Bernitt v Apple Eight Pty Ltd & Anor [2021] QCAT 19

QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL CITATION: Bernitt v Apple Eight Pty Ltd & Anor [2021] QCAT 19 PARTIES: WAYNE BERNITT (applicant) v APPLE EIGHT PTY LTD (first respondent) ALEX SILVA (second respondent) APPLICATION NO/S: ADL068-19 MATTER TYPE: Anti-discrimination matters DELIVERED ON: 27 January 2021 HEARING DATE: 15 December 2020 HEARD AT: Brisbane DECISION OF: Member Kanowski ORDERS: The name of the second respondent is corrected from Alex Silver to Alex Silva. The complaint made by Wayne Bernitt against each of the respondents is dismissed. CATCHWORDS: HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GROUNDS OF DISCRIMINATION – DISCRIMINATION ON BASIS OF AGE – where complainant’s tenancy application was rejected – where complainant contends age discrimination – where respondents contend accommodation refused as complainant not a student – whether unlawful discrimination Anti-Discrimination Act 1991 (Qld), s 7, s 10, s 82(c) APPEARANCES & REPRESENTATION: Applicant: Self-represented First Respondent: Katie Bursnall (shareholder in Apple Eight Pty Ltd) Second Respondent: Self-represented -- 1 of 6 -- 2 REASONS FOR DECISION Introduction In this proceeding, Mr Bernitt complains of unlawful discrimination in the area of accommodation, by the respondents: (a) Mr Silva, a co-owner with his wife of a house in Brisbane; and (b) Apple Eight Pty Ltd, the real estate agent trading as Rentstar Property Management which lets the property for Mr and Mrs Silva. Mr Bernitt contends that he was discriminated against on the basis of age, when the respondents rejected his application for share accommodation at the house. Mr Bernitt, who was in his late fifties at the time in question, says that the respondents wanted only young people as tenants. The respondents deny age-based discrimination. They say that they did not take into account Mr Bernitt’s age but, rather, the fact that he was not a student. They say the house was offered as student accommodation. I must decide whether there was unlawful discrimination under the Anti- Discrimination Act 1991 (Qld) (‘Anti-Discrimination Act’) and, if so, what orders should be made as a result. Name of second respondent At the hearing it was established that the correct spelling of the second respondent’s surname is Silva, so I have made an order correcting that. Legislative provisions The Anti-Discrimination Act prohibits discrimination, relevantly, on the basis of age.1 Discrimination can be direct or indirect,2 but direct discrimination is what Mr Bernitt contends happened to him. Direct discrimination on the basis of an attribute – here, Mr Bernitt’s age – happens if a person treats a person with the attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.3 A person must not discriminate in the area of accommodation in, relevantly, the way an application is processed.4 The Anti-Discrimination Act provides for certain exemptions in the area of accommodation,5 but it is not suggested that any exemption would apply here. It is for Mr Bernitt, as the complainant, to prove on the balance of probabilities that the respondents contravened the Anti-Discrimination Act.6 1 Anti-Discrimination Act, s 7(f). 2 Ibid, s 9. 3 Ibid, s 10(1). 4 Ibid, s 81, s 82(c). 5 Ibid, s 86 – s 92. 6 Ibid, s 204. -- 2 of 6 -- 3 In the course of his submissions, Mr Bernitt sought to also rely on the Age Discrimination Act 2004 (Cth). However, the tribunal is given no jurisdiction by that Act.7 Mr Bernitt also referred to discrimination not being allowed on the basis of ‘social standing’, but that is not an attribute listed in the Anti-Discrimination Act.8 Similarly, Mr Bernitt spoke of ‘social discrimination’. However, only discrimination on one or more of the listed attributes can be the subject of a complaint. Mr Bernitt submits that ‘students do not have more of a right to accommodation than any other member of the public’.9 However, the Anti-Discrimination Act does not prohibit discrimination on the basis of a person being a student or not a student. Evidence, submissions and findings Eleven documents were marked as exhibits at the hearing, and oral evidence was given by Mr Bernitt, Mr Tristan Williams (an employee of Apple Eight Pty Ltd), and Mr Silva. It is undisputed that Mr Bernitt inspected the property on two occasions in May 2019, after seeing it advertised online, and that on the first occasion he met Mr Silva who was at the property doing some work. Mr Bernitt says he accepted Mr Silva’s offer to show him around the premises, and they had a long conversation. Mr Bernitt says that Mr Silva told him that only one room had so far been rented, and that was to Canadian backpackers. Mr Bernitt says that Mr Silva was ‘very positive and helpful’,10 and offered to have spare keys cut to enable Mr Bernitt to store belongings in out- buildings. Mr Silva in his oral evidence agreed that he had met Mr Bernitt and offered to show him through the house. However, he denied having a lengthy discussion of the nature described by Mr Bernitt, during which he offered to have keys cut. Mr Bernitt put to Mr Silva in cross-examination that he was being hostile, which Mr Silva denied. However, it became apparent during Mr Silva’s later submissions that he is deeply annoyed about the complaint. I consider that there is hostility which may well have affected Mr Silva’s testimony. In light of this, I see no reason to doubt Mr Bernitt’s evidence that Mr Silva was very positive and helpful when they met during the inspection. Mr Bernitt says he arranged another inspection the next week, and the salesperson encouraged him to lodge an application for the room as others were looking. Mr Bernitt says that nobody at any point had said the room was for students only. Mr Bernitt says he lodged an application after looking at other options, and concluding that ‘the room was perfect and the property was in the perfect location …’.11 The tenancy application was dated 21 May 2019. It was on a form which had spaces for details under headings such as ‘Current Occupation’, ‘Self Employed’ and 7 Compare with s 174A of the Anti-Discrimination Act, which confers jurisdiction on the tribunal in relation to the Anti-Discrimination Act. 8 Attributes are listed in s 7. 9 Exhibit 4, 7. 10 Exhibit 4, 3. 11 Ibid. -- 3 of 6 -- 4 ‘Student’. Mr Bernitt did not include any responses in the ‘Student’ section, which is not surprising because he was not a student. It is undisputed that Mr Bernitt’s application was rejected. The agency sent Mr Bernitt an email on 22 May 2019 advising that the application had not been successful. Mr Bernitt replied by email, seeking an explanation. Mr Williams then sent Mr Bernitt an email, at 9.32 am on 22 May 2019 which said: ‘… unfortunately the application was declined on this occasion as the owner has decided to lease this property to students’.12 Mr Bernitt says he was shocked by this email, and he rang Apple Eight Pty Ltd to clarify the situation. He says he spoke with Mr Williams, who said that the property was for students only. Mr Bernitt says that Mr Williams was arrogant and condescending, and then said: ‘the owner only wants younger tenants’.13 Mr Bernitt says: ‘I was speechless and can't remember exactly what I said. In some manner I think I said “you can't refuse accommodation on those grounds”’.14 Mr Bernitt says: Having the application rejected was crushing enough but to find it was due to [my] age was infuriating, frustrating and bit at the very core of getting “a fair go”.15 Mr Williams denies that he made the comment about the owner wanting younger tenants. He says that Mr Bernitt became aggravated during their phone conversation, and that Mr Bernitt expressed the view that only younger people were wanted. The respondents say that the property was advertised as student accommodation. Apple Eight Pty Ltd has provided some realestate.com records which it says confirm this. Ms Bursnall for Apple Eight Pty Ltd submits that Mr Bernitt, being upset, must have misinterpreted what Mr Williams was saying: taking students to mean younger people. Ms Bursnall points out that Mr Bernitt has said that: ‘colloquially the term “student” refers to a young person between the ages of eighteen to twenty four’.16 The respondents say that Mr and Mrs Silva had bought the property to rent out as student accommodation; it was listed for rent on 3 May 2019; and five tenants, all of whom were students, moved in on various dates in May to July 2019. They say that the first was a Canadian who was a student at Bond University; two were students at the Queensland University of Technology; one was a student at Griffith University; and another was a ‘digital media student’.17 Apple Eight Pty Ltd also says that there is a reason why owners such as the Silvas choose to offer student-only accommodation: section 4(5)(e) of the Residential Services (Accreditation) Act 2002 (Qld) exempts student accommodation from regulatory requirements that normally apply to ‘residential services’. Apple Eight Pty Ltd also say that the Residential Tenancies Authority will be satisfied that a property is student accommodation if all occupants are enrolled at learning institutions and if supporting evidence of their enrolment can be provided upon request. 12 Exhibit 10. 13 Exhibit 4, 4. 14 Ibid. 15 Exhibit 4, 10. 16 Exhibit 4, 6. 17 Exhibit 11, 3. -- 4 of 6 -- 5 Ms Bursnall for Apple Eight Pty Ltd also submits that there is particular treatment for student accommodation in Brisbane City Council regulations. Mr Bernitt, for his part, says that he saw nothing in the advertising material to indicate that the accommodation was student accommodation. He provided some examples of other online advertisements which have no indication on the ‘landing page’ that they are student accommodation. Mr Bernitt also points to the words ‘has decided’ in Mr Williams’ email as establishing that any decision or purported decision to rent only to students had been made very recently; not at some time earlier, prior to advertising. Further, Mr Bernitt says that existing tenants were described to him as Canadian backpackers, not students, and he questions why a student of Bond University, which is located on the Gold Coast, would be living in inner Brisbane. Mr Bernitt also notes the wording of the exemption mentioned by Apple Eight Pty Ltd. It applies to: a service conducted as part of, or under an agreement with, a school or other educational institution mainly to provide accommodation to students or employees of the school or institution.18 Mr Bernitt points out, correctly, that there is no evidence of any agreement in respect of the property with any educational institution. However, I note that Apple Eight Pty Ltd contends that the regulatory rationale for offering student-only accommodation is not confined to that exemption. Even if it were, in my view it is not obvious that such an exemption would be routinely policed. I see no reason to doubt that Apple Eight Pty Ltd and Mr Silva perceive, rightly or wrongly, a regulatory advantage in offering student-only accommodation. I found Mr Williams to be a very straightforward witness. His evidence, notably that he told Mr Bernitt that his application had been refused because he was not a student, and that he did not say it was because the owner wanted younger tenants, was credible and convincing. At the time of the phone conversation in May 2019, Mr Bernitt was in a state of shock and disappointment at being rejected for a property which he regarded as perfect for his needs. I also accept Mr Williams’ evidence that Mr Bernitt became ‘aggravated’ during the conversation. In that state of heightened emotions, Mr Bernitt could well have misinterpreted Mr Williams’ explanation. Further, a comment by Mr Silva that tenants were Canadian backpackers is not necessarily inconsistent with the person or persons being students. Nor is it outside the realm of possibility that a student of Bond University might live in Brisbane. Further, the phrasing ‘has decided’ in Mr Williams’ email, while it could well be read in the context as referring to a very recent decision, is also consistent with a decision made at or before the time of advertising. The fact that Mr Bernitt found Mr Silva to be very positive and helpful during the inspection strongly suggests that Mr Silva was not minded to exclude Mr Bernitt on the basis of age. Mr Silva’s actions were consistent with encouraging the interest of Mr Bernitt in the accommodation on the assumption that he was a mature age student. 18 Residential Services (Accreditation) Act 2002 (Qld), s 4(5)(e). -- 5 of 6 -- 6 Mr Bernitt has not established on the balance of probabilities that the respondents treated him less favourably than a young person would have been treated in the same or similar circumstances. Indeed, the weight of the evidence persuades me that the account of the respondents is correct: that they advertised the accommodation as being for students (and that Mr Bernitt missed this detail), and that they rejected Mr Bernitt’s application not because of his age but because he was not a student. I find accordingly. Conclusion As Mr Bernitt has not established unlawful discrimination, the appropriate order is to dismiss his complaint under section 210 of the Anti-Discrimination Act. -- 6 of 6 --