Anters v D G Thompson Pty Ltd

[2023] NSWCATAD 109

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Anters v D G Thompson Pty Ltd [2023] NSWCATAD 109

Hearing dates:

14 October 2022 and 13 December 2022, last submission received on 31 March 2023

Date of orders:

10 May 2023

Decision date:

10 May 2023

Jurisdiction:

Administrative and Equal Opportunity Division

Before:

L Andelman, Senior Member
Dr M Murray, General Member

Decision:

1. The application is dismissed.

2. The application for costs is dismissed.

Catchwords:

HUMAN RIGHTS – discrimination – on the ground of a person’s sex – employment – direct discrimination – prospective employee

Legislation Cited:

Anti-Discrimination Act 1977

Civil and Administrative Tribunal Act 2013

Cases Cited:

Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92

Tu v University of Sydney (No 2) [2002] NSWADTAP 25

Category:

Principal judgment

Parties:

Dawn Anters (Applicant)
D G Thompson Pty Ltd (Respondent)

Representation:

Solicitors:
Self-represented (Applicant)
Petrine Costigan Lawyers (Respondent)

File Number(s):

2022/00060593

Publication restriction:

N/A

REASONS FOR DECISION

1. Mr Anters, the applicant, claimed before Anti-Discrimination NSW that D G Thompson Pty Ltd (DGT), the respondent failed to employ him because of his sex and marital status in contravention of the Anti-Discrimination Act 1977 (the Act). At the commencement of the hearing the Tribunal was informed by Mr Anters that his claim is in regard to direct sex discrimination as to being offered employment: s24(1)(a) and s25(1)(b) of the Act.

2. We understand these facts to be uncontentious:

1. Mr Anters saw a job advertisement on Seek in February 2021 for a Costs Solicitor with DGT Costs Lawyers. The position was full time based in Sydney CBD, Inner West & Eastern Suburbs.

2. The advertisement described the firm as ‘dynamic boutique law firm specialising in all aspects of legal costs law and practice with officers in Sydney, Brisbane and Canberra.’ The candidate was required to work autonomously with direct supervision. Litigation experience was deemed essential. An email link was provided on the job advertisement instructing that the candidate was to email through a CV and a cover letter.

3. On 10 February 2022, Mr Anters sent an email to Ms Ryan attaching a cover letter and a CV. The email was signed as Dawn Anters.

4. On 15 February 2022, Ms Ryan responded via email ‘Hello Dawn, I just noticed that you reside in South Australia. Is this correct? We are Sydney and Brisbane based.

5. Later on the same day, Mr Anters responded to Ms Ryan via email: ‘Hello Tara. You are correct. I am in South Australia. I have noted that DGT is in Brisbane and Sydney and I am happy to move if the position is permanent full time….’

6. Mr Anters attended an interview that was conducted via Zoom on 22 February 2022 with Ms Ryan and Ms Rosati. Mr Anters was wearing a suit.

7. Two other candidates were interviewed for the role. Both were female. Both candidates were offered roles. One of the candidates decided to not accept the offer.

8. There were no set questions at the interviews and there was no formal ranking of candidates.

9. On 12 March 2021 Ms Ryan sent an email to Mr Anters: ‘Good afternoon Dawn. Thank you for your interest in the position and for taking the time to interview with myself and Kerrie. Unfortunately we are unable to offer you a position at this time. We were inundated with many very high quality applicants, yourself included, making our decision extremely difficult….’.

10. On 29 July 2021 Mr Anters sent a letter to Ms Rosati. The letter asserted that he felt like he was discriminated against on the basis of his gender because of the questions he was asked during the job interview and the fact that the website showed that all of the solicitors were female.

11. On 10 August 2021 Petrine Costigan Lawyers responded to Mr Anters’ letter denying that the decision to not employ him was based on his gender, denying that reference to family was discriminatory and contesting that there was reference to ‘workplace policies’ during the interview.

3. For the reasons below the Tribunal has decided to dismiss Mr Anters’ complaint.

Statutory framework

Discrimination

4. Mr Anters alleges that that the respondent contravened s 25(1)(b) of the Act, which reads:

(1) It is unlawful for an employer to discriminate against a person on the ground of sex--

(b) in determining who should be offered employment,

…

5. Discrimination is defined in s24 of the Act:

(1) A person ("the perpetrator" ) discriminates against another person ("the aggrieved person" ) on the ground of sex if the perpetrator--

(a) on the ground of the aggrieved person's sex or the sex of a relative or associate of the aggrieved person, 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 the opposite sex or who does not have such a relative or associate of that sex, or

(1A) For the purposes of subsection (1) (a), something is done on the ground of a person's sex if it is done on the ground of the person's sex, a characteristic that appertains generally to persons of that sex or a characteristic that is generally imputed to persons of that sex.

…

6. Section 4A of the Act explains that if an act is done for two or more reasons and one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then for the purposes of the Act, the act is taken to be done for that reason.

Evidence

7. Mr Anters relied on his own evidence and the evidence of Mr Bony John. The respondent relied on evidence from Ms Kerrie-Ann Rosati and Ms Tara Ryan.

8. We found all four of the witnesses to be credible witnesses. That being so, where there are conflicts in the evidence as to what questions were asked during the interview on 22 February 2022, we prefer the evidence of Mr Anters. We accept Ms Rosati’s evidence that the respondent does not have any written policies that supports ‘family’. However we accept that Ms Rosati or Ms Ryan said words to the effect that the respondent supports employees with family responsibilities.

9. In the complaint to Anti-Discrimination New South Wales, in response to questions ‘how have you been affected? And ‘what outcomes are you seeking from the respondent?’ Mr Anters wrote:

I have become offended, embarrassed and humiliated. Also, I have found both Ms Rosati and Ms Ryan very attractive and beautiful. Therefore, the magnitude of the offence and humiliation caused by the discrimination of someone to whom I am attracted to is far severe. Further, if I were not subject to discrimination, I would have been employed and started to work in April 2021. Thus, it also resulted in financial loss to me.

10. The outcome sought was:

DGT cost lawyers to pay me a sum of $5000 for injury to feelings. The humiliation and the insult.

DGT cost lawyers to write a letter of apology.

Both Ms Rosati and Ms Ryan separately to write I LIke MEN - by hand using a red ink pen on a piece of white paper no less than 10 times and scan and email this writing to me.

The Applicant’s evidence

11. At some stage, Mr Anters browsed DGT’s website and saw that all of the lawyers were female. He was a little surprised by this and wondered whether the role was ‘identified’. He also thought that DGT may have assumed that he was female because the name Dawn was an atypical male name.

12. Mr Anters’ evidence was that following the interview, he felt like he was going to be discriminated against based on his gender so he ‘jotted down the questions’ asked of him on a piece of paper. He used this piece of paper to prepare the letter dated 28 July 2021 (which was some five months following the interview) and the complaint to the Anti-Discrimination New South Wales on 21 August 2021. During cross examination, Mr Anters said that he threw the note away.

13. Mr Bony John’s evidence was that he often talked to Mr Anters about his struggle finding employment and about an interview with a law firm that had only employed females in the past and that Mr Anters was of the opinion that he was only invited for the interview because it was assumed he was female and that he was unhappy about the way two female interviewers treated him during the interview.

The Interview

14. Mr Anters stated in his affidavit that he was wearing a suit and that Ms Ryan and Ms Rosati were also professionally dressed. He stated that he found them to be ‘beautiful and attractive.’

15. Mr Anters observed that during the interview Ms Rosati appeared ‘upset and fidgety’. His affidavit evidence was that ‘I was told many times by others that I have a high-pitch sound. My ex-girlfriend also told me that my voice is very manly. I doubt this might have been the reason why Ms Rosati appeared to be upset.’ Mr Anters also observed that when Ms Ryan asked him a question about relocating with his family, ‘she appeared a little blushed.’

16. In the letter to Ms Rosati on 28 July 2021, Mr Anters set out his recollection of the interview. He stated that at the commencement of the interview Ms Rosati asked him to tell her about himself and he provided a brief history of his experience and qualifications and talked about his interest in costs law and set out in question/answer format the remainder of the interview which we transcribe below:

Ms Rosati: This job is not about wearing a suit. What is your career plan?

Mr Anters: I have no plans as such. I'm open to opportunities and cost law is something I'm very interested in because it plays a critical role in litigation. Indeed, how we conduct litigation will have an impact on how much it does cost and what we can claim after the litigation. For this reason, I am interested to learn more about cost law.

Ms Ryan: It is good that you know something about costs and its importance.

Ms Rosati: It is OK for us. If you have other career plans, perhaps you can take this skill to gain other employment. Do you have any such plans?

Mr Anters: No. No plans as such at the moment.

Ms Ryan: If successful in this application, do you have to relocate to Sydney with your family?

Mr Anters: I have to relocate and I have contemplated relocating to Sydney when I have applied for this position.

Ms Rosati: You might have noticed from my website that all of our lawyers are females. This is because we have a workplace policy that supports those with family. We want male candidates to apply and take opportunities with our firm. Do you have any problems working with females?

Mr Anters: For me in a workplace, it's not males, females, gays or lesbians. For me, all are humans. And that is how I see it. Thus, it is not a problem.

Ms Rosati: It is a junior role and involves a lot of administrative work. Are you ready to undertake such tasks?

Mr Anters: If you are a junior employee it is expected. Everyone has to start somewhere, I guess.

Ms Rosati: Do you have any questions?

Mr Anters: What does this role involve? Can you tell me about a typical day because someone in this position?

Ms Ryan: It involves a lot of typing.

Mr Anters: Would you mind me asking what sort of typing is that? Is it the process of making submissions to the court to claim costs after ending litigation?

Ms Rosati: That is more advanced work, Tara and I undertake that. Your role involves a lot of reading, say for example 50 pages and making them into small submissions of a page or two.

Mr Anters: So we could say it is summarising.

Ms Rosati: Yes, it's a kind of summarising.

Mr Anters: When do you inform me of the decision?

Ms Ryan: Your lease is due, right? When is it due?

Mr Anters: By the end of the month, so it will be good to know the outcome as early as possible.

Ms Rosati: We will let you know by the end of the week. In the meanwhile, if you have any questions, please email us.

17. In the complaint to Anti-Discrimination NSW, Mr Anters stated that ‘the questions asked of me during the interview, the manner and tone in that these questions were asked, and the recruitment pattern of DGT made me feel like I have been subject to sex discrimination…’

The Respondent’s evidence

Ms Rosati’s recollection of the interview

18. Ms Rosati stated that she did not know whether Mr Anters was male or female when the decision was made by her and Ms Ryan to interview him for the role.

19. Ms Rosati recalled that during the interview the internet connection was very bad and there was a delay with the video connection. It was difficult to hear Mr Anters.

20. She denied that she was upset or fidgety during the interview and could not recall Ms Ryan referring to Mr Anters’ family or blushing while she asked the question about relocation.

21. Mr Rosati denied stating that DGT has a workplace policy that supports those with family. She also stated that DGT does not have any written workplace policies. Ms Rosati did not deny that she may have referred to DGT being supportive of employees with family responsibilities.

22. Ms Rosati had no recollection of Mr Anters stating that working with males, females, gays or lesbians was not a problem.

23. Ms Rosati recalled that Mr Anters lived in Adelaide and recalled questions were asked about why he was applying for a role in Sydney, why he wanted to move to Sydney and whether he was moving because of his partner or family.

24. Ms Rosati agreed with Mr Anters that she informed him that the majority of the professional staff are female and that DGT has a predominantly female staff and that the role may not involve wearing a suit, that there was a lot of administrative work, typing, reading and summarising. Ms Rosati also recalled that Mr Anters asked whether he would be required to make submissions to the Court and Ms Rosati replied that this was not part of the role.

25. Ms Rosati explained that the reference to ‘this job is not about wearing a suit’ was a reference to the fact that this role and the work of the firm was not a traditional legal establishment, it is a different work environment and she did not expect people to wear a suit in the office unless they were required to be in court. Ms Rosati agreed that it was appropriate for Mr Anters to wear a suit to the interview and her comment about the role was not about his appearance at the interview.

26. Ms Rosati denied that DGT does not and has not in the past employed men including as lawyers since she became the principal in 2007.

27. Ms Rosati’s explanation for deciding to not employ Mr Anters involved a concern she had about him moving to Sydney, finding a place to live and being able to attend in the office at least 4 days a week. There was also a concern that if he moved to Sydney he would not remain with DGT or he may not pass his probation and she did not want DGT to be responsible for that possibility.

28. During cross examination, Mr Rosati stated that she asked the questions about moving from Adelaide to Sydney because she wanted to find out more about him and whether he was coming to Sydney just for the job or for other reasons.

29. The concerns about him residing in Adelaide were not the deciding factors in not offering him employment. Ms Rosati was concerned about Mr Anters’ ‘stilted and formal manner during the interview’. She also formed the view that Mr Anters formed no rapport between herself and Ms Ryan. She blamed Mr Anters for not making sure that he had a better internet connection before agreeing for the interview.

30. Ms Rosati stated that the words ‘formal and stilted’ were not a positive attribute as suggested by Mr Anters. She stated that she expected a good candidate to be relaxed and engaged with the members of the interview panel. Ms Rosati rejected the suggestion that men are more likely to be formal and stilted.

31. The other two candidates for the role attended the interviews in person. They both resided in Sydney and were both female. Both candidates were offered roles. One of the candidates refused the role. The candidate who accepted the role is from Nigeria and the role with DGT is her first legal role.

32. Ms Rosati described the two candidates as enthusiastic, experienced, could start immediately and living in Sydney. Ms Rosati agreed with Mr Anters that her impression of the candidates may have been affected by the fact that they attended in person and he attended via zoom.

33. During cross examination Mr Rosati stated that she employed a male solicitor who worked at the firm from approximately 2016 to 2019. Ms Rosati stated that she had a good relationship with the solicitor and that he resigned due to a medical issue. A number of staff employed by the firm are males including a costs consultant, a Chief Financial Officer and a Practice Manager.

Ms Ryan’s recollection of the interview

34. Ms Ryan in her affidavit stated that she had read the affidavit of Ms Rosati sworn on 8 July 2021 and had the same recollection of the interview as her.

35. During cross examination, Ms Ryan stated that she formed the view that Mr Anters was ‘not a fit for the office’. She stated that she felt a lack of connection and an inability to engage and interact. She agreed that at the time Mr Anters was interviewed there were three lawyers in the Sydney office (including herself and Ms Rosati) and they were all female. Mr Ryan stated that there was a male solicitor ‘Jamie’ employed by the firm and that he left one to three years ago. She was asked to explain how her connection with Jamie was different to that of Mr Anters. Ms Ryan stated that Jamie was engaged, interested, interesting and that he was excited and engaged with the work, but that she did not feel this connection with Mr Anters during the interview. Ms Ryan denied that it was because Mr Anters was a man but claimed that it was ‘a connection on a human level’, everyday interaction and ease of working.

36. Ms Ryan also stated that she had concerns about Mr Anters moving to Sydney from Adelaide and things not working out. Ms Ryan agreed that she may have referred to family when she asked him about moving from Adelaide.

37. Ms Ryan stated that subsequently to interviewing Mr Anters, herself and Ms Rosati interviewed two other candidates. Once one of the candidates accepted the role, Ms Rosati asked Ms Ryan to inform Mr Anters that he was not the successful candidate.

Other discrimination complaints made by Mr Anters

38. Mr Anters disclosed in his affidavit that in 2019 he applied for a junior solicitor role in South Australia and was asked questions about his family and migrant status. Mr Anters asserted that the two persons who were employed were less qualified and experienced than himself but were Australian born and raised. Mr Anters made a discrimination complaint to the Australian Human Rights Commission and a late court application. The court application was rejected. One of the reasons the law firm gave for not offering the role to Mr Anters was that he was not wearing a suit.

39. During cross examination it was put to Mr Anters that he had made numerous discrimination complaints against employers who had not offered him a role. Mr Anters stated that there were two claims that he could not discuss as he had entered into a non disclosure agreement. There were other cases that were pending and that some had been concluded.

40. It was put to Mr Anters that he makes discrimination complaints as a way of making financial settlements with the respondents. It was also put to Mr Anters that his complaints are not genuine. Mr Anters strenuously denied both allegations.

Submissions

Applicant’s submissions

Respondent’s website, advertisement for the role and application

41. Mr Anters submitted that the candidates for the roles are mostly women and that DGT recruits only female lawyers. Mr Anters believes that he was invited to the interview because it was assumed that he was female and that the role was not offered to him because he was male.

42. Mr Anters submitted that his allegations are consistent with the respondent’s website which indicated that all of the lawyers employed were women.

41. Mr Anters relies on a smiley face Ms Ryan inserted in an email to Mr Anters when he first applied for the role as evidence that she was friendly when she thought he was a female, but ‘had become unfriendly’ when she first saw him in the interview.

Regarding the Interview

44. Mr Anters submitted that during the interview, questions were asked in an insulting way, for example the statement that this job was not about wearing a suit. Mr Anters submitted that Ms Rosati would have never made that remark to a woman and that the remark demonstrates a bias towards men.

45. Mr Anters submitted that the Tribunal should reject the proffered reasons given by Ms Rosati and Ms Ryan for rejecting his application that he was ‘stilled and formal’ during the interview, that there was no rapport formed between him and Ms Rosati and Ms Ryan, that Ms Rosati did not like his ‘demeanour’ and that there were concerns about him moving from Adelaide to Sydney.

46. In regard to the concerns about Mr Anters residing in Adelaide and moving to Sydney, Mr Anters submitted that these concerns have no logical basis as Ms Rosati was aware that Mr Anters was willing to move to Sydney and was unemployed at the time.

47. As to the statement made by Ms Rosati that he was ‘stilted and formal’ and that she did not like his ‘demeanour’, Mr Anters submitted that this evidence and the evidence of Ms Ryan that she did not form a ‘connection’ with him should not be accepted as it was not properly explained.

48. Mr Anters submitted that the onus was on Ms Ryan and Ms Rosati to form a rapport with him and that Ms Rosati agreed with this proposition during cross examination.

49. Mr Anters submitted that the Tribunal should make an inference that if he was a female he would have been offered a role with the respondent as Ms Ryan and Ms Rosati were unconsciously biased and ‘purely favoured female candidates’.

50. An inference is also sought to be made that Mr Anters’ qualifications and experience were better suited for the position that the two female candidates and that the respondent has not led any evidence as to their qualifications and experience, information peculiarly within their knowledge.

51. In regard to the proposed order that Ms Rosati and Ms Ryan both write ten times in red pen ‘I like men’, Mr Anters submitted that he was applying a principle of Lord Denning in regard to notice of ‘unreasonable’ contractual clauses. During cross examination Mr Anters stated that he referred to a ‘red pen’ as this makes people recall more clearly.

52. Mr Anters submits that his evidence as to what occurred during the interview should be accepted as his account is based on a contemporaneous document and he would have had a better recollection of the interview as Ms Rosati and Ms Ryan conducted a number of interviews over the day and he attended just one.

Men’s right to find women ‘beautiful and attractive’.

53. Mr Anters responded to the respondent’s concerns raised about references they considered to be offensive, misguided and patronising. These were the references to Ms Ryan and Ms Rosati being ‘beautiful and attractive’ and the applicant’s claim that his offence was greater because he was attracted to them. Secondly, his proposed order that they write in red pen ten times ‘I like men’.

54. In regard to Mr Anters’ hurt feelings because he found Ms Ryan and Ms Rosati attractive or beautiful, in his response to the President in a letter dated 23 October 2021 he stated:

It is strange for me to think that if a person finds another attractive that feeling of attraction could alone cause offence to the other. It is my feeling - a completely natural feeling – and, despite being an Officer of the Court, we all have it. I believe it is a good feeling - one that should be promoted. I do not usually feel attracted to anyone that easily. I found both Ms Ryan and Ms Rosati very good looking. To confirm, it is a positive trait - something most people like to have in both themselves and others. Thus, instead of being offended, my suggestion is to feel proud of someone having found this positive trait in you. Nevertheless, it was unfortunate, though, that in this case my situation has become far worse for having found Ms Ryan and Ms Rosati attractive.

55. In the closing submissions at [47] it is stated:

The applicant submits that finding women beautiful and attractive is a characteristic that appertains generally to persons of male sex or a characteristic that is generally imputed to persons of male sex. It follows that there is nothing to be offended, or affronted, of a man being found (sic) a woman beautiful and attractive. The fact that Ms Rosati indeed (sic) offended and affronted because of the (sic) Applicant found her beautiful and attractive during the interview reveals her adverse bias against the Applicant as a male candidate.

Respondent’s submissions

56. DGT responds to Mr Anters’ claim that that he was directly discriminated against on the basis of his gender pursuant to s24(1)(a) of the Act.

57. First, DGT submits that there is no evidence that it was assumed that he was female because his name is ‘Dawn’. Secondly it is denied that male solicitors have not been recruited by DGT in the past. Thirdly there is no evidence to find that if he was female he would have been successful at the interview.

58. DGT denies that the reference to ‘not wearing a suit’ was made because Mr Anters was a man. As to issues surrounding moving to Sydney, DGT submits at paragraph [29] of the closing submissions:

Ms Rosati did point out during the interview that the firm’s staff consisted largely of females. This was to give the Applicant some facts around the ethos and culture of the Respondent’s workplace. Ms Rosati also stated during cross-examination that she asked the Applicant why he was applying for a job in Sydney when he lived in Adelaide. She stated that she offered as a suggested answer that he might be moving to Sydney with his family. This was a legitimate query in circumstances when the role was for a junior solicitor during the Covid.

59. In regard to other discrimination claims made by Mr Anters, DGT submits in [41]:

It is not the role of this Tribunal to make findings or judgements in relation to those other matters and it cannot do so without having the evidence at hand. However, what the Tribunal must do is have regard to the propensity of the Applicant to bring discrimination claims when he is unsuccessful for a job interview. If the Tribunal makes strong findings against the Applicant in this matter that his claim is baseless, which it is, it provides other Courts and Tribunals with a sound basis to find the Applicant to be a vexatious litigant and stop him from bringing further claims.

60. As to the descriptions of Ms Rosati and Ms Ryan as ‘beautiful and attractive’ and that Mr Anters was attracted to them and that he sought as a remedy for them to write out in red pen, ‘I like men’, DGT submits that this evidences that Mr Anters has acted in a demeaning and disrespectful manner towards Ms Rosati and Ms Ryan, showing disregard for discrimination law. DGT seeks costs based on a finding that the claim is frivolous and vexatious. DGT also submits that Mr Anters failed to comply with orders to file a Points of Claim and did not file his submissions by a required date.

What Mr Anters must establish

61. The onus of proving discrimination pursuant to s24(1)(a) and s25(1)(b) of the Act lies on Mr Anters. It is not in dispute that the respondent is bound to comply the Act in its recruitment of staff. It is not in dispute that Mr Anters is a male. It is also not in dispute that Mr Anters did not disclose his marital or domestic status to Ms Ryan or Ms Rosetti from when he first applied for the position to the time he was notified that he was not a successful applicant for the role.

62. In order to establish direct discrimination falling within section 24(1)(a) of the Act in the present case, it must be established that DGT treated Mr Anters less favourably than in the same circumstances or in circumstances which are not materially different, DGT treated or would have treated a person who did not have Mr Anters’ sex; (the differential treatment issue) and that differential treatment was on the ground of his sex (the causation issue).

63. The words ‘on the ground’ in s24(1)(a) of the Act require the Tribunal to make factual findings as to the ‘real reason’ for the alleged discriminators’ act. In Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 (Purvis), the majority of Gummow, Hayne and Heydon JJ (with whom Gleeson CJ and Callinan J agreed) stated at [236]:

For present purposes, it is enough to say that we doubt that distinctions between motive, purpose or effect will greatly assist the resolution of any problem about whether treatment occurred or was proposed "because of" disability. Rather, the central question will always be - why was the aggrieved person treated as he or she was? If the aggrieved person was treated less favourably was it "because of", "by reason of", that person's disability? Motive, purpose, effect may all bear on that question. But it would be a mistake to treat those words as substitutes for the statutory expression "because of".

64. Neither party made submissions as to the comparison issue. To undertake a valid comparison for the purposes of establishing direct discrimination, it is necessary to determine whether there has been less favourable treatment of Mr Anters, compared to a person with a different sex, in the same circumstances or in circumstances that are not materially different relative to person without his sex. In conducting the comparison, the particular facts of the case, including the “objective features that surround the actual or intended treatment” must be taken into account: Purvis at [222]-[225] per Gummow, Hayne and Heydon JJ.

65. A comparison must be made to consider how, in those circumstances, DGT would have treated a person with a different sex. A comparison in this case would be a female junior solicitor with similar level of education and experience as Mr Anters, who attended the interview via AVL, wearing a suit and was moving to take the role from a different State or Territory.

66. Mr Anters must satisfy the Tribunal that one of the reasons for DGT’s decision to not offer him a role as a Junior Solicitor was because he was male. This involves a consideration of the facts before the Tribunal and any inferences which may be open based on the factual findings.

Findings as to the conduct before and during the Interview

67. Mr Anters’ claim rests on numerous assertions. First, that DGT does not employ men. Mr Anters also claims that he was invited to attend the interview because his name was Dawn and that Ms Ryan assumed that he was a woman.

68. The Tribunal accepts DGT’s unchallenged evidence that it has employed a male solicitor in the recent past.

69. Secondly, there is nothing in the emails exchanged between Ms Ryan and Mr Anters to suggest that Ms Ryan assumed that Mr Anters was female. This proposition was denied by Ms Ryan and Ms Rosati. Their evidence was that they did not turn their mind as to whether Mr Anters was male or female as it was not relevant in their consideration as to whether there should be an invitation to the interview.

70. The Tribunal is not satisfied that DGT invited him to attend the interview because Ms Ryan or Ms Rosati assumed that he was female.

71. Mr Anters simply assumed that Ms Ryan and Ms Rosati pre-determined that he was a female. There is no evidence to support Mr Anters’ assumption.

72. Ultimately there is not a great deal of factual dispute between the parties as to what was said during the job interview on 22 February 2022. There is significant dispute as to Ms Rosati’s body language and the inferences to be drawn from the questions and comments made during the interview by Ms Ryan and Ms Rosati.

73. It is not in dispute that the internet connection during the interview was poor, there was a delay in connection and the sound was substandard. The Tribunal accepts that at times during the interview it was difficult for the parties to see or hear each other.

74. We deal with the specific questions asked at the interview that Mr Anters asserts were discriminatory. Mr Anters asserted that a female candidate would not have been told that ‘this is not a job about wearing a suit’. The Tribunal does not accept that this comment demonstrates that Ms Rosati had an adverse bias against men. The Tribunal accepts Ms Rosati’s evidence that this comment was made to explain that this is not a role which requires the person to attend court or other formal meetings and occasions on a regular basis. The Tribunal also accepts Ms Rosati’s evidence that the comment was not made because Mr Anters was wearing a suit and that she considered it was appropriate for Mr Anters to wear a suit to an interview. It is also unremarkable to observe that female lawyers wear suits and that there is nothing in the comment to suggest that it is directed to men or is only applicable to men. We reject Mr Anters’ submissions that Ms Rosati would never make such a comment to a woman.

75. We reject the assertion, in light of the surrounding circumstances, that the statement ‘this is not a job about wearing a suit’ has sexist or unconscious bias connotations.

76. Mr Anters claimed that the reference to ‘family’ during the interview was also discriminatory. Ms Rosati and Ms Ryan both agreed that there may have been reference to family when Mr Anters was asked about moving from Adelaide to Sydney and that there would have been a statement of the firm’s commitment to supporting staff with family responsibilities.

77. Mr Anters submitted that the female candidates would not have been asked sexist questions such as whether they have a family and he was asked the question on the basis of his gender. However as Mr Anters explained, he was careful not to disclose during the interview whether he had a family.

78. During cross examination, Mr Anters agreed that men have families and that women may not have children. Mr Anters submitted that his belief that he had been discriminated against was based on his perception of the pattern of questions asked during the interview.

79. Mr Anters alleged that during the interview Ms Rosati was ‘a little blushed’ or that she was ‘upset and fidgety’. Ms Rosati and Ms Ryan deny that Ms Rosati was ‘a little blushed’ or that she was ‘upset and fidgety’. In circumstances where there was an unclear view and there are direct denials of such body language, the Tribunal is not satisfied that Ms Rosati was ‘a little blushed’ or that she was ‘upset and fidgety’.

80. The Tribunal does not accept Mr Anters’ assertion that Ms Rosati was blushing or being fidgety because she was engaging in discriminatory conduct.

81. The Tribunal also notes that Mr Anters has given numerous reasons for why he believes Ms Rosati acted. These reasons are about how Mr Anters perceives himself and they are entirely subjective. An example is his reference to being told by an ex-girlfriend that his voice is ‘manly’. Mr Anters proffered an opinion about whether or not this may have upset Ms Rosati. Another example is the opinion that Ms Rosati is affronted (because he found her to be beautiful and attractive) because she had an adverse bias against men who applied for a role with the respondent as a solicitor.

82. The Tribunal rejects Mr Anters’ claim that he has been discriminated against within the meaning of s25(1)(b) of the Act. There is no evidence that DGT treated him less favourably on the ground of his sex compared to how DGT would have treated another person who was not a man in the same or similar circumstances that are not materially different.

83. The Tribunal accepts Ms Ryan’s and Ms Rosati’s evidence that they did not establish a rapport with Mr Anters during the interview. The fact that the interview was conducted online with poor reception did not assist in Ms Rosati and Ms Ryan developing a sense of connection with Mr Anters. Secondly, we accept that Ms Ryan and Ms Rosati were concerned about Mr Anters relocating from Adelaide to Sydney for the role in regard to him staying in the role long term and the consequence to him if he did not pass the probation period.

Costs

84. DGT seeks its costs on the basis that the claim is frivolous or vexatious or otherwise misconceived or lacking in substance: s60(3)(e) Civil and Admirative Tribunal Act 2013 (CAT Act). DGT also submits that Mr Anters failed to file a Points of Claim as ordered and was late in serving his closing submissions.

85. Mr Anters did not address the issue of costs in his closing submissions. Had the Tribunal been minded to make an order of costs against him, it would have been appropriate for him to be given an opportunity to make submissions about costs in light of the findings made by the Tribunal in this decision.

86. The Tribunal is mindful of the guiding principle to be applied to practice and procedure to facilitate the just, quick and cheap resolution of the real issues in the proceedings set out in s36 of the CAT Act and has determined to deal with this matter on the papers.

87. Section 60 of the CAT Act establishes a presumption that each party is to pay its own legal costs. The Tribunal may award costs only if it is satisfied that there are ‘special circumstances’ warranting an award of costs. In determining whether there are ‘special circumstances’ the Tribunal can have regard to the matters set out in s60(3)(a) to (g).

88. Costs orders are rarely made against unsuccessful complainants. Tu v University of Sydney (No 2) [2002] NSWADTAP 25 at [42]-[43]:

42 The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.

43 Where a matter is found to be ‘misconceived’ or ‘lacking in substance’ there is greater caution in making an adverse costs order. A complaint may be ‘misconceived’ or ‘lacking in substance’ for technical legal reasons (e.g. jurisdictional limitations, absence of preconditions as to proof of key facts) which may be lost on the (typically unrepresented) complainant. In these circumstances respondents are often left to bear the cost, because of the greater public interests involved in upholding the making of complaints of violation of human rights: for a recent discussion of these matters see Sivananthan v Commissioner of Police [2002] NSWADT 45 at [16-28].

89. The Tribunal does not consider that Mr Anters’ claim as a whole was frivolous or vexatious, although some of Mr Anther’s assertions such as the reference to wearing a suit and having a workplace that is supportive of family is discrimination against men were.

90. Mr Anters’ claim for remedies was vexatious in parts that sought that ‘both Ms Rosati and Ms Ryan separately to write I LIke MEN - by hand using a red ink pen on a piece of white paper no less than 10 times’ and that higher damages flow because Mr Anters found Ms Ryan and Ms Rosati ‘beautiful and attractive’.

91. Mr Anters’ claim failed because there was no evidence to support any of his assertions of discrimination. Mr Anters made numerous erroneous assumptions such as that he was only asked to attend the interview because his name was Dawn and that DGT only employed female lawyers. Both these assertions were not supported by any evidence and as a result, his claim has been dismissed.

92. We do not consider that Mr Anters conducted the proceedings in a way that unnecessarily disadvantaged DGT or caused the proceedings to be unreasonably prolonged.

ORDERS

93. The Tribunal makes the following orders:

1. The application is dismissed.

2. The application for costs is dismissed.

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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 10 May 2023