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Editors --- "Samuels Real Estate Pty Ltd V Lamb & ANOR - Case Summary" [1998] AUIndigLawRpr 32; (1998) 3(3) Australian Indigenous Law Reporter 392

Samuels Real Estate Pty Ltd v Lamb & Anor

17 February 1998

Anti-Discrimination -- Appeal pursuant to s. 118 of the Anti-Discrimination Act 1977 (NSW) from decision of Equal Opportunity Tribunal concerning discrimination on the ground of race in the area of the provision of accommodation and vicarious liability: ss. 7, 20 and 53.

^Facts:

In November 1995 the Equal Opportunity Tribunal found that on 16 August 1993 the respondent Samuels Real Estate Pty Ltd in Dubbo unlawfully discriminated against the complainant on the ground of her race by deferring her application for rental accommodation. The Tribunal held that Ms Lamb because of her race had been treated less favourably by employees of Samuels Real Estate than, in circumstances not materially different, a person of a different race would have been treated, pursuant to s. 7(1) of the Anti-Discrimination Act 1977 (NSW)(the Act). The Tribunal also found that Samuels Real Estate, the managing director of which was Mrs Samuels, had not discharged the onus under the vicarious liability provision, s. 53 of the Act, of proving that it did not authorise the employees to do the acts of discrimination. The Tribunal awarded the complainant $6000 by way of damages.

^{Grounds of Appeal:}

Samuels Real Estate appealed the Tribunal's decision arguing three grounds. First, that the Tribunal erred in law in the construction of s. 7(1) of the Act. The Court held that the Tribunal compared the way in which the complainant was treated with the way in which her friend (Ms Warry), a person of a different race, had actually been treated and that the circumstances were not materially different.

Second, it was argued that the Tribunal had erred in law in that Samuels Real Estate was denied natural justice in that there was no evidence before the Tribunal upon which an adverse finding as to credit could be made and accordingly the Tribunal must have considered material not disclosed in the proceedings. The Court found that during the course of the hearing before the Tribunal in cross-examination Mrs Samuels' evidence had been challenged and the Court was satisfied that Mrs Samuels was on notice at the hearing that her evidence, that she had no knowledge of the relevant events until long afterwards, was under challenge. The Tribunal also did give reasons for not accepting Mrs Samuels' evidence. The Court rejected this ground of appeal.

Third, it was argued that the Tribunal erred in law in the construction of s. 53 of the Act. The Tribunal made findings concerning Samuels Real Estate liability under s. 53 on each of two alternative grounds, that is, Mrs Samuels had knowledge of the relevant events and by her knowledge she could not be said not to have authorised the illegal acts, and the Tribunal also said that if it was wrong in its inferences of the degree of knowledge by Mrs Samuels it was still of the view that Samuels Real Estate nonetheless had not discharged the onus of satisfying the Tribunal that it did not authorise the act. The Tribunal noted that evidence had been given on behalf of Samuels Real Estate that it had in place a policy of anti-discrimination. The Tribunal criticised the evidence of the terms of the policy as being general, vague and inconsistent verbal instructions to employees on the commencement of their employment and that an employer must show that it had an effective policy in place which was capable of being effectively applied. The Court held that the Tribunal had in this latter regard misconstrued s. 53.

James J said:

The Tribunal's error can be clearly seen by comparing the terms of s. 53 with the quite different terms of other similar legislation which does impose on employers or principals a requirement similar to that which the Tribunal thought was imposed by s. 53.

...

It may be that Samuels Real Estate should have been held liable, without any recourse to s. 53 at all, on the basis that Mrs McDonald participated in the acts of discrimination and that as she was the property manager of Samuels Real Estate, her acts should be characterised as acts of Samuels Real Estate and not merely as acts done by her as an employee of Samuels Real Estate. However, the case was not dealt with in this way before the Tribunal ...

His Honour took the view that the Tribunal had found Samuels Real Estate liable under s. 53 on two alternative grounds and the error of law in construing s. 53 only affected one of those grounds.

^Held:

Appeal dismissed and Samuels Real Estate should pay Ms Lamb's costs.

^{James J:}

This is an appeal pursuant to s. 118 of the Anti-Discrimination Act 1977 (NSW)(the Act) from a decision of the Equal Opportunity Tribunal given on 27 November 1995. The Tribunal had enquired into a complaint by Ms Jennifer Lamb, an Aboriginal woman, that on 16 August 1993 the respondent to the complaint, whose correct name is Samuels Real Estate Pty Limited (Samuels Real Estate) had discriminated against Ms Lamb on the ground of her race by deferring an application by her for rental accommodation. The Tribunal found that the complaint was made out, in that on 16 August 1993, by the deferring of Ms Lamb's application for rental accommodation, Ms Lamb because of her race had been treated less favourably by employees of Samuels Real Estate than, in circumstances not materially different, a person of different race would have been treated by those employees. The Tribunal proceeded to find that Samuels Real Estate, the managing director of which was Mrs Anna Samuels, was liable, under s. 53 of the Act, for the unlawful acts of discrimination by its employees, the Tribunal holding that Samuels Real Estate had not succeeded in discharging the onus under s. 53 of proving that it did not authorise the employees to do the acts of discrimination. The Tribunal awarded Ms Lamb $6000 by way of damages. The parties to the appeal from the decision of the Tribunal are Samuels Real Estate as the plaintiff, Ms Lamb as the first defendant and the Tribunal as the second defendant. The second defendant filed a submitting appearance.

The Tribunal held, and was clearly right in holding, that the provisions of the Act which were to be applied were the provisions which were in force at the date of the alleged discrimination and not amendments to the Act which had been made after the alleged discrimination but before the hearing before the Tribunal. Sections 7(1), 20 and 53 of the Act, as they stood at the relevant time, provided, so far as is relevant, as follows:

7. (1) A person discriminates against another person on the ground of his race if, on the ground of --
(a) his race;
...
he --
(b) treats him less favourably than in the same circumstances, or in circumstances which are not materially different, he treats or would treat a person of a different race.
20. (1) It is unlawful for a person, whether as principal or agent, to discriminate against another person on the ground of his race-
...
(c) by deferring his application for accommodation ...
53. An act done in contravention of this Act by a person as the agent or employee of another person shall be deemed, for the purposes of this Act, to be done by his principal or employer as well as by him unless his principal or employer did not, either before or after the doing of the act, authorise him, either expressly or by implication, to do the act.

In its judgment the Tribunal recorded that Samuels Real Estate operated its business from premises in Dubbo and that its staff in 1993 included Mrs Samuels as its managing director, Yvette Thompson (who had married before the date of the hearing and whose married name was McDonald) as its property manager, Lyndall Shanks as the office receptionist and Justin Bear as the property officer. The Tribunal also recorded that the complainant, Ms Lamb, was Aboriginal, "a fact that is obvious and was not contested". The Tribunal then proceeded to summarise the evidence which had been given in the hearing before it by Ms Lamb and a witness named Tracey Warry (Ms Warry). The Tribunal accepted all of this evidence and it is convenient to set out the Tribunal's summary of the evidence in full.

Prior to 16 August 1993, Ms Lamb was temporarily residing in Dubbo in a five bedroom house with her two children. In addition, the house was occupied by three other adults and six other children. Ms Lamb and her two children shared one bedroom. Ms Lamb was desperate to find separate accommodation for herself and her two children. She had been to most of the estate agents in Dubbo, at least 11 or 12 times, seeking accommodation. At the office of the respondent, Ms Lamb was told that she needed to complete an application form for accommodation, which must be supported by two references, one of which needed to be an accommodation reference. She explained that she required a two bedroom flat which would be occupied by herself and her two sons.

Ms Lamb first went to Samuels Real Estate Pty Ltd during July 1993. She continued to make enquiries at Samuels Real Estate Pty Ltd. Ms Lamb stated that she went back at least three times and was told on each occasion that there was no accommodation available but to keep trying, and was reminded that she needed to complete the application and supply two references. Ms Lamb finally completed an application, although she does not remember the date, and she did supply two written references. Again, the date on which the references were supplied is not clear, but the Tribunal, on the evidence, accepts that a written application supported by two references was held by Samuels Real Estate Pty Ltd at least by 13 August 1993.

On the morning of 16 August 1993, Ms Lamb phoned the office of the respondent and spoke to a male person, although she did not enquire who she was speaking to and she cannot identify the person. She did not identify herself, but asked if there were any flats available in a rental price range of $90 to $120. In evidence Ms Lamb swore that the male person stated that there were four flats available and that she needed to bring references. Ms Lamb spoke to her friends, who agreed to accompany her by car to Samuels Real Estate Pty Ltd. One of the persons who accompanied Ms Lamb in the car was her friend, Tracey Lee Warry. Ms Lamb left her friends in the car, which was parked close to the office of the respondent, and went in alone to the office.

Ms Lamb gave evidence that she spoke to a lady, whom she described, but was not able to identify or to name. She asked whether there were flats available. The lady asked her name and she then got out Ms Lamb's application and said, "There are none available". Ms Lamb said that she did not respond and she just walked out and went back to the car and told her friends, "They told me there was nothing available". Ms Lamb had a discussion with her friends in the car and it was suggested that her friend, Tracey Warry, go to the office of the respondent and ask if there were any flats available.

Tracey Lee Warry is a Caucasian. Mrs Warry gave evidence to the Tribunal, and her Caucasian background is obvious. It was not disputed that Mrs Warry is Caucasian.

Mrs Warry's evidence was that she went to the office of Samuels Real Estate Pty Ltd where she spoke to a female. She asked this person if there were any flats available. The female person replied that there were flats available. Mrs Warry told the person that, in a rental price range of between $90 and $100, she required two bedroom accommodation for herself and two children. Mrs Warry was asked to fill in an application form, which she did, and she left the application with the female person. The female person then told Mrs Warry to come back with references and she would be taken around to look at the flats after dinner. Mrs Warry said she had an accommodation reference. She was not told how many other references were required. Mrs Warry then left the office of the respondent and returned to the car in which Ms Lamb and her friends were waiting.

Ms Lamb and Mrs Warry then returned to the office of the respondent. They walked into the office together and went to the reception desk. They both gave evidence that there were two females at the front of the office, one at the reception desk and one off to the side of the reception desk. Both Ms Lamb and Mrs Warry described the expression on the face of the woman at the reception desk as "dumbfounded" and that she looked shocked when she saw Ms Lamb and Mrs Warry together. Mrs Warry said that she asked the female at the reception desk in the office, "How come they had a flat available for me and not for Jennifer?". Mrs Warry said that the woman she had spoken to earlier was definitely in the office, but she could not recall if that was the woman she then addressed. The woman then said to Ms Lamb words to the effect, "The reason why there was nothing available for you is because you cannot have three people in a two bedroom flat. They should have told you that". Ms Lamb verified this discussion and said that she was most upset and responded, "that's a load of bullshit". Ms Lamb said that when she filled out her application at Samuels Real Estate Pty Ltd she indicated that she required a two bedroom flat for herself and her two children and no reference was made to a prohibition against three people in a two bedroom flat.

Mrs Warry then said she and Ms Lamb would get legal advice. Ms Lamb said that she and Mrs Warry then walked out of the office. She says that she felt disgusted.

After they left the office of the respondent, Ms Lamb and Mrs Warry went out to the car. Ms Lamb was driven to the Aboriginal Legal Service where she instructed the Service to make the formal complaint.

On the following day, 17 August 1993, a phone message was left at the residence of Ms Lamb, requesting her to contact the office of Samuels Real Estate Pty Ltd. When she rang the office she was told there was a flat available. She then went to the office and from there Mr Justin Bear took her to inspect a flat which was available in Fairview Street. After inspecting the flat, Ms Lamb told Mr Bear that she would take the flat. However, after thinking further about accepting the flat, she decided that she did not want it after all that had happened at Samuels Real Estate Pty Ltd. She says that she was still angry and thought that the flat was only being offered to her because of her complaint and that she was likely to be evicted after a short period.

After about a month, Ms Lamb was provided with accommodation through the Department of Housing. During that period, Ms Lamb and her two children remained living with her friends in cramped accommodation. Ms Lamb stated in evidence that she was still angry and upset with the treatment given to her by the respondent.

Tracey Lee Warry is referred to as "Mrs Warry" in the Tribunal's judgment but is consistently referred to as "Ms Warry" in the transcript of the proceedings before the Tribunal and that is how I will refer to her in this judgment.

The Tribunal then recorded that Ms Lamb and Ms Warry had been unable to identify the employees of Samuels Real Estate with whom they had dealt on 16 August 1993. The Tribunal considered that the inability of Ms Lamb and Ms Warry to identify the employees was "not critical" to the case against the respondent. The attitude taken by the Tribunal to the inability of Ms Lamb and Ms Warry to identify the employees of Samuels Real Estate with whom they had dealt was relied on in particulars supplied by solicitors for Samuels Real Estate of certain of its grounds of appeal. However, at the hearing before me counsel for Samuels Real Estate expressly abandoned any reliance on this factor.

The Tribunal recorded in its judgment that four witnesses gave evidence on behalf of the respondent, namely Mrs Samuels, Ms Shanks, Mrs McDonald and a woman named Sandra Tonkin, an Aboriginal who gave evidence that she had obtained rental accommodation through the respondent. In its judgment the Tribunal summarised the evidence of each of these witnesses but it is unnecessary for the purposes of this present judgment to repeat this summary. At this stage of this judgment I will simply note that Mrs Samuels gave evidence that she was not aware of the events of 16 and 17 August 1993 or that a complaint had been made, until she was contacted by a representative of the Anti-Discrimination Board in December 1993. Mrs Samuels said that Samuels Real Estate had a policy of not considering an application for residential leasing until the applicant had completed an application form and had provided references. She also gave evidence that Samuels Real Estate had a policy that no person was to be discriminated against on the basis of race (or any of a number of other factors).

Under s. 118 of the Act an appeal can be brought by a party aggrieved by a decision of the Tribunal only on a question of law. I was referred, appropriately, by counsel for Ms Lamb to what was said by the Full Court of the Federal Court in Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 especially at 286-7, both on the distinction between a question of law and a question of fact and on the need for a court hearing an appeal on a question of law from a decision of a tribunal to exercise "principled restraint".

Not all the grounds of appeal in the notice of appeal filed on behalf of Samuels Real Estate were pressed at the hearing before me. No submission was made in support of the ground of appeal that the Tribunal had erred in law in construing s. 20 of the Act. As I have already indicated, counsel for Samuels Real Estate expressly abandoned any reliance on the view taken by the Tribunal of the inability of Ms Lamb and Ms Warry to identify the employees of Samuels Real Estate with whom they had dealt. I will deal in turn with the grounds of appeal which were argued, in the order in which they were argued.

That the second defendant (the Tribunal) erred in law in the construction of s. 7(1) of the Act.

That the second defendant erred in law in finding that on 16 August 1993 Ms Lamb because of her race was treated less favourably than employees of Samuels Real Estate would, in circumstances not materially different, have treated a person of a different race.

These two grounds of appeal really amount to the same ground differently stated and it is convenient to deal with them together. I have slightly altered the wording of the second of these two grounds of appeal from the wording in the notice of appeal, so that the ground of appeal more accurately reflects the submissions which were actually made to me.

Notwithstanding the use by the Tribunal of the expression "would have treated" in its statement of its finding, it is clear from the Tribunal's judgment that the Tribunal compared the way in which Ms Lamb had been treated on 16 August with the way in which Ms Warry, a person of a different race, had actually been treated on the same day and found that Ms Lamb had been treated less favourably in circumstances which the Tribunal found were not materially different from the circumstances in which Ms Warry had been treated. It was submitted on behalf of the plaintiff, Samuels Real Estate, that in holding that the circumstances in which the two women were treated were not materially different, the Tribunal had made an error of law. It was contended that Mrs Samuels had given evidence, which the Tribunal had recorded in its judgment and had not rejected, that Samuels Real Estate had a policy that an application to lease residential premises would not be considered, until the applicant had completed an application form and had provided references. Completing the application form and providing references was described by counsel for Samuels Real Estate as "going through the gate". Only after an applicant had gone through the gate would a serious attempt be made by Samuels Real Estate to find rental accommodation for the applicant. By 13 August 1993 Ms Lamb, having completed an application form and having provided references, had gone through the gate. On 16 August Ms Warry, although she had completed an application form, had not provided references and accordingly had not gone through the gate. It was submitted that this difference made the circumstances applying to the two women materially different.

I do not consider that this submission should be upheld.

It is worth noting that the alleged material difference in the circumstances of the two women was not given on 16 August by employees of Samuels Real Estate as a reason for having differentiated between the two women. On 16 August 1993 Ms Lamb and Ms Warry were both young women, who applied to Samuels Real Estate for rental accommodation, each telling employees of Samuels Real Estate that she had two children, that she was seeking rental accommodation for herself and her children, that she was seeking a two bedroom flat and that she was seeking accommodation in the same rental range. The rental range indicated by Ms Warry was in fact more restricted than, but fell entirely within, the rental range indicated by Ms Lamb. As the Tribunal found, Ms Lamb was told that there were no flats available, whereas Ms Warry was told that there were flats available. When Ms Lamb and Ms Warry subsequently went into the respondent's premises together and Ms Warry demanded to know why there were flats available for her but not for Ms Lamb, she was told, not that it was because one of them had provided references while the other had not, but that is was "because you cannot have three people in a two bedroom flat".

In my opinion, the circumstance that Ms Warry had not yet provided references did not amount to a material difference in the circumstances of the two women. A circumstance would have the effect of making the circumstances of the two women materially different within the meaning of that expression in s. 7(1) of the Act, if it provided some justification for Ms Lamb being treated less favourably than Ms Warry. The circumstance that Ms Warry had not provided references and was, according to the respondent's evidence, in a worse position than Ms Lamb to obtain rental accommodation, could not provide any justification for Ms Lamb being treated less favourably than Ms Warry. The alleged material difference, so far from affording some justification or explanation of why Ms Lamb was treated less favourably, actually heightens the discrimination.

I reject these grounds of appeal.

That the second defendant erred in law in that the Plaintiff was denied natural justice in that there was no evidence before the Tribunal upon which an adverse finding as to credit could be made and accordingly the second defendant must have considered material not disclosed in the proceedings.

This was the way in which the ground of appeal was stated in the notice of appeal. However, the submissions which were put by counsel for Samuels Real Estate at the hearing of the appeal were really in support of a ground of appeal that the Tribunal had erred in law in making certain findings adverse to Mrs Samuels, which were contrary to her evidence. No submission was made on the hearing of the appeal that I should infer that in making these findings the Tribunal must have taken into account material other than evidence which had been disclosed to the parties.

Before the Tribunal Mrs Samuels gave evidence that she first became aware of Ms Lamb's complaint and, by implication, of the events of 16 and 17 August, in December 1993, when she received a telephone call from the Anti-Discrimination Board. She also gave evidence that she had nothing to do with the day to day leasing carried out by Samuels Real Estate.

However, the Tribunal in its judgment held that Mrs Samuels "was not truthful in her denial of knowledge of the events that took place on 16 and 17 August, until December 1993".

The Tribunal also said in its judgment:

Ms Lamb is unlikely to have been denied the availability of flats on 16 August unless there was some direction in the agency as to the persons to whom the flats which Mrs Warry was told were available on that day, were not to be made available.

...

The evidence shows that Ms Lamb was advised on several occasions by the agency that there was no accommodation available when she enquired. It is most unlikely that the employees involved would have done so without tacit, if not explicit, approval from Mrs Samuels.

On 17 August 1993, when the offer of accommodation was made to Ms Lamb, a decision was made in the agency to change its position in relation to Ms Lamb and in the view of the Tribunal it is unlikely that Ms McDonald would make that decision on her own. It is unlikely that the problem which the agency then realised had occurred, would or could be concealed from Mrs Samuels.

The Tribunal has formed the view that on the balance of probability, Mrs Samuels did know of the events that occurred on 16 and 17 August 1993, and that she knew, at least by 17 August, when the decision was made to offer accommodation to Ms Lamb.

As I have already indicated, it was not submitted before me that in rejecting Mrs Samuels' evidence and making the findings it did, the Tribunal had illicitly resorted to material which had not been disclosed to the parties. However, it was submitted, in reliance on the decision of the Court of Appeal in Ellis v Wallsend District Hospital (1989) 17 NSWLR 553, that the Tribunal had made an error of law in rejecting Mrs Samuels' evidence and making the findings it did.

Ellis v Wallsend District Hospital was a medical negligence case. Mrs Ellis had developed quadriplegia after undergoing surgery and sued the surgeon who had performed the operation and the hospital in which the operation had been performed. The surgeon had not warned Mrs Ellis of a slight risk of paralysis if she underwent the operation. An issue in the proceedings was whether, if Mrs Ellis had been warned, she would have undergone the operation anyway. Mrs Ellis gave evidence that, if she known that paralysis was a possible outcome of the operation, she would definitely not have undergone the operation. She was not cross-examined on this part of her evidence. However, the trial judge found that even if Mrs Ellis had been warned of the possible risk of paralysis she would probably have undergone the operation anyway. In his judgment the trial judge did not give any reason for rejecting Mrs Ellis' evidence on this point.

The Court of Appeal held, as stated in para. (4) of the head note on p. 554 that:

while there is no appealable error of law in a trial judge refusing to accept evidence which is not challenged in cross-examination there may be error in the manner in which the evidentiary rule relating to the weight and cogency of that unchallenged evidence was dealt with and in the circumstances a failure by the trial judge to give adequate or any reasons for rejecting unchallenged evidence constituted such an error.

The principal judgments in Ellis were given by Kirby P and by Samuels JA with whom Meagher JA agreed. At p. 561 Kirby P said:

For the reasons given by Samuels JA, I do not believe that the holding of the High Court of Australia in Precision Plastics Pty Ltd v Demir [1975] HCA 27; (1975) 132 CLR 362 at 370 bound Cole J then to accept Mrs Ellis' evidence because it had not been challenged in cross-examination. Nonetheless, Mrs Ellis' evidence not being "inherently incredible" or "inherently improbable", I am of the opinion that an error has occurred in Cole J's reasoning which is of critical importance. It is one sufficiently serious to require relief from this Court. No other explanation is given by Cole J as to why he rejected Mrs Ellis' unchallenged statement. There is no express reference to her demeanour. Express reliance upon this consideration is not required. Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349 at 351; [1989] HCA 20; 85 ALR 23 at 27 (HC). But in the face of emphatic, unchallenged evidence which had support from several objective or unchallenged facts, the conclusion by his Honour to the contrary without adequate or any explanation demands correction.

Samuels JA dealt with these matters at pp. 586-90 of his judgment. His Honour rejected a submission that because Mrs Ellis's evidence had not been challenged in cross-examination, it followed as a matter of law that the trial judge was bound to accept it. However, his Honour upheld an alternative submission that the trial judge had erred in making the finding that he did. His Honour particularly relied on the circumstances that the evidence by Mrs Ellis was unchallenged in cross-examination, it was not inherently incredible, there was no other evidence contradicting it and it was unclear whether anything had happened during the trial which put Mrs Ellis on notice that her evidence was in contest. Samuels JA said that these matters had not been adverted to in the trial judge's judgment and Samuels JA was driven to the conclusion that the trial judge had, erroneously, failed to take them into account.

It is to be noted that the Court of Appeal in Ellis reaffirmed the general principle that it is not an error of law for a tribunal of fact to decline to accept evidence which has not been challenged in cross-examination. The conclusion that the trial judge in Ellis was to be regarded as having erred in deciding not to accept Mrs Ellis' evidence, depended on the special combination of circumstances which existed in Ellis, as identified by Kirby P and Samuels JA.

In my opinion, the present case is clearly distinguishable from Ellis.

In the first place it is not the case the Mrs Samuels was not cross-examined on her evidence that she did not become aware of the events of 16 and 17 August 1993 until December 1993. It is true that no question was asked of Mrs Samuels which in terms put to her that she knew about those events before December 1993. However, the cross-examination of Mrs Samuels commenced with the following questions and answers:

Q. You say that you first became aware of the complaint when you received a telephone call from the Anti-discrimination Board?
A. Yes. There wasn't, of the complaint, she said that there was a complaint coming.
Q. Is that the first time you'd ever heard that there'd been --
A. That's correct.
Q. -- any murmur or dissent in relation to practices at work?
A. No, no idea whatsoever, I was shocked when we received the phone call.
Q. You were shocked were you?
A. Yes.

In my opinion, the cross-examiner in asking these questions should be regarded as having challenged Mrs Samuels' evidence and it was not essential for him to ask a question in such terms as "You knew about the events of 16 and 17 August 1993 prior to December 1993, didn't you?". Later in the cross-examination of Mrs Samuels Mrs Samuels was cross-examined about whether the receptionist Ms Shanks had ever told her that Ms Warry had been to the premises and said that she had been told that accommodation was available for her, whereas Ms Lamb had been told that no accommodation was available for her.

Furthermore, unlike the trial judge in Ellis, the Tribunal did give reasons for not accepting Mrs Samuels' evidence. The Tribunal found that Mrs Samuels exercised strong control over the business, which had only three employees apart from Mrs Samuels, and attended the business every day and that it was unlikely that employees of the business would have acted as the Tribunal found they had acted, on their own initiative and without the knowledge and approval of
Mrs Samuels.

Additionally, there was other evidence before the Tribunal tending to contradict Mrs Samuels' disclaimer of knowledge of the events of August 1993 until December 1993. When Mrs McDonald gave evidence she said in cross-examination that as the property manager of Samuels Real Estate she acted "under instruction" (from Mrs Samuels) and that if anything difficult or unusual came up "I would go to Anna" (Samuels). It was clear from diary notes for 16 and 17 August made by Mrs McDonald that she was contemporaneously aware of Ms Lamb and Ms Warry coming to the premises of Samuels Real Estate and it was an inference which could readily be drawn that she would have consulted Mrs Samuels about the events of those days.

I am also satisfied that Mrs Samuels was on notice at the hearing before the Tribunal that her evidence that she had no knowledge of the relevant events until long afterwards was under challenge. The case which was being put against Samuels Real Estate in the proceedings in the Tribunal, as counsel for Samuels Real Estate clearly appreciated, was that its employees had discriminated against Ms Lamb and that Samuels Real Estate was itself liable under s. 53 of the Act, as having authorised the committing of the acts of discrimination by its employees. As Mrs Samuels was the managing director and the controller of Samuels Real Estate, the allegation that the acts of discrimination had been authorised by Samuels Real Estate was an allegation which related to her.

I reject this ground of appeal.

That the second defendant erred in law in the construction of s. 53 of the Act.

The Tribunal's judgment, insofar as it related to s. 53, falls into two parts. In the first part, which extends from the last paragraph on p. 14 of the Appeal Book to the first paragraph on p. 16 of the Appeal Book, the Tribunal, after making the findings about the extent of Mrs Samuels' knowledge to which I have already referred, concluded:

By her knowledge of these events Mrs Samuels has condoned the illegal discrimination to which Ms Lamb was subjected by the employees of the agency and the respondent cannot be said not to have authorised that act.

The word "condoned" was not happily chosen but it is clear enough that the Tribunal concluded that Mrs Samuels had knowledge, no later than 17 August, of the events of 16 and 17 August and that she authorised the acts of discrimination of the employees. Section 53 expressly provides that a principal or employer can authorise an act by an agent or employee, either before or after the doing of the act. Under s. 53 the onus on the issue of authorisation is cast on the principal or employer; it is for the principal or employer to establish that it did not authorise the act of the agent or employee.

In the second part of that portion of the Tribunal's judgment relating to s. 53, which extends from the second paragraph on p. 16 of the Appeal Book to the third paragraph on p. 20 of the Appeal Book, the Tribunal set out an alternative ground for holding that the respondent had not discharged the onus of proving that it did not authorise its employees to do the acts of discrimination. The Tribunal began this part of its judgment by saying:

If the Tribunal should be wrong in its inferences of the degree of knowledge by Mrs Samuels of the unlawful discrimination to which her employees had subjected Ms Lamb, and if Mrs Samuels was not aware of the act until December 1993, it is still the view of the Tribunal that the respondent nonetheless has not discharged the onus of satisfying the Tribunal that it did not authorise the act.

The Tribunal noted that evidence had been given on behalf of the respondent that the respondent had in place a policy of anti-discrimination. However, the Tribunal proceeded to criticise the evidence about the policy and the policy itself. The Tribunal said that the evidence of the terms of the policy was vague and inconsistent; that what was said to be a policy "falls far short of an effective instruction to the staff of the respondent which each of its employees could be expected to apply in a particular situation". The Tribunal said that it is not sufficient, in order for an employer to discharge the onus under s. 53, for it to show that it issued general, vague and inconsistent verbal instructions to employees on the commencement of their employment and that an employer must show that it had an effective policy in place which was capable of being effectively applied.

It was submitted on behalf of Samuels Real Estate that the Tribunal erred in law in so construing s. 53. It was submitted that the question which arises under s. 53 (leaving aside the onus of proof) is whether an employer or principal has expressly or impliedly authorised the doing of the act by its agent or employee which contravenes the Act, not whether the employer or principal has put in place an effective anti-discrimination policy.

In my opinion, this submission by counsel for Samuels Real Estate should be accepted. The Tribunal in the remarks it made did misconstrue s. 53 and did ask itself the wrong question. Counsel for Ms Lamb hardly argued to the contrary. The Tribunal's error can be clearly seen by comparing the terms of s. 53 with the quite different terms of other similar legislation which does impose on employers or principals a requirement similar to that which the Tribunal thought was imposed by s. 53.

Section 103 of the Victorian Equal Opportunity Act 1995 provides:

An employer or principal is not vicariously liable for a contravention of a provision of Part 3, 5 or 6 by an employee or agent if the employer or principal proves, on the balance of probabilities, that the employer or principal took reasonable precautions to prevent the employee or agent contravening the Act.

Section 123(2) of the Commonwealth Disability Discrimination Act 1992 provides:

Any conduct engaged in on behalf of a body corporate by a director, servant or agent of the body corporate within the scope of his or her actual or apparent authority is taken, for the purposes of this Act, to have been engaged in also by the body corporate unless the body corporate establishes that the body corporate took reasonable precautions and exercised due diligence to avoid the conduct.

Section 106 of the Commonwealth Sex Discrimination Act 1984 provides:

(1) Subject to subs. (2), where an employee or agent of a person does, in connection with the employment of the employee or with the duties of the agent as an agent:
(a) an act that would, if it were done by the person, be unlawful under Division 1 or 2 of Part II (whether or not the act done by the employee or agent is unlawful under Division 1 or 2 of Part III); or
(b) an act that is unlawful under Division 3 of Part II;
this Act applies in relation to that person as if that person had also done the act.
(2) Subsection (1) does not apply in relation to an act of a kind referred to in para. (1) (a) or (b) done by an employee or agent of a person if it is established that the person took all reasonable steps to prevent the employee or agent from doing acts of the kind referred to in that paragraph.

However, the error made by the Tribunal in the construction of s. 53 does not mean that the appeal should succeed.

It may be that Samuels Real Estate should have been held liable, without any recourse to s. 53 at all, on the basis that Mrs McDonald participated in the acts of discrimination and that as she was the property manager of Samuels Real Estate, her acts should be characterised as acts of Samuels Real Estate and not merely as acts done by her as an employee of Samuels Real Estate. However, the case was not dealt with in this way before the Tribunal and I do not consider that I should deal with it in this way for the first time on the appeal.

The case can, however, be dealt with on the basis that, as I have demonstrated earlier, the Tribunal found Samuels Real Estate liable under s. 53 on each of two alternative grounds and the error of law made by the Tribunal in construing s. 53 affected only one of those grounds. The first ground given by the Tribunal which was based on the Tribunal's findings about the extent of Mrs Samuels' knowledge still stands and is not affected by the error in construing s. 53.

I did raise at the hearing the question whether the inference that Mrs Samuels had "condoned" the illegal discrimination was an inference which it was open to the Tribunal to draw. On reflection, I am satisfied that it was an inference which it was at least open to the Tribunal to draw and hence the drawing of the inference did not involve any error of law.

I have now dealt with all of the grounds of appeal which were argued on the hearing of this appeal. The appeal should be dismissed and the plaintiff should pay the first defendant's costs of the appeal.