An v Nichigo Press Pty Ltd

[2005] NSWADT 164

CITATION:	An v Nichigo Press Pty Ltd [2005] NSWADT 164
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Do An RESPONDENT Nichigo Press Pty Ltd
FILE NUMBER:	051069
HEARING DATES:	13/07/05
SUBMISSIONS CLOSED:	07/13/2005
DATE OF DECISION:	07/15/2005
BEFORE:	Hennessy N - Magistrate (Deputy President)
APPLICATION:	Application for leave to proceed
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Anti-Discrimination Act 1977
CASES CITED:
REPRESENTATION:	In person E Kaiwa, agent
ORDERS:	1. Leave is granted for the complaint to be the subject of proceedings; 2.The matter is listed for a case conference on 24 August 2005 at 9:15am.

Introduction

1 This is an application by Mr Do An for the Tribunal to give him permission to continue with his complaint. The President of the Anti-Discrimination Board declined Mr An’s race discrimination complaint as lacking in substance. Mr An then asked the President to refer the complaint to the Tribunal. The President referred the complaint under s 93A of the Anti-Discrimination Act 1977 (the Act). The complaint cannot proceed without the “leave” of the Tribunal. This is the first such application that the Tribunal has heard.

2 Mr An is a registered migration agent practicing in Sydney. He comes from Korea and is an Australian citizen. He claims that Nichigo Press Pty Ltd, a Japanese newspaper, has discriminated against him over the last 10 years. For about two years prior to 1994, Mr An advertised his business in the monthly paper, Nichigo Press. Nichigo Press Pty Ltd refused to run his advertisements after receiving complaints from Japanese women that Mr An had sexually harassed and assaulted them. Mr An denies the assaults and says that Nichigo Press Pty Ltd made up the allegations to ruin his business.

3 In August 2004 a Nichigo Press sales person approached Mr An about placing an advertisement. He says he placed an order, which Nichigo Press did not proceed with. That allegation is the only complaint that has been lodged within the statutory time frame of 6 months under the former s 88(3) of the Act. The President has not accepted any of the allegations ‘out of time’ under s 88(4). Consequently, the only complaint the Tribunal would have jurisdiction to determine is the cancellation of his order for advertising space in August 2004. Nichigo Press Pty Ltd claims that it did not place the most recent advertisement “because he has not proved or demonstrated to us that his business conduct improved since that incident. If he likes to do that, we will be happy to review the situation.” The incident referred to is the allegations of sexual harassment and assault by Japanese women against Mr An 10 years earlier.

President’s decision

4 The President of the Anti-Discrimination Board declined the complaint as “lacking in substance”. In a letter to Mr An dated 26 April 2005, the President said that:

Lacking in substance means that I believe that you do not have enough information to show that what you say Nichigo Press did was unlawful discrimination.

The reasons for my decision are:

You have not substantiated your claim that Nichigo Press refused to place your advertisement because of his (sic) race.

The respondent has provided a plausible and non-discriminatory reason for why your advertisement has not been placed.

5 There is no guidance in the Act as to the factors the Tribunal should take into account in determining whether or not to grant leave for Mr An to proceed with his complaint. I am not conducting a merits review of the President’s decision, but merely determining on the basis of the President’s report and submissions from the parties, whether or not to grant leave.

6 When deciding what principles to apply in determining whether or not to grant leave, several points are relevant:

the President of the Anti-Discrimination Board is an administrator who has made an administrative decision;

there is no appeal against the Tribunal’s decision;

the Tribunal may summarily dismiss a complaint at any stage of the proceedings if the complaint is frivolous, vexatious, misconceived or lacking in substance, does not disclose a contravention of the Act or for any other reason no further action should be taken in respect of the complaint, or part of the complaint.

7 These factors lead me to conclude that where the President has declined a complaint as lacking in substance, the Tribunal should only refuse leave in a clear case. If the complainant has put forward an arguable case in support of his or her complaint, then leave should be granted. It is still open to the respondent to apply for the complaint to be summarily dismissed as lacking in substance. If that happens, the complainant will have an opportunity to present all the evidence in support of the complaint.

Is there an arguable case?

8 Mr An has alleged that Nichigo Press Pty Ltd has discriminated against him on the ground of his race by refusing to provide him with a service: s 19 of the Act. Nichigo Press Pty Limited says that one of the reasons for not proceeding with Mr An’s advertisement relates to allegations of sexual harassment and assault against Japanese women 10 years previously. In order to prove his case, Mr An must establish that at least one of the reasons Nichigo refused to place his advertisement was that he is of Korean nationality. He also needs to establish that Nichigo Press Pty Ltd treated him less favourably than they treat or would treat people of a different race in the same circumstances, or in circumstances which are not materially different. Mr An alleged that Nichigo Press Pty Ltd has never refused to take orders from Japanese nationals regardless of what they did to their customers. Mr An gave an example of a Japanese business owner who allegedly raped his customer but the newspaper still allowed him to advertise.

9 I am satisfied on the basis of Mr An’s allegations that he has an arguable case. If Mr An can prove that Nichigo Press Pty Ltd has treated him less favourably than it treats Japanese people, for example, that may give rise to an inference that one of the reasons for refusing to place his advertisements was his race. The fact that Nichigo Press Pty Ltd has given a plausible non-discriminatory reason for their conduct does not mean that Mr An will ultimately be unsuccessful. The matter will be listed for a case conference.

Order

1.Leave is granted for the complaint to be the subject of proceedings.

2.The matter is listed for a case conference on 24 August 2005 at 9:15am.