Atroushi v Coles Supermarket Australia Pty Ltd
[2019] FCCA 1262
•17 May 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| ATROUSHI v COLES SUPERMARKET AUSTRALIA PTY LTD | [2019] FCCA 1262 |
| Catchwords: HUMAN RIGHTS – Application under s.46PO(3A) for of the Australian Human Rights Commission Act 1986 (Cth) to make an application under s.46PO(1) of that Act to allege unlawful discrimination against the respondent in relation to an incident involving the applicant and employees of the respondent that occurred at a supermarket operated by the respondent – whether matters on which the applicant relies discloses any reasonably arguable case of unlawful discrimination based on ethnicity or age – no reasonably arguable case – leave not granted and application otherwise dismissed. |
| Legislation: Age Discrimination Act 2004 (Cth) s.17 Australian Human Rights Commission Act 1986 (Cth) ss.46P, 46PD, 46PE, 46PF(1)(b), 46PH(1)(b), 46PO Racial Discrimination Act 1975 (Cth) s.9 |
| Cases cited: James v WorkPower Inc [2018] FCA 2083 Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia [2014] FCAFC 26 |
| Applicant: | SAFAR ATROUSHI |
| Respondent: | COLES SUPERMARKET AUSTRALIA PTY LTD |
| File Number: | SYG 3607 of 2018 |
| Judgment of: | Judge Manousaridis |
| Hearing date: | 10 May 2019 |
| Date of Last Submission: | 10 May 2019 |
| Delivered at: | Sydney |
| Delivered on: | 17 May 2019 |
REPRESENTATION
| Applicant in person, assisted by an interpreter |
| Solicitors for the Respondent: | Mr L Scandrett of Lander & Rogers |
ORDERS
The application for leave under s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) to make an application under s.46PO(1) of that Act to allege unlawful discrimination against the respondent in relation to an incident involving the applicant and employees of the respondent that occurred on 22 April 2017 at a supermarket operated by the respondent at Liverpool Westfield is dismissed.
The application is otherwise dismissed.
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYG 3607 of 2018
| SAFAR ATROUSHI |
Applicant
And
| COLES SUPERMARKET AUSTRALIA PTY LTD |
Respondent
REASONS FOR JUDGMENT
Introduction
The question I consider in these reasons for judgment is whether I should grant the applicant, Mr Atroushi, leave under s.46PO(3A) of the Australian Human Rights Commission Act 1986 (Cth) (Act) to make an application under s.46PO(1) of the Act to allege unlawful discrimination against the respondent, Coles Supermarket Australia Pty Ltd (Coles). Before I consider that question, and to see how the question arises, it will be necessary to set out the circumstances out of which Mr Atroushi’s claims arise, and the relevant statutory provisions.
Background
The starting point is an incident that occurred on 22 April 2017 at a supermarket Coles operates at Liverpool Westfield. On that day Mr Atroushi collected and placed into a shopping basket groceries he intended to purchase, proceeded to the self-checkout area, scanned each item he intended to purchase, placing them in two bags, paid for the groceries, and then went through the check point. According to Mr Atroushi, the following then occurred:[1]
Suddenly, there were two Coles employees standing in front of the main entrance and they stopped me to accuse me of stealing chocolate. They put hand into my pockets and empties [sic] all of my pockets in front of everyone. They did not find anything in my pockets and let me go. I said to one of them to call for the manager so that I could speak to him.
[1] Application, Part C, page 6
Mr Atroushi further claims the manager then came to Mr Atroushi and Mr Atroushi asked him why Coles accused him of stealing chocolate. The manager said that “one customer informed us that you put chocolate in your jacket”. Mr Atroushi asked where the customer was and what customer’s name was. The manager said he did not know. Mr Atroushi told the manager to bring the customer to him. The manager said the customer had left. Mr Atroushi said security cameras covered the store, and he asked the manager to provide Mr Atroushi with evidence from the surveillance camera that he had put the chocolate in his pocket. The manager said he could not do that because “you didn’t steal the chocolate and the accusation was wrong”. Mr Atroushi asked why, then, did the Coles employees stop, insult, and humiliate him “in front of hundreds of people for something I’ve never done in my life”. Mr Atroushi said he was a Coles customer, he has a flybuys card, and asked the manager if he wanted to go with Mr Atroushi to the police station to check if he had chocolate in his jacket or if he had any record of stealing in his life. The manager again said “the accusation was wrong and you did not steal”. Mr Atroushi asked the manager for his name. The manager lifted his collar to show his first name, but otherwise did not provide to Mr Atroushi his name. On 22 April 2017 Mr Atroushi sent a letter of complaint to Coles.
There is in evidence CCTV footage of the incident. It does not record what was said. Forty seconds into the footage a person who I recognise to be Mr Atroushi is walking away from the checkout up to the point where he was stopped by two persons who I infer are the employees of Coles. It is not clear whether Mr Atroushi is carrying more than one bag. Mr Atroushi appears to open a bag. He then puts his hand in his trouser pocket and pulls out what appears to be a piece of paper. I infer it is a receipt. The two employees look at the receipt, then they move out of the way, and Mr Atroushi leaves. That occurs one minute and five seconds into the footage. The incident, therefore, occupied no more than 25 seconds. Around five minutes and thirty-five seconds into the footage, Mr Atroushi reappears and approaches one of the two employees who had previously spoken with Mr Atroushi but who was now behind a counter. Mr Atroushi points to the employee and says something. The employee then moves to another part of the counter. After walking away from the counter, Mr Atroushi returns and waits there until nine minutes and twenty-five seconds into the footage. There then appears a person who I infer is the manager. Mr Atroushi and the manager begin a conversation. Eleven minutes and ten seconds into the footage a woman joins in the conversation. She appears to be a member of the public. The woman disengages from the conversation about twelve minutes into the footage. Mr Atroushi and the manager continue their conversation until thirteen minutes and five seconds into the footage when Mr Atroushi walks away.
On 3 May 2017 Mr Atroushi lodged an application with the New South Wales Civil and Administrative Tribunal (NCAT). In the form of application Mr Atroushi described his dispute with Coles as his being “[i]nsulted and humiliated in front of hundreds of people”. Mr Atroushi claimed that as a result of the incident he has suffered stress and depression. Mr Atroushi supported this claim with a medical report which states he suffers anxiety and depression.
By letter dated 18 May 2018 Coles submitted to NCAT that it did not have jurisdiction to consider Mr Atroushi’s claim. That submission was supported by a statement by each of the two employees who were involved in the incident on 22 April 2017. According to one employee, he was told by two customers that a man wearing a jacket matching Mr Atroushi’s description was putting chocolates in his jacket pocket with one of the customers pointing to Mr Atroushi. As Mr Atroushi was walking towards the exit the employee approached him and said: “hello sir just doing a random check to make sure you haven’t forgotten to pay for anything”. Mr Atroushi said he paid for everything and asked who said he was stealing. The employee said: “no customers had just said someone has been taking chocolates this is just a random search”. The employee then wished Mr Atroushi have good day. Mr Atroushi returned later swearing at the employee calling the employee a thief, and Mr Atroushi asked to speak at the employee’s manager. The employee called his manager, and the manager took care of the situation.
According to the second employee, the first employee approached the second employee and asked him to offer him support at the front end because he was going to approach a suspected shoplifter. The second employee saw the first employee ask Mr Atroushi whether he had forgotten to pay for anything, and asked to check Mr Atroushi’s bags. Mr Atroushi replied “no”, and asked who said he was stealing. The first employee said it was just a random check as other customers had advised him that someone was stealing chocolate bars. The first and second employees both wished Mr Atroushi have a good day, and the second employee returned to his department.
On 14 July 2017 NCAT made an order dismissing Mr Atroushi’s application because it found NCAT did not have jurisdiction to determine the application.
On 20 September 2018 the Australian Human Rights Commission (Commission) received a complaint from Mr Atroushi. The Commission interpreted the complaint Mr Atroushi made as one of discrimination based on race and ethnic origin. By letter dated 31 October 2018 a delegate of the President of the Commission notified Mr Atroushi that the delegate decided to terminate Mr Atroushi’s complaint under s.46PF(1)(b) and s.46PH(1)(b) of the Act. Paragraph (b) of s.46PF(1) of the Act provides that, subject to exceptions that are not relevant, if a complaint made under s.46P of the Act is referred to the President under s.46PD, the President must consider the complaint and, if the President is of the opinion that the complaint should be terminated, terminate the complaint. Paragraph (b) of s.46PH(1) of the Act provides that the President may terminate a complaint if the complaint was lodged more than six months after the alleged acts, practices or omissions on which the complainant relies for claiming unlawful discrimination took place.
Subsection 46PO(1) of the Act provides that if a complaint has been terminated by the President of the Commission under s.46PE, or s.46PF(1)(b), or under s.46PH of the Act, any person who was “an affected person in relation to the complaint may make an application” to the Federal Court or to this Court “alleging unlawful discrimination by one or more of the respondents to the terminated complaint”. The expression “unlawful discrimination” is defined in s.3 of the Act to mean “any acts, omissions or practices that are unlawful under”, among other provisions, Part 4 of the Age Discrimination Act 2004 (Cth) (AD Act), and Part II or IIA of the Racial Discrimination Act 1975 (Cth) (RD Act). The right provided by s.46PO(1) must be read subject to s.46PO(3A) of the Act, which provides:
The application must not be made unless:
(a)the court concerned grants leave to make the application; or
(b)the complaint was terminated under s.46PH(1)(h); or
(c)the complaint was terminated under s.46PH(1B)(b).
It should now be apparent why Mr Atroushi requires the leave of this Court to make an application alleging unlawful discrimination. In the application by which Mr Atroushi has commenced this proceeding, he claims that he suffered discrimination at the hands of Coles, and that the discrimination he says he faced is unlawful under the RD Act and the AD Act. Given the complaint Mr Atroushi lodged with the Commission was not terminated under s.46PH(1)(h), or under s.46PH(1B)(b) of the Act, but was instead terminated under s.46PF(1)(b) and s.46PH(1)(b) of the Act, s.46PO(3A) applies, and Mr Atroushi requires the leave of the Court to make his application.
Principles
The principles that should guide the exercise of the power conferred by s.46PO(3A) of the Act were recently considered by Mortimer J in James v WorkPower Inc.[2] Her Honour said that the purpose of s.46PO(3A) of the Act “is to provide a filter”;[3] and in considering whether to exercise the power, “it is appropriate for the Court to consider . . . whether the claims made by the applicant are reasonably arguable, and are – at least – not fanciful”. Mortimer J observed, however, that s.46PO(3A) did not set “the bar particularly high”. Its purpose “is to act as a filter to preclude complaints whose merits are disproportionate to the time and resources likely to be consumed by dealing with them in a whole proceeding, but not to impose a barrier of any substantively greater level”.[4] Her Honour further said:[5]
[2] [2018] FCA 2083
[3] [2018] FCA 2083, [32]
[4] [2018] FCA 2083, [37]
[5] [2018] FCA 2083, [38]
There may be a range of other permissible considerations including:
(1)the circumstances of the parties: how important the subject matter of the complaint is to both the applicant and any respondent, and to their respective circumstances;
(2)the nature of the allegations made (including whether for example they involve allegations of continuing discrimination, or how serious the discrimination is alleged to be);
(3)how thoroughly the Commission has dealt with the merits of the complaint. For example, it may be the Commission’s termination reasons thoroughly answer the alleged merits of a complaint and make it clear the complaint is not reasonably arguable;
(4)whether an applicant has delayed in complaining about the alleged discrimination and if so whether there are any explanations for that delay;
(5)whether a respondent has attempted to address the allegations in any way outside the Commission process and whether the allegations have been addressed or resolved in any way;
(6)the factual and legal complexity of the matters raised by the allegation of unlawful discrimination;
(7)whether the allegations raise issues of public importance, or of general application. The express power given to the President in s 46PH(1)(h) does not exhaust the circumstances in which this factor might be considered; and
(8)other factors that are often considered in leave applications – such as prejudice to a party.
Finally, Mortimer J said that “it is important with judicial discretions concerning leave not to conflate the task of granting leave with the task of considering what is the correct conclusion on the facts and the law at final hearing”.[6]
[6] [2018] FCA 2083, [39]
Before I apply these principles to the circumstances of the case before me, it will be necessary to identify the relevant elements of unlawful discrimination both under the RD Act and the AD Act, being the Acts Mr Atroushi claims Coles contravened.
Unlawful discrimination under the RD Act and AD Act
Provisions contained in Parts II and IIA of the RD Act proscribe particular types of conduct by one person, all of which are connected with another person’s race, colour, descent, or national or ethnic origin. The most general provision is contained is s.9 of the RD Act which provides:
(1)It is unlawful for a person to do any act involving a distinction, exclusion, restriction or preference based on race, colour, descent or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
(1A)Where:
(a) a person requires another person to comply with a term, condition or requirement which is not reasonable having regard to the circumstances of the case; and
(b) the other person does not or cannot comply with the term, condition or requirement; and
(c) the requirement to comply has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent or national or ethnic origin as the other person, of any human right or fundamental freedom in the political economic, social, cultural or any other field of public life;
the act of requiring such compliance is to be treated, for the purposes of this Part, as an act involving a distinction based on, or an act done by reason of, the other person’s race, colour, descent or national or ethnic origin.
As the Full Federal Court observed in Iliafi v The Church of Jesus Christ of Latter-Day Saints Australia,[7] to establish a contravention of s.9(1) of the RD Act an applicant must establish the following:
[7] [2014] FCAFC 26, at [44]
a)the respondent did an act;
b)the act:
i)involved a distinction, exclusion, restriction, or preference
ii)based on race, colour, descent, or national or ethnic origin; and
c)the act:
i)had the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of a right of theirs;
ii)that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
As the Full Federal Court in Iliafi also noted, to establish a contravention of s.9(1A) of the RD Act an applicant must establish the following:[8]
(a) the respondent imposed a term, condition or requirement on the appellants;
(b) the term, condition or requirement is not reasonable in the circumstances;
(c) the appellants do not or cannot comply with the term, condition or requirement; and
(d) the term, condition or requirement has the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent, or national or ethnic origin as the appellants, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
[8] [2014] FCAFC 26, at [45]
Thus, to have a reasonable cause of action based on unlawful discrimination under the RD Act, Mr Atroushi must have a reasonably arguable case that the acts of any one or more of the employees and the manager of Coles:
a)involved a distinction, or exclusion, or restriction, or preference, based on Mr Atroushi’s race, colour, descent, or national or ethnic origin; and had the purpose or effect of nullifying or impairing the recognition, enjoyment, or exercise, on an equal footing, of a right of his, that right being a human right or fundamental freedom in the political, economic, social, cultural or any other field of public life; or
b)constituted the unreasonable imposition of a term, condition or requirement on Mr Atroushi with which Mr Atroushi did not or could not comply, and the term, condition or requirement had the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent, or national or ethnic origin as Mr Atroushi, of any human right or fundamental freedom in the political, economic, social, cultural or any other field of public life.
As summarised in s.17 of the AD Act, Part 4 of that Act contains provisions that make it unlawful to discriminate against someone in relation to employment and related matters, education, access to premises, the provision of goods, services, and facilities, the provision of accommodation, the disposal of land, the administration of Commonwealth laws and programs, and requests for information on which age discrimination might be based. Thus, to have a reasonable cause of action based on unlawful discrimination contrary to the provisions of Part 4 of the AD Act, Mr Atroushi would have to show he has a reasonably arguable case that what occurred to him on 22 April 2017 constituted discrimination in relation to one of the matters identified in s.17 of the AD Act.
Parties’ submissions
Mr Atroushi, who is not legally represented, recounted to me the facts on which his claims are based, and expressed to me his sense of humiliation of having been accused of stealing. He claimed he had been abused and intimidated by employees of Coles, and treated with disrespect. In one of the documents he filed with the Court, Mr Atroushi claims that the attitude of one of the employees who had stopped him “was very bad” and the employee “tray [sic] to attack me when I tried to tell him I am not a thief and I did not steal any things [sic]”.[9] In another document Mr Atroushi claimed that the same employee “was intimidating me in [sic] that day and said to me that he would bash me when he finish serving customers”.[10] In a third document Mr Atroushi claimed that the two employees “tried to search me and accuse me for stealing without any evidence. Their act was racist”.[11]
[9] Exhibit A, twentieth page
[10] Exhibit A, twenty-second page
[11] Exhibit A, twenty-fourth page
I asked Mr Atroushi why he claimed that what occurred to him on 22 April 2017 was due to his age. Mr Atroushi said Coles employees may have assumed his age by the way he dressed. I asked Mr Atroushi why he believed that what occurred to him was due to his ethnic or racial background. Mr Atroushi said it was the manner in which the employees spoke to him. Mr Atroushi also relied on what was said in an affidavit on which Coles relied, being the affidavit of Anastasia Moody, who is employed by Coles as a Litigation Claims Specialist in its Group Insurance team. Ms Moody deposed that the two employees who were involved in the incident on 22 April 2017 were no longer employed by Coles. Mr Atroushi said this was unusual, in effect submitting that this could be seen as an admission by Coles that its employees did act inappropriately towards him.
On the other hand, Mr Scandrett, who appeared for Coles, submitted that Mr Atroushi’s claims were hopeless, if not fanciful. Mr Scandrett relied on the CCTV footage of the incident, which he tendered into evidence. He submitted that although the footage did not record the conversations Mr Atroushi had with the employees and the manager, what it shows is clearly inconsistent with Mr Atroushi’s account of the incident.
Arguable case of unlawful discrimination?
There is no dispute that two employees of Coles stopped Mr Atroushi as he was making his way out of the supermarket. And there can be no dispute that at least one aspect of Mr Atroushi’s account is inconsistent with the footage of the incident. There is no doubt that the employees did not put their hands into Mr Atroushi’s pockets; and there is nothing to suggest the employees touched Mr Atroushi in any way. Another matter to note is that, when he first complained to Coles in writing about the incident, Mr Atroushi did not allege that any employee of Coles threatened to bash him; or that any employee abused him. These matters, however, are not determinative of whether Mr Atroushi has a reasonably arguable case that the conduct of the employees and the manager constituted unlawful discrimination. The question I must address is whether the facts as alleged or recalled by Mr Atroushi give rise to a reasonably arguable case of unlawful discrimination. In my opinion, they do not.
Turning first to unlawful discrimination under the RD Act, the facts alleged or recalled by Mr Atroushi are not reasonably capable of supporting a finding that the conduct of which Mr Atroushi complains involved Mr Atroushi being distinguished, or excluded, or restricted, or preferred because of his race, colour, descent, or national or ethnic origin. The facts on which Mr Atroushi relied are not rationally capable of supporting a finding other than that the employees engaged with Mr Atroushi in the manner Mr Atroushi claims they did because they believed that Mr Atroushi may have taken a chocolate bar for which he may not have paid. Further, even if the employees’ conduct could be so characterised, it could not reasonably support a finding that it had the purpose or the effect of nullifying, or of impairing the recognition, enjoyment or exercise, on an equal footing, of any human right or fundamental freedom of Mr Atroushi in the political, economic, social, cultural or any other field of public life. That is particularly so when, even on Mr Atroushi’s account of the incident, the end result of the incident was the manager acknowledging to Mr Atroushi that the accusation was wrong. There is, therefore, no reasonably arguable case that the conduct of the Coles’ employees and the manager was conduct that falls within the terms of s.9(1) of the RD Act.
Further, although, on Mr Atroushi’s version of events, the conduct of the Coles’ employees could reasonably be characterised as their requiring Mr Atroushi to comply with a requirement, namely, to answer their enquiry about whether Mr Atroushi had taken an item for which he did not pay, on the material before me Mr Atroushi would not have any reasonable prospects of establishing that the requirement was unreasonable, given that, from what Mr Atroushi says the employees said to him, their enquiry was prompted by what was said to them by another customer. Even if there is an arguable case for contending the requirement was unreasonable, Mr Atroushi complied with the request. Finally, even if Mr Atroushi had not complied with the request, there is no reasonably arguable case that had he complied with the requirement (which there is no reasonably arguable case to suggest he did not), it would not have the effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, by persons of the same race, colour, descent, or national or ethnic origin as Mr Atroushi, or of any human right or fundamental freedom of Mr Atroushi in the political, economic, social, cultural or any other field of public life. Mr Atroushi, therefore, has no reasonably arguable case that the conduct of the Coles’ employees and the manager was conduct that falls within the terms of s.9(1A) of the RD Act.
Finally, I should record that I have also considered whether the conduct of which Mr Atroushi complains is reasonably capable of falling within other provisions in Parts II and IIA of the RD Act which identify unlawful discrimination, and I find the alleged conduct does not. I do so because, quite apart from whether the alleged conduct concerns the areas of activity covered by those sections, Mr Atroushi has no reasonably arguable case that the Coles employees engaged in their conduct by reason or because of Mr Atroushi’s race, colour, descent or national or ethnic origin.
Next I turn to unlawful conduct under the AD Act. Each of the provisions in Part 4 of the AD Act proscribes conduct if it is engaged or not engaged in on the ground of a person’s age. The conduct of the employees and manager of Coles alleged by Mr Atroushi is incapable of raising an arguable case that the conduct was engaged in because of Mr Atroushi’s age. As I have already noted, on the facts alleged by Mr Atroushi, the only reasonable explanation for the conduct of the employees is their belief that Mr Atroushi may have on him an item or items for which he did not pay.
I should finally refer to Mr Atroushi’s submission that the fact the two employees no longer work for Coles supports his claim. I do not accept that submission. That the two employees have since left Coles by itself is incapable of supporting a finding that they engaged in their conduct because of Mr Atroushi’s ethnic background or age.
Other matters
Given my conclusion that the facts on which Mr Atroushi relies are incapable of supporting a reasonably arguable case of unlawful discrimination, either under the RD Act or under the AD Act, has the consequence that other factors, such as those mentioned by Mortimer J in WorkPower, have little if any bearing to whether leave should be granted under s.46PO(3A) of the Act. I will, however, refer to a number of factors. One is the time that has passed after the incident. Mr Atroushi has given an explanation for that delay – he believed NCAT was the appropriate body for him to advance his complaint. As the delegate of the President noted in her letter to Mr Atroushi dated 31 October 2018, Mr Atroushi’s explanation does not account for the delay that passed after NCAT ordered it did not have jurisdiction.
Next is the nature of the allegation. It concerns a discrete incident. There is nothing in the material that is before me that could reasonably suggest that the conduct of which Mr Atroushi complains is continuous or systematic. It is true that the Commission did not deal with the merits of the complaint. That, however, is of little significance given that in these reasons for judgment I have considered the apparent merits of Mr Atroushi’s claims of unlawful discrimination and have concluded there is no merit in his claims. Mr Atroushi claims Coles offered no apology. There is no evidence that Coles apologised. But that does not necessarily mean there was anything for which Coles ought to have apologised. In any event, on Mr Atroushi’s account, the manager informed Mr Atroushi that the accusation was incorrect. Given I have found there is no merit in Mr Atroushi’s claims, there would be no public interest involved in granting Mr Atroushi leave to proceed with his claim.
Finally, it is appropriate that I note I am satisfied Mr Atroushi is genuinely aggrieved at what occurred on 22 April 2017. That is understandable, but only to a point. Mr Atroushi’s sense of grievance should be placed in context. The incident occurred over a period of some 25 seconds; on my observation of the footage that captured the incident, only one person briefly turned to look at the discussion between the employees and Mr Atroushi; there is no suggestion by Mr Atroushi that the employees or the manager said anything that referred to his ethnicity or his age; there is no suggestion that throughout the incident the employees said anything or behaved in any way that could reasonably have suggested that they believed Mr Atroushi had stolen or had attempted to steal anything from Coles; and during his conversation with the manager a few minutes after the incident, the manager confirmed that which ought reasonably have been apparent to Mr Atroushi, namely, that the employees and the manager believed any accusation of theft was mistaken.
Conclusion and disposition
For these reasons, I am not satisfied it is appropriate to grant Mr Atroushi leave under s.46PO(3A) of the Act to make an application under s.46PO(1) of the Act against Coles in relation to the incident that occurred at its supermarket at Liverpool Westfield on 22 April 2017. I propose, therefore, to make an order refusing Mr Atroushi such leave, and to dismiss the application. I will consider the question of costs when I pronounce my orders.
I certify that the preceding thirty-two (32) paragraphs are a true copy of the reasons for judgment of Judge Manousaridis
Date: 17 May 2019
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