Smith v Jamsek
[2012] NSWADT 3
•18 January 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Smith v Jamsek [2012] NSWADT 3 Hearing dates: 15 August 2011 Decision date: 18 January 2012 Jurisdiction: Equal Opportunity Division Before: J Conley, Judicial Member
E Hayes, Non-Judicial Member
J Schneeweiss, Non-Judicial MemberDecision: 1.The respondents Alois Jamsek and Elizabeth Jamsek are ordered to pay the applicant Noel Smith the sum of $5000 compensation pursuant to section 108(2)(a) of the ADA within 28 days from the date of these reasons.
2.The respondents Alois Jamsek and Elizabeth Jamsek are enjoined from unlawful conduct by refusing accommodation at the Rex Guest House to any person on the person's grounds of Aboriginality.
3.The respondents Alois Jamsek and Elizabeth Jamsek are to apologise to the applicant in writing within 28 days from the date of these reasons.
4.The respondents are to pay the applicant's costs as agreed or as assessed.
Catchwords: discrimination on the ground of race in the area of accommodation Legislation Cited: Anti-Discrimination Act 1977 Cases Cited: Burns v Laws (EOD) [2008] NSWADTAP 32
Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27
Qantas Airways v Gama [2008] FCAFC 69
Dutt v Central Coast Area Health Service (2002) NSWADT 133
Jones v Dunkel (1959) 101 CLR 298Category: Principal judgment Parties: Noel Smith (Applicant)
Alois Jamsek (First Respondent)
Elizabeth Jamsek (Second Respondent)Representation: Counsel
Lisa Doust (Applicant )
File Number(s): 101015
reasons for decision
Background
Mr Smith is an Aboriginal man. He alleges that Mr Alois Jamsek and Ms Elizabeth Jamsek discriminated against him on the grounds of his race, (his Aboriginality), in the provision of accommodation. In summary Mr Smith claims he was refused accommodation at the Rex Guest House in Tamworth on 23 April 2009 on the ground of his Aboriginality.
Mr Smith lodged a complaint on 1 May 2009 with the Anti-Discrimination Board the ADB). As the complaint was unable to be resolved it was referred to the Administrative Decisions Tribunal (the Tribunal).
The matter was heard by the Tribunal over a day. Affidavits of evidence were relied upon by the applicant and which were adopted and admitted into evidence. The second respondent filed a written statement which was adopted and admitted into evidence. Oral evidence was given by the applicant and the second respondent. The first respondent did not file a defence and documentary material or statements, nor did he give any oral evidence.
The Applicant's Evidence
Mr Smith's evidence is that in about April 2009 he was on the waiting list for Department of Housing accommodation. He had been staying with his sister in Bourke as he had not been able to find accommodation. In late April 2009 he went to Tamworth to try and find a place to stay and visit family. He saw an advertisement for accommodation in the " the Northern Daily Leader" a local paper advertising rooms for " men only ". On 22 April 2009 he telephoned " the Rex Guesthouse " in Tamworth to enquire if there were any vacancies. A female named Liz answered. He asked if there were any empty rooms and how " it worked " and was told there were three empty rooms. He was advised the rent was $150 with a bond of $300. He was told " You can go to the Department of Housing and fill in an application form for assistance with rent and bond" . He then asked " How does the place work"?" He was told, " It is a lodging situation" and " There is an application form ". He said he would come in the next day and fill in the paper work and he asked if she could save one of the rooms and was advised, " No problem."
On 23 April 2009 Mr Smith went to the Rex Guest House. His evidence is that there was a woman out the front. Mr Smith's evidence is that he recognised her voice from the telephone conversation. He introduced himself and said he rang about the room yesterday and he had come to fix up the paper work for the room. The woman said, " Oh, you're Noel?" and " You're Aboriginal Noel" , to which he responded, " Yes" . He was then told, " Oh, we don't take Aboriginals". He asked why and was told, " My boss in Sydney told me not to take Aboriginals because they cause too much trouble." He then left.
Mr Smith's evidence is that he was angry, upset, humiliated and disgusted. He claimed that what was said to him on that day had never been said to him before. He claimed that the day the events occurred was the lowest day of his life .
He claims that he immediately went to the Education Department office in Tamworth where a woman helped him get the telephone number for the Anti-Discrimination Board. He called them straight away and was sent paperwork.
Mr Smith said that he was aware that he could go to the Department of Housing for assistance with rent and bond. He said that the practice was to go to a real estate agent and find a property and they would give you paper work to take to the Department of Housing. The Department of Housing would then notify you if accepted and ring the real estate agent. Mr Smith gave evidence that he had previously had assistance with rent and bond prior to the events in April 2009.
Mr Smith gave evidence that he has coronary heart disease with a double bypass in 2003. His income is a Disability Support Pension from Centrelink. He gave evidence that he has two bulging discs in his back and has ongoing pain all the time. He said that after he was refused accommodation he had to sleep in his car and it was very uncomfortable with back pain.
First Respondent
Mr Alois Jamsek declined to file a defence or give any evidence in these proceedings.
Second Respondent's Evidence
Ms Elizabeth Jamsek gave evidence that she did not work at the Guest House, she just helped out. She was offered a room at the Rex Guest House by Alois Jamsek, her uncle, after her partner passed away. She receives a reduced rent and in return she "helps out". She said that she is on call 24 hours. The guest house has 30 rooms. She cleans the rooms, answers calls and attends to people who drop in making enquiries about rooms. She also helps with the paper work. She agreed that she was "more or less" a care-taker. She said that there were no other staff working at the Guest House, except for when Mr Alois Jamsek comes down from Sydney. Ms Jamsek said that when she first started, in about 2007 or 2008, he initially visited every week or second week for the first year while she learned what to do. In 2009 he was visiting nearly every second week.
She was asked who her boss was in April 2009. She said that she did not know. She said that when she needed instructions she would ring the "head office " in Sydney. She said Alois and Therese Jamsek, a man called Mario and a man called Richard, whose last name she did not know, would tell her what to do. She said that it was usually Richard who gave her instructions and told her what to do and say. She said that she would ask whoever was in the office.
Later in her evidence Ms Jamsek denied that a person called Richard existed. She also subsequently said that she had only spoken to the man she thought was Richard, (but was not) once or twice. She told the Tribunal that she did not know what position Alois Jamsek held in the company. She told the Tribunal that she did not work at the Guest house, she just helped out.
Ms Jamsek was asked if Mr Alois Jamsek was her boss in April 2009 and she agreed that he was one of them. She also agreed that she would refer to him a lot. She said that Therese Jamsek would also give her advice, or would refer her to Alois Jamsek for advice or alternatively get Alois to call her back.
Ms Jamsek was asked about the process for new applicants seeking a room at the guest house. She said that if an application was made in respect of a room, she would send a fax through to the Sydney office and a background check would be done. She said that people could leave a holding deposit if they wanted, but no payment was required. She would call the applicants back and let them know about the room, usually within 24 hours. Ms Jamsek's evidence on this process was very unclear.
Ms Jamsek gave evidence that a number of the occupants at the guest house are on a Centrelink Pension or Benefit. She said that she is familiar with the process of applying to the Department of Housing for assistance. She said that she explains to people that they can go to Centrelink for rent assistance and to set up a direct debit payment. She said that when they bring the forms back from Centrelink, she or Mr Alois Jamsek will sign the forms if they are approved. She also said that she will sign forms to be taken to the Department of Housing, to seek housing assistance in the form of supplements for rent and bond assistance.
When questioned Ms Jamsek said that she some-times assisted people to fill in the forms. She agreed that there was a benefit to the Rex Guest House because the guest house was assured of an occupant with assistance from the Department of Housing. When asked how frequently an applicant for a room might seek assistance from the Department of Housing, she said that there may be one or two persons in a week, but not every week or every month.
She was asked about the assistance provided by the Department of Housing and whether she informed people of this possible benefit. Ms Jamsek said that some people will ask her, or she will tell them if they do not ask. When questioned specifically about the process, Ms Jamsek agreed that when a prospective occupant is looking for a room and they indicate they need assistance with rent or bond, she will refer them to the Department of Housing. She agreed that she would not tell those persons to go away, but would leave it to them to go and see the Department of Housing.
When questioned about what she said to Mr Smith, she said that she asked for references and "I.D." and for money. She said that he did not have the money, so she told him that he can't come in. Ms Jamsek was asked about her earlier evidence when she had stated that if some-one did not have the money for rent and bond, she would volunteer that they try the Department of Housing for assistance. Her response was, " usually ". She said that sometimes she tells persons to go away if they do not have the money. If they are homeless she said that she will tell them that she cannot have anybody without money. She said that she could not recall exactly what she had said to Mr Smith. She said that she may not have referred him to the Department of Housing because she did not think of it at the time and he did not remind her. She went on to state that some people try to come in without funds.
Ms Jamsek denied that she asked Mr Smith if he was Aboriginal or denied him accommodation on this basis. She said that she told him he can't come in without money. She said he started mumbling and got upset and walked away. She conceded that it was not all the time that she would offer assistance by referring some-one to the Department of Housing for assistance with rent and/or bond. She identified the basis she used for this treatment was if some-one said they had the funds. If they said that they could not afford the rent she would then tell them to go to the Department of Housing.
Findings and Decision
The applicant alleges that Mr Alois Jamsek and Ms Elizabeth Jamsek discriminated against him on the grounds of his race, (his Aboriginality), in the provision of accommodation. The applicant bears the burden of proof in respect of this claim. In Burns v Laws (EOD) [2008] NSWADTAP 32 the Tribunal discussed the issue of the standard of proof in respect of discrimination claims. It was stated that " Briginshaw is a case about the standard of evidence required to meet the burden of proof ." The Tribunal considered the " Briginshaw standard " in Chand v Rail Corporation of NSW (No2) [2009] NSWADTAP 27. Reference was made to Qantas Airways v Gama [2008] FCAFC 69 [at 55] where her Honour Branson J stated, " The correct approach to the standard of proof in civil proceedings in a federal court is that for which s140 of the Evidence Act provides. It is an approach which recognises ... that the strength of evidence necessary to establish a fact in issue on the balance of probabilities will vary according to the nature of what is sought to be provide - and, I would add, the circumstances in which it is sought to be proved."
The Appeal Panel noted section 140 of the Evidence Act 1995:
(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.
(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:
(a) the nature of the cause of action or defence, and
(b) the nature of the subject-matter of the proceeding, and
(c) the gravity of the matters alleged.
The Tribunal finds that Mr Smith is an Aboriginal person and that his Aboriginality is a race within the meaning of section 7 of the Anti-Discrimination Act 1977 (the ADA). Section 20 (1) (a) of the ADA makes it unlawful for a person to discriminate on the ground of race by refusing a person's application for accommodation. Section 7 (1) (a) of the ADA provides that a person discriminates against another person on the ground of race if, on the ground of the person's race, the perpetrator 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. Section 52 of the ADA makes it unlawful for a person to cause, instruct, induce, aid or permit another person to do an act that is unlawful by reason of a provision of this Act.
The claim against the First Respondent
There is no dispute that Mr Smith attended the Rex Guest House on 23 April 2009 seeking accommodation.
The evidence of Mr Smith is that he was refused accommodation at the Rex Guest House after he was asked and it was confirmed he was Aboriginal. He was told that the Rex Guest House does not accept Aboriginals. His evidence is that he was humiliated and upset as he had not experienced such treatment previously. He took immediate steps to make a complaint of discrimination and a complaint was received by the ADB on 1 May 2009, just over a week later.
The evidence from Ms Jamsek as to what occurred on that day is less clear. Her evidence on most points was very evasive at best. She did however give very clear evidence when questioned about the process for dealing with people seeking accommodation. Her evidence was that there was no requirement to pay a deposit prior to an application being approved. If a prospective occupant indicated that they would have difficulty with rent and/or bond she would refer them to the Department of Housing. Her evidence was that she was very familiar with this process as she regularly encountered persons in such circumstances. This would vary from 1 to 2 persons per week, to some months with no such enquiries. Her evidence was that a number of residents at the guest house were on Centrelink benefits.
The evidence from Ms Jamsek as to what happened on the day Mr Smith sought accommodation is in contrast to her stated usual practices. She said that she cannot recall exactly what she said to Mr Smith. Her evidence is that it is not a requirement to pay before the application is accepted. Yet she is clear that she told Mr Smith he could not stay if he did not have the money. She did not give him an application form, nor did she refer him to the Department of Housing to seek assistance in obtaining a bond or assistance with rent. She explains her failure to do so on the basis that Mr Smith walked away angry after she told him he could not stay because he did not have the funds.
Mr Smith gave his evidence in a clear and consistent manner. In contrast the evidence of Ms Jamsek was characterised by evasion and inconsistency almost throughout. The only point on which her evidence was clear was the general procedure she used in respect of persons enquiring about accommodation, who might need financial assistance including with rent or bond. On her own evidence Ms Jamsek did not adhere to her usual practices on that day in respect of her treatment of Mr Smith in this regard. Her explanation for this is illogical. Her evidence was that if some-one is on a Centrelink benefit or has difficulty with payment she would refer them to the Department of Housing for assistance. This was the very reason why she said that she told Mr Smith that he could not stay at the Rex Hotel.
The Tribunal prefers the evidence of Mr Smith as his evidence was clear, consistent and unembellished. The Tribunal finds that Ms Elizabeth Jamsek asked Mr Smith if he was Aboriginal and then stated that the Rex Guest House does not take Aboriginals. The Tribunal further finds that she also stated words to the effect of "My boss in Sydney told me not to take Aboriginals because they cause too much trouble."
The Tribunal finds that Mr Smith's application for accommodation was refused by Ms Jamsek on the ground that he was Aboriginal. The Tribunal finds that Ms Jamsek treated Mr Smith less favourably than a person in the same circumstances or circumstances which are not materially different than she would have treated a person of a different race. The Tribunal therefore finds that Ms Jamsek discriminated against Mr Smith on the grounds of his race in breach of section 20 of the ADA. The Tribunal further finds that as a consequence of that treatment he suffered a detriment. He was denied accommodation and forced to sleep in his car as a consequence and he was hurt and humiliated.
The claim against the Second Respondent
There was no defence or evidence from the Second Respondent. The Applicant had filed a series of Company, Business Name searches and Land Title searches. Those documents before the Tribunal indicate that from 30 January 2007 to 20 August 2009 Rex Accommodation Pty Ltd traded as "The Rex Guest House". On 20 August 2009 Alois Jamsek and Teresa Jamsek commenced trading as "The Rex Guest House".
An ASIC search indicates that at the time of these events Mr Alois Jamsek was the sole Director and Secretary of Rex Accommodation Pty Ltd. There were no other office holders at the time.
A property search of the Land Title for 32 White Street, being the address of the Rex Guest House, identified that the land was owned by MJL Property Investments Pty Ltd at the time of the events the subject of this claim. An ASIC Current and Historical Search indicates that Mr Alois Jamsek was the sole Director and Secretary of the company at the time of these events. There were no other office holders.
In summary at the relevant time Mr Alois Jamsek was sole Director of the company which was registered as owning the land at 32 White Street where the Rex Guest House is situated. He was also the Sole Director of the company which at the relevant time traded as the business "the Rex Guest House". The business was subsequently transferred to Mr Alois Jamsek and Teresa Jamsek when the company Rex Accommodation Pty Ltd was deregistered in August 2009. Mr Alois Jamsek has not filed any evidence and not identified any other persons involved in the management of the business.
The evidence of Ms Elizabeth Jamsek was that Mr Alois Jamsek was intimately involved in the business and visited approximately every second week (some-times weekly) for a period of 1 to 2 years including the time of these events. The Tribunal has made a finding in this matter that Ms Elizabeth Jamsek did state the words, "My boss in Sydney told me not to take Aboriginals because they cause too much trouble". The evidence of Ms Elizabeth Jamsek was characterised by evasion and inconsistencies most particularly in respect of the role of Mr Alois Jamsek, her uncle and benefactor.
Ms Gollege Solicitor has provided an affidavit setting out the facts upon which the Applicant would make a claim against Mr Alois Jamsek. Mr Alois Jamsek could have given evidence in this matter denying the allegations, but he declined to give any evidence.
It was submitted that the Tribunal should have regard to the principle set out in Jones v Dunkel (1959) 101 CLR 298 at 308 where it was stated by Kitto J, that
any inference favourable to the plaintiff for which there was ground in the evidence might be more confidently drawn when a person presumably able to put the true complexion on the facts relied on as the ground for the inference has not been called as a witness by the defendant and the evidence provides no sufficient explanation for the absence. The jury should have been told that it would be proper for them to conclude that if Hegedus had gone into the witness-box his evidence would not have assisted the defendants by throwing doubt on the correctness of the inference which ... was open on the plaintiff's evidence.
Similarly Windeyer J stated at 321, " Unless a party's failure to give evidence be explained, it may lead rationally to an inference that his evidence would not help his case."
In Dutt v Central Coast Area Health Service (2002) NSWADT 133 the Tribunal stated :
Experience and commentary indicate that inference is the usual way in which an applicant must establish discrimination in an enquiry or hearing: in The Liberal Promise at p182, Thornton says that "unless a respondent is particularly obtuse most forms of discrimination are unlikely to be explicit ..." It has been observed that it is unusual to find direct evidence of racial discrimination. Few employers would be prepared to admit such discrimination even to themselves...The outcome of the case will therefore usually depend on what inference it is proper to draw from the primary facts found by the Tribunal. (in Palmer C., Moon G., and Cox S. Discrimination at work: the law on sex, race and disability discrimination LAG, London 1997 at p34)
The Tribunal has regard to the evidence from Ms Elizabeth Jamsek dealing with Mr Alois Jamsek's role in the business. It is clear that he had an active role in management and decision making in respect of the operation of the Guest House. The evidence is that Ms Teresa Jamsek would defer to Mr Alois Jamsek if she could not answer a question. The Tribunal was told that she would often either ask Mr Jamsek herself about queries from Ms Elizabeth Jamsek or ask him to return her call.
In addition he was the Director of the company which owned the land on which the business is situated at the relevant time. He was a Director of the company which operated the Guest House business at the relevant time.
Mr Alois Jamsek elected not to give evidence to respond to the claim. The Tribunal is entitled to infer that his evidence would not have assisted his case. Having regard to all these factors, the Tribunal finds on the available evidence that it is reasonable to infer that the reference by Ms Jamsek to her "boss in Sydney" is a reference to Mr Alois Jamsek. The Tribunal has found that he told her not to take Aboriginals because they cause too much trouble. The Tribunal therefore finds that Mr Alois Jamsek has caused or instructed Ms Elizabeth Jamsek to refuse accommodation to Aboriginal persons.
Mr Alois Jamsek has aided and/or abetted an unlawful act, being discrimination on the ground of race in the area of accommodation in breach of section 52 of the ADA.
Remedies
The applicant seeks compensation in the sum of $5000 for economic loss, and non-economic loss for hurt and humiliation pursuant to section 108(2)(a) of the ADA. The applicant also seeks an order that the respondents apologise for the distress caused by the refusal of accommodation and an order enjoining the respondents from refusing accommodation at the Rex Guest House to any person by reason of that person's Aboriginality.
There is no evidence before the Tribunal of any pecuniary losses suffered by the applicant. In respect of his claim for non-pecuniary loss for hurt, humiliation and distress as a result of the treatment we award the sum of $5 000. We find that the sum of $5 000 is an appropriate sum in the circumstances of this matter and we order the respondents to pay $5 000 within 28 days from the date of these reasons.
The applicant has sought an order that the respondents be enjoined from refusing accommodation at the Rex Guest House to any person by reason of that person's Aboriginality. The Tribunal orders that the respondents are enjoined from the unlawful conduct in refusing accommodation on the grounds of Aboriginality.
The applicant also seeks an order that the respondents apologise for the distress caused by the refusal of accommodation. The Tribunal orders that both respondents apologise to the applicant for refusing him accommodation on the basis of his Aboriginality within 28 days from the date of these reasons.
Costs
The applicant has sought an order for costs. Section 88 of the Administrative Decisions Tribunal Act provides that the usual course is that parties bear their own costs. It does however allow the Tribunal to make an order for the payment of costs in limited circumstances. This includes where a party has been responsible for prolonging unreasonably the time taken to complete the proceedings and any other matter that the Tribunal considers relevant.
This was a matter where the applicant would have had great difficulty representing himself. The respondents however have done nothing to assist in the finalisation of this matter. To the contrary the refusal to engage in this process has protracted the proceedings. The evidence before this Tribunal is that the respondents, particularly the first respondent, have failed to assist in the conclusion of this process. The first respondent did not even assist in the clarification of the issues or the identification of the correct respondents. This complete failure to engage in the process is detailed in the correspondence attached in the Affidavit of Ms Gollege. The Tribunal finds that this is a matter which falls within the scope of section 88 (1A) of the ADA where the Tribunal finds it is appropriate to order that the respondents pay the applicants costs as agreed or as assessed.
Orders
The respondents Alois Jamsek and Elizabeth Jamsek are ordered to pay the applicant Noel Smith the sum of $5000 compensation pursuant to section 108(2)(a) of the ADA within 28 days from the date of these reasons.
The respondents Alois Jamsek and Elizabeth Jamsek are enjoined from unlawful conduct by refusing accommodation at the Rex Guest House to any person on the person's grounds of Aboriginality.
The respondents Alois Jamsek and Elizabeth Jamsek are to apologise to the applicant in writing within 28 days from the date of these reasons.
The respondents are to pay the applicant's costs as agreed or as assessed.
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Decision last updated: 18 January 2012
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