Chen v Groom & Lozcas Investments Pty Ltd [2013] QCAT 511

CITATION: Chen v Groom & Lozcas Investments Pty Ltd [2013] QCAT 511 PARTIES: Ms Sue Chen (Applicant) v Mr Phillip Groom (First Respondent) Lozcas Investments Pty Ltd (Second Respondent) APPLICATION NUMBER: ADL083-12 MATTER TYPE: Anti-discrimination matters HEARING DATE: 23 May, 2013 HEARD AT: Brisbane DECISION OF: Ann Fitzpatrick, Member DELIVERED ON: 24 September, 2013 DELIVERED AT: Brisbane ORDERS MADE: 1. The applicant’s claim is dismissed. CATCHWORDS: ANTI-DISCRIMINATION – racial discrimination – racial vilification Anti-Discrimination Act 1991 APPEARANCES and REPRESENTATION (if any): APPLICANT: Ms Sue Chen represented by Mr Tony Stolar of Gregg Lawyers Pty Ltd. RESPONDENT: Mr Phillip Groom and Lozcas Investments Pty Ltd represented by Mr Phillip Groom, Director. REASONS FOR DECISION Factual background [1] The applicant, Ms Chen entered into a rental agreement for a period of 12 months from 19 February, 2011 to 19 February, 2012 for Unit 7, -- 1 of 6 -- 2 Country Club Green, Arundel. Country Club Green is a complex of 35 residential units. [2] The first respondent, Mr Groom is the resident manager at Country Club Green. He also operates the business of the second respondent, Lozcas Investments Pty Ltd, being the licensee for residential letting at Country Club Green. [3] Ms Chen, her husband and daughter lived in Unit 7 without incident until November 2011 when conflict arose between Ms Chen and new neighbours, the Faragher family in Unit 8, which abuts Unit 7. [4] Ms Chen asserts that the family were noisy and discourteous. Ms Chen’s evidence is that on the evening of 12 November 2011, Mrs Faragher at Unit 8 verbally attacked her and her family with obscene language and gestures and said “We’re English! Of course we are loud” and “Go home you’re not English”. [5] Mrs Faragher did not give evidence, however, her husband was called by Mr Groom. He could not say whether his wife made the comments attributed to her. His evidence is that on the evening of 12 November 2011, his family were entertaining another family to dinner and that they were seated outside when Ms Chen started the dispute by insulting his wife and using obscenities. He said that she was pacing the fenceline yelling and appearing to record their conversations on a mobile phone. [6] He said that he contacted the centre manager and Mrs Groom came to talk to Ms Chen. [7] Mr Faragher provided a statement setting out other altercations between his family and Ms Chen, including on 20 January 2011 when he made a complaint to Mr Groom and the police about an allegation made by his wife that Ms Chen had yelled out her window “I will fuck kill you all” whilst banging a meat cleaver against an object in her kitchen. On 21 January 2012 Mr Faragher observed a poster taped to Ms Chen’s window facing the Faragher’s dining room window depicting a screaming face with eating utensils and tin foil which he assumed was directed to his family. On 5 February 2012 he observed and heard Ms Chen banging the fence with a hammer and yelling “shit” and “fuck” at him and some guests. He says that Ms Chen said “you should watch yourself and your family because I have arranged for someone to come see you”. He took this as implying that his family were in danger. Mr Faragher’s statement records that Ms Chen then left open garbage bins against the fence so that offensive odours could be smelt. He called the Manager about the issue. [8] Ms Chen denies the allegations made against her. She wrote a letter of complaint to Mr Groom, dated 14 November 2011, alleging constant noise from the Unit 8. That letter was said by Mr Groom to have been received by him on 20 January 2012. A further letter was delivered shortly afterwards setting out Ms Chen’s version of the 20 January 2012 incident, -- 2 of 6 -- 3 where she says that she was chopping rib bones and talking on the phone, venting about the noise from her neighbour. [9] Ms Chen says that Mr Groom never tried to conciliate the issues she raised about the tenants in Unit 8. She says that he gave her a stern talking to and then sent a “nasty letter” on 22 January 2012. [10] Mr Groom wrote to Ms Chen on 22 January 2012 and 6 February 2012 remonstrating with her over the issues involving the Unit 8 tenants. He delivered a Notice to Remedy Breach, dated 22 January 2012 asserting a breach of the tenancy agreement by Ms Chen’s alleged abuse of neighbours; a Notice to Remedy Breach, dated 6 February 2012 asserting a breach of the agreement by Ms Chen’s alleged “un appropriated language directed at neighbours. Swearing at children” [11] Ms Chen’s altercations with the Unit 8 neighbours and Mr Groom’s treatment of her, including in relation to renewal of her tenancy agreement form the basis of her complaints under the Anti-Discrimination Act 1991. [12] The tenancy agreement is a standard Form 18a General Tenancy Agreement pursuant to the Residential Tenancies and Rooming Accommodation Act 2008. Annexed to the Agreement is a “Tenants Option to Extend Lease Agreement”, which is a form able to be signed by the Tenant and returned to the Resident Manager 2 weeks before expiry of the existing lease, indicating a desire to “accept your offer of an option to extend my/our lease, at a rental deemed to be a fair market value at that time…” The form further provides: “I/we further understand that to exercise this option I/we must not have been in breach of my/our existing Tenancy Agreement during its term.” [13] On 6 November 2011, Mr Groom wrote to Ms Chen advising that the agreement will expire on 18 February 2012 and that the owner would like a new 12 month lease with a rent increase of $5.00 per week. A notice to leave was attached in the event that Ms Chen did not wish to renew the lease. Ms Chen was advised that 21 days’ notice in writing of her intentions prior to lease expiry were required. [14] Mr Groom contends that Ms Chen did not communicate a wish to renew the lease and the lease was terminated ending on 18 February 2012. [15] Ms Chen asserts that she told Mr Groom she would not renew on the basis of a $5.00 per week rent rise until the problems with the tenants in Unit 8 were resolved. She says that she had until 28 January 2012 to advise Mr Groom she would be renewing the tenancy. However, by his 22 January 2012 letter Mr Groom informed her the lease would not be renewed. Mr Groom’s letter stated: “Please note that your lease is up for renewal on the 18th February, 2012 this will not be renewed, the Form 10 given on the 6th December, 2011 will be enforced (Notice to Leave) copy enclosed.” -- 3 of 6 -- 4 [16] Further dispute occurred between the parties arising out of the alleged state of the Unit on Ms Chen’s departure and a claim against the rental bond, which was allowed following processes in the Residential Tenancies Authority and this Tribunal. Claims by Ms Chen [17] Ms Chen submits that Mr Groom knew of the racial vilification of her by Mrs Faragher. Although not clearly articulated by Ms Chen, it appears the basis of her racial vilification claim are words attributed to Mrs Faragher to the effect “Go home you are not English”. They are the only words addressed to Ms Chen which refer to her race. [18] Mr Stolar, the solicitor representing Ms Chen said in his final submissions that:  Mr Groom did nothing about that vilification;  Further, in breach of section 124A of the Act, he showed serious contempt to Ms Chen arising out of the dispute with the tenants at Unit 8;  Mr Groom discriminated against Ms Chen on the basis of her Chinese background in breach of section 7 of the Act, by treating her unfairly in relation to accommodation, in breach of s 83 of the Act;  Mr Groom is in breach of sections 129 and 130 of the Act in that he victimized Ms Chen by terminating her tenancy agreement or refusing to renew the agreement;  Ms Chen seeks recovery of $380.00 being one week’s rent held by Mr Groom which has not been dealt with by the Residential Tenancy Authority or this Tribunal. She also seeks $900.00 removal expenses for her piano and any other damages the Tribunal deems fit. [19] Mr Groom submitted that Ms Chen was the aggressor and that she had engaged in destructive behaviour which he had observed. He said that he had not racially vilified Ms Chen. He submitted that the allegation of racial vilification arose out of the arguments between Ms Chen and Mrs Faragher, which he had responded to by requesting that they notify him of problems so that he could mediate. [20] In relation to non- renewal of the lease he said that was done without the necessity for grounds being given. Anti-Discrimination Act 1991 [21] Relevant to this case, the Act provides that a person must not discriminate against another on the basis of their race. Despite making the allegation in -- 4 of 6 -- 5 her complaint, Ms Chen did not present a case in relation to indirect discrimination or make any submissions in this regard. [22] Insofar as direct discrimination is concerned, Ms Chen must establish that because she is Chinese, she was treated less favourably than another person who is not Chinese in relation to the renewal of their tenancy agreement, in circumstances that are the same or not materially different.1 [23] In relation to the racial vilification aspect of her claim Ms Chen must establish pursuant to section 124A of the Act that she has been the subject, by public act, of an incitement of hatred towards her, serious contempt for her or severe ridicule of her on the ground of her Chinese race. [24] In relation to her claim that she has been victimized, Ms Chen must establish that Mr Groom has refused to renew her tenancy agreement because she refused to contravene the Act, intends to allege a person contravened the Act or intends to be involved in a proceeding under the Act or Mr Groom believes she is doing, has done or intends to do one of those things. Findings [25] I find that if any comment with racial connotations was made, then it occurred in a discussion between Mrs Faragher and Ms Chen. I accept the submission of Mr Groom that he made no comment in relation to Ms Chen’s race. I think it is a leap too far to say, as Ms Chen has done, that Mr Groom has condoned any such comment, or to say that actions he took as Manager of Country Club Green were based on her race just because another tenant may have made what was perceived to be a racial comment. [26] The evidence of the witnesses suggests that there was an ongoing abusive relationship between Ms Chen and the tenants in Unit 8, which involved the intervention of Mr Groom and his wife and a notification to the police. I found Mr Faragher to be a balanced and honest witness. I accept his evidence in relation to the events he observed involving Ms Chen and his complaints to the Grooms and the police. [27] The letter of 22 January 2012 whereby Mr Groom told Ms Chen that her lease would not be renewed follows a heated confrontation between Ms Chen and her daughter and Mr Groom, recorded in the letter and reference to previous altercations between the tenants. I find that the reason for non-renewal of Ms Chen’s lease was the reason set out in the 22 January, 2012 letter, namely, the “robust rude attitude you have for others which is unacceptable living within a complex.” 1 See Anti-Discrimination Act 1991 - Section 7 – Discrimination on the basis of certain attributes prohibited; Section 9 – Discrimination of certain types prohibited; Section 10 – Meaning of direct discrimination; Section 83 – Discrimination in accommodation area. -- 5 of 6 -- 6 [28] I am unable to find that Ms Chen’s lease was not renewed because of her race or that Mr Groom would not have acted in the same way when confronted by a non-Chinese person who he thought was engaging in an abusive manner to neighbouring tenants. [29] Ms Chen’s evidence does not establish that Mr Groom by any public act incited serious contempt for her on the ground of her race. Her submission is that Mr Groom knew of Mrs Faragher’s alleged racial vilification of her, but did nothing. I consider that some active conduct on the part of Mr Groom would need to be shown. Public act is defined in section 4A of the Act to mean any form of communication to the public or conduct observable by the public. To incite, has been found to mean “to urge on; stimulate or prompt to action”2. I am unable to find that Mr Groom has engaged in racial vilification of Ms Chen. [30] Finally, I consider that Ms Chen’s claim of victimization on the basis that her tenancy agreement was not renewed, is misconceived. There is no evidence that any of the grounds set out in section 130 of the Act were the basis for Mr Groom refusing to renew the tenancy agreement. I am unable to find that Mr Groom has victimized Ms Chen. Orders [31] On the basis of my findings that none of Ms Chen’s claims have been made out, I dismiss her application. 2 PR v Metro Coach (Aust) Pty Ltd and Ors [2011] QCAT 421 at par [39]. -- 6 of 6 --