Prakash v Bobb Borg Enterprises Pty Ltd

[1999] NSWADT 73

CITATION:	Prakash -v- Bobb Borg Enterprises Pty Limited [1999] NSWADT 73
DIVISION:	Equal Opportunity
APPLICANT:	Ram Prakash
RESPONDENT:	Bobb Borg Enterprises Pty Limited
FILE NUMBER:	65 of 1998
HEARING DATES:	07/15/1999
SUBMISSIONS CLOSED:
DATE OF DECISION:	20 September 1999
BEFORE:	N Rees - Judicial Member K Edwards - Member L Lau - Member
PRIMARY LEGISLATION:	Anti-Discrimnation Act 1977
APPLICATION:	Race Discrimination - Goods and Services -
MATTER FOR DECISION:	Application under S111(1) of Anti Discrimination Act for dismissal of complaint
REPRESENTATION:	Applicant: In person Respondent: P Curry, agent
ORDERS:	1. Complaint dismissed

Reasons for Decision

Introduction

1 In this case the Complainant, Mr Ram Prakash, alleges that he has suffered racial discrimination at the hands of the Respondent, Bobb Borg Enterprises Pty Limited (trading as Robert R Andrew).

2 The matter was heard by the Tribunal in Sydney on 15 July 1999. The Complainant was not legally represented and appeared in person. The Respondent company was not legally represented and Mr Paul Curry, a former employee of the Respondent, appeared before the Tribunal, purportedly as the agent of the Respondent. In view of the decision of the Tribunal, and the order made in this case, it is not necessary, in our opinion, to conclusively determine the issue of Mr Curry’s capacity to represent the Respondent in this matter. It is an issue, however, to which the Tribunal turned its mind even though no objection to Mr Curry’s capacity to represent the Respondent was raised by the Complainant. The matter is discussed in more detail at paragraphs 19-26.

3 At the conclusion of the evidence for the Complainant, and after hearing argument from both parties, the Tribunal determined that the complaint was both “misconceived” and “lacking in substance”. Accordingly, acting pursuant to s111(1) of the Anti-Discrimination Act 1977 (“the Act”), the Tribunal dismissed the complaint.

4 We set out below the history of this complaint, the procedure followed by the Tribunal at the hearing, the evidence presented to the Tribunal and the reasons for our decision.

History of the Complaint

5 This history is drawn from the report of the President of the Anti-Discrimination Board (“the ADB”) which was admitted into evidence at the hearing on 15 July 1999 with the consent of both parties.

6 On 4 December 1996 the ADB received a letter from the Complainant complaining about the behaviour of Mr Paul Curry on 15 November 1996. In this letter the Complainant did not specifically identify the grounds upon which he was complaining (e.g. race discrimination), he did not specifically refer to an area of activity about which he was complaining (e.g. the provision of accommodation) and he did not identify any remedy he sought. It is clear, however, from the authorities that a complaint need not contain these specific details in order to be a valid complaint within the meaning of the Act. As is pointed out in Ronalds, Discrimination Law and Practice (1998, Sydney : The Federation Press) at p 165 “all that is required is a statement that makes an allegation that a person had done an unlawful act”.

7 In his letter to the ADB the Complainant identified the person against whom the complaint was made as “Mr Paul Curry who is the Property Manager of Robert R Andrew of Liverpool branch”.

8 In keeping with the usual practice, the ADB gave shape to the complaint and on 30 October 1997 the Acting President wrote to Mr Edwin Borg, Secretary, Bobb Borg Enterprises Pty Limited outlining a complaint of “possible race discrimination in the provision of services or the provision of rental accommodation”. That letter referred to various sections of the Act and in particular to sections 19(b)(i), 19(b)(ii) and 20(2)(b). It is unfortunate that 11 months elapsed between the lodgment of the complaint and the provision of this letter to the Respondent. In his letter to Mr Borg the Acting President noted that “The reason for the delay in informing you of the complaint earlier is that the Board has a limited number of officers available to deal with the number of complaints we receive each week”.

9 Attached to the Acting President’s letter were details of the complaint which appear to be drawn from the Complainant’s original letter of complaint and subsequent discussions with him. Those details may be summarised as follows:

(a) Prior to and on the date in question (15 November 1996) the Complainant resided at a rental property which was managed by real estate agents, Robert R Andrew (Liverpool).

(b) On 6 November 1996 Mr Paul Curry, the Property Manager of Robert R Andrew (Liverpool) wrote to the Complainant informing him that his rent would be reduced by $5.00 per week in compensation for the removal from the rental property of a heater which was not repairable.

(c) On 15 November 1996 the Complainant visited Mr Curry at his office because he was not satisfied with the rent reduction believing that $10.00, rather than $5.00, per week was appropriate.

(d) In the course of discussions between the Complainant and Mr Curry at the offices of Robert R Andrew (Liverpool) Mr Curry swore at the Complainant and abused him. The statements attributed to Mr Curry included “Fuck off Indian”, “go back to the country you came from” and “black bastard”.

(e) The Complainant also swore at Mr Curry (the precise language was not identified) but only after Mr Curry first swore at the Complainant and only after the Complainant warned Mr Curry that he (the Complainant) would swear at him if Mr Curry continued to swear.

10 The Acting President’s letter also sought from Mr Borg details of the relationship between the Respondent (Bobb Borg Enterprises Pty Limited) and Robert R Andrew (Liverpool), the identity of Mr Curry’s employer, the nature of the relationship between the Complainant and Robert R Andrew (Liverpool) and suggestions about how the complaint could be resolved.

11 On 10 November 1997 Mr Borg responded to the Acting President’s letter describing himself as Managing Director, Robert R Andrew (Liverpool). Mr Borg identified the Respondent as the owner and operator of Robert R Andrew (Liverpool) and as Mr Curry’s employer. He responded to the question about how the complaint could be resolved by writing:

“As far as we were concerned the problem was overcome months ago. Mr Prakash and Paul Curry are speaking in a civilized manner and Mr Prakash had got everything that he wanted and we thought the problem was resolved”.

12 Mr Curry also responded to the Acting President’s letter on 10 November 1997. He acknowledged that the incident on 15 November 1996 arose out of a disagreement concerning the rent reduction which the Complainant would receive. Relevant portions of Mr Curry’s letter are as follows:

“Mr Prakash kept insisting that the rent be reduced. I called him unreasonable and said to take legal advice as to what can be done. He proceeded to call me an idiot. After approximately 5 minutes of verbal abuse from Mr Prakash, I then asked him to leave my office, he declined, I then told him to fuck off out of the office, he declined.

From my office to reception area Mr Prakash and I traded insults to each other. Yes, I was swearing at him, but he was swearing back at me ..........

Mr Prakash kept insulting me saying I was stupid, a dickhead and told me to fuck off. I told Mr Prakash that his attitude was most upsetting and to stop swearing and leave my office or I would call the police .........

Mr Prakash called me a stupid white cunt, so I called him a black bastard and I did not say fuck off Indian and go back to your own country ..........

In closing this complaint was made back on 7/12/96. Since that date Mr Prakash still resides at [the rental property] and Mr Prakash and I have overcome our differences and we speak on good terms now. I am certain that our relationship is now based on a mutual understanding of each other”.

13 On 24 March 1998 the President of the ADB wrote to the Complainant to inform him that he had declined the complaint, pursuant to section 90(1) of the Act, on the grounds that it was “frivolous”. The Complainant responded to this notification by informing the President of the ADB that he wished to have the complaint referred to the Tribunal, as is his right, pursuant to section 91(1) of the Act.

14 The matter came before the Tribunal on a number of occasions for directions. Neither the Complainant nor the Respondent has been legally represented. Despite the fact that the ‘usual directions’ were made neither party has complied with all of the directions for statements of witnesses have not been filed.

15 On 18 November 1998 the Complainant filed Points of Claim in which he named Mr Curry as first Respondent and Bobb Borg Enterprises Pty Limited as the second Respondent. The material allegations are as follows:

“ 1.The Complainant was born in Fiji. His father and mother were of Indian descent.

4.The Complainant has a dark complexion.

5.For the purpose of s.20 of the Anti-Discrimination Act 1977 the Respondents provide goods and services to the public.

12.An altercation took place between the First Respondent and the Complainant. The First Respondent racially abused and harassed the Complainant in contravention of s.20 of the Anti-Discrimination Act 1977. The First Respondent refused to reduce the rent, such refusal was based on the race of the Complainant”.

16 On 17 December 1998 Mr Curry filed a document headed ‘Response to Point of Claim’. No document was filed by the Respondent company. The material parts of Mr Curry’s document, which is, in effect, a Defence and a statement of his evidence combined are as follows:

“ 2. This is correct, however Robert R Andrew Liverpool has ceased trading and all managements have been taken over by a new company, with different directors, called Borg Partners United Realty Liverpool ..........

3.This was correct at the time of the incident, however as mentioned in point 2, Bobb Borg Enterprises Pty Limited has ceased trading ..........

12.Yes! An altercation did take place as indicated by theComplainant who was abusive and unreasonable : I did not racially abuse the Complainant as stated, however I made a remark of ‘you black bastard’ in response to his comment of me being a ‘white cunt’. I believe he made it a race issue by calling me a white cunt, and I did not repeat that comment at any stage, apart from those racist comments made by both parties (initiated by the Complainant) swearing and obsenities (sic) was equal by both parties”.

17 At a directions hearing subsequent to the filing of these documents an order was made that Mr Curry not be a respondent to the proceedings. The documents were altered accordingly with references to Mr Curry as a respondent being struck out. Whilst the reasons for these steps are not available to us it would appear that this course was followed because the President of the ADB did not cast the original complaint as one against Mr Curry as an individual. The original ‘respondent’ was chosen by the President of the ADB to be Bobb Borg Enterprises Pty Limited who, it seems, was the owner and operator of the real estate agency business in question and the employer of Mr Curry. It appears that this was done because it is both easier to frame a case under sections 19 and 20 of the Act against Bobb Borg and challenging to see how a case against Mr Curry as an individual could be fashioned under sections 19 and 20. Section 53 is the vehicle by which Bobb Borg could be held liable for the actions of its employee, Mr Curry. Thus, it seems that Mr Curry was removed as a respondent by order of the Tribunal because the original complaint was styled, following its quite proper shaping by the President of the ADB, as one against Mr Curry’s employer Bobb Borg. Presumably the Tribunal’s reasoning was that it would be unfair to include Mr Curry as a party to the proceedings at this stage when he was not a formal party to the investigations carried out by the President of the ADB.

Procedure Followed by the Tribunal at the Hearing

18 On the hearing date, 15 July 1999, the Complainant, Mr Prakash, appeared in person and Mr Curry appeared, purporting to be the agent of the Respondent. Neither party had complied with all of the procedural directions which had been made yet both Mr Prakash and Mr Curry wished to proceed to hearing. The matter had not been resolved by conciliation which had taken place pursuant to s106 of the Act.

19 Although not raised by the Complainant, the Tribunal held some concerns about Mr Curry’s lawful authority to represent the Respondent. The Tribunal finds itself in the interesting position that as both the Act and the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) contain procedural provisions its procedures are governed by an overlapping patchwork of statutory provisions. For instance both Acts deal with representation. Section 101(1) of the Act states:

“A party to an inquiry:

(a) is entitled to appear personally or where the party is a body corporate, by a director, the secretary or an agent of the body corporate, and

(b) may, by leave of the Tribunal, be represented by a solicitor,by counsel or by an agent

Section 71(1) of the ADT Act provides:

“A party to proceedings before the Tribunal may:

(a) appear without representation, or

(b) be represented by an agent, or

(c) if the party is an incapacitated person - be represented by such other person as may be appointed by the Tribunal under subsection (4)”

20 Mr Curry handed to the Tribunal a document signed by Mr Edwin Borg which stated -

‘I Edwin Borg previous Director of Bobb Borg Enterprises give Paul Curry authority to attend the hearing set down for 15 July, 1999 for Prakash v Bobb Borg Enterprises Pty Limited as he is the person Mr Prakash is making a complaint about.

I would also like to advise that the business of Robert R Andrew Liverpool ceased trading on 1 July 1999 and the company no longer exists.

Also Paul Curry no longer works for any company associated with the old Robert R Andrew Liverpool”.

21 Mr Curry had no further information about the Respondent company. It was not clear whether Mr Borg’s statement that “the company no longer exists” meant that it was deregistered, wound-up, being operated by an administrator or merely dormant. It would seem that whilst both section 101(1) of the Act and section 71(1) of the ADT permit a corporate party to be represented by an agent, both provisions would appear to require that the agent be lawfully appointed and authorised to represent the principal. Without further investigations and delay it was impossible for the Tribunal to determine whether Mr Curry was the lawful agent of the Respondent.

22 Section 73 of the ADT Act gives the Tribunal broad directions and powers in relation to matters of procedure. It states:

“(1) The Tribunal may, subject to this Act and the rules of the Tribunal, determine its own procedure.

(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.

(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.

(4) The Tribunal is to take such measures as are reasonably practicable:

(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions, and

(b) if requested to do so to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and

(c) to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings.

(5) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c)may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it if the applicant withdraws the application to which the proceedings relate, and

(h) may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.

(6) A judicial member may:

(a) hold a directions hearing in relation to any proceedings before the Tribunal, or (b) authorise a non-judicial member, the Registrar or a Deputy Registrar to hold a directions hearing in relation to any proceedings before the Tribunal.

Overall, it could be said, the Tribunal is intended to be fair, informal, flexible and expedient. Bearing in mind those four broad directives the Tribunal fashioned a way forward in this matter.

23 Of particular relevance is that part of section 73(3) which requires the Tribunal to act “according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. Even though similar provisions are found in many statutes which govern the procedures of Tribunals (see Thawley and Anforth, “Good Conscience and Technicalities Clauses: The Residential Tenancies Act 1987 (NSW) (1998) 72 ALJ 551) Gleeson CJ and Handley JA observed in Qantas Airways Ltd v Gubbins (1992) 28 NSWLR 26 at 30 that “The words ‘equity, good conscience and the substantial merits of the case’ are not terms of art and have no fixed legal meaning independent of the statutory context in which they are found ..........”

24 Whilst Thawley and Anforth argue that “good conscience and technicalities” clauses permit Tribunals to depart from a strict application of the law, Qantas Airways Ltd v Gubbins suggests otherwise. That case would appear to be binding authority for this Tribunal as the case dealt with the operation of the former section 108(1)(b) of the Act as it applied to the former Equal Opportunity Tribunal. There is nothing in the ADT Act to suggest that the general principles enunciated in Qantas Airways Ltd v Gubbins should not apply to this Tribunal and we note that our decision may be appealed on a question of law to an Appeal Panel of the ADT (see section 113(2) ADT Act). Decisions of an Appeal Panel are also subject to appeal (to the Supreme Court) on a question of law (see section 119(1) ADT Act).

25 In determining which course to follow the Tribunal identified the following relevant considerations:

(a) there had already been considerable delay. The complaint was first lodged in December 1996 but due to staff shortages the President of the ADB was unable to inform the Respondent of the complaint until October 1997; the matter was first referred to the Tribunal in April 1998

(b) both the Complainant and Mr Curry wished to proceed to hearing and no witnesses other than these two men were to be called

(c) in all directions hearings before the Tribunal the Respondent had been “represented” by Mr Curry

(d) the rules of natural justice would appear to require that the respondent be represented by a lawfully authorised agent.

26 Bearing in mind all of the provisions of section 73 of the ADT, and the directive in section 73 (1) that the Tribunal may “determine its own procedure” subject to the Act and the rules, the Tribunal decided to hear opening statements from the Complainant and Mr Curry, to take evidence from the Complainant ( and any witnesses he chose to call) and then to determine whether there was a case to answer. In the event that there was a case to answer the Tribunal would then have to conclusively determine the issue of Mr Curry’s ability to be the agent of the Respondent and then adjourn to a later date if not satisfied that Mr Curry was a properly authorised agent of the Respondent. In pursuing this course the Tribunal was mindful of the fact that the proceedings were recorded so any subsequent agent or legal representative of the Respondent would be capable of being fully apprised of what took place on 15 July 1999. In keeping with the general tenor of section 73 the Tribunal explained to the Complainant and Mr Curry the course it proposed to follow and invited a response. Both men supported the suggested procedure. Both were told that at the outset they would have an opportunity to “outline their case” and then sworn evidence would be taken with a right of cross-examination.

Evidence at the Hearing

27 By consent the report of the President of the ADB was tendered in evidence. Both the Complainant and Mr Curry outlined their cases and the Complainant gave sworn evidence. He was asked questions by members of the Tribunal and cross-examined by Mr Curry. The Complainant in his sworn evidence did not depart in any material way from the information recorded in the report of the President of the ADB.

28 We consider the following parts of the Complainant’s evidence to be material:

(a) the Complainant admitted that he had been involved in an argument with Mr Curry on 15 November 1996 during which both men swore at and insulted each other

(b) the Complainant was adamant that Mr Curry swore at him first

(c) the Complainant did not allege that Mr Curry’s failure to agree to the rent reduction he sought was based on his race

(d) the Complainant did not allege that he was subjected to any detriment by Mr Curry or the Respondent subsequent to the day upon which the argument took place

(e) the Complainant took particular offence to being called “a bastard” because of the imputation which that word cast upon his mother

(f) the Complainant admitted to swearing at Mr Curry and stated that both men called the other a “mother fucker”

(g) the Complainant denied calling Mr Curry a “white cunt”

(h) the Complainant was of the view that his formal complaint was against Mr Curry

(i) the Complainant was of the view that, whatever the circumstances, it was unlawful for one person to direct a racially derogatory remark at another person.

(j) the Complainant was distressed following his argument with Mr Curry

(k) the Complainant still resided in the same rental property and he and Mr Curry now had no difficulties with each other

29 At the conclusion of the Complainant’s evidence the Tribunal invited both the Complainant and Mr Curry to address it on the issue whether the complaint should be dismissed because it was “lacking in substance” and/or “misconceived”. The Tribunal sought to explain the meaning of these terms to both men and pointed out that the Act does not make all acts of discrimination unlawful. The Complainant resisted a finding that his complaint was “lacking in substance” and/or “misconceived” emphasising that he should succeed because Mr Curry had admitted to calling him a “black bastard”. Mr Curry supported a finding that the complaint be dismissed because it was “lacking in substance” and/or “misconceived”.

Reasons for Decision

30 There are provisions in both the Act and the ADT Act which permit the Tribunal to dismiss a complaint before a full hearing has been concluded. Section 111(1) of the Act states:

“Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint”.

Section 73(5)(h) of the ADT Act provides that the Tribunal “may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or other wise misconceived or lacking in substance”. The two provisions are designed to operate together for section 111(3) of the Act states that “Nothing in this section limits the generality of the powers conferred on the Tribunal by chapter 6 of the Administrative Decisions Tribunal Act 1997". Section 73(5)(h) is found in chapter 6 of the ADT Act.

31 The terms “misconceived” and “lacking in substance” have been considered on many occasions by tribunals and courts exercising jurisdiction under the Act and by tribunals and courts exercising jurisdiction under Commonwealth equal opportunity legislation and similar legislation in other states. The decision by the then President of the Human Rights and Equal Opportunity Commission, Sir Ronald Wilson, in Assal v Department of Health, Housing and Community Services (1992) ECO 92-409 is generally regarded as a leading authority. The terms have also been considered recently by the Victorian Court of Appeal in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102.

32 Two issues arise for consideration; the stage of proceedings at which the Tribunal may consider whether it should exercise its powers to dismiss a complaint because it is “misconceived” or “lacking in substance”, and the test or criteria which the Tribunal should employ when determining whether a complaint is “misconceived” or “lacking in substance”. After discussing a number of authorities which considered both issues Ronalds (Discrimination Law and Practice at 207-208) concludes that the timing question should be approached by undertaking “a balancing act of permitting a complainant to pursue their case to the end and achieve a judgment ...... weighted against the requirement that a respondent should not be forced to meet a case which is not sufficiently substantial”. In the circumstances of this case we are of the opinion that the appropriate time to consider whether the complaint was “misconceived” or “lacking in substance”, or both, was at the conclusion of the Complainant’s case. At this point the Complainant has “had every opportunity to identify the subject matter of the complaint and produce all available evidence in support”(Assal v Department of Health, Housing and Community Services (1992) EOC 92-409).

33 Despite the fact that the President of the ADB had earlier declined the Complainant’s complaint on the ground that it was “frivolous” we would not apply that characterisation to it. The examination of this term by Ormiston J.A. in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109) is helpful:

“‘frivolous’ and ‘vexatious’ are terms which have been known to the courts for many years, forming the primary basis for dismissal in the inherent jurisdiction of the courts and which now may be taken as indicative of ‘abuse of process’ ..........”

We do not consider this complaint to have been an ‘abuse of process’. That term has recently received detailed consideration by the High Court in Williams v Spautz (1992) 174 CLR 509.

34 Ormiston J.A. went on to state that the terms “misconceived” and “lacking in substance” had not been used in the past in a way which would draw them under the rubric of ‘abuse of process’. He contended, however, that the terms were commonly used by lawyers with “misconceived” meaning “a misunderstanding of legal principle” and “lacking in substance” meaning “an untenable proposition of law or fact”. These are helpful descriptions which will assist the Tribunal to determine whether the complaint is “misconceived” or “lacking in substance”.

35 In undertaking this examination we believe that the appropriate way forward is to take the Complainant’s evidence at its highest point, or in other words, and for the purposes of this exercise, to accept that everything which the Complainant has put in evidence is true and then determine whether he could possibly succeed in his complaint of racial discrimination. In essence, and in the circumstances of this case, the Tribunal should evaluate the evidence as if a ‘no case’ submission had been made at the conclusion of the Complainant’s evidence. If, at the end of this exercise, the Tribunal concludes that the Complainant could not succeed it is likely, in the absence of abuse of process, that the complaint has proceeded this far because the Complainant has misunderstood legal principle or has been advancing an untenable proposition of law or fact.

36 In order to determine whether the Complainant could possibly succeed in his complaint of race discrimination it is necessary to turn to the substantive provisions of the Act and to pose, and answer, two questions. The Act makes it clear that not every act of racial discrimination is unlawful and that it is only racial discrimination as defined by the Act which is unlawful. To put the propositions another way, in order to be unlawful an act (or series of acts), which resulted in adverse consequences to the Complainant, must have been performed within an area of activity regulated by the Act, and the act must have been performed “on the ground of race”.

37 The areas of activity within which it is unlawful to discriminate on the ground of race are set out in sections 8 to 20 A of the Act. Any discrimination on the ground of race falling outside these areas of activity is not unlawful. Discrimination “on the ground of race” is defined in section 7 of the Act. Any discrimination of the ground of race, in any area of activity, which falls outside the definition in section 7 is not unlawful. (We note, of course, that these broad statements are subject to the regulation of activities by other statutes, such as the Racial Discrimination Act 1975 (Commonwealth) and to the ‘extension’ provisions in the NSW Act such as sections 20B to 20D which deal with racial vilification).

38 Thus the two questions to be posed would appear to be:

1. Is there any evidence to suggest that the Complainant has suffered any of the consequences set out in any of the areas of activity governed by the Act by reason of any action of the Respondent?

2. If ‘yes’ to Question1, is there any evidence to suggest that the Complainant suffered the consequence, or consequences, by reason of action taken by the Respondent on the ground of the Complainant’s race?

39 As we noted in paragraph 8 the Complainant’s original complaint was given a structure under the Act by the President of the ADB. The President cast the complaint as one dealing with the provision of goods and services and accommodation. The Tribunal’s task is complicated by the fact that in his Points of Claim the Complainant referred to the Respondent as a provider of goods and services but nominated section 20 of the Act as the relevant provision. In fact, section 19 governs the provision of goods and services. The Point of Claim also allege that the Respondent’s refusal to reduce the rent by the amount sought by the Complainant was an action based on the race of the Complainant. At the hearing, however, the Complainant effectively abandoned this contention.

40 It appears for the purpose of the current exercise that the appropriate way forward is to consider both sections 19 and 20 of the Act and to ask whether there is any evidence to suggest that the Complainant has suffered any of the consequences set out in either section by reason of any action of the Respondent. At the time of the complaint sections 19 and 20 of the Act provided as follows:

“19. It is unlawful for a person who provides, for payment or not, goods or services to the public or a section of the public to discriminate against another person on the ground of race –

(a) by refusing to provide the person with those goods or services; or

(b) by refusing to provide the person with goods or services –

(i) of the likely quality; or

(ii) in the like manner: or

(iii) on the like terms,

as are normally provided by the firstmentioned person to the public, or where the person requesting those goods or services belongs to a section of the public, to that section.

20.(1)It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race-

(a) by refusing the person’s application for accommodation;

(b) in the terms on which the person offers the person accommodation; or

(c) by deferring the person’s application for accommodation or according the person a lower order of precedence in any list of applicants for that accommodation.

(2) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of race -

(a) by denying the person access, or limiting the person’s access, to any benefit associated with accommodation occupied by the person; or

(b) by evicting the person or subjecting the person to any other detriment.

(3) Nothing in this section applies to or in respect of the provision of accommodation in premises if -

(a) the person who provides or proposes to provide the accommodation or a near relative of that person resides, and intends to continue to reside, on those premises; and

(b) the accommodation provided in those premises is for no more than 6 persons.

41 There is nothing in the evidence before the Tribunal to suggest that the Complainant suffered any of the consequences set out in sections 19(a), 19(b)(i), 20 (1) or 20(2)(a). The relevant provisions would appear to be sections 19(b)(ii) and (iii) and that part of section 20(2)(b) which refers to “any other detriment”. There is considerable overlap between these provisions for refusing to provide the Complainant with services “in the like manner” or “on the like terms” as are normally provided to the public (or a section of it) would seem to encompass much of what falls within subjecting the Complainant “to any other detriment” in the context of the provision of accommodation.

42 The relevant areas of activity in this case would appear to be providing services generally, or the services associated with the provision of accommodation. The Complainant alleges that he was subjected to abuse which was racially based. There is no doubt that he was abused and that some of the abusive comments contained a racial element. There is also no doubt that an argument commenced between the Complainant and Mr Curry, in a climate free from racial abuse, about the rent to be paid by the Complainant. The Complainant does not assert that there was any racial element in the disagreement about the rent. The racially based abuse took place once the argument was well underway.

43 Thus if we turn to the first question posed in paragraph 38 it is difficult to conclude that the Complainant has suffered any of the consequences in the relevant areas of activity governed by the Act, which we have identified as being sections 19(b) (ii) and (iii) and 20 (2) (b). The Complainant was a participant in an argument during the course of which he was abused. That does not appear to constitute a failure to provide him with services in the like manner or on the like terms as are normally provided to the public, or to subject him to any other detriment in the context of the provision of accommodation. On his own evidence he was a willing participant in an argument which degenerated into a slanging match with both parties directing abuse at each other.

44 Had the abuse been gratuitous, or had the abuse taken place outside of the particular argument between these two men, then racially based abuse by a real estate agent to a client may well constitute one of the adverse consequences governed by the Act. In the fields of employment and the provision of educational services there are a number of cases in which racially based abuse has been held to constitute unlawful discrimination (see e.g. Ardeshirian v Robe River Iron Associates (1990) EOC 92- 299; Metwally v University of Wollongong (1984) EOC 92-030; Rugema v Gadsten Pty Ltd and Derkes [ 1997] HREOCA 34. Also there are cases in which racially based abuse has been held to fall outside the Act (see e.g. Hume v Mulheron [1996] NSWEOT; Gomez v Burgmann Seals Australia Pty Limited [1997] NSWEOT).

45 These cases well illustrate that it is not possible to make broad statements about the unlawful nature, or otherwise, of racially based abuse. In each case it will be necessary to determine whether the abuse caused the Complainant to suffer any of the adverse consequences in the areas of activity governed by the Act.

46 Consequently our answer to the first question posed in paragraph 38 is ‘No’. It is, therefore, unnecessary to answer the second question.

47 The Tribunal, after having considered the Complainant’s evidence at its highest point, is satisfied that the complaint is both “misconceived” and “lacking in substance”. The Complainant clearly was of the view that any racial abuse directed to him by Mr Curry was unlawful. To adopt the language of Ormiston J.A. in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 109 this involved on the part of the Complainant “a misunderstanding of legal principle” and “an untenable proposition of law or fact”.

48 Mr Curry’s behaviour was both rude and discourteous but, in the circumstances of this case, it did not amount to a contravention of the Act. We note that Mr Curry informed the Tribunal and the Complainant that he regretted his language describing it as “unprofessional”.

49 The Tribunal orders that the complaint be dismissed.