Alabadla v State of NSW (NSW Police Force)
[2012] NSWADT 205
•09 October 2012
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Alabadla v State of NSW (NSW Police Force) [2012] NSWADT 205 Hearing dates: Submissions made 12 and 18 September 2012 Decision date: 09 October 2012 Jurisdiction: Equal Opportunity Division Before: G Furness, SC, Judicial Member Decision: The complaint be dismissed in whole pursuant to s.102 of the Anti-Discrimination Act 1977
Catchwords: DISCRIMINATION - on grounds of race - application to dismiss claim - lacking in substance; want of prosecution Legislation Cited: Administrative Decisions Tribunal Act 1977 (NSW)
Anti-Discrimination Act 1977 (NSW)
Crimes (Domestic and Personal Violence) Act 2007 (NSW)Cases Cited: Bassili v Star City Pty Ltd [2008] NSWADT 62
Commissioner of NSW Police New South Wales NSW Police Service v Orr [2001] NSWADTAP 16
Fricke v Corbett Research Pty Ltd [2004] NSWADT 128
Han v NSW Department of Health [2006] NSWADT 113
Hay v State of New South Wales (New South Wales NSW Police Service) [2006] NSWADT 13
Hillman v Bankstown District Sports Club Ltd (No 2) [2007] NSWADT 179
Hurst v Star City Pty [2009] NSWADT 65)
Mohamed &ors v State of NSW (NSW NSW Police Force) [2009] NSW ADT 51
O'Sullivan v Pehm [2010] NSWADT 57
Rae v Commissioner of NSW Police, NSW NSW Police Force (No2) [2010] NSWADT 36
Razaghi v Director-General NSW Department of Health & Anor [2005] NSWADT 202Category: Principal judgment Parties: M Alabadla (Applicant)
State of NSW (NSW Police Force) (Respondent)Representation: M Alabadla (Applicant in person)
Sparke Helmore (Respondent)
File Number(s): 121001
REASONS FOR DECISION
This is an application by the Respondent for summary dismissal of the proceedings pursuant to s. 102 of the Anti-Discrimination Act 1977(NSW) (ADA).
The Respondent raises the following grounds in support of its application:
(1) The applicant has failed to prosecute his claim;
(2) There is no real prospect of the claim proceeding in that it is misconceived or lacking in substance.
Nature of the Complaint
The applicant has alleged race discrimination against the NSW Police Force in the area of goods and services pursuant to sections 7, 19 and 53 of the ADA.
The applicant complained about the actions of the NSW Police after he, the applicant had been assaulted by another person on 9 August 2010. The circumstances of the assault were that the applicant was seeking to have money owing to him by his employer/contractor paid. While protesting outside Channel 7, where his employer/contractor worked, about the debt, and holding a placard, the applicant claims he was assaulted by a security guard employed by Channel 7.
Initially, the applicant complained to the Anti-Discrimination Board (the Board) that the NSW Police took no steps for ten weeks in response to his report of the assault and then, after investigating the assault, took no further action. He withdrew that complaint on April 2012 during a case conference before the Tribunal.
The complaint he maintained was that NSW Police applied for an Apprehended Personal Violence Order (APVO), dated 14 October 2010 on behalf of his employer/contractor against him. He complained that the NSW Police believed his employer/contractor and did not hear the applicant's side of the story. The APVO application referred to a number of meetings and phone calls between the applicant and the employer/contractor during which it was claimed that the applicant in these proceedings was aggressive and threatening towards the employer/contractor and that that conduct was escalating.
The applicant described that action by the NSW Police in making the application on the employer/contractor's behalf as 'discrimination and double standards'. It appears that the applicant's claim is that the NSW Police did not take any action after he complained about an assault, while taking action when his employer/contractor told the NSW Police he felt threatened by the applicant.
The applicant stated that the NSW Police made the APVO application because his employer/contractor said that the applicant was on a 'suicide mission' and because the applicant's name was Mohammed.
The applicant stated that the APVO was dismissed/withdrawn. The NSW Police stated that it was withdrawn after the applicant made certain undertakings. The applicant stated that had the APVO application been successful it would have prevented the applicant working in the security industry.
The applicant stated that he had been living in Australia for about 14 years. He had been concerned about the welfare of his family after the assault and they had travelled to Lebanon.
Procedural background
The applicant's complaint alleging race discrimination against the NSW Police Force in the area of goods and services was received by the Board on 25 March 2011.
The complaint was referred to the Administrative Decisions Tribunal (the Tribunal) and received by the Tribunal on 3 January 2012.
At the first case conference held on 8 February 2012, the applicant was ordered to file a statement detailing his complaint by 24 February 2012.
The applicant filed a letter dated 22 February 2012. It was not a statement. The letter responded to comments made in a letter from the solicitors for the NSW Police to the Board and contained 'demands' as to the outcomes the applicant was seeking. That letter contained no details of his complaint of discrimination.
At the second case conference held on 4 April 2012, the applicant advised he was deciding whether to engage lawyers to act on his behalf.
At the third case conference held on 2 May 2012, a timetable was set for the exchange of statements and/or documents with the applicant to provide a statement by 30 May 2012 and the NSW Police to file and serve its evidence by 27 June 2012.
By letter dated 29 May 2012 the applicant advised the Tribunal that while he believed that the actions by the NSW Police were discriminatory, he had been unsuccessful in obtaining legal aid and could not provide the statement required by the Tribunal at the case conference held on 2 May 2012. The applicant said that 'accordingly, I will not be able to proceed with this matter in the court of justice'.
A further case conference was held on 29 August 2012 at which I indicated to the parties that the Tribunal could decide the complaint based on the material provided to the Board and referred to the Tribunal. In the alternative, if the NSW Police wished to make an application for the complaint to be dismissed pursuant to s.102 of the Act, they should do so within 14 days.
That application was made dated 12 September and the applicant made submissions in response dated 18 September 2012.
The Evidence
The Applicant has filed no evidence in support of his complaint or in response to the NSW Police submissions for the dismissal of the complaint.
In support of the application for summary dismissal the NSW Police rely upon the letters to the Tribunal by the applicant dated 22 February 2012 and 29 May 2012 and the President of the Board's Summary of Complaint and attached documents filed in the Tribunal on 3 January 2012.
The NSW Police response to the complaint and various letters exchanged with the applicant prior to the complaint being lodged indicate the following matters.
The person accused of assault was known to the applicant and was a co-worker of the employer/contractor. NSW Police did not take action against the person accused of assaulting the applicant because, in the absence of closed circuit television coverage, there was insufficient evidence. Both parties were interviewed and each party had a witness who supported their account.
The NSW Police conceded that, in hindsight, it would have been preferable if the employer/contractor had been referred to the Court to take out the application for an APVO, however, it was the judgement of the Constable that the employer/contractor was very upset and it was necessary that the Constable apply on his behalf.
The dismissal provisions
Section 102 of the ADA provides:
"The Tribunal may, at any stage in proceedings relating to a complaint, dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92(1)(a)(i)or(ii)or(b)."
In turn, s.92(1) of the ADA provides:
"If at any stage of the President's investigation of a complaint:
(a) the President is satisfied that:
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or ....
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint,
the President may, by notice in writing addressed to the complainant, decline the complaint or part of the complaint."
The power to dismiss a complaint summarily under s.102 of the ADA has been considered by the Tribunal on many occasions. Generally, the Tribunal has adopted a careful approach and emphasised that the power should be exercised with exceptional caution and only if the circumstances clearly warrant such action. See Commissioner of NSW Police v Orr[2001] NSW ADTAP 16; Razaghi v Director General, Department of Health & Anor[2005] NSW ADT 202; Han v NSW Department of Health[2006] NSW ADT 113; Hay v State of New South Wales (New South Wales Police Service)[2006] NSW ADT 13; Hillman v Bankstown District Sports Club Ltd (No 2)[2007] NSW ADT 179; Bassili v Star City Pty Ltd [2008] NSW ADT 62; Mohamed &ors v State of NSW (NSW Police Force)[2009] NSW ADT 51; Hurst v Star City Pty Ltd[2009] NSW ADT 65; Rae v Commissioner of NSW Police Force (No 2)[2010] NSWADT 36 at [84].
The Tribunal in Fricke v. Corbett Research P/L[2004] NSW ADT 128found at [38]:
"The Tribunal approaches its role by seeing whether the facts as stated by a complainant at their highest show that there are grounds on which to decide that the complaint either ought to be dismissed or alternatively, permitted to proceed to a full hearing, in which case the Respondent's evidence will be called."
Submissions
The NSW Police submitted that the attendance by the applicant at case conferences, on two occasions, by telephone, his declining to mediate his claim and his failure to file a detailed statement setting out his complaint shows that the applicant has failed to prosecute his claim. In addition, his letter dated 29 May 2012 withdrawing his complaint should be treated as a withdrawal.
Additionally or in the alternative, the NSW Police submit that there is no real prospect of the complaint proceedings and refers to the principles set out in O'Sullivan v Pehm [2012] NSWADT 57 at [49] - [59].
The only matter before the Tribunal, the NSW Police submitted is the evidence of the APVO application by Constable Axton (Tab A of the President's Report). Constable Axton had the authority under s.48 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW) to make the application. There is no evidence of any refusal by Constable Exton to provide the applicant with goods or services and no evidence of less favourable treatment.
The applicant submitted that the NSW Police conceded that the Constable should not have acted as applicant for the APVO and that having done so, 'wasted my time, endured me legal fees and a waste of public resources'. In relation to attending the case conference by telephone, he was informed that he could do so. He submitted that he cannot afford the legal costs to proceed.
Want of Prosecution
The Tribunal is not satisfied that the complaint should be dismissed for want of prosecution. The Tribunal is required to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms (see s.73(3) and s.73 generally Administrative Decisions Tribunal Act 1977).
The Tribunal frequently permits parties to participate in case conferences by telephone and that of itself is not evidence of a failure to prosecute a complaint. The lack of detail in the letter provided by the applicant, on having been directed to file a written statement, is also not evidence of a failure to prosecute. A refusal to consent to mediation is not evidence of a failure to prosecute.
It is the case that the applicant wanted to withdraw his complaint because he could not afford legal assistance to provide the Tribunal with a statement in an appropriate form. Given the nature of the Tribunal's processes (see s.73), I determined that the merits of the applicant's complaint could be determined on the material he had provided the Board and the results of the Board's investigations. As set out above, an opportunity to make an application for dismissal was given to, and accepted by the respondent. In these circumstances, there was no relevant want of prosecution.
Lacking in Substance
Turning then to the second ground for dismissal that the complaint was lacking in substance. A number of authorities have considered when a complaint is "lacking in substance". In Whiteoak v State of New South Wales (Department of Justice and Attorney General - Corrective Services NSW) [2012] NSWADT 135, the Tribunal, having reviewed the authorities, concluded at [79] thus:
Taking these authorities into account, in order to succeed on the application on the ground that the complaint is lacking in substance, the Respondent would need to establish that there is no factual basis for the allegations comprising the complaint, that those allegations lack merit or that the Applicant's complaint encompasses an untenable proposition of fact or law. In considering the exercise of the power to dismiss, the Tribunal is to exercise exceptional caution particularly as the application is made prior to the adducing of the Applicant's evidence. The evidence or such material as might be converted into evidence in the Applicant's case is to be taken at its highest.
The Tribunal will now turn to consider whether, accepting that everything the complainant has said the complaint has substance.
The claim is of discrimination on the ground of race. The Tribunal infers from the evidence that the applicant's national origin is other than Australian and that this is a race within the definition in the ADA, although the applicant did not specify his race in his complaint.
The area in which the applicant complained he was discriminated is that of goods and services. Section 19 of ADA provides that:
(1) "It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods and services, or
(b) in the terms on which the other person is provided with those goods and services".
Relevantly, s.7 of ADA provides that:
(1) "A person ("the perpetrator") discriminates against another person ("the aggrieved person") on the ground of race if, on the ground of the aggrieved person's race or the race of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances or in circumstances which are not materially different, the perpetrator treats or would treat a person of a different race or who has such a relative or associate of a different race ..., or
...(2) For the purposes of sub-section (1)(a)...something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."
The applicant has not identified the goods or services which were refused to him or which were provided to him on less favourable terms. The circumstances in which the NSW Police provide services was recently considered by the Appeal Panel in State of NSW (NSW Police Force) v Whitfield (EOD) [2012] NSWADTAP 27at [19] - [45].
The complaint is not that the applicant wished the Constable to make an application for an APVO on his behalf and that that was refused. Nor is the complaint about the terms on which the Constable made the application. The complaint is that the Constable did not speak to the applicant first and hear his side of the story and that the Constable made an application for an APVO on behalf of his employer/contractor against him.
It is difficult to define the services the Constable may have been providing the applicant based on these facts. It becomes more strained to cast the actions of the Constable as being refusing the applicant any service or offering it on particular terms. An applicant for an AVPO is under no legal or other obligation to approach the person against whom the order is sought prior to making application. Indeed, those applications are frequently made ex parte.
Assuming, without deciding, that the Constable did refuse to provide the applicant a service, the next issue is to apply the test for direct discrimination. This was considered in Commissioner of Corrective Services v. Aldridge [2000] NSW ADTAP 5 at [41] ff. The Appeal Panel confirmed two key components; the first is differential treatment and the second causation. Differential treatment is to be considered first and if there is no differential treatment then it is unnecessary to consider causation: see Herber v Glen Henney& Son Pty Limited (No 2) [2007] NSWADT 230 at [24-25].
On a review of the authorities concerning what constitutes differential treatment, the Appeal panel in Aldridge at [44] found that the appropriate question to be asked was; "Did the [Respondent], on the ground of race..., treat [the Applicant] less favourably than [it] treated or would treat [a person of a different race] in the same circumstances, or in circumstances which were not materially different?"
The applicant asserts that he was treated differently by the Police in circumstances where a Constable assisted his employer/contractor by making an application for an APVO, and the Police did not charge the person who the applicant had said had assaulted him.
A decision by a Constable to apply for an APVO for a member of the public is not comparable to a decision of the NSW Police not to charge a different person for an alleged assault. The treatment is not in the same circumstances or circumstances which are not materially different. Further, there were cogent reasons given by the Police for not charging any person in relation to the assault.
As to causation, what constitutes "on the grounds of" involves a consideration of why the aggrieved person was treated as they were: See Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92. The focus is on the "true basis", the "genuine basis" (per Gleeson CJ at 102), or the "real reason" (per McHugh & Kirby JJ at 144) for the treatment.
Where one of the reasons for an act done for two or more reasons consists of unlawful discrimination under the ADA, whether or not it is the dominant or substantial reason for doing the act, then for the purposes of the ADA the act is taken to be done for that reason: see s.4A ADA.
The applicant's evidence is that his race was a reason for the Police making the APVO because his name is Mohammed and the person in need of protection had referred to him being on a 'suicide mission'. The Tribunal is not satisfied on this evidence that the actions of the Police were motivated by the race of the applicant.
For these reasons, the Tribunal accepts the submission of the NSW Police that the complaint is lacking in substance.
The Tribunal dismisses the complaint.
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Decision last updated: 09 October 2012
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