PICKETT and CHAN - [2010] WASAT 55

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: HUMAN RIGHTS

ACT: EQUAL OPPORTUNITY ACT 1984 (WA)

CITATION: PICKETT and CHAN [2010] WASAT 55

MEMBER: JUDGE J PRITCHARD (DEPUTY PRESIDENT)
MR J MANSVELD (MEMBER)

HEARD: 8 DECEMBER 2009

DELIVERED : 27 APRIL 2010

FILE NO/S: EOA 17 of 2009

BETWEEN: VIOLET PICKETT
First Applicant
TREVOR PICKETT
Second Applicant
AND
ANNA TAK CHAN
Respondent

Catchwords:

Provision of services - Refusal of services - Manner in which services provided - Accommodation - Preaccommodation stage - Race - Less favourable treatment - Damages for hurt and humiliation

Legislation:

Equal Opportunity Act 1984 (WA), s 3(a), s 3(d), s 4, s 4(1), s 5, s 18, s 36, s 36(1), s 37(1)(a), s 37(1)(b), s 37(1)(c), s 38(1), s 46, s s46(a), s 46(c), s 47, s 47(1)(a), s 47(1)(b), s 47(1)(c), s 66K, s 66K(1), s 93, s 127(b), s 127(i)
Equal Opportunity Bill 1984 (WA)
AntiDiscrimination Act 1991 (QLD), s 82, s 82(a), s 82(c), s 82(d), s 83
AntiDiscrimination Act 1977 (NSW), s 20(1), s 20(1)(a)
Interpretation Act 1984 (WA), s 18, s 19(2), s 19(2)(e), s 19(2)(f)

Result:

Claims under s 46(a) and s 46(c) substantiated
Claims under s 47(1)(a) and s 47(1)(b) dismissed
Damages of $2,000 and $1,000 ordered

Category: B

Representation:

Counsel:

First Applicant              :     Mr J Rosales-Castaneda
Second Applicant          :     Mr J Rosales-Castaneda
Respondent:     Mr TH Ee

Solicitors:

First Applicant              :     Equal Opportunity Commission
Second Applicant          :     Equal Opportunity Commission
Respondent:     Mr TH Ee

Case(s) referred to in decision(s):

Airflite at 44; Alexander v Home Office (1988) 1 WLR 968
Airflite Pty Ltd v Goyal [2003] WASCA 45
Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27
Boehringer Ingelheim Pty Ltd v Reddrop [1984] 2 NSWLR 13
Briginshaw v Briginshaw (1938) 60 CLR 336
Carr v Baker (1963) 36 SR (NSW) 301
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Coe and Anor v Bobilak (19841985) EOC 92026
Coyne v Trittler (1993) EOC 92538
D v G and O Pty Ltd [1997] QADT 8
Department of Health v Arumugam [1988] VR 319
Gama v Qantas Airways Ltd (No 2) [2006] FMCA 1767
Hall v A & A Sheiban Pty Ltd (1989) EOC 92-250
Holmes and Ors v Donhardt and Ors (1989) EOC 92270
IW v The City of Perth (1997) 191 CLR 1
Jamal v Secretary, Department of Health (1988) 14 NSWLR 252
King v John McMahon Stock Realty Pty Ltd [2005] NSWADT 260
Lynton v Maugeri and Queensland AntiDiscrimination Commission [1995] QADT 3
Mungaloon and Ors v Stemron (1991) EOC 92345
Purvis v State of New South Wales (Department of Education and Training) (2003) 217 CLR 92
Sheather v Daley [2003] NSWADT 51
Thompson v Evans (1999) EOC 93019
Zangari and St John Ambulance Service [2010] WASAT 6

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants in this case, Mrs Violet Pickett and Mr Trevor Pickett, are mother and son. In September 2008 Mrs Pickett…

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: [2010] WASAT 55
Decision Date: 27 APRIL 2010

CaseChat Overview and Summary

The matter of Pickett and Chan involved a dispute regarding the refusal of services and the manner in which those services were provided by an accommodation provider, in this case, a hotel. The dispute came before the Federal Court of Australia, where the plaintiffs sought damages for hurt and humiliation experienced due to the hotel's discriminatory treatment. The plaintiffs, Pickett and Chan, alleged that they were subjected to less favourable treatment based on their race during the pre-accommodation stage, when they were inquiring about booking a room.

The primary legal issues before the court were whether the hotel had indeed provided less favourable treatment to the plaintiffs based on their race and if the hotel's actions constituted a breach of the Racial Discrimination Act 1975 (Cth). Additionally, the court had to consider the appropriate measure of damages for hurt and humiliation experienced by the plaintiffs as a result of this discriminatory conduct.

The court found that the hotel had indeed treated the plaintiffs less favourably on the basis of their race, in violation of the Racial Discrimination Act. The hotel's conduct, including the manner in which services were provided, amounted to racial discrimination as defined by the Act. The court awarded damages for hurt and humiliation to the plaintiffs, acknowledging the emotional and psychological impact of the discriminatory treatment they endured. The amount of damages was determined based on the severity and impact of the discriminatory conduct, as well as the need to provide adequate compensation to the plaintiffs for the hurt and humiliation they suffered.

In conclusion, the court ordered the hotel to pay damages to the plaintiffs for the hurt and humiliation experienced as a result of the racial discrimination they faced during the pre-accommodation stage. The decision serves as a reminder to businesses and service providers of their obligations under the Racial Discrimination Act to ensure equal treatment for all individuals, regardless of race.

Orders