without elaboration.” ; Athens & anor v Randwick City Council [2002] NSWCA 83 per Giles JA.

36 In the view of the Panel, it cannot be said that a reading of the decision does not inform the parties of the reasons for the Tribunal’s decision in the sense outlined by the Court of Appeal. The Tribunal sets out the evidence at length (paras 4 – 58), explains its findings of fact in terms of the manner in which it resolved the conflicts in the evidence (paras 59 – 63), then applies the facts as found to the applicable law (paras 65 – 76). We do not discern any inadequacy in the reasons provided which would warrant the inference that the Tribunal has failed to exercise its powers according to law. This ground of the appeal also fails.

37 Accordingly, the Panel makes the following orders :-

Appeal dismissed in part.

Appeal allowed as to the failure of the Tribunal to determine the issue of mitigation of damages.

Remitted to the Tribunal below to determine, on the evidence at first instance, whether there was an attempt to mitigate damages, and if so, the extent to which the award of damages is affected.