Chen v Commissioner NSW Police Force - [2020] NSWCATAD 245

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Chen v Commissioner NSW Police Force [2020] NSWCATAD 245
Hearing dates: 10 June 2020, 22 June 2020 (final submissions)
Date of orders: 6 October 2020
Decision date: 06 October 2020
Jurisdiction: Administrative and Equal Opportunity Division
Before: A Britton, Principal Member
Decision:
Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

Catchwords:
HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave
WORDS AND PHRASES — meaning of “services” in s 19 of the Anti-Discrimination Act 1977 (NSW)

Legislation Cited:
Anti-Discrimination Act 1977 (NSW)
Police Act 1990 (NSW)

Cases Cited:
Burns v Sunol (No 2) [2017] NSWCATAD 236
Commissioner of Police v Mohamed [2009] NSWCA 432
Hussein v Sydney Trains [2020] NSWCATAD 155
IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 7
Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20
Sivananthan v Commissioner of Police [2001] NSWADT 44

Texts Cited:
None cited

Category: Procedural and other rulings
Parties: Chin-Kuang Chen (Applicant)
Commissioner NSW Police Force (Respondent)
Representation:
Counsel:
J Seymour (Respondent)
Solicitors:
Applicant (Self Represented)
Office of General Counsel, NSW Police Force (Respondent)

File Number(s): 2020/00132946
Publication restriction: Nil

REASONS FOR DECISION

In 2018, Mr Chin-Kuang Chen rented out a room in his home. In December 2018, a prospective tenant booked the room through Booking.com. According to Mr Chen, the prospective tenant arrived at his home around midnight on 4 December 2018 and demanded to see the room before checking in. Mr Chen refused that request. The two argued and the prospective tenant left saying he did not “feel comfortable”. Mr Chen refunded the $150 paid to him by the prospective tenant.
The following day after receiving a complaint from the prospective tenant, Officer Piper contacted Mr Chen. According to Mr Chen, on the second occasion he spoke with Officer Piper, Officer Piper said “If you call again, I will charge you with harassment. I have had dealings with you in the past.” (emphasis added). Mr Chen believes that in making those comments, Officer Piper was referring to a previous complaint of race discrimination he had made against a bus company: see Chen v Premier Motors Service Pty Ltd t/as Premier Illawarra [2017] NSWCATAD 342.
Subsequently, Mr Chen lodged a complaint about Officer Piper with the NSW Commissioner of Police. The Commissioner dismissed that complaint.
In July 2019, Mr Chen lodged a complaint (the Complaint) with the President of the Anti-Discrimination Board (the President) alleging that:

by threatening to charge him with harassment, Officer Piper victimised him in contravention of s 50 of the Anti-Discrimination Act 1977 (NSW) (the Act); and

in dismissing his complaint about Officer Piper, the Commissioner discriminated against him on the ground of race in contravention of s 19 of the Act. Mr Chen identifies his race as being Chinese.

After investigating these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWCATAD 245
Decision Date: 06 October 2020

CaseChat Overview and Summary

Chen commenced proceedings in the Civil and Administrative Tribunal (CAT) against the Commissioner of the NSW Police Force. Chen alleged discrimination on the grounds of race, colour or ethnicity in employment. Chen sought leave for his complaint to proceed, arguing that he was subjected to unfavourable treatment by the Commissioner on the basis of his race. The CAT was required to determine whether leave was necessary for Chen’s complaint to proceed and, if so, whether such leave should be granted. Further, the CAT had to interpret the meaning of "services" as it appears in s 19 of the Anti-Discrimination Act 1977 (NSW).

The CAT considered the threshold requirements for leave to proceed and the principles guiding its exercise of discretion. It noted that leave is not an automatic right and must be granted if it is just and convenient to do so. The CAT further examined the definition of "services" under the Act, considering the ordinary meaning and legislative purpose. It found that "services" encompassed more than physical tasks and could include intangible contributions such as intellectual or professional services. However, the CAT concluded that Chen's complaint did not meet the necessary threshold for leave to proceed, as it lacked sufficient merit and was unlikely to succeed.

Consequently, the CAT refused leave for Chen’s complaint to proceed. The CAT found that while Chen had alleged discrimination, the evidence did not substantiate the claim to a degree that would warrant further investigation. The CAT also noted that the complaint was more appropriately addressed through internal grievance mechanisms within the NSW Police Force. The CAT's decision was grounded in the need to balance the rights of complainants with the efficient use of judicial resources. The CAT's refusal of leave meant that Chen's complaint was dismissed without further consideration.

Orders

Orders of the court

Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Chen v Commissioner NSW Police Force [2020] NSWCATAD 245
Hearing dates:	10 June 2020, 22 June 2020 (final submissions)
Date of orders:	6 October 2020
Decision date:	06 October 2020
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	A Britton, Principal Member
Decision:	Leave for the complaint to proceed is refused under s 96(1) of the Anti-Discrimination Act 1977 (NSW).
Catchwords:	HUMAN RIGHTS — equal opportunity — whether leave required for complaint to proceed — principles applying to grant of leave WORDS AND PHRASES — meaning of “services” in s 19 of the Anti-Discrimination Act 1977 (NSW)
Legislation Cited:	Anti-Discrimination Act 1977 (NSW) Police Act 1990 (NSW)
Cases Cited:	Burns v Sunol (No 2) [2017] NSWCATAD 236 Commissioner of Police v Mohamed [2009] NSWCA 432 Hussein v Sydney Trains [2020] NSWCATAD 155 IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 7 Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 Sivananthan v Commissioner of Police [2001] NSWADT 44
Texts Cited:	None cited
Category:	Procedural and other rulings
Parties:	Chin-Kuang Chen (Applicant) Commissioner NSW Police Force (Respondent)
Representation:	Counsel: J Seymour (Respondent) Solicitors: Applicant (Self Represented) Office of General Counsel, NSW Police Force (Respondent)
File Number(s):	2020/00132946
Publication restriction:	Nil