Rees, Neil --- "Mooney and Leo v P. Flannery & Associates Pty Ltd (Anti-discrimination - accommodation- damages - ss. 6, 7,200) (1) and 113 Anti-Discrimination Act 1977 (NSW))" [1981] AboriginalLawB 26; (1981) 1(2) Aboriginal Law Bulletin 8

• Mooney And Leo V P. Flannery &Amp; Associates Pty Ltd
• Anti-Discrimination-Accommodation-Damages-Ss. 6, 7,200) (1) And 113 Anti-Discrimination Act 1977 (Nsw)

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Mooney and Leo v P. Flannery & Associates Pty Ltd

Anti-discrimination - accommodation- damages - ss. 6, 7,200) (1) and 113 Anti-Discrimination Act 1977 (NSW)

Mooney and Leo v P. Flannery & Associates Pty Ltd

N.S.W. Anti-Discrimination Board (Mr P. Stein, Ms A. Deveson, Dr I. Smith)

3 December 1979 (No. 2 of 1979).

Casenote by Neil Rees

The complainants, Torres Strait Islanders, lodged a complaint with the Counsellor for Equal Opportunity that the respondent had discriminated against them by refusing them accommodation on the basis of their race. The complaint could not be resolved by conciliation and was referred to the Anti-Discrimination Board for an inquiry.

The Board made the following findings of fact. On 26 July, 1979 the complainants responded to an advertisement regarding a flat for rental which bad been inserted in a newspaper by the respondent real estate agency. After a telephone conversation with an employee of the respondent, the complainant Mooney and a friend inspected the flat. Mooney then visited the respondent's office to discuss the terms of rental. He wished his friend Lesley Leo to inspect the flat and made arrangements for her to do so almost immediately. After Ms Leo had inspected the flat, the complainants and a friend returned to the respondent's office with the intention of entering into a lease. They were then told by Mrs Flannery that the flat was taken. It was alleged by the respondent that only half an hour earlier a Mr and Mrs White had agreed to rent the premises.

Later on the same day two friends of the complainants, Mr Craft and Mr Kelly telephoned the respondent and made enquiries about the flat. Both callers were informed that the flat was still vacant. The following morning representatives of the Channel 7 'Willessee Program' arrived at the respondent's office to film interviews about the incident. One of the respondent's employees informed them that the flat was vacant whilst another told them that it had been taken. Counsel for the respondent submitted that there had simply been a breakdown of communication. The solicitor for the complainants suggested to the Board that much of the respondent's story was concocted. Mr and Mrs White were not called to give evidence and no documents were tendered to support the evidence that they had agreed to lease the flat.

The Board found that the complainants had been the victims of unlawful discrimination. After lengthy discussion of the facts the Board stated –

What the Complainants have to satisfy the Board of is that, on the balance of probabilities, they have been treated less favourably by the Respondent than he would have treated a person of a different race in the same or similar circumstances in refusing to supply them with the accommodation they wished to obtain. In considering whether we are so satisfied we reject a submission made by Mr Magni, on behalf of the Complainants, to the effect that evidence that the Complainants felt that they were being discriminated against was in itself evidence of discriminatory conduct. We cannot decide a complaint on evidence of mere feelings in the minds of Complainants.

After careful deliberation and on an exhaustive examination of all of the evidence placed before the Board we have concluded that inferences may be drawn that the Respondent did, in fact, discriminate against the Complainants as alleged. In coming to this conclusion the Board accepts in broad terms the evidence of the Complainants, Mr Craft and Mr Kelly, as well as evidence led in the Respondent's case which supported or tended to corroborate evidence in the Complainants' case. No argument has been put to us that an employer, is not responsible for the acts of his servants' or agents in such a case and we find that the Complainants have substantiated their case. We find that the Respondent by its servants or employees treated the Complainants less favourably than it would have treated persons of a different race in the refusal of their application for accommodation.

Section 113 of the Anti-Discrimination Act states that if the Board finds a complaint substantiated it may order the respondent to pay to the complainant damages not exceeding $20,000 by way of compensation for any loss or damage suffered byreason of the respondent's conduct.' (Sub-section (b)(i) ).. The Complainants have sought compensation but no other orders and we do not see that in the circumstances of this Inquiry any other orders are appropriate.

Mr Magni, for the Complainants, indicated that his clients were not seeking reimbursement of any out-of-pocket expenses and, in fact, no evidence of any actual damage has been led. However, he submitted that punitive damages were called for. We do not accept this submission in the circumstances of this particular Inquiry. As a consequence the Board is not prepared to order the payment of any damages.

One of the courses that the Board may follow under Section 113(b) is to decline to take any further action in the matter - see sub-section (v). In all the circumstances the Board believes that this is the most appropriate course to adopt.

The complainants, whilst obviously hurt by the incidents, did shortly thereafter obtain satisfactory alternative accommodation. They suffered no monetary loss. On the other hand the Respondent received a deal of publicity by the showing of a television program in prime viewing time and may have suffered adversely by reason of this. Further, we believe that such an act of discrimination by the Respondent as we have found occurred will not happen again.

The Board has also given consideration to the question of costs. Under Section 114 the normal rule is that each party to an Inquiry should pay his own costs. Sub-section (2) makes a proviso to this rule where there are circumstances that justify the Board ordering such costs as it thinks fit. The Board does not believe that any such circumstances exist in this case and declines to make any costs order.

The Board therefore makes the following orders:

1. The complaint is substantiated.
2. It declines to take any further action on the complaint.
3. Each party shall pay its own or their own costs.