Beagan v Bi-Lo Pty Limited t/as Bi-Lo Killarney Vale

[2011] NSWADT 301

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Beagan v Bi-Lo Pty Limited t/as BI-LO Killarney Vale [2011] NSWADT 301
Decision date:	07 November 2011
Jurisdiction:	Equal Opportunity Division
Before:	A Scahill, Judicial Member M Nasir, Non -judicial member J Schwager, Non -judicial member
Decision:	The Tribunal dismissed the Applicant's case pursuant to section 92 (1) (a) and section 102 of the ADA as it is "misconceived".
Legislation Cited:	State Administrative Tribunal Act 2004 (WA)
Cases Cited:	Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 Langley v Niland [1981] 2 NSWLR 104 Laurent v Commissioner of Police [2009] WASAT 254 (23 December 2009) Nicholls and Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [10]). Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2
Category:	Interlocutory applications
Parties:	Barbara Beagan (Applicant) Bi-Lo Pty Ltd (Respondent)
File Number(s):	111062

REasons for decision

1. Ms Beagan lodged a complaint with the Anti Discrimination Board on 7 December 2010 against Bi-Lo Pty Limited t/as BI-LO Killarney Vale alleging discrimination on the grounds of disability and age in the provision of goods and services.

1. The Applicant set her case out in the letter of 7 December 2010 to the ADB; a further letter received at the ADB on 14 March 2011 and a Statement of Facts to the ADT dated 20 August 2011.

1. The complaint alleges that

• on 26th of November 2010 the Applicant was denied a refund on a five pack of Quick Eze and toilet paper;
• she was then barred from attending the store;
• on a previous occasion the manager had said her behaviour must be due to age.
• the barring from the store had caused her a great deal of distress - physically and emotionally; and
• the Applicant had been discriminated against by the Respondent on the grounds of her age and her disability.

Respondent's case

1. The Respondent for its part says that

on 25 November 2010 the Applicant had left the checkout line to swap her packets of Quick Eze and did not return for approximately 10 minutes.

the Applicant became angry that other customers had been served and that she had to wait in the interim.

the Applicant later returned to the store stating that she did not receive the Quick Eze and toilet paper she had paid for.

the Applicant was asked to return on Monday to discuss the matter with the Manager and at that time she became abusive.

When the Applicant did return on Monday, 29 November 2010 the Manager reviewed the CCTV footage and informed the Applicant that she had not purchased a five pack of Quick Eze or toilet paper. The Manager gave the Applicant a pack of Quick Eze and asked her to leave the store.

All staff denied having made comments about the Applicant being old or forgetful or having a disability. The Respondent said that the Applicant has been barred from the store entirely due to the repeated instances of inappropriate conduct.

Procedure of the hearing

1. Several conferences were held in the matter by the ADT.

1. The Respondent had filed 7 witness statements on 13 September 2011.

1. Prior to the hearing on 7 November 2011 the Respondent lodged an application supported by affidavit of Ms Rosales seeking an order that the Applicant's application filed 15 June 2011 be summarily dismissed on the grounds that "the proceedings are misconceived and did not disclose a cause of action." The Respondent's application referred to section 73 (5)(g) of the Administrative Decisions Tribunal Act 1977 (ADT Act).

1. The Respondent also sought that pursuant to section 88 (1A) (C) of the Administrative Decisions Tribunal Act, the Applicant pay the Respondent's costs.

1. The Applicant did not come to the Tribunal on the appointed date for hearing 7 November 2011. By telephone, the Applicant told the hearing that she was unwell and unable to come to the hearing.

Applicant's Evidence

1. The Tribunal asked the Applicant to set out her view of the Respondent's application for dismissal of the matter. The Applicant did so at some length - setting out the factual circumstances she alleged, asserting that she had been discriminated against on the grounds of her age and disability.

1. The Applicant identified her age as 68 and her disability as anxiety. The Applicant did not assert in her evidence that the respondent was aware through its staff of her disability. The Applicant did not compare her treatment by the Respondent with treatment of a customer not thought to have a disability or of a different age to her. The Applicant did not explain in her evidence the causation element between her disability and her treatment by the Respondent.

1. During the course of her evidence the Applicant said that she did not rely on her assertion that Kylie/ Kiley Lockwood had said to her in relation to some difficulties with gift cards that her behaviour must be due to age. The Applicant did not provide any other evidence of the Respondent referring to her age.

Dismissal provisions ADA and ADTA

1. There are legislative provisions in relation to dismissal of matters in both the ADA and the ADTA. The Tribunal notes that the Respondent's application to dismiss the matter purports to be made under section 73(5) of the ADT Act "on the grounds that the proceedings are misconceived and do not disclose a cause of action." However this is not the current wording of section 73 (5) (g) of the ADTA. The section does provide for proceedings to be dismissed as misconceived or lacking in substance (amongst other reasons).The phrase "Do not disclose a cause of action" does not appear in the section.

1. The Tribunal notes that there are also powers to dismiss an application before the Tribunal set out in sections 102 and 92 of the Anti Discrimination Act 1977 (ADA). Section 92 of the ADA Act sets out the powers of the President of the ADB to decline a complaint during an investigation. This section is contained within Division 2 of the ADA.

1. Section 102 of the ADA provides the Tribunal with power to dismiss a complaint for the same reasons the President may decline it under s92 of the ADA. Section 102 is contained within Division 3 of the ADA.

1. Section 116, also within Division 3 provides that the Division (this includes s102) applies in addition to the ADT Act and prevails where there is inconsistency between the two Acts. The Tribunal put these alternatives to the Respondent. The Respondent specifically sought that the matter be dismissed under the ADT Act.

Relevant provisions of the ADA and the ADTA

ADA

Section 4

disability means:

(a) total or partial loss of a person's bodily or mental functions or of a part of a person's body, or

(b) the presence in a person's body of organisms causing or capable of causing disease or illness, or

(c) the malfunction, malformation or disfigurement of a part of a person's body, or

(d) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or

(e) a disorder, illness or disease that affects a person's thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour.

49A Disability includes past, future and presumed disability

1. A reference in this Part to a person's disability is a reference to a disability:

(a) that a person has, or

(b) that a person is thought to have (whether or not the person in fact has the disability), or

(c) that a person had in the past, or is thought to have had in the past (whether or not the person in fact had the disability), or

(d) that a person will have in the future, or that it is thought a person will have in the future (whether or not the person in fact will have the disability).

1. 49B What constitutes discrimination on the ground of disability

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability 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 who does not have that disability or who does not have such a relative or associate who has that disability, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

1. 49M Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:

(a) by refusing to provide the person with those goods or services, or

(b) in the terms on which he or she provides the person with those goods or services.

(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.

1. 49ZYA What constitutes discrimination on the ground of age

(1) A person ( "the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of age if, on the ground of the aggrieved person's age or the age 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 who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

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

1. 49ZYN Provision of goods and services

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

1. Section 53 of the ADA renders employers responsible for the acts of employees.

Dismissal Provisions

ADA SECT 92

President may decline complaint during investigation

92 President may decline complaint during investigation

(1) 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

(iii) the nature of the conduct alleged is such that further action by the President in relation to the complaint, or any part of the complaint, is not warranted, or

(iv) another more appropriate remedy has been, is being, or should be, pursued in relation to the complaint or part of the complaint, or

(v) the subject-matter of the complaint has been, is being, or should be, dealt with by another person or body, or

(vi) the respondent has taken appropriate steps to remedy or redress the conduct, or part of the conduct, complained of, or

(vii) it is not in the public interest to take any further action in respect of the complaint or any part of the complaint, 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.

ANTI-DISCRIMINATION ACT 1977 - SECT 102

1. Tribunal may dismiss complaint

1. 102 Tribunal may dismiss complaint

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).

ADMINISTRATIVE DECISIONS TRIBUNAL ACT

1. "73 ADT Act

Procedure of the Tribunal generally

(5) The Tribunal:

(a) is to act as quickly as is practicable, and

(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and

(c) may require evidence or argument to be presented in writing and decide on the matters on which it will hear oral evidence or argument, and

(d) in the case of a hearing-may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases, and

(e) may require a document to be served outside the State, and

(f) may adjourn proceedings to any time and place (including for the purpose of enabling the parties to negotiate a settlement), and

(g) may dismiss at any stage any proceedings before it in any of the following circumstances:

(i) if the applicant (or, if there is more than one applicant, each applicant) withdraws the application to which the proceedings relate,

(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance,

(iii) if the applicant (or, if there is more than one applicant, each applicant) has failed to appear in the proceedings,

(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings, and ........

The Respondent's application to dismiss

1. The Respondent's application to dismiss was expressed as relying on section 73(5)(g) ADTA on the basis that the proceedings were " misconceived and does not disclose a cause of action". However this is not the language of the section. Section 73(5)(g) ADTA uses the terms "....misconceived or lacking in substance". Similarly s 92 a (i) of the ADA refers to "...misconceived or lacking in substance."

Applicant's submission on dismissal application

1. The Applicant submitted that she relied upon her allegations. She told the Tribunal that she did not rely upon her allegation that Kiley/Kylie Lockwood had said "age I guess" in reference to difficulties that the Applicant had been having with gift cards.

Tribunal's consideration of law on dismissal

1. The Respondent bears the onus of establishing that the matter should be dismissed. The Tribunal notes that there are provisions in both the ADA and the ADTA relating to dismissal of proceedings. There is also a significant amount of case law relating to the interpretation and application of these and similar dismissal provisions in other jurisdictions. It is a recurrent theme of the case law in this area that the provisions must be applied with caution. In the matter of Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 at 84 the NSW Tribunal commented on the provisions of section 102 of the ADA in relation to an application for dismissal

"It is established by a long line of decisions of the Appeal Panel and the Equal Opportunity Division of this Tribunal that the power to dismiss a complaint summarily under section 102 of the AD Act should be exercised 'with exceptional caution and only if the circumstances clearly warrant such action' (see e.g. Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 at [15] and the cases cited in that paragraph). It is established also that the need for caution is 'even more apparent' when, as in the present case, an application for dismissal has been made before the complainant's evidence has been adduced at the substantive hearing (see e.g. Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 at [34]). In such a case, the Tribunal must assume that the complainant's case can be established by evidence - i.e., that his or her allegations must be taken 'at their highest' (see e.g. Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [10]).

and

"The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us."

1. When considering the strike out provisions in the relevant Western Australian Tribunal legislation, the Western Australian Appeals Tribunal noted

"any application to dismiss or strike out a proceeding in the Tribunal should be approached with a great deal of caution. That will be all the more so when the party whose case is the subject of an application under s 47 is self -represented, does not have the benefit of legal representation or legal training, and may have difficulty in precisely setting out their claim in writing." Laurent and Commissioner of Police [2009] WASAT 254 (23 December 2009).

1. The Tribunal views this as such a matter given that the Applicant is not represented.

1. The case law also examines the various grounds on which proceedings might be dismissed - including on the grounds that they are frivolous, vexatious, misconceived, lacking in substance, not disclosing a cause of action or a contravention of the act.

Misconceived

1. In this matter the Respondent has submitted that the proceedings are "misconceived and do not disclose a cause of action".

1. The term misconceived as a basis for dismissal of proceedings is used both in section 73(5) (g) (ii) of the ADTA as well as in section 92(1) (a) (ii) of the ADA. The term "misconceived" was defined in the matter of Langley v Niland [1981] 2 NSWLR 104 , by Hunt J who considered the word misconceived to mean "a complaint founded upon a wrong idea as to the facts."

Do not disclose a cause of action

1. The Respondent refers to this as a basis for seeking dismissal of the proceedings. However it does not form part of the grounds available under the ADTA nor the ADA. The ADA does refer in section 92 (1) (a) (ii) to "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."

Findings of fact and law

1. The Tribunal considered the provisions of the ADT relating to discrimination on the grounds of age and discrimination on the grounds of disability in the provision of goods and services - sections 49M and 49ZYN respectively. In order to succeed in her claim the Applicant would need to show that

• She had experienced something;
• That she received from the Respondent less favourable treatment than someone in the same circumstances who did not have her attribute of age and/or disability;
• One of the real reasons for the less favourable treatment was her age and/or her disability; (see Nicholls case) and

• It occurred in the course of the Respondent providing her with goods or services.

1. Prior to the commencement of the hearing on 7 November 2011, the Applicant's case was set out in the 3 documents referred to - the letter of 7 December 2010 to the ADB; a further letter received at the ADB on 14 March 2011 and a Statement of Facts to the ADT dated 20 August 2011. From these documents the Tribunal distilled the Applicant's case to be that she had been treated less favourably in the provision of goods and services by the Respondent in that she had experienced humiliation and barring by the employees of the Respondent, that this had caused her a detriment as set out in the reports from Ms Bloom and Dr Miller and that she considered the cause to be her age and disability.

1. The Tribunal then considered the oral evidence provided by the Applicant by telephone. This evidence was consistent generally speaking with the allegations and assertions set out in the documents filed by the Applicant -with one exception. During the course of her evidence the Applicant indicated that she did not rely on her previous allegation that Ms Lockwood had said "Age I guess" in relation to the difficulty the Applicant was having with using the Respondent's gift cards.

1. The Tribunal considered the evidence given by the Applicant. That evidence did not set out either explicit or implicit references by the Respondent or its employees to the Applicant's age or disability that may have supported a case of direct discrimination by the Respondent. Nor did it allude to an indirect discrimination case by way of the Respondent setting a condition which impacted disproportionally on the Applicant relating to her age or disability. The Tribunal was not presented with evidence that the real reason for the Respondent's treatment of the Applicant was her age and/or her disability.

1. The Tribunal found no reason to disbelieve the Applicant. However taking the Applicant's allegations at their highest, assuming them to be true, the Tribunal was not presented with a case which showed that the real reason for her treatment by the Respondent was her age and/or disability. The Tribunal finds that the Applicant's case was founded on "a wrong idea as to the facts" (Hunt J in Langley v Niland). There are no facts indicating that the real reason for the Respondent's treatment of the Applicant was her age and/or her disability.

1. Accordingly the Tribunal determined to dismiss the Applicant's case pursuant to sections 92 (1) (a) "misconceived" and section 102 of the ADA.

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Decision last updated: 20 December 2011