Ahamed v Coles Supermarkets Australia Pty Ltd - [2023] VSCA 239

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

---

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)

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ahamed v Coles Supermarkets Australia Pty Ltd

Details

AGLC: Ahamed v Coles Supermarkets Australia Pty Ltd [2023] VSCA 239
Case: [2023] VSCA 239
Decision Date: 12 October 2023

CaseChat Overview and Summary

Ahamed brought proceedings in the Equal Opportunity Tribunal against Coles Supermarkets, alleging discrimination on the basis of race or skin colour. The case was heard by a tribunal member who dismissed the complaint. Ahamed sought to appeal the tribunal’s decision to the Supreme Court on the basis of alleged errors of law and fact, including errors in the tribunal member’s handling of the proceedings, and in the tribunal member’s findings of fact. Coles applied to dismiss the appeal on the basis that it had no reasonable prospect of success. The Supreme Court dismissed the appeal, finding that there were no arguable grounds for appeal.

The court considered whether there were any arguable grounds for appeal in relation to the tribunal member’s handling of the proceedings, including whether Ahamed was denied procedural fairness. The court found that there was no basis for concluding that the tribunal member had denied Ahamed procedural fairness, as the tribunal member had allowed Ahamed to speak throughout the hearing and had given Ahamed the opportunity to call witnesses and present evidence. The court also considered whether there were any arguable grounds for appeal in relation to the tribunal member’s findings of fact, including whether the tribunal member had erred in finding that Ahamed had been treated politely and calmly by Coles’ employees. The court found that there was no basis for concluding that the tribunal member had erred in finding that Ahamed had been treated politely and calmly, as the evidence showed that Ahamed had been treated politely and calmly by Coles’ employees.

The court dismissed the appeal, finding that there were no arguable grounds for appeal. The court noted that the tribunal member had considered all of the evidence and had made findings of fact that were open to her on the evidence. The court also noted that the tribunal member had not made any errors of law in her handling of the proceedings.

The court made no orders as to costs.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.