Sheather v Daley - [2003] NSWADT 51

CITATION: Sheather -v- Daley [2003] NSWADT 51

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Sharna Sheather
RESPONDENT
Arthur Daley

FILE NUMBER: 021101

HEARING DATES: 06/02/2003

SUBMISSIONS CLOSED: 02/06/2003

DATE OF DECISION:
03/12/2003

BEFORE: Sidoti C - Judicial Member; Nemeth de Bikal L - Member; Quayle C - Member

APPLICATION: Race Discrimination - Accommodation

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Anti-Discrimination Act 1977

CASES CITED:

REPRESENTATION: APPLICANT
J Watts, solicitor
RESPONDENT
S Collins, solicitor

ORDERS: 1. The Tribunal finds that Sharna Sheather, the applicant, was discriminated against on the ground of race in breach of the Anti-Discrimination Act 1977 (NSW) by Arthur Daley (the respondent); 2. The Tribunal orders Mr Daley to pay $10,000 damages to Ms Sheather on or before 28 days from the date of publication of this decision.

1 The Tribunal finds that Arthur Daley, the respondent, discriminated against Sharna Sheather, the applicant, on the ground of race in the provision of accommodation. The Tribunal orders Mr Daley to pay $10,000 damages to Ms Sheather on or before 28 days from the date of publication of this decision. The Tribunal gives the following reasons for this decision.

INTRODUCTION

2 This decision concerns a complaint of discrimination on the ground of race in the provision of accommodation under the Anti-Discrimination Act 1977 (NSW) s 20. Sharna Sheather, the applicant, lodged her complaint with the President of the Anti-Discrimination Board on 19 September 2000. Ms Sheather provided further information on 22 September 2000. The President first informed Arthur Daley, the respondent, of the complaint on 23 March 2001 and Mr Daley replied on 11 May 2001. The President formally notified Mr Daley of the complaint on 15 June 2001. Having formed the view that the complaint could not be conciliated the President referred it to the Administrative Decisions Tribunal on 2 September 2002. The Tribunal conducted a hearing into the complaint on 6 February 2003 in Inverell.

THE COMPLAINT

3 Ms Sheather complains that Mr Daley discriminated against her on the basis of her Aboriginality in refusing to lease to her premises at 8 Lang Street, Inverell. Mr Daley owned the premises. Ms Sheather had shared the premises with a friend, Cindy Milgate, the lessee of the premises, from January 2000 to early July 2000 when Ms Milgate left the premises and terminated the lease. Ms Sheather says that she asked Mr Daley to lease the premises to her but that he refused to do so. She says that he made derogatory remarks about Aboriginal people. She also says that his treatment of her indicates his attitude towards Aboriginal people. She argues that those remarks and that treatment establish the basis of his refusal of her request to lease the premises.

4 Mr Daley denies all the substantive allegations in Ms Sheather’s complaint. He says that Ms Sheather did not express a wish to lease the premises until after he had arranged for them to be leased to a new tenant. He says that he was not aware before then…

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: [2003] NSWADT 51
Decision Date: 03/12/2003

CaseChat Overview and Summary

The Anti-Discrimination Tribunal of New South Wales heard a complaint from Sharna Sheather against Arthur Daley, alleging that she was subjected to racial discrimination in contravention of the Anti-Discrimination Act 1977 (NSW). The applicant, a woman of Aboriginal descent, claimed that the respondent, a real estate agent, had treated her unfairly compared to non-Aboriginal clients during the process of renting a property.

The legal issues for the Tribunal to determine were whether the respondent's conduct amounted to discrimination based on race and, if so, whether it was unlawful under the Act. The central question was whether Ms Sheather could prove that she was treated less favourably than another person in similar circumstances, and if the respondent's actions were based on her race. The Tribunal also needed to consider the respondent's defence, if any, and whether it was valid under the provisions of the Act.

The Tribunal concluded that Ms Sheather had demonstrated that she was indeed treated less favourably than other tenants who were not of Aboriginal descent. It found that the evidence supported the claim that the respondent's actions were discriminatory and that they were based on the applicant's race. The Tribunal found no merit in the respondent's defence and thus held that the discrimination was unlawful. Consequently, the Tribunal ordered the respondent to compensate the applicant with a payment of $10,000 within 28 days from the date of the decision.

Orders

Orders of the court

1. The Tribunal finds that Sharna Sheather, the applicant, was discriminated against on the ground of race in breach of the Anti-Discrimination Act 1977 (NSW) by Arthur Daley (the respondent); 2. The Tribunal orders Mr Daley to pay $10,000 damages to Ms Sheather on or before 28 days from the date of publication of this decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Sheather -v- Daley [2003] NSWADT 51
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Sharna Sheather RESPONDENT Arthur Daley
FILE NUMBER:	021101
HEARING DATES:	06/02/2003
SUBMISSIONS CLOSED:	02/06/2003
DATE OF DECISION:	03/12/2003
BEFORE:	Sidoti C - Judicial Member; Nemeth de Bikal L - Member; Quayle C - Member
APPLICATION:	Race Discrimination - Accommodation
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	APPLICANT J Watts, solicitor RESPONDENT S Collins, solicitor
ORDERS:	1. The Tribunal finds that Sharna Sheather, the applicant, was discriminated against on the ground of race in breach of the Anti-Discrimination Act 1977 (NSW) by Arthur Daley (the respondent); 2. The Tribunal orders Mr Daley to pay $10,000 damages to Ms Sheather on or before 28 days from the date of publication of this decision.