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

1. 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.

2. 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.

3. Subsequently, Mr Chen lodged a complaint about Officer Piper with the NSW Commissioner of Police. The Commissioner dismissed that complaint.

4. In July 2019, Mr Chen lodged a complaint (the Complaint) with the President of the Anti-Discrimination Board (the President) alleging that:

1. 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

2. 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.

5. After investigating these allegations, the President exercised the discretion to decline Mr Chen’s Complaint on the ground that it was “lacking in substance”: s 92(1)(a)(i) of the Act. At Mr Chen’s request, the President referred the Complaint to the NSW Civil and Administrative Tribunal (NCAT) as required by s 93A of the Act.

6. Because the President has exercised the discretion to decline the Complaint, it cannot proceed without leave of the Tribunal: s 96(1) of the Act. Mr Chen urges the Tribunal to grant leave, submitting that there was no proper basis for the conclusion reached by the President that the Complaint lacks substance. The Commissioner opposes leave being granted for the Complaint to proceed.

7. For the reasons that follow, I have decided not to grant leave for the Complaint to proceed.

President declines part of the Complaint

8. In addition to the allegations listed at [4] above, in the Complaint Mr Chen complained about the decision made by NSW Police in May 2018 to charge him with the offence of “using a carriage service to menace”. On Mr Chen’s account there was not “a single word of evidence” to support that charge, which was later dropped.

9. The President exercised the discretion to decline to accept without investigating that part of the Complaint, on the ground that “no part of the conduct complained of could amount to a contravention of a provision of this Act or the regulations”: s 89B(2)(a). That decision is not reviewable by the Tribunal: s 89(4). See also, Wecker v The Delegate (the decision maker) to the President of the NSW Anti-Discrimination Board [2014] NSWCA 372. Section 96 does not permit the Tribunal to give leave for this part of the Complaint to proceed.

Statutory framework and principles governing the grant of leave

10. A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.

11. Where the President decides to accept a complaint under s 89B, he or she must investigate that complaint: s 90(1) of the Act. If the President is satisfied, at any time of the investigation, that the complaint is lacking in substance, he or she may decline the complaint in whole or in part: ss 92(1)(a)(i) and 92(1)(a)(ii) of the Act. A complaint will be "lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations or that the complaint is “not reasonably arguable”: Langley v Niland & Anor (1981) 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].

12. Where, as here, the President declines a complaint under s 92 of the Act, the President must refer the complaint to the Tribunal if he or she has received a written request from the complainant to do so: s 93A of the Act.

13. Where a complaint is referred to the Tribunal at the request of a complainant under s 93A(1), that complaint may not be the subject of proceedings before the Tribunal without the leave of the Tribunal: s 96(1) of the Act.

14. Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales & Ors [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by the consideration that the refusal of leave will finally determine the complainant’s rights under that scheme: Jones at [57]; Ekermawi at [32]. The question of leave involves evaluating whether it is “fair and just” to grant or refuse leave in the particular circumstances of the case: Ekermawi at [36], [37]; Jones at [58]. In deciding whether to grant leave, the Tribunal may have regard to the grounds which the President may take into account in declining a complaint under s 92 of the Act: Jones at [60].

Statutory framework

Discrimination on the ground of race in the area of services

15. Section 19 of the Act makes it unlawful for a person to discriminate against another person on the grounds of race:

19 Provision of goods and services

It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race –

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

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

16. Services is defined by s 4 of the Act to include:

(a)   services relating to banking, insurance and the provision of grants, loans, credit or finance,

(b)   services relating to entertainment, recreation or refreshment,

(c)   services relating to transport or travel,

(d)   services of any profession or trade,

(e)   services provided by a council or public authority,

(f)   services consisting of access to, and the use of any facilities in, any place or vehicle that the public or a section of the public is entitled or allowed to enter or use, for payment or not.

17. Discrimination on the grounds of race is defined by s 7 of the Act to mean:

7 What constitutes discrimination on the ground of race

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

(a)   on the ground of the aggrieved person's race or the race 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 a different race or who has such a relative or associate of a different race, or

…

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

18. If an act is done for two or more reasons, and one of the reasons consists of unlawful discrimination under the Act (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: s 4A of the Act.

Victimisation

19. Section 50 makes it unlawful for a person to subject another person to any detriment:

50 Victimisation

(1)   It is unlawful for a person (the discriminator) to subject another person (the person victimised) to any detriment in any circumstances on the ground that the person victimised has—

…

(c)   alleged that the discriminator or any other person has committed an act which, whether or not the allegation so states, would amount to a contravention of this Act, or

(d)   otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,

or by reason that the discriminator knows that the person victimised intends to do any of those things, or suspects that the person victimised has done, or intends to do, any of them.

…

Does the Tribunal lack jurisdiction to determine the Complaint?

20. The Commissioner contends that the Tribunal should refuse leave for the Complaint to proceed on the ground that the Tribunal lacks jurisdiction to determine the Complaint. Pointing out that Mr Chen has failed to identify the “services” he alleges the Commissioner failed to provide him or provided to him on discriminatory terms, the Commissioner contends that the conduct about which Mr Chen complains could not be said to fall within s 19 of the Act.

21. While acknowledging that the Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432 held that the conduct of police officers with respect to a request for assistance can involve the refusal or provision of “services” within the meaning of s 19 of the Act, the Commissioner points out that the Court of Appeal was not referring to requests made to police officers for assistance at large but rather to “request[s] for assistance in relation to possible criminal activity, where protection of persons or property may be required”.

22. The Commissioner contends that NSW Police investigate criminal and not civil matters, and the matters about which Mr Chen and the prospective tenant complained were civil not criminal in nature. In support of that contention, the Commissioner points to s 6 of the Police Act 1990 (NSW) which lists the type of services provided by NSW Police:

6 Mission and functions of NSW Police Force

(1)   The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2)   The NSW Police Force has the following functions—

(a)   to provide police services for New South Wales,

(b)   to exercise any other function conferred on it by or under this or any other Act,

(c)   to do anything necessary for, or incidental to, the exercise of its functions.

(3)   In this section—

police services includes—

(a)   services by way of prevention and detection of crime, and

(b)   the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c)   the provision of essential services in emergencies, and

(d)   any other service prescribed by the regulations.

…

Consideration

23. I reject the Commissioner’s contention that the Tribunal lacks power to determine the Complaint because the conduct about which Mr Chen complains does not involve the provision of “services”. In the recent decision of Hussein v Sydney Trains [2020] NSWCATAD 155 at [20]-[38], I considered the meaning of the term “services” in s 19 of the Act and the relevant authorities. I adopt that summary in so far as it is relevant to this matter.

24. With respect to the allegation concerning Officer Piper (Allegation 1 at [4]), Mr Chen alleges that Officer Piper victimised him in contravention of s 50 of the Act. In contrast to unlawful discrimination which is confined to the particular areas of activities prescribed by the Act, which include services, s 50 is not so confined. To fall within the scope of that provision, the person victimised must establish that they were subject to a “detriment” that is “loss, damage or injury” that is “real and not trivial”: Sivananthan v Commissioner of Police [2001] NSWADT 44 at [40]; and Burns v Sunol (No 2) [2017] NSWCATAD 236 at [75]. With respect to Allegation 1, Mr Chen is not required to establish that the conduct about which he complains relates to the provision of services by NSW Police in general or Officer Piper in particular.

25. With respect to the decision by the Commissioner to dismiss Mr Chen’s complaint about Officer Piper (Allegation 2 at [4]), a fair reading of the Complaint indicates that Mr Chen is complaining about the handling of his complaint about Officer Piper by NSW Police. Given the broad meaning given by the authorities to the term “services”, which includes "an act of helpful activity", (see for example IW v City of Perth (1997) 191 CLR 1; [1997] HCA 30 at 7), in my view it is reasonably arguable that the handling of a complaint made by a member of the public about a member of the NSW Police Force is capable of being characterised as a service within the meaning of s 19 of the Act. Whether that complaint relates to police conduct in relation to a “civil matter” is irrelevant to the determination of the question of whether in dealing with that complaint the Commissioner was providing a service to the complainant. If the Commissioner is contending that the only services provided by NSW Police are those listed in s 6 of the Police Act, I reject that contention.

26. The Commissioner’s contention that the Tribunal lacks power to determine the Complaint is rejected.

Mr Chen’s account of his dealings with NSW Police

27. The following summary of Mr Chen’s account of his dealings with NSW Police is taken from the documents he provided to the President and to the Tribunal.

28. According to Mr Chen, on 6 December 2018 he received a call from Officer Piper who asked him for his version of the events about his dealings two days earlier with the prospective tenant. According to Mr Chen, when Officer Piper questioned him about the $29.45 paid by the prospective tenant, he advised that that money had been paid to Booking.com and, under the terms of its cancellation policy, was not refundable. On his account, Officer Piper argued that he should have permitted the prospective tenant to inspect the room as he requested. Officer Piper then went on to ask whether he had “approval from Fair Trading” to rent out a room in his residence. Mr Chen claims that Officer Piper then said he intended to take a statement from the prospective tenant, to investigate Mr Chen for fraud, and to report him to Fair Trading. An “angry tirade” ensued. Officer Piper then ended the call.

29. Mr Chen immediately rang back Officer Piper and informed him that he was mistaken, and drew his attention to the provisions of the Booking.com cancellation policy. On Mr Chen’s account, Officer Piper was very angry and said: “If you call again, I will charge you with harassment. I have had dealings with you.”

30. Mr Chen claims that within “a minute maybe less”, he received a call from the prospective tenant who said, “Are you going to give me my $30 back?”. Mr Chen says that he knew then that the matter was urgent and that if he did not refund the $30, the prospective tenant would make a statement to Police, resulting in him being charged with fraud. Mr Chen then paid the prospective tenant the $30.

31. On 7 December 2018, Mr Chen lodged a complaint about Officer Piper with NSW Police. He said the following day he received a call from a police officer, “Inspector 1”, whose name he can no longer recall, to discuss the complaint. He said Inspector 1 informed him that NSW Police did not get involved in civil matters, “taking the opposite position to Officer Piper”.

32. According to Mr Chen, on 9 December 2018 at 05:00 he decided he needed to “investigate” Officer Piper and called the Wollongong Police Station to ask for advice. Officer Piper answered the phone. So as to avoid Officer Piper thinking he was under investigation, Mr Chen pretended to be investigating the prospective tenant. Mr Chen’s account of that conversation, in broad terms, was along the same lines as his first conversation with Officer Piper three days earlier. According to Mr Chen, when he questioned Officer Piper about his comment about “past dealings”, Officer Piper cited the civil proceedings he had against the bus company.

33. According to Mr Chen, he then contacted “Sydney Police Station” to ask for help and to report his phone conversation with Officer Piper. Acting on the recommendation of the Sydney Police Station, Mr Chen rang the Wollongong Police station to speak to Officer Piper’s supervisor. Officer Piper again answered the phone. According to Mr Chen, Officer Piper said if he rang again, he would charge him with harassment and invited him to file a complaint.

34. Mr Chen then decided to investigate Officer Piper for “potential extortion and potential perverting the course of justice”. Mr Chen then lodged a further complaint about Officer Piper. Officer Brown came to Mr Chen’s home to discuss that complaint. At that meeting Mr Chen urged Officer Brown to obtain a statement from the prospective tenant who Mr Chen understood was about to leave the country. Mr Chen told Officer Brown that Officer Piper was involved in extortion, as his actions resulted in Mr Chen paying $30 to the prospective tenant to avoid the possibility of being charged for fraud.

35. According to Mr Chen, a few days later he received a phone call from Officer Keise. In that conversation Mr Chen repeated his view that the prospective tenant was not entitled to a refund of $30 and, in his view, Officer Piper’s actions in threatening to charge him with “public fraud” amounted to extortion.

36. On 2 January 2019, Officer Keise contacted Mr Chen and reported that Officer Piper claimed he only said he “may charge Mr Chen with fraud”. Officer Keise informed Mr Chen that he would not “sustain the complaint [Mr Chen] filed”. Mr Chen stated that he told Officer Keise he did not agree with his decision and recounted at some length the basis for his opinion that Officer Piper was involved in extortion and perverting the course of justice.

37. On 9 January 2019, Mr Chen was informed by Officer 2 that his complaint would be “closed”. According to Mr Chen, during that conversation he unsuccessfully attempted to persuade Officer 2 to reconsider his decision, repeating at length the arguments he had made to Officers Keise and Brown and Inspector 1.

Complaint of victimisation

38. To succeed in his claim that he was victimised by Officer Piper, Mr Chen must establish:

1. That Officer Piper subjected him to a “detriment”; and

1. That, one of the “real”, “genuine” or “true” reasons Officer Piper subjected him to that detriment was because he did one of the things listed in s 50(1) of the Act, or Officer Piper knew that he intended to, or suspected that Mr Chen had done, or intends to do, any of them: Nicholls & Nicholls v Director-General Department of Education and Training (No 2) [2009] NSWADTAP 20 at [28].

The alleged detriment

39. From the wide-ranging allegations made by Mr Chen about Officer Piper, it is difficult to identify with any precision the detriment(s) Mr Chen claims he was subjected to by Officer Piper. They appear to include:

1. Officer Piper’s alleged actions in colluding with the prospective tenant to extort the $30 booking fee.

2. Officer Piper’s alleged statement made to Mr Chen “If you call again, I will charge you with harassment”.

3. Officer Piper’s alleged statement to Mr Chen “I might charge you with fraud”.

40. While Mr Chen may hold the genuine belief that Officer Piper colluded with the prospective tenant to extort the booking fee, I am of the view that it is not reasonably arguable that the available material supports that belief. The extortion hypothesis advanced by Mr Chen, in my view, is far-fetched and implausible.

41. For current purposes I will assume, but not decide, that Officer Piper made the statements at (2) and (3) above (the offending statements) and that the making of those statements is capable of being characterised as a detriment within the meaning of s 50 of the Act.

Reasons for making the statements

42. Mr Chen claims that there are “very strong indications” that Officer Piper subjected him to detrimental treatment on the ground that he had previously made a complaint of race discrimination. He asserts that as a consequence of making that complaint, Officer Piper was biased against him. He asserts that this is evidenced by Officer Piper’s decision to advocate on behalf of the prospective tenant together with his mistreatment by Officer Piper.

43. In support of the claim that Officer Piper made the offending statements because Mr Chen had previously made a complaint of race discrimination about a bus company, Mr Chen relies on the following alleged statement made by Officer Piper:

“If you call again I will charge you with harassment. I have had dealings with you.”

(Emphasis added)

44. According to Mr Chen, in the course of investigating his report of a “possible assault by a bus driver” Officer Piper attended his home. During that visit Mr Chen informed Officer Piper and his colleague that he was involved in “racial discrimination legal proceedings against the bus company”.

45. In addition to those advanced by Mr Chen, there several possible explanations for the manner in which Officer Piper dealt with Mr Chen. These include that Officer Piper formed the opinion that in refusing to show the prospective tenant the room, Mr Chen had acted unreasonably. With respect to the offending statements, a possible explanation may be that Officer Piper was irritated by Mr Chen’s persistence in what he considered to be a relatively trivial matter. Whether it was appropriate that Officer Piper formed an unfavourable view about Mr Chen’s interaction with the prospective tenant, or made the offending statements, or whether that conduct amounted to “police misconduct” as Mr Chen appears to assert, is not to the point. The question raised is the reason for that conduct.

46. At best, the available material supports a finding that Officer Piper was aware that Mr Chen had made a complaint of race discrimination concerning a bus company. In my view, without more it is not reasonably arguable that the inference is available that one of the “real”, “genuine” or “true” reasons Officer Piper made the alleged statements was because Mr Chen had previously made a complaint of discrimination.

47. This part of the Complaint lacks substance.

Complaint of discrimination on the ground of race

48. To succeed in his complaint of discrimination on the ground of race, as a first step Mr Chen must establish that NSW Police failed to provide him with services or provided him with services on discriminatory terms. As stated above, I proceed on the basis that the subject services are in the nature of complaint handling services.

49. The available material indicates that NSW Police investigated Mr Chen’s complaints about Officer Piper. Mr Chen was interviewed by four different officers about those complaints. His account was put to Officer Piper who agreed he may have said “I might charge you with fraud”. When Mr Chen sought review of the original decision to dismiss his complaint, that decision was internally reviewed.

50. Mr Chen does not contend that NSW Police refused to deal with his complaint or provided him with complaint services on discriminatory terms. Instead, Mr Chen challenges the merits of the decision made by NSW Police to dismiss his complaint about Officer Piper.

51. The available material does not support a finding that NSW Police refused to provide Mr Chen with complaint services or provided those services on discriminatory terms. It is not reasonably arguable that the conduct about which Mr Chen complains falls within s 19 of the Act. It follows that the complaint is misconceived and lacks substance.

Conclusion

52. I agree with the conclusion reached by the President that the Complaint lacks substance. Given that conclusion, it would not be fair and just to permit the Complaint to proceed.

Order

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

**********

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: 06 October 2020