Smith v Jamsek [2012] NSWADT 3

Smith v Jamsek [2012] NSWADT 3

The Tribunal preferred the applicant's clear and consistent evidence over Elizabeth Jamsek's evasive and inconsistent evidence, found that she asked whether he was Aboriginal and refused him accommodation because of his Aboriginality, and concluded that this was less favourable treatment in breach of s 20 of the Anti-Discrimination Act 1977. Having regard to Alois Jamsek's role in the business, Elizabeth Jamsek's statement that her boss in Sydney told her not to take Aboriginals, and Alois Jamsek's unexplained failure to give evidence, the Tribunal inferred that Alois Jamsek caused or instructed the refusal and thereby breached s 52 of the Act.

Jurisdiction
Australia
Judgment Date
18 January 2012
Procedural Posture
Equal Opportunity Division Complaint of Race Discrimination in Accommodation Under the Anti Discrimination Act 1977 / Principal Judgment After Hearing
Outcome
Application upheld; respondents ordered to pay compensation, restrained from unlawful refusal of accommodation on the ground of Aboriginality, ordered to apologise, and ordered to pay costs.
Legal Topics
['race Discrimination' 'aboriginality' 'accommodation' 'burden and Standard of Proof' 'jones V Dunkel Inference' 'compensation and Remedies' 'costs']
['anti Discrimination Law' 'equal Opportunity' 'administrative Law'] ['race Discrimination' 'aboriginality' 'accommodation' 'burden and Standard of Proof' 'jones V Dunkel Inference' 'compensation and Remedies' 'costs']

Case Brief

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Procedural Posture

Equal Opportunity Division Complaint of Race Discrimination in Accommodation Under the Anti Discrimination Act 1977 / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether Noel Smith was refused accommodation at the Rex Guest House on the ground of his Aboriginality.' 'Whether Elizabeth Jamsek treated Noel Smith less favourably than a person of a different race in the provision of accommodation.' 'Whether Alois Jamsek caused or instructed Elizabeth Jamsek to refuse accommodation to Aboriginal persons.' 'What remedies, including compensation, apology, injunction and costs, should be ordered.']

Ratio Decidendi

The Tribunal preferred the applicant's clear and consistent evidence over Elizabeth Jamsek's evasive and inconsistent evidence, found that she asked whether he was Aboriginal and refused him accommodation because of his Aboriginality, and concluded that this was less favourable treatment in breach of s 20 of the Anti-Discrimination Act 1977. Having regard to Alois Jamsek's role in the business, Elizabeth Jamsek's statement that her boss in Sydney told her not to take Aboriginals, and Alois Jamsek's unexplained failure to give evidence, the Tribunal inferred that Alois Jamsek caused or instructed the refusal and thereby breached s 52 of the Act.

Court Disposition

Application upheld; respondents ordered to pay compensation, restrained from unlawful refusal of accommodation on the ground of Aboriginality, ordered to apologise, and ordered to pay costs.

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...