Ahamed v Coles Supermarkets Australia Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0090

MOHAMMAD AHAMED	Applicant
v
COLES SUPERMARKETS AUSTRALIA PTY LTD & ORS (ACCORDING TO THE ATTACHED SCHEDULE)	Respondents

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JUDGES:	MACAULAY JA and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 September 2023
DATE OF JUDGMENT:	12 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 239
JUDGMENT APPEALED FROM:	[2022] VCAT 1186 (Judge Marks)

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DISCRIMINATION – Customer alleged discriminatory treatment – Where running sheet for Tribunal amended prior to hearing – Where applicant refused to speak during part of hearing – Whether applicant denied procedural fairness – Whether Tribunal made errors of fact – Leave to appeal refused.

Equal Opportunity Act 2010, s 122; Victorian Civil and Administrative Tribunal Act 1998, ss 98, 148; Victoria Police Act 2013, ss 72, 73, 74, 75.

Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436T [2021] VSCA 72.

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Counsel
Applicant:	In person
Respondent (Coles):	Ms R Preston
Respondent (M.A):
Respondent (VicPol):	Ms RM Davern
Solicitors
Applicant:
Respondent (Coles):	Gilchrist Connell
Respondent (M.A):
Respondent (VicPol):	Maddocks Lawyers

MACAULAY JA
J FORREST AJA:

Introduction

Mr Mohammad Ahamed, the applicant, brought a claim at the Victorian Civil and Administrative Tribunal (‘VCAT’) pursuant to s 122 of the Equal Opportunity Act 2010 (‘EO Act’). He sued Coles Supermarkets Australia Pty Ltd (‘Coles’), M.A Services Group Pty Ltd (‘M.A’) and Victoria Police (‘VicPol’) alleging that each had discriminated against him on the basis of his race contrary to s 44(1) of the EO Act (in particular, s 44(1)(c)).
The alleged discrimination arose out of an incident in the afternoon of 6 April 2020 when Mr Ahamed was shopping at a Coles supermarket in Footscray. Coles operated the supermarket; M.A provided security staff; and VicPol members were summoned to the supermarket as a result of an altercation between Mr Ahamed, and Coles and M.A employees.
After a two-day hearing, the VCAT Vice President, her Honour Judge Marks, dismissed Mr Ahamed’s claim. In her subsequent written reasons, the judge concluded that:
•‘There is absolutely no evidence, not a skerrick, to substantiate the claim that Mr Ahamed was treated unfavourably or discriminated against in contravention of s 44 of the Act’ by any of the respondents.[1]
•It was not necessary to consider whether Coles or M.A were vicariously liable, because nothing for which they could be liable had been established.[2]
•If it had it been necessary to consider the point, her Honour was not persuaded that the actions of officers of VicPol in enforcing the law constituted a relevant ‘service’ as defined in the EO Act.[3]
[1]Ahamed v Coles Supermarket Pty Ltd [2022] VCAT 1186, [9] (‘Reasons’).
[2]Reasons, [56], [64].
[3]Reasons, [78].
Mr Ahamed now seeks leave to appeal her Honour’s decision pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’) alleging (using his descriptions) the following:
(1)breach of natural justice;
(2)jurisdictional error;
(3)actual bias;
(4)apprehended bias;
(5)bad faith;
(6)error of law; and
(7)error of fact.
Coles and VicPol were represented on the appeal. M.A was content to abide by the result and did not participate in the application. One other point should be mentioned here, although nothing turns on it. The allegations against the two police officers constituted a police tort under the Victoria Police Act 2013 — in a perfect world, the appropriate respondent would have been the State of Victoria.[4]
[4]See Victoria Police Act 2013 ss 72–5.

Background facts

The genesis of the claim was an interaction between Mr Ahamed and a female Coles employee (now known to be Ms Kasuta Chanthavong) in the afternoon of 6 April 2020. The incident appears to have been initiated by advice given by Mr Ahamed to Ms Chanthavong as to how often she should wipe the EFTPOS machine at her workstation. This was during the time of the COVID-19 pandemic.
Within a short time, the Coles service supervisor, Ms Chloe DeGille, arrived on the scene. Whilst there is a dispute as to Mr Ahamed’s conduct (with each of the protagonists alleging that the other was the instigator and aggressor), it was not in issue that Ms Megan Fortainer, the Coles service manager, ordered Mr Ahamed to leave the store, on her account and that of the other two female employees, because of his behaviour.
Things got no better. Mr Ahamed did not leave and the security officer, Mr Gheorghita Dirja, was called. Again, there is dispute as to the nature of the interaction between Mr Ahamed and Mr Dirja.
Shortly afterwards, two VicPol officers, Sergeant Olivia Dennison and Senior Constable Bridget Cox,[5] arrived at the supermarket.
[5]At the time of the incident, Ms Cox held the rank of First Constable.
The two police officers endeavoured to calm things down. The Coles staff prepared a document notifying Mr Ahamed that he was not to enter the store for one year. This caused further discussion between Mr Ahamed and the two officers — much of this episode is captured on Sergeant Dennison’s bodycam. Eventually Mr Ahamed left the store but has maintained that he was unfairly treated during the whole shemozzle.

The proceeding at VCAT

On 15 April 2020, Mr Ahamed filed an application with VCAT seeking an order under the Racial and Religious Tolerance Act 2001. It ultimately proceeded as a claim under s 44(1) of the EO Act.
In his application, Mr Ahamed described the incident as follows:
On 06/04/2020, around 4:15pm; I went to Footscray Coles to buy honey and cigarettes. After getting the honey, I went to self-check-in to make payments for that goods and I requested the self-check-in customer service worker if she could wipe the screen as I am not sure how many people have touched it and as you know viruses is going around so she get the spray and the cloth to wipe the screen and then I paid for that honey and went to the front counter to buy cigarettes. So, the girl who was working at that station scan the cigarettes and she asked me to key the pin of my card to the Eftpos and I asked her if she could use some sprays on the Eftpos and wipe it with a cloth because I do not know how many people have touched this machine and then she told me that she did it an hour ago and then I told her in an hour there would be so many people already touched this Eftpos machine and for your own safety and my safety due to corona virus I believe you should wipe after each customer touched it not each hour and then she reluctantly looking for a cloth and a spray and she just sprayed it once with anger and just wipe it one time which I saw that the spray did not even on the Eftpos machine and wiping as if I just have annoyed her and I key in my password onto that machine and then she threw the cigarettes at the counter angrily towards me then I asked her why she was angry to what I said about hygiene; she did not say anything and then I told her that it is for your own safety as well and if we as customers get infected you will also get infected. So, I said that just not to my benefit but for all the workers and customers who come here for shopping. After I said that I was making a leave and as I was leaving all on a sudden there was another female worker rocked up out of nowhere and telling me with rude voice ‘leave’ without even knowing what I had discussed with the girl who served me the cigarettes and she did not even discuss with her worker what I said and out of nowhere she just verbally bullied me and I was just puzzled by it but I thought better to leave so without causing a scene I just left Coles towards my car as I was going towards my car I thought I should speak to the Coles manager about the hygiene issues and also about one of his staff being rude verbally abusive without knowing a thing started abusing me in front of others. So, I went back the second time around 4:30pm and I asked one of the staff that I would like to speak to the manager and that staff directed me towards the front counter and she told me to wait in that designated area and she would call the manager so I was waiting in that designated area and waiting for a manger the next thing I saw she called the security guard instead of the manger and she was pointing the security guard to deal with me and the security guard just without saying anything grabbed me pushed me towards outside and I was telling him why he was doing it and he said that I had to leave and then I said but I am waiting for the manager and then he said he was not going to get the manager for me and I was not going to be allowed in Coles and to that I asked him what really I did and I would rather speak with the manger about it and we could solve it you did not have to grab me in front of the people and you do not even know the story but you were very prompt to assault me and it is corona virus everywhere you did not maintain the social distance. Then he told me that he could do anything he liked and throw a challenge to me to take an action while he was discussing it with me another security guard rocked up and he told me that I had to leave the Coles immediately and I then told him under what legislation his security colleague was allowed to assault me like that without even talking to me just assaulted me then he told me that his colleague should not have done that but whatever happened happen and I just had to leave and while I was discussing with the one who assaulted me and the other guard I saw the manager and all the Coles workers surrounding me and manger was not bothered to speak and all the Coles workers verbally abusing me said that I had to leave and I left the store and I was staying at the front of the Coles and they told me that if I did not leave the whole plaza then they would call the police then I told them I want to speak with the police because you guys are not maintaining a proper hygiene and you got your security guard to assault me and defamed me in front of all the people without you even know the full story and to that the manager told me that he did not want to know anything and if I did not leave then they would call the police on me and to that I told him I prefer you guys call the police as you guys do not care about the hygiene and assault that occurred in that case I would tell the police what had happened with me. Then, they had called the police and few minutes later two female police arrived and asked the Coles worker first about the incident spoke to them for a minute and then the workers just a got a paper ready and that point I really did not understand what was really going on and after speaking to them for a minute then both of the police approached me and asked my side of the story and I told them what I had written over here the whole story after listening the whole story sergeant Olinda Dennison and first constable Bridget Cox both of them from Footscray police station and both of them arrive there just after 5 pm. Anyway, after listening to me sergeant Olinda told me that she understands my concern and then she told me that she would resolve two issues one is the assault and another one Coles worker being abusive and not following the hygiene issues and then she asked for my id and I gave her my driving license and after that looking at my name she gave my name to them (workers) and then she (the sergeant) came up to me and told me that I had to sign the paper (that Coles brought out while talking to the police at the beginning) and I asked her what that paper was about and she told me that it was about you being banned for a year in this Coles then I told her that I am being banned because I talked about hygiene issues and safety of the people and workers and I also told her that as we speaking right now America’s president Donald trump said he is expecting one million people would die and I am very concern about Australia looking at the whole world situations dealing with this virus. After listening to me sergeant told me that I needed to sign the paper and I said I would not sign the papers because I have done nothing wrong at all and all I cared about the people and I should not be treated like that and then I asked her what are the consequences of not signing it? And, to that the first constable Bridget Cox told me that indefinite banned whereas if I sign it then it was going to be for a year. I then said to the first constable I would not sign it because I have not done anything wrong. And then I asked the sergeant that I wanted to have the workers name who was involved in this incident then the sergeant went towards the counter while I am standing there asked them for their names to me and the workers told the sergeant they would not give their names and the sergeant then told me that they would not want to give their names and I then asked the sergeant so if they were allowed to refuse to give their names to you, does that mean I could have refused you to provide my details and to that she told me that if you refuse we would have investigated the matter further and could have got your names then. I then asked her what about the security guard’s name and she then told me that I could not even get the guards name as well and I asked her what about the assault incident that the security across you did that to me what really you want to do about it and she then told me that security guard was allowed to do it. Then I asked her name rank station and her colleagues as well and they provided that writing in their card so sergeant name is Olinda Dennison Footscray police station and First Constable Bridget Cox Footscray Police station. After obtaining their details, as I was leaving the Coles the first constable reminded me that If ever come back here I would be charged with trespassing so I left with sorrow reflecting the whole thing and in my reflection this is what I see: Do not talk about hygiene in this corona period despite health measures were compromised of the peoples at Coles, however if you continue to speak then you will get abused by all the staff and assaulted by a security guard and police action was ok to get assaulted by a security guard and it was ok to be defamed, abused, bullied by mangers and all the staff in front of other customers inside the Coles. Just to add, I was going into that Coles for the past 14 years as I am local there never had any problem with security guard, staff but these days are different because we talking about death due to corona virus outbreak all over the world thousands are dying each day and the Coles in Footscray seemed to be reluctant using anything on to the machines like Eftpos and self-check-in screen where we touch our fingers as touching it could be deadly and I am not sure about the reaction of other suburbs Coles in terms of hygiene. So, my main concern was community transmission of this virus as inappropriate safety measures could spread it faster and me and my family as well could face infections not taking any precautions
Since this incident happen, I tried to forget it but this trauma is keep coming back no matter how much I try to stop it in my head. I constantly feel all the workers were abusing me based on my appearance and if I was a different color person than what I am now this thing would not have happened to me at the first place because I did not steal from Coles, I did not break their policy as I mentioned that I had been going there for many years. They shamed me publicly from all the corners I felt it was not necessary because they have security guard and finally police to protect them from anyone and I was no threat to them any shape or form and I was by myself and it was disproportionate abuse on one person coming from the Coles workers and their security guard and finally when police came after listening my side of the story she (sergeant from Footscray Police station) was keen on fixing the issues but when she looked at my name on my license she had changed her words and she was reluctant to do anything afterwards and I felt no justice as police did not do any investigation and telling me that it was ok to be assaulted by a security guard I felt no good because I am a minority and when something happens to us in the community police that we seek help from but I feel no good about police conduct in relation to this matter and since this incident took place I am constantly having that incident spinning around my head, I could not sleep, I do not feel like eating, I cannot concentrate on anything only this incident acting up on my head on a daily basis and I could not sleep and I am having a severe sleep disturbances. I felt racism should not be coming from institutions like Coles or other government agencies and in my situations I felt what the workers did in front of the people was totally unnecessary and it would not have happened if I was a different race and the whole institution should not jump on one man like me and no one tried to stop it and everyone was so busy to escalate it. I asked myself is it wrong to request Coles worker to wipe the machine during the virus? The whole Europe and North America are suffering because they did not care at the beginning and I asked myself what I did wrong that I had to be suffer like that on that day being abused in front of others all I can say it had a very ill effect on my mind and health. I feel really depressed by that incident.
In his particulars of claim filed in July 2021 (via his then solicitors), Mr Ahamed alleged that Coles, M.A and VicPol discriminated against him and contravened s 44(1)(c) of the EO Act: each, he asserted, treated him unfavourably because he was of dark-skinned appearance and Bangladeshi background.
The alleged actions of the three respondents (respectively, Coles, M.A and VicPol) which constituted discrimination were particularised as follows:
1. The applicant is a person of
(a) dark skinned appearance; &
(b) Bangladeshi background.
2. The applicant therefore has the attributes of physical appearance and race for sections 6(j) and 6(m) respectively of the Equal Opportunity Act 2010 (Vic) (‘the Act’). …
CLAIM AGAINST THE FIRST RESPONDENT [COLES]
47. (a) In the second Coles employee[6] failing to sanitise the EFTPOS machine at the cigarette counter properly;
[6]The Coles employees were unnamed in Mr Ahamed’s particulars of claim.
(b) In the second Coles employee throwing the cigarettes on the counter at the applicant;
(c) In the third Coles employee shouting at the applicant ‘leave’;
(d) In the fourth Coles employee pointing out the applicant to the M.A Services person[;]
(e) In the Coles manager and the fifth Coles employee abusing the applicant and telling him to leave the supermarket[;]
(f) In Coles attempting to ban the applicant from the supermarket for a year —
Coles discriminated against the applicant because it treated the applicant unfavourably because of the attributes referred to in paragraph 2 (‘the attributes’). …
CLAIM AGAINST THE SECOND RESPONDENT [M.A]
50. By the M.A Services person:
(a) assaulting the applicant;
(b) telling the applicant he could do what he liked; &
(c) inviting the applicant to take legal action against him —
M.A Services discriminated against the applicant because it treated the applicant unfavourably because of the attributes. …
CLAIM AGAINST THE THIRD RESPONDENT [VicPol]
53. (a) In failing to assist the applicant to address his concerns with Coles and M.A Services;
(b) In changing demeanour after ascertaining the applicant’s details from his driver licence;
(c) In facilitating Coles issuing a banning notice against the applicant by the provision of his details to Coles;
(d) In attempting to force the applicant to sign the banning notice; &
(e) In failing to have the Coles manager and employees and the M.A Services person provide their details to the applicant when he requested them —
the Police discriminated against the applicant because it treated the applicant unfavourably because of the attributes.

The hearing at VCAT

The hearing was conducted remotely and commenced before the judge on 30 August 2022 and was completed the following day.
Mr Ahamed filed and relied upon his witness statement, dated 14 June 2022.
Several Coles employees made witness statements: Ms Chloe DeGille, Ms Kirsty McArthur,[7] Ms Megan Fortainer, Ms Kasuta Chanthavong, and Ms Penny Rea.[8]
[7]Ms McArthur was a duty manager at Coles.
[8]Ms Rea was a regulatory compliance manager at Coles.
Two M.A employees swore affidavits: Mr Malueth Deng and Mr Gheorghita Dirja.
Two VicPol officers, Senior Constable Bridget Cox and Sergeant Olivia Dennison, each swore affidavits. Sergeant Dennison’s body worn camera footage was tendered.
Each of these statements or affidavits were tendered.
Unfortunately, the transcript from the first day is unavailable due to a system error at VCAT.
However, it is relatively clear that in general terms the hearing on the first day proceeded in accordance with an amended running sheet, which the parties had been directed to prepare by the judge.
Before us, counsel for Coles sought to admit an affidavit of Mr Matthew McLean, an employee solicitor of the firm acting for Coles who said that he had ‘the care and conduct of this proceeding’. Its tender was sought to clarify ‘certain factual matters the subject of the Applicant’s application for leave to appeal in this proceeding, which are or may not otherwise be apparent from the materials in the Application Book’. This was not opposed by VicPol. Mr Ahamed opposed the admission of the evidence.
Ten exhibits were attached to the affidavit, labelled ‘MM-1’ through to ‘MM-10’. They canvassed a range of issues, from the circumstances surrounding the amended running sheet, what occurred during the VCAT hearing, and the unavailability of CCTV footage from Coles.
We heard the application on the basis that we would determine whether all the contents or any part of the affidavit (including exhibits) should be admitted on the appeal.
We have determined to admit only those parts of the affidavit relating to the hearing on the first day. We do so on the basis that in the absence of a transcript, a record of the hearing (necessarily incomplete and perhaps selective) is better than nothing. It also accords with practice in the Full Court of this state in days gone by when transcripts were unavailable, and judges’ and solicitors’ notes were used to provide an incomplete but contemporaneous record. Accordingly, paragraphs [1]– [2] and [14] of the affidavit; and MM-6, being Mr McLean’s file note of the hearing on the first day, 30 August 2023, are admitted. The balance is not admitted.
Based on the amended running sheet, the transcript of the second day, and the relevant parts of Mr McLean’s affidavit, the following is a summary of what occurred on the first day of the hearing:
•The hearing commenced at 11:00 am.
•Mr Ahamed was called, and the following was tendered: Mr Ahamed’s witness statement; Mr Ahamed’s submissions; Dr Bernardi’s[9] medical report; an order of a judge of the County Court; confirmation of a doctor’s appointment; a VicPol electronic duty form; a VicPol freedom of information response; the witness statement of Ms Penny Rea;[10] and correspondence between Mr Ahamed and VCAT regarding the unavailability of CCTV footage.
•Mr Ahamed expressed disappointment that Coles had withdrawn Ms Penny Rea and Mr Oliver Cornhill[11] (witnesses who were to give evidence about the CCTV footage), as well as Ms Chanthavong, the cashier, as viva voce witnesses. The judge explained to Mr Ahamed that there was no obligation upon a party to call particular witnesses.
•Mr Ahamed was cross-examined by counsel for Coles. This focused on the incident on 6 April 2020, the actions of the various Coles employees, and whether Mr Ahamed was discriminated against on the basis of race of skin colour.
•Mr Ahamed was briefly cross-examined by counsel for M.A. This concerned whether the security guards had known Mr Ahamed prior to the incident, and whether they would have known he was Bangladeshi.
•A lunch break occurred between 1:10 pm and 2:10 pm.
•At 2:20 pm, Mr Ahamed was briefly cross-examined by counsel for VicPol. This concerned the police officers’ interaction with Mr Ahamed during or directly after the incident.
[9]Dr Bernardi is a clinical psychologist whom Mr Ahamed had been attending.
[10]Ms Rea held the position of Regulatory Compliance Manager at Coles. The effect of her short witness statement was that there was no CCTV footage available of the incident because it had been overwritten.
[11]Mr Cornhill is a fraud investigator at Coles.
Ms McArthur, the Coles duty manager, then gave evidence. Following the affirmation of her statement, Mr Ahamed commenced cross-examination. Given the centrality of this interaction to Mr Ahamed’s complaints in this Court, Mr McLean’s notes as to that period of time bear setting out in full:
A: Applicant directs KM [referring to Ms McArthur as ‘KM’] to her statement, para 7 – against Kasuta Chanthavong statement, paragraph 7.
A: Is there anything you wish to add to your evidence?
KM: That’s the way I remember it happening.
HH: Anything further Mr Ahamed?
A: The question is do you stand by her written statement?
KM: Might not have been the same words — words to the effect of.
HH: Sometimes people remember things differently.
A: Were you there the whole time when I was discussing the conversation?
KM: No I came around 4pm.
A: Do you remember me leaving the store?
KM: No. Left when the police came. But once I came to the front he did not leave until the police came.
A: So you’re saying with my conversation with Kasuta I did not leave?
KM: No. You stood 5m from the service desk. Did not leave the store.
Refers to Affidavit of M Deng
KM: I don’t remember exact timing but I know it happened around 3–4. I don’t know if before I’d come he’d left the store prior to me coming.
A: He says 4:30 you say 4.
KM: I would say I think it’s around 4. You did not leave the store as far as I saw. I don’t know if you left the store before I came.
HH: Move on.
A: Were you there when the security guard tried to physically remove me?
KM: I don’t recall him physically removing you.
A: refers to Third Respondent Points of Response paragraph 9b. re Coles employees saying they physically removed the Applicant.
A: Do you remember if it was you who said that he was removed?
KM: I don’t recall if it was me. I didn’t speak to police. Could have been Chloe.
A: When you ban someone from Coles, you need my details yes?
KM: On the paper? Yes.
A: On the day how did you get these details?
KM: I don’t know I didn’t issue the notice.
End of first day
On the second day, 31 August 2022, Ms McArthur resumed her oral evidence. During Mr Ahamed’s cross-examination, he asked a number of questions, including:
(a)where the security guard was at the time Ms McArthur arrived at the service desk;
(b)why the M.A security guards were paid the amount of money they were (and, perhaps, how much they were paid);
(c)what was the purpose of having security guards at the store; and
(d)whether Coles had the power to ban Mr Ahamed indefinitely, as opposed to for one year.
At this point, the judge interposed, stating that this line of questioning was irrelevant to the claim advanced by Mr Ahamed. The judge explained to Mr Ahamed that the central issue was whether he had been discriminated against, and that evidence elicited needed to be relevant to that issue.
Mr Ahamed’s particulars of claim were then displayed on the screen, and the following exchange occurred:
HER HONOUR: Right. So your claim, do you see there, is that there was discrimination because they attempted to ban you from the supermarket for a year. That is part of the reason you say you were discriminated against.
MR AHAMED: It may - - -
HER HONOUR: That means, Mr Ahamed, it’s not relevant about the fact that you were banned — if you were banned for longer than a year. What is relevant to your case for discrimination is that you’ve referred to Coles attempting to ban you for a year. So you can ask questions about that.
MR AHAMED: Your Honour, if you don’t want me to cross-examine those witnesses I can rest my case here. Because I don't - - -
HER HONOUR: I beg your pardon?
MR AHAMED: Because I have questions that I’m not allowed to ask so I cannot proceed like that, Your Honour. Because you’re saying Points of Claim, but that was original application there that was made six — 14, 15 April where I mentioned that. There’s lot of things.
Following this exchange, Mr Ahamed effectively refused to speak or participate in the hearing including, in particular, when invited to cross-examine other witnesses who gave evidence.
Ms DeGille was then called. She affirmed her statement and was promptly excused. The same occurred for Ms Fortainer. Ms Chanthavong’s affidavit was then admitted into evidence, although the judge noted that her assessment of that evidence would be affected by the fact that Ms Chanthavong did not give viva voce evidence and was unable to be cross-examined on her affidavit.
Then, counsel for M.A tendered the affidavits of the two M.A security guards, Mr Dirja and Mr Deng. They did not give viva voce evidence.
Following this, both police officers were called. Sergeant Dennison affirmed her affidavit and bodycam footage; Senior Constable Cox affirmed her affidavit.
Finally, counsel for the first, second and third respondents each made submissions. Mr Ahamed remained silent.

The decision and the reasons of the judge

Her Honour, following the last of the submissions, stood the matter down for a few hours before dismissing Mr Ahamed’s claim and providing brief oral reasons. Subsequently, on 14 October 2022, her Honour provided, at Mr Ahamed’s request, written reasons for her decision.
Her Honour commenced by setting out in precis her reason for dismissing Mr Ahamed’s case:
There is absolutely no evidence, not a skerrick, to substantiate the claim that Mr Ahamed was treated unfavourably or discriminated against in contravention of s 44 of the Act.
There are many things that Mr Ahamed was upset about in the way that he was treated, but as I indicated a number of times in the course of the hearing, this case is not an inquiry into everything that occurred on that day.
To succeed in his case, Mr Ahamed needs to satisfy this Tribunal, on the balance of probabilities, that he was discriminated against. He has not produced any evidence that any behaviour directed towards him on that day had anything to do with his race or the colour of his skin. He does not get to first base in relation to his claim.[12]
[12]Reasons, [9]–[11] (emphasis in original).
Her Honour then set out the background facts of the case, beginning with Mr Ahamed’s arrival at the Footscray Coles, detailing the various altercations, and concluding with him being asked to sign the ban notice issued by Coles.[13]
[13]Reasons, [12]–[27].
Her Honour accepted that each witness who gave oral evidence (Mr Ahamed, Ms McArthur, Ms DeGille, Ms Fortainer, Sergeant Dennison and Senior Constable Cox) were ‘honestly telling the Tribunal what they remembered of events that occurred over two years ago’. She also accepted the written statements tendered in evidence, noting that Mr Ahamed did not seek to cross-examine their authors.[14]
[14]Reasons, [32]–[33].
One account that the judge did not accept, however, was Mr Ahamed’s claim that Sergeant Dennison’s face ‘changed’ upon inspecting Mr Ahamed’s driver’s licence. In rejecting that account, the judge said:
As the driver’s licence point is concerned, patently it does not mention his race or the fact that he is Bangladeshi. His skin colour is apparent in any event. Nothing was apparent in the footage about any difference in the way that the Police acted before or after they saw that driver’s licence.
The best that Mr Ahamed could come up with, when asked about this in evidence, was to say that the Police woman’s face ‘changed’ when she saw the driver’s licence. Somebody’s face changing when nothing else occurs, even if it did change in some way, does not amount to discrimination. (I might say that that is the first time that evidence of her expression changing had been raised, and I do not accept that Mr Ahamed in fact had a recollection of her face changing. I consider that was said by him in evidence because it was apparent in the video that nothing changed at that point. That is the one area where I am satisfied that there was some embellishment by Mr Ahamed of what he actually remembered from the day).[15]
[15]Reasons, [75]–[76].
The judge dealt with each of the claims against the three respondents in turn.
As to the claim against Coles, the judge found that there was no evidence that Mr Ahamed was treated unfavourably because of his race or physical features. Her Honour said that whatever was done to clean the EFTPOS machine, ‘it was the same for everyone’. She did not accept that Ms Chanthavong threw the cigarettes angrily at Mr Ahamed, nor that Mr Ahamed was shouted at to leave the store. The judge also took into account the fact that the police had been called, inferring that ‘this was done because of the way he acted on that day’; and that the Footscray Coles store had people from many different cultural backgrounds in attendance.[16]
[16]Reasons, [44]–[56].
As to the claim against M.A, the judge found that there was no evidence that the two security guards, Mr Deng and Mr Dirja, knew that Mr Ahamed was Bangladeshi.
The judge placed no weight upon Dr Bernardi’s letter, or the DSM-5 which had been admitted into evidence, as to Mr Ahamed’s mental health. The judge noted that Dr Bernardi’s letter did not indicate that Mr Ahamed was suffering from post-traumatic stress disorder, as he had alleged, at the time he went to Coles on 6 April 2020.
The judge also noted that M.A was not providing a ‘service’ (in the sense recognised by s 44 of the EO Act) to Mr Ahamed.[17]
[17]Reasons, [57]–[64].
Finally, as to the claim against VicPol, the judge relied upon Sergeant Dennison’s bodycam footage in finding that no discrimination had been established. The judge said that the police officers’ conduct was ‘exemplary, polite and courteous’. She also said: ‘I did not observe any change of demeanour at all once the driver’s licence was shown to them’. That observation forms the basis of one of the proposed grounds of appeal[18] which Mr Ahamed now advances in this Court (see [52(6)] below).[19]
[18]For convenience, each proposed ground will be referred to as a ‘ground’ from here on.
[19]Reasons, [66]–[77].
The judge, however, had some sympathy for Mr Ahamed’s complaint (which he detailed in oral evidence) as to the actions of the VicPol officers in not requiring the Coles staff to give their details to him, whereas he had to give his details to the police; and that the police said they would investigate him for ‘swearing’.
Nevertheless, the judge said:
I accept that Mr Ahamed was upset about those matters, but the fact that he has that view of how the Police ought to have acted, does not mean they were acting in a manner that was discriminatory against him because of his race or skin colour.[20]
[20]Reasons, [74].
The judge concluded by noting that VicPol was not, in any case, providing a ‘service’ (in the sense recognised by s 44 of the EO Act) to Mr Ahamed. In this connection, she relied upon IW v City of Perth[21] and Bickle v Victoria (Victoria Police) (‘Bickle’).[22] Bickle related to s 24 of the Disability Discrimination Act 1992 (Cth), which the judge said was analogous to s 44 of the EO Act.[23]
[21](1997) 191 CLR 1; [1997] HCA 30.
[22][2020] FCA 168.
[23]Reasons, [78].

Application for leave to appeal

On 14 November 2022, Mr Ahamed filed in this Court an application for leave to appeal.
His arguments for each ground of appeal may be summarised as follows:
(1)Breach of natural justice: An amended joint trial running sheet was submitted by Coles (and accepted by VCAT) one day prior to the scheduled hearing date of 30 August 2022, notwithstanding that on 17 August 2022, the parties had already agreed to a running sheet. The new sheet removed, as witnesses to give oral evidence, Ms Chanthavong and Mr Cornhill. Later, on the first day of the hearing, the judge cut short Mr Ahamed’s cross-examination of Ms McArthur, and told him it could be resumed on the second day. On the second day, the judge disallowed some of Mr Ahamed’s questions. The first and third respondents’ witnesses were then called, before oral judgment was delivered that afternoon.
(2)Jurisdictional error: The judge took into consideration false evidence: specifically, Mr Cornhill’s 20 April 2022 affidavit wherein he said that CCTV footage of the 6 April 2022 incident was unavailable because it had been overwritten by the system. Dr Bernardi’s letter describing Mr Ahamed’s mental health was also incorrectly dismissed.
(3)Actual bias: By admitting false evidence and making her decision upon such evidence, the judge was committed to a particular outcome.
(4)Apprehended bias: Mr Ahamed relied upon the substantially same matters as those for ground 1, breach of natural justice.
(5)Bad faith: Mr Ahamed relied upon the substantially same matters as those for ground 1, breach of natural justice.
(6)Error of law: There were various inconsistencies in the witnesses’ accounts: first, Coles’ employees reported to the police on 6 April 2020 that the security guards had manhandled Mr Ahamed, yet each of Ms DeGille’s, Ms McArthur’s and Ms Fortainer’s affidavits contradict that account; secondly, Mr Deng and Mr Dirja, in their affidavits, denied touching Mr Ahamed, but the judge found otherwise; thirdly, Senior Constable Cox said that an intervention order was in place against Mr Ahamed, when in fact no such order was in place. Then, Mr Ahamed alleged various legal errors: first, the judge erred by holding that s 24 of the Disability Discrimination Act 1992 (Cth) was analogous to s 44 of the EO Act; secondly and thirdly, the judge erred by holding that M.A and VicPol, respectively, were not providing a ‘service’ to Mr Ahamed.
(7)Error of fact: The judge erred by observing, in her written reasons, that when Mr Ahamed gave oral evidence, this was ‘the first time that evidence of [Sergeant Dennison’s] expression changing had been raised’, as Mr Ahamed had in fact raised this earlier in his particulars of claim. Further, the judge should not have found that ‘it was apparent in the video that nothing changed at that point [when Mr Ahamed’s licence was inspected]’, because Sergeant Dennison’s face was not shown in the video at the time. Furthermore, the judge mistakenly stated that Mr Ahamed was represented at the time of his filing his application with the Tribunal. Finally, her Honour contradicted herself by at one point of her reasons characterising Mr Ahamed as ‘agitated’, yet at another point, calm.[24]
[24]Mr Ahamed referred to [49], [71] of the Reasons.

Consideration

Grounds 1, 4 and 5 — Breach of natural justice, apprehended bias and bad faith

As each of these grounds relates, in one way or another, to procedural fairness, it is convenient to address grounds 1, 4 and 5 compendiously.
Mr Ahamed’s complaints on this score may be separated into four events:
(1)the last-minute filing (and acceptance) of a new running sheet which removed Ms Chanthavong and Mr Cornhill as witnesses;
(2)the judge’s cutting short Mr Ahamed’s cross-examination on day one;
(3)the judge’s disallowing of Mr Ahamed’s questions on day two; and
(4)the judge’s acceptance of the unchallenged evidence of a number of witnesses on the second day, and the delivering of oral judgment, following Mr Ahamed’s decision to remain silent.

Section 98(1) of the VCAT Act provides:
98 General procedure
(1) The Tribunal—
(a) is bound by the rules of natural justice;
…
(d) must conduct each proceeding with as little formality and technicality, and determine each proceeding with as much speed, as the requirements of this Act and the enabling enactment and a proper consideration of the matters before it permit.
As to the first point, we have examined the two running sheets. The only material difference in the amended running sheet is that Ms Chanthavong was removed as a witness. This caused some slight variations in timetabling, but nothing more. And, as counsel for Coles noted, there was no provision made on either running sheet for Mr Cornhill to be called as a witness.
Patently, the running sheet is only a guide as to the formal conduct of the hearing and could not be treated as prescriptive. Indeed, the very use of such a device seems to run counter to s 98(1)(d) of the VCAT Act, which provides for hearings to be conducted with minimal formality. There is nothing in this point.
Whether or not to call Ms Chanthavong was, as the judge said, a decision for Coles. There is no suggestion that the judge failed to take into account her absence in assessing the weight of her evidence. Quite the contrary. As her Honour said on the second day:
HER HONOUR: Well are you seeking to rely on the affidavit? Do you say to me ‘I then make - - -’
MS PRESTON: It’s an affidavit that’s been - - -
HER HONOUR: Do you say to me you seek to rely on it but I should give it appropriate weight - - -
MS PRESTON: Yes. Correct.
HER HONOUR: - - - in circumstances where she hasn’t — yes. All right. I propose to admit the affidavit of Ms Chanthavong into evidence and give all the parties the opportunity to make submissions as to the weight to be given to it in circumstances where she is not at the tribunal to answer any questions about it. Mr Ahamed, did you have any questions for Ms Chanthavong if she was here?
MR AHAMED: (No audible response.)
HER HONOUR: No, it seems not.
There is also nothing in this point.
As to the second point, Mr McLean’s notes (set out above at [28]) show that Mr Ahamed was provided a relatively uninterrupted period of time during which he put to Ms McArthur various inconsistencies between her account and others. The judge interposed when Mr Ahamed repeatedly canvassed the issue of timing of the incident. Ms McArthur said the incident occurred at around 4:00 pm; Mr Deng said 4:30 pm. Her Honour was correct to do so, given that the precise timing was immaterial to the question of whether Mr Ahamed had been discriminated against; and such differences could not reasonably be thought capable of affecting the credibility or reliability of Ms McArthur’s account.
This point goes nowhere.
As to the third point, the same can be said for the disallowed questions at the commencement of the second day (set out above at [29]). Each was immaterial to the central issue of whether Coles’, M.A’s and VicPol’s treatment of Mr Ahamed was discriminatory.
As to the fourth point, Mr Ahamed’s refusal to speak or answer questions after the judge terminated his questioning was a self-imposed silence. It cannot be said that he was denied a reasonable opportunity to present his case. Again, quite the contrary — the judge was patient, and went to great lengths to explain to Mr Ahamed why his questions were being disallowed, and to give him an opportunity to re-examine his particulars of claim and reorient his case:
HER HONOUR: Yes. This is not an inquiry into everything that happened on 6 April. The way that a legal case occurs is you need to make clear why you say you have a claim against someone. And you’ve done that. You’ve had assistance from lawyers and you've set out a very clear legal case. If we can go back to the beginning of the Points of Claim, please, Mr Associate, and just run through them. This sets out in some detail all sorts of matters and it is what Coles has come to this hearing to answer and also what the MA Services Group has come to answer and what the Victorian Police have come to answer. And I will not now — you can’t now go beyond that to saying, ‘And there’s this and there’s that and there’s something else.’
So there’s still a great deal there but you can’t ask about — you can ask, as I said, if we go back to that paragraph about the points that you’ve mentioned. So do you have any questions in relation to the attempt to give you a one year ban? Would you like me to stand this matter down for ten minutes so you can re-read your particulars of claim and have a think about whether there are any questions you've written down that aren’t relevant as a result? There are many things you might like to know the answer of but this isn’t the place to do it. I only have the power to deal with what the legal case is that’s in front of me, and that’s set out in the particulars of claim and also, of course, in each of the respondents’ defences. They also can’t run some new defence that they haven’t raised at this point, unless there was some very good reason. And there’s nothing being asked to be done in that way.
Would you like me to give you an opportunity to re-read the particulars of claim and think about your questions before we continue? The other thing to bear in mind is that this matter is listed for the rest of today and tomorrow and we need to get through the other witnesses and give everyone a chance to make some submissions, which is where you explain — each side explains to me — you will explain to me why you say there was discrimination and what I should make of the evidence, and the others will say why I shouldn’t. You’ve all put in something in writing but you’ll have the chance to say a bit more in the hearing. So the question for the moment is would you like ten or 15 minutes to re-read the particulars of claim?
MR AHAMED: (No audible response.)
HER HONOUR: I’m going to stand this matter down for 15 minutes, Mr Ahamed. You can re-read the particulars of claim in that time and we’ll then continue with any questions. Thank you.
(THE WITNESS WITHDREW)
(Tribunal adjourned.)
(Tribunal resumed.)
HER HONOUR: Yes. Mr Ahamed, have you had the opportunity to look at your Points for Particulars of Claim?
MR AHAMED: (No audible response.)
HER HONOUR: All right. Well let’s proceed with questions that are relevant to the reasons why you have told the tribunal in those Points of Claim you were discriminated against because that’s what everybody is here to consider in this hearing.
MR AHAMED: (No audible response.)
HER HONOUR: Do you have any further questions for Ms McArthur?
MR AHAMED: (No audible response.)
HER HONOUR: Mr Ahamed, I can see you but I can’t hear you. Have you got any further questions for Ms McArthur?
MR AHAMED: (No audible response.)
HER HONOUR: Would you please answer me?
MR AHAMED: (No audible response.)
Nothing set out above approaches a denial of procedural fairness, apprehended bias or bad faith.
Grounds 1, 4 and 5 have no real prospect of success.

Grounds 2 and 3 — Jurisdictional error and actual bias

Putting aside the legal classifications, these complaints relate to the evidence of Mr Cornhill as to the overwriting function of the CCTV at the store and the unavailability of any video footage of the incident.
The judge accepted the evidence of Mr Cornhill contained in his affidavit.
Both grounds rest on the premise that the contents of Mr Cornhill’s affidavit were fabricated. It is then said that the judge committed jurisdictional error, and acted with actual bias, in accepting the affidavit.
But for Mr Ahamed appearing for himself this suggestion would be dismissed instantly, given that he adduced no evidence in support of the proposition. Moreover, as Coles submitted, the substance of this allegation is that the judge made an error of fact: Mr Ahamed disagrees with the judge’s factual findings as to the fate of the video footage.
In Tanah Merah Vic Pty Ltd v Owners Corporation No 1 of PS613436T, this Court (Beach, Osborn JJA and Stynes AJA) said:
Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 allows appeals on a question of law, including whether or not there is any evidence to support a finding of fact. It does not however extend to a mere error of fact unless the Tribunal made a finding that was ‘simply not open to it’. For the most part, this requires ‘that there was no evidence on the basis of which the Tribunal could reach that finding, not that there was some evidence tending to a different conclusion’.[25]
[25][2021] VSCA 72, [198], quoted in Miller v Martin [2021] VSCA 108, [72] (Tate, Niall and Kennedy JJA). See also Hoskin v Greater Bendigo City Council (2015) 48 VR 715, 720 [10] (Warren CJ, Osborn and Santamaria JJA); [2015] VSCA 350.
It is not necessary to traverse Mr Ahamed’s complaints about Mr Cornhill’s affidavit which are enumerated in an email he sent to VCAT on 10 May 2022 and relate to the CCTV footage and its overwriting function. None raise a question of law.
Mr Ahamed’s other complaint was that a specialist should have given evidence as to the CCTV system. That complaint is meritless. Explaining the CCTV system’s overwriting function was simple and did not, on its face, require specialist knowledge. It was open to the judge to accept Mr Cornhill’s evidence — especially where no evidence to the contrary was adduced by Mr Ahamed.
Grounds 2 and 3 are without foundation and have no real prospect of success.

Ground 6 — Error of law

Each of these complaints — which will be enumerated in a moment — essentially raise questions of fact and as just noted, are unamenable to appeal under s 148 of the VCAT Act. Nevertheless, it may assist Mr Ahamed if the following observations are made.
Mr Ahamed’s first complaint is that Coles employees reported to the police that the security guards ‘manhandled’ Mr Ahamed; however, the statements of Ms DeGille, Ms McArthur and Ms Fortainer (the Coles employees who gave evidence) contradict that suggestion. There is no evidence of a report to the police of ‘manhandling’ in the accounts of Senior Constable Cox and Sergeant Dennison.
Mr Ahamed’s second complaint is that the security guards denied touching Mr Ahamed in their affidavits, and that the judge found to the contrary. This misrepresents the evidence. Neither Mr Deng nor Mr Dirja, the two security guards, addressed the issue in their respective affidavits.
Nor did the judge ‘prove[] false’ (in Mr Ahamed’s words) the security guards’ accounts. The judge merely summarised Mr Ahamed’s account and perception:
Mr Ahamed then left the store but then returned because he decided that he wanted to speak to management. Mr Ahamed says that he was told to wait to do that — but then, instead of management, a security guard approached him and made him leave the store by ‘grabbing him’ and moving him along, and he felt he was assaulted. …
It is quite apparent from his submissions and evidence that Mr Ahamed was upset with the way he was treated that day, and was concerned about a number of aspects of it. This ranged across what he considered to be Coles’ staff refusal to listen to him, Coles not complying, he felt, with necessary COVID-19 health and safety measures, Coles’ failure to rectify those things once notified, the fact that he considered the security guard had wrongly grabbed him and assaulted him, the fact he was upset with the Police not taking the names of Coles’ employees he’d interacted with and giving those to him (though they took his name), and various other matters.[26]
[26]Reasons, [24], [28] (emphasis added).
Mr Ahamed’s third complaint is that Senior Constable Cox had said that an intervention order was in place against Mr Ahamed, when in fact no such order was in place.
Senior Constable Cox did not say that there was an intervention order in place against Mr Ahamed. She said that a search of the police database showed that an intervention order had been taken out against Mr Ahamed. That was true and was in fact borne out by the County Court order which Mr Ahamed adduced (notwithstanding that that order set aside the intervention order).
Mr Ahamed’s allegations of legal errors by the judge — namely, holding that s 24 of the Disability Discrimination Act 1992 (Cth) was analogous to s 44 of the EO Act; and that M.A and VicPol were not providing a ‘service’ to Mr Ahamed — are unnecessary to consider. As counsel for Coles pointed out, the judge’s decision did not turn on those remarks. Rather, it turned on the fact that Mr Ahamed was unable to show discrimination:
To succeed in his case, Mr Ahamed needs to satisfy this Tribunal, on the balance of probabilities, that he was discriminated against. He has not produced any evidence that any behaviour directed towards him on that day had anything to do with his race or the colour of his skin. He does not get to first base in relation to his claim. …
I note that I am satisfied, in any event, that M.A. Services was not providing any service to the general public (or Mr Ahamed). It was providing a service (security) to Coles. …
I do not need to go further than that in dealing with the claim against Victoria Police as there is nothing to suggest any sort of discrimination.
However, I indicate that (had I needed to consider this) I am not persuaded that enforcing the law is a relevant ‘service’[.][27]
[27]Reasons, [11], [63], [77]–[78] (emphasis added in bold) (italics in original).
Ground 6 has no real prospect of success.

Ground 7 — Error of fact

Mr Ahamed makes, broadly, three complaints under this ground of appeal:
(1)The judge erred by rejecting the proposition that Sergeant Dennison’s expression changed when she inspected Mr Ahamed’s driver’s licence.
(2)The judge erred by stating that Mr Ahamed was represented at the time of his filing his application with the Tribunal.
(3)The judge contradicted herself by, at one point of her reasons, characterising Mr Ahamed as ‘agitated’, and at another point, calm.
It may be unnecessary but we repeat that errors of fact, unless based on no evidence or irrationality bases, cannot be relied upon in an appeal under s 148. Again, however, we will address briefly each complaint.
As to the first complaint, the impugned paragraph in the judge’s reasons reads as follows:
The best that Mr Ahamed could come up with, when asked about this in evidence, was to say that the Police woman’s face ‘changed’ when she saw the driver’s licence. Somebody’s face changing when nothing else occurs, even if it did change in some way, does not amount to discrimination. (I might say that that is the first time that evidence of her expression changing had been raised, and I do not accept that Mr Ahamed in fact had a recollection of her face changing. I consider that was said by him in evidence because it was apparent in the video that nothing changed at that point. That is the one area where I am satisfied that there was some embellishment by Mr Ahamed of what he actually remembered from the day).[28]
[28]Reasons, [76] (emphasis added).
Mr Ahamed says that the remark in the judge’s reasons, ‘nothing changed at that point’, refers to the expression of the officer’s face when viewing the driver’s licence. Putting aside the materiality of this interpretation, it is clear that the judge in describing her own observation of the bodycam video footage and noting ‘nothing changed’ was referring to the situation generally as shown on the video.
In any event, as counsel for VicPol rightly submitted, the central issue was whether Mr Ahamed had been discriminated against on the basis of his race or skin colour; and such race or skin colour would have been evident from looking at Mr Ahamed, and not from an image on his driver’s licence.
The second complaint (whether Mr Ahamed was represented at the time of the issue of the proceeding) is patently irrelevant to the primary issue, being whether Mr Ahamed was discriminated against.
The third complaint is also without substance. The paragraphs of the judge’s reasons which are said to be inconsistent are as follows:
On the basis of the evidence that I have heard and read, I am satisfied that the Coles’ employees acted calmly and acted politely in dealing with an upset and agitated customer. There was no humiliation, denigration or insult involved. …
The video footage that was shown showed Mr Ahamed standing calmly at the side of the premises near the trollies, so just outside the store. He spoke articulately and at some length. He was polite and asked questions, and listened to explanations; and I accept that he was clearly upset by events, as I have already said. It was clear to me that the Police officers were listening to his concerns, trying to give patient explanations about relevant processes, and telling him that he could go to head office.[29]
[29]Reasons, [49], [71] (emphasis added).
There is no inconsistency. The first paragraph describes Mr Ahamed’s initial behaviour. The second paragraph describes ‘video footage’, which was the bodycam footage of the police officers. These were two occasions separated by a period of time — the time it took for police to be called, and for the two officers to arrive. It was clearly open to her Honour to conclude that Mr Ahamed’s disposition altered throughout the episode.
Ground 7 has no real prospect of success.

Conclusion

None of the proposed grounds of appeal have any real prospect of success. Orders to the following effect will be made:
(1)
Leave to appeal is refused.

SCHEDULE OF PARTIES

MOHAMMAD AHAMED First applicant

and

COLES SUPERMARKETS AUSTRALIA PTY LTD First respondent

M.A SERVICES GROUP PTY LTD Second respondent

VICTORIA POLICE Third respondent

MOHAMMAD AHAMED	First applicant
and
COLES SUPERMARKETS AUSTRALIA PTY LTD	First respondent
M.A SERVICES GROUP PTY LTD	Second respondent
VICTORIA POLICE	Third respondent

[2023] VSCA 239

12 October 2023