Smith v Jamsek

[2012] NSWADT 3

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 Member

Decision:

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 298

Category:

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

1. 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.

1. 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).

1. 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

1. 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…