Johnson v Jahanpanah (Appeal)
[2024] ACAT 6
•8 January 2024
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
JOHNSON v JAHANPANAH (Appeal) [2024] ACAT 6
AA 4/2022 (DT 30/2021)
Catchwords: APPEAL – discrimination – whether Original Tribunal erred in applying s13 of the Discrimination Act – discrimination by a principal in relation to a contract worker – no principal and contract worker relationship – Whether s20 of the Discrimination Act applies instead of s13 – unlawful discrimination in providing goods, services and making facilities available – unfavourable treatment – causation – whether the appellant is the provider – contributory liability – primary wrongdoer not a party to the proceedings – appeal allowed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 38, 39
Discrimination Act 1991 ss 7, 8, 13, 20, 73,121A, Dictionary
Human Rights Act 2004 s 21
Human Rights Commission Act 2005 ss 10, 53A; div 4.2A
Subordinate
Legislation cited: ACT Civil and Administrative Tribunal Procedures Rules 2020 r 91
Cases cited:Andreopoulos v University of Canberra [2020] ACAT 95
Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) [2021] ACAT 14
Applicant DT 30 of 2021 v Respondent DT 30 of 2021 [2022] ACAT 17
Casino Canberra Limited ACN 051 204 114 v Kidman [2022] ACAT 22
Cornwall v Aerial Capital Group Pty Ltd trading as Canberra Elite Taxis [2022] ACAT 32
Dixon v RNJ Sicame Pty Ltd & Anor; Sims v RNJ Sicame Pty Ltd & Anor [2002] NSWADT 154
Dornan & Ors v Riordan & Ors [1990] FCA 264
Gaia Partners Pty Ltd ACN 627 832 455 v Jahanpanah [2021] ACAT 128
Honeybrook v Owners of Units Plan 836; Frogbott Pty Limited v Owners of Units Plan 836 [2023] ACAT 2
Kerslake v Sunol [2022] ACAT 40
Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32
Kovac v Australian Croatian Club Limited [2014] ACAT 41
McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27
Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132
Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34
List of
Texts cited:Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 3rd edition, 2018)
Tribunal:Temporary Presidential Member Prof P Spender
Senior Member K Katavic
Date of Orders: 8 January 2024
Date of Reasons for Decision: 8 January 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 4/2022
BETWEEN:
PETAR JOHNSON
Appellant
AND:
OMID JAHANPANAH
Respondent
APPEAL TRIBUNAL: Temporary Presidential Member Prof P Spender
Senior Member K Katavic
DATE:8 January 2024
ORDER
The Tribunal orders that:
The appeal is allowed.
The orders dated 25 February 2022 in DT30/2021 are set aside and substituted with an order that the application is dismissed.
The orders made on 25 February 2022 in DT30/2021 pursuant to section 39 of the ACT Civil and Administrative Tribunal Act 2008 are set aside.
There is to be no public access to the tribunal file.
………………………………..
Temporary Presidential Member Prof P Spender
For and on behalf of the Appeal Tribunal
REASONS FOR DECISION
In the reasons below, a reference to ‘ACAT’ or ‘tribunal’ refer to the ACT Civil and Administrative Tribunal generally, whereas ‘Appeal Tribunal’ or ‘Tribunal’ refers to the presently constituted tribunal. When discussing the first instance decision, the Tribunal uses the expressions ‘Original Proceedings’, ‘Original Decision’, ‘Original Quantum Decision’, Original Tribunal’ and ‘Senior Member’. In the Original Proceedings, the appeal respondent was the applicant, and the appellant was the respondent.
Summary
The Tribunal has allowed the appeal because the Original Tribunal made an error of law by applying section 13 the Discrimination Act 1991 (the Discrimination Act) and an error of fact and/or an error of law by finding that the parties were in a contractual relationship. The Tribunal has considered whether the conduct complained of was conduct that occurred under section 20 of the Discrimination Act and has concluded that the provider of the services and/or the provider who made the facilities available to the appeal respondent is not a party to the proceedings; therefore, orders cannot be made against it. The orders made by the Original Tribunal on 25 February 2022 that the appellant was in breach of section 13 of the Discrimination Act as well as the confidentiality orders made on that day have been set aside. In substitution for the orders made on 25 February 2022, the application is dismissed and there is to be no public access to the tribunal file. Consequential orders will be made in the related proceedings regarding the award of compensation after consultation with the parties.
Background
During November 2019, the parties were in a commercial relationship which involved the provision of taxis. The appellant was the director of a company, Gaia Partners Pty Ltd ACN 627 832 455 (the Company), which owned a number of taxis and the appeal respondent drove these taxis and received some monies from the Company for doing so (the commercial arrangements). The Company used the business name ACT ALLGREEN CABS[1] or ALLGREENCABS[2] when undertaking these activities.
[1] Gaia Partners Pty Ltd ACN 627 832 455 v Jahanpanah [2021] ACAT 128 (Gaia Partners) at [8]
[2] Reconciliation receipt dated 14 November 2021, Exhibit A1 in Original Proceedings on 15 November 2021, page 1
The appeal respondent is an immigrant from Iran who, at the time of the relevant incident occurred, had recently obtained permanent resident status.[3]
[3] Witness statement of Omid Jahanpanah dated 13 April 2022, page 2
A dispute arose between the parties. The appellant considered that the appeal respondent was in possession of one of the taxis without permission and the appeal respondent was liable for repair costs to a different taxi.[4] The appeal respondent considered that the appellant had failed to pay the appeal respondent money which he alleged was owing.[5]
[4] Appellant’s submissions dated 9 June 2023 at [6]
[5] Appellant’s submissions dated 9 June 2023 at [6]
On 27 November 2019, an argument occurred between the parties in a place that was described by the Original Tribunal as a “public location”.[6] Parts of the argument were recorded by video on the appeal respondent’s phone.[7] A selection of the video (which was provided to the Original Tribunal by the appeal respondent) showed as follows:
(a)the appeal respondent demanding payment of outstanding monies and the appellant saying that the money would be paid the following Tuesday;[8]
(b)the appellant demanding the surrender of the keys to the taxi;[9]
(c)the appeal respondent refusing to surrender the keys because he did not trust the appellant to pay the outstanding monies;[10]
(d)the appellant using a range of “crude language” towards the appeal respondent including phrases such as “suck my c**k” and “Iranian c**t” (the insult);[11]
(e)the appellant threatening to use his influence with the “Department of Immigration”, stating “I come from a business background and have influence” and “I will f**k you with Immigration” (the threat).[12]
[6] Original Decision at [3]
[7] Original Decision at [4]
[8] Original Decision at [5]
[9] Original Decision at [5]
[10] Original Decision at [5]
[11] Original Decision at [5], see also appellant’s list of errors dated 29 August 2023 at [5]
[12] Original Decision at [6]
On 24 February 2020, the appeal respondent commenced proceedings in ACAT against the Company in debt, claiming sums owed under the commercial arrangements (the Gaia Partners proceedings).[13] The Gaia Partners proceedings concluded in December 2021 with a differently constituted appeal tribunal ordering the Company to pay the appeal respondent the sum of $5,705.64.[14]
[13] Gaia Partners at [8]
[14] Gaia Partners, Orders
In January 2021, the appeal respondent lodged a complaint with the ACT Human Rights Commission (HRC), alleging that the appellant had subjected him to unlawful discrimination under the Discrimination Act. The complaint named the appellant as an individual respondent.[15] After the HRC decided to close the complaint because conciliation was unlikely to be successful, the appeal respondent requested the Commission to refer his complaint to the tribunal pursuant to section 53A of the Human Rights Commission Act 2005 (HRC Act). The HRC did so on 1 July 2021.
[15] Referral from the HRC to ACAT dated 1 July 2021, page 2
A hearing in this matter was conducted at first instance on 21 January 2022 (Original Proceedings). The Original Tribunal made a decision on 25 February 2022[16] (the Original Decision). The Original Tribunal found that the appellant had breached section 13 of the Discrimination Act. On that date, the Original Tribunal also made orders that the name of the appellant is not to be published and the appellant is to be referred to by a non-deplume (the confidentiality orders).[17] On 24 March 2022, the appellant lodged an appeal against the Original Decision. On 16 May 2022, the Original Tribunal ordered the appellant to pay $25,000 in compensation to the appeal respondent (the Original Quantum Decision). Each party lodged an appeal from that order.[18]
[16] Applicant DT 30 of 2021 v Respondent DT 30 of 2021 [2022] ACAT 17
[17] Original Decision at Order 5
[18] AA 4/2022 and AA 2/2023
In the reasons below, the Tribunal has allowed the appeal. The appeals from the Original Quantum Decision have been rendered otiose as a consequence of the Tribunal allowing the appeal from the Original Decision which concerned, broadly speaking, liability under the Discrimination Act. Nevertheless, the Tribunal will make consequential orders in relation to the appeals from the Original Quantum Decision after hearing from the parties.
Documents filed in the appeal
As stated above, the appellant lodged an application for appeal against the Original Decision on 24 March 2022. The tribunal made orders for the conduct of the appeal on 2 May 2023. On that day, the tribunal ordered that the appeal hearing would proceed as a review of the Original Decision and the appellant was required by 9 June 2023 to provide written submissions in support of the application for further evidence and the appeal, and specifying the orders sought if the appeal is successful. No applications were made by either party to seek leave to adduce further evidence in the appeal.[19]
[19] ACT Civil and Administrative Tribunal Procedures Rules 2020, r 91
The following documents were filed in the appeal:
(a) appellant’s submissions dated 9 June 2023;
(b) appeal respondent’s submissions dated 5 July 2023;
(c) appellant’s submissions in reply dated 21 July 2023;
(d) appellant’s further submissions dated 29 August 2023;
(e) appellant’s list of errors dated 29 August 2023;
(f) appellant’s hearing documents relied on dated 29 August 2023;
(g) appeal respondent’s further submissions dated 18 September 2023;
(h) appeal respondent’s response to the appellant’s list of errors dated 18 September 2023;
(i) appeal respondent’s hearing documents on which the respondent relies dated 18 September 2023;
(j) appellant’s further submissions in reply dated 26 September 2023.
In addition to these documents, the appellant filed material in his personal capacity dated 7 September 2023 and 26 September 2023 independently of the material filed by his legal representatives. The appeal respondent, in his submissions dated 18 September 2023, submitted that the Tribunal must not consider the material filed on 7 September 2023. The Tribunal assumes that this submission also applies to the appellant’s material filed in his personal capacity on 26 September 2023. The Tribunal has not considered the documents filed by the appellant in his personal capacity, other than the application for interim orders dated 16 October 2023 which is discussed below.
A hearing was held in the appellate division of the tribunal on 8 August 2023. At the end of the hearing, the Appeal Tribunal made orders that allowed the parties to provide further submissions. As stated above, those further submissions were made in August and September 2023.
THE PARTIES’ CONTENTIONS
Common ground
As stated above, the Original Tribunal found that section 13 of the Discrimination Act was breached. Section 13 relates to discrimination by a “principal” to a “contract worker”. On the appeal, the appellant and the appeal respondent agreed that the parties in this case were not in a principal-contract worker relationship.[20] It was also common ground between the parties to the appeal that the Original Tribunal had erred in finding that there was direct contractual relationship between the appellant and the appeal respondent.[21] Rather, underlying the factual matrix of the discrimination claim was a commercial arrangement between the Company and the appeal respondent.[22]
Appellant’s contentions – general
[20] Appellant’s submissions dated 9 June 2023 at [15] and appeal respondent’s submissions dated 5 July 2023 at [13]
[21] Appellant’s submissions dated 9 June 2023 at [4], appeal respondent's submissions dated 5 July 2023 at [4], Original Decision at [1] and [45]
[22] Appellant’s submissions dated 9 June 2023 at [4], appeal respondent's submissions dated 5 July 2023 at [4]-[5]
Building on the common ground between the parties that the Original Tribunal had erred in applying section 13 of the Discrimination Act, the appellant argued that the only provision in part 3 of the Discrimination Act that has any potential relevance to the relationship between the parties is section 20 because the appellant, through the Company, provided goods, services or made facilities available (namely taxis) to the appeal respondent.[23]
[23] Appellant’s submissions dated 9 June 2023 at [21]
The appellant contended that before determining whether the appellant engaged in unlawful discrimination according to section 20(c) of the Discrimination Act, it is necessary to consider whether he engaged in discrimination as defined in section 8 of the Discrimination Act.[24]
[24] Appellant’s submissions dated 9 June 2023 at [12(c)]
The appellant further challenged the finding of the Original Tribunal that the appellant’s racial slur towards the respondent and his threat to report the appeal respondent to the Department of Immigration were forms of detriment pursuant to section 13(d) of the Discrimination Act. The appellant relied upon Kerslake v Sunol (Kerslake)[25] that “mere words”, even if offensive or insulting, fall into the category of “trivial detriment”.[26] The appellant submitted that these comments also apply to the meaning of “detriment” as it is used in section 13 of the Discrimination Act. In the alternative, even if the Appeal Tribunal finds that the Original Tribunal’s findings regarding detriment were not affected by legal error, detriment is not a relevant consideration in section 20 of the Discrimination Act so the Original Tribunal’s findings about detriment cannot be relied upon by the Appeal Tribunal to find that there was a breach of section 20 of the Discrimination Act.[27]
[25] [2022] ACAT 40 at [147]
[26] Kerslake at [156, cited in appellant’s submissions dated 9 June 2023 at [17]
[27] Appellant’s submissions dated 9 June 2023 at [23]
The appellant argued that none of the subsections of section 20 of the Discrimination Act are relevant to the facts of this matter and there was no evidence of any of these forms of discrimination before the Original Tribunal. Rather, the Original Tribunal found that the appeal respondent’s nationality and visa status were not relevant to the commercial dispute between the parties.[28]
[28] Original Decision at [65]
The parties’ submissions on section 20 of the Discrimination Act are set out in more detail below.
Appeal respondent’s contentions – general
Building on the common ground between the parties that the Original Tribunal had erred in finding a direct contractual relationship between the parties, the appeal respondent argued that the essential features of the commercial arrangements were that the Company provided a taxi to the appeal respondent who then operated the taxi for a period of time. The agreement provided for a division of takings that included a minimum payment obligation from the appeal respondent.[29] However, the appeal respondent contended that the appellant, as sole director, was acting as a human agent and controlling mind of the Company. In that respect, the appeal respondent argued that section 73 of the Discrimination Act operated to make the appellant personally liable because the company acted through him at all material times.[30]
[29] Appeal respondent's submissions dated 5 July 2023 at [5]
[30] Appeal respondent's submissions dated 5 July 2023 at [6] and transcript of appeal proceedings dated 8 August 2023, page 40
The appeal respondent agreed that the submissions of the appellant had correctly identified what the Tribunal was required to do, namely:
7.1 Determine which, if any, of the relationships identified in Part 3 of the Act might apply to the circumstances; and
7.2 Determine whether [the appeal respondent] had been subjected to ‘unlawful discrimination’ and7.3 Determine whether [the appeal respondent] had been subjected to ‘unfavourable treatment’ because of one or more “protected attributes.[31]
[31] Appeal respondent's submissions dated 5 July 2023 at [7]
The appeal respondent argued that in order to establish unlawful discrimination under section 8 of the Discrimination Act, the tribunal must be satisfied that the appeal respondent had been treated unfavourably. The appeal respondent relied upon the cases of Casino Canberra v Kidman[32] (Casino Canberra) and Prezzi, Patricia Anne and the Discrimination Act Commissioner[33] (Prezzi). The tribunal in Casino Canberra noted that “unfavourable treatment” includes treatment that is disadvantageous to the complainant. In the present case, the appeal respondent pointed to the evidence of psychological injury and anxiety that was provided at first instance.[34] In Prezzi, President Curtis stated that “[a]ll that is required is whether the consequences of the dealing with the complainant are favourable to the complainant’s interests or are adverse to the complainant’s interests, and whether the dealing has occurred because of a relevant attribute of the complainant.”[35] Relying upon Prezzi, the appeal respondent said that there is no doubt that the appellant’s conduct was not favourable to the appeal respondent’s interests and compelling evidence had been provided that it was adverse to the appeal respondent’s interests.[36]
The parties’ submissions on section 20 of the Discrimination Act
[32] Casino Canberra Limited ACN 051 204 114 v Kidman [2022] ACAT 22
[33] Prezzi, Patricia Anne and Discrimination Commissioner [1996] ACTAAT 132 at [24]
[34] Appeal respondent's submissions dated 5 July 2023 at [36.5]; see the Witness Statement of Omid Jahanpanah dated 13 April 2022, attaching the Medical Certificate of Dr Soroush Ziaee dated 21 March 2023 and the report of Peter Henry dated 22 March 2022; see also the further report of Peter Henry dated 13 April 2022
[35] Prezzi at [24]
[36] Appeal respondent's submissions dated 5 July 2023 at [37]
The appeal respondent argued that section 20(c) refers to the way in which the provider provides those goods or services or makes those facilities available. The question arises as to what is meant by “the way in which the provider… makes those facilities available”. The appeal respondent said that it cannot be a reference to refusing to make the facilities available because that is covered by section 20(a). Similarly, it cannot be a reference to price or other terms of trade for making facilities available because that is covered by section 20(b).[37] The appeal respondent submitted that this is a question of statutory interpretation and offered an interpretation of section 20(c) that discriminatory conduct could occur at any stage of the transaction/relationship and the statutory phrase “makes facilities available” necessarily encapsulates all aspects of that transaction/relationship.[38] The appeal respondent contended that the conversation that occurred on 27 November 2019 was a conversation that was part of the end or termination phase of an existing commercial relationship involving the provision of a taxi.[39] The appeal respondent submitted that conversations that occurred at the end of a commercial transaction/relationship are as much a part of the totality of the transaction/relationship as the conversations at the outset.[40]
[37] Appeal respondent's submissions dated 5 July 2023 at [23]
[38] Appeal respondent's submissions dated 5 July 2023 at [23]
[39] Appeal respondent's submissions dated 5 July 2023 at [26]
[40] Appeal respondent's submissions dated 5 July 2023 at [25]
In reply to this argument, the appellant contended that the appeal respondent was effectively arguing that any discriminatory behaviour which occurs in the course of the parties transaction/relationship is caught by section 20(c).[41] Such an interpretation, argued the appellant, is not consistent with the language of that provision which requires discrimination to occur in the way in which certain actions are taken – namely, providing goods or services or making available facilities. It cannot be said that the way in which the appellant performed certain actions was affected by discrimination if those actions are not able to be identified. Merely identifying the existence of a commercial relationship between the parties is not enough.[42]
[41] Appellant’s submissions in reply dated 21 July 2023 at [3.3]
[42] Appellant’s submissions in reply dated 21 July 2023 at [3.3]
In the present case, the appellant contended that the way in which the appellant provided or made available the taxi to the respondent or otherwise performed his contractual obligations was not affected by discrimination. The appellant noted that the appeal respondent had properly conceded that the terms of the appellant’s agreement with the respondent regarding the provision of the taxi were not different from those between the appellant and any other driver.[43] Further, said the appellant, there was no evidence that the way in which the appellant’s provision of services to the respondent involved discrimination and there was no finding to that effect by the Original Tribunal.[44] Without evidence that the way in which the appellant provided services to the respondent was affected by discrimination, it is not open to the Appeal Tribunal to find that there has been a breach of s 20(c).[45]
[43] Appeal respondent’s submissions dated 5 July 2023 at [22]
[44] Appellant’s further submissions in reply dated 26 September 2023 at [2.4]
[45] Appellant’s further submissions in reply dated 26 September 2023 at [2.5]
Further, the appellant submitted that neither the insult nor the threat was accompanied by a corresponding discriminatory action with respect to the provision of goods, services or facilities.[46] To emphasise the point, the appellant argued it is not sufficient to identify the utterance of mere words without the presence of a discriminatory action. A shopkeeper who expresses a prejudice towards people with a certain protected attribute, but who provides a faultless service to customers with that protected attribute, has not engaged in discrimination.[47]
CONSIDERATION
Introduction
[46] Appellant’s submissions in reply dated 21 July 2023 at [3.4], citing Evansv Dencio [2020] ACAT 44 at [52]
[47] Appellant’s further submissions in reply dated 26 September 2023 at [2.3]
This case illustrates that the Discrimination Act applies to specific actions by specific persons in particular circumstances that are set out in that Act. Any remedy in relation to discriminatory conduct will only be available in those circumstances.
Consequently, a person bringing a complaint to the HRC and then, on referral, to the tribunal can only succeed if the conduct about which they complain comes within one of the categories specified in the Discrimination Act and against the person who engaged in the alleged discriminatory conduct.
That point was reinforced by the tribunal in McGhie v Aboriginal Legal Service (NSW/ACT) Limited (McGhie) which wrote:
The Discrimination Act is a complicated, technical piece of legislation, that prohibits certain forms of conduct in prescribed circumstances. It is not designed or intended to address all circumstances of unfavourable or disadvantageous treatment. …
Because it is so technical, making out a case under the Act can be very challenging for many self-represented litigants, and indeed many lawyers.[48]
What must be established on appeal?
[48] McGhie v Aboriginal Legal Service (NSW/ACT) Limited [2023] ACAT 27 at [53] and [97]
Recently in Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602, the tribunal stated the principles that apply in the appellate jurisdiction as follows:
The appellant is required to show that the Original Tribunal made an error of fact or law that was material to the result. An appeal tribunal must determine whether the decision appealed against is wrong because an original tribunal fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong. The error must have affected the result.[49]
Error of Law – Application of section 13 of the Discrimination Act
[49] Saunders v South Canberra Holdings Pty Ltd ACN 606 747 602 [2023] ACAT 34 at [7] footnotes omitted)
The Tribunal agrees with the arguments made by the appellant and the appeal respondent about the operation of section 13 Discrimination Act in the present case. Section 13 relates to discrimination by a principal in relation to a contract worker. ‘Contract worker’ is defined in the Dictionary of the Discrimination Act as follows:
contract worker means a person (the worker) who does work for someone else (the third person) under a contract between the worker’s employer and the third person.
The Tribunal agrees that the appeal respondent was not a contract worker and notes that there was no evidence before the Original Tribunal that he was an employee of any employer or that he performed work for a third party under a contract between such employer and a third person. Rather, like many other taxi drivers, it appears that he was self-employed.
Similarly, ‘principal’ is defined in the Dictionary of the Discrimination Act as follows:
principal means—
(a) for a commission agent—a person for whom the commission agent does work as a commission agent; or
(b) for a contract worker—a person for whom the contract worker does work under a contract between the contract worker’s employer and the person.
There was no evidence before the Original Tribunal that the appeal respondent was a commission agent or that the appellant was a principal for whom the appeal respondent worked.
The Original Tribunal provided no reasons for the conclusion that section 13 was applicable in the case. The Tribunal agrees with the submission made by the appellant that the Original Tribunal merely asserted as much without providing details of the evidence to support the assertion. It was an error of law for the Original Tribunal to make findings for which there was no evidentiary foundation[50] and to fail to state reasons for the conclusion that section 13 of the Discrimination Act applied.[51]
Did the appellant engage in discrimination as defined in section 8 of the Discrimination Act?
[50] Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32 at [90]-[91], cited in the appellant’s submissions dated 9 June 2023 at [15f]
[51] Dornan & Ors v Riordan & Ors [1990] FCA 264 at [18], cited in the appellant’s submissions dated 9 June 2023 at [15g]
In the reasoning below, the Tribunal discusses the potential operation of section 20 in substitution for section 13 of the Discrimination Act. However, before engaging in that analysis, the question arises as to whether the appellant engaged in “discrimination” as defined in section 8 of the Discrimination Act.
Section 8 of the Discrimination Act defines ‘direct’ discrimination as follows:
Meaning of discrimination
(1) For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.(2) For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has 1 or more protected attributes.
The Original Tribunal found the following two actions by the appellant were instances of (unlawful) discrimination:
(a)The appellant engaged in “racist abuse” of the appeal respondent when he called him an Iranian c**t.[52]
(b)The appellant threatened to report the respondent to “Immigration” for an alleged extortion.[53]
[52] Original Decision at [63(b)]
[53] Original Decision at [63(c)]
As mentioned above, the appellant submitted that the first finding may be described as “the insult” and the second finding may be described as “the threat”.[54] The Tribunal adopts this nomenclature to analyse the findings because it is consistent with the language used by the Original Tribunal in the Original Decision[55] but notes that the appeal respondent had reservations about this classification.[56] The appeal respondent argued that the harm done by the insult was magnified by the nature of the threat and vice versa. Therefore, only looking at each of those communications in isolation misrepresents what they actually achieved because the significance or harm caused by the threat was magnified by the racial animus evidenced in the insult.[57]
Unfavourable treatment in section 8 of the Discrimination Act
[54] Appellant submissions in reply dated 21 July 2023
[55] Original Decision at [65]
[56] Transcript of appeal proceedings 8 August 2023, page 45
[57] Transcript of appeal proceedings 8 August 2023, page 45
There is no dispute between the parties that the appeal respondent has the protected attributes under section 7 of the Discrimination Act, in particular, the protected attributes of race and immigration status.[58] As stated above, the appeal respondent relied upon Casino Canberra to argue that the appellant had treated the appeal respondent unfavourably and therefore engaged in direct discrimination under Section 8 of the Discrimination Act. The tribunal in that case set out some observations about what was required to prove unfavourable treatment under section 8 of the Discrimination Act. [59] The present Tribunal notes that in the particular paragraphs of Casino Canberra relied upon by the appeal respondent, the tribunal was applying two sections of the Discrimination Act – sections 8 and 13. As discussed above, section 13 of the Discrimination Act has an independent criterion of detriment under section 13(d). Therefore, it is necessary to parse the tests that were adopted in Casino Canberra when applying them only to section 8 of the Discrimination Act. It is difficult to separate the comments made in Casino Canberra about the definition of ‘unfavourable treatment’ from the detriment component which is stated in section 13(d) of the Discrimination Act. Perhaps what is left in the CasinoCanberra test after detriment is excluded is that unfavourable treatment is treatment that is disadvantageous to the complainant. The Tribunal also notes the wider definition of unfair treatment in Prezzi, which was relied upon by the appeal respondent in his submissions.[60] The tribunal discussed the Prezzi formulation in Applicant 202024 v The Australian Capital Territory (Represented by Access Canberra) (Applicant 202024)[61] as follows:
In other words, unfavourable treatment is treatment that is adverse to the applicant or causes loss, damage or injury. This includes mental injury, embarrassment, and distress. It is broad enough to cover any disadvantage, so long as it is real and not illusory.[62]
[58] Transcript of appeal proceedings 8 August 2023, page 19, lines 44-45
[59] Casino Canberra at [81]-[88]
[60] Appeal respondent's submissions dated 5 July 2023 at [34]
[61] [2021] ACAT 14
[62] Applicant 202024 at [112], citing Cooley v Australian National University [2007] ACTDT 2
Importantly, as noted in the appeal respondent’s submissions,[63] unfavourable treatment can be ascertained by reference to the consequence of that treatment for, or the effect of that treatment on, the person.[64] The Tribunal considers that the insult and the threat had a disadvantageous effect upon the appeal respondent. The appeal respondent led evidence in the Original Proceedings about him suffering anxiety and depression after the events of November 2019 and seeking medical advice about the insult and the threat.[65] The appellant argued that this evidence should have been tested by cross examination at first instance and/or by making submissions about the weight of this evidence, so the Appeal Tribunal is not in a position to determine if the appeal respondent suffered disadvantage beyond mere trivial offence.[66]
[63] Appeal respondent's submissions dated 5 July 2023 at [33]
[64] Casino Canberra at [81]
[65] Witness Statement of Omid dated 13 April 2022, attaching the medical certificate of Dr Soroush Ziaee dated 21 March 2022 and the report of Peter Henry dated 22 March 2022; see also the further report of Peter Henry dated 13 April 2022
[66] Appellant’s submissions in reply dated 21 July 2023 at [2.9]
The Tribunal does not accept the appellant’s arguments that the insult (in combination with the threat) were trivial[67] because they amounted to “mere words”, relying upon statements to this effect in Kerslake. In that case, the tribunal reviewed the authorities to determine whether “mere statements, even if disrespectful, offensive or insulting can amount to detriments”, for the purpose of section 68 of the Discrimination Act which requires proof of detriment to the other person who has taken discrimination action.[68] The tribunal continued:
Now of course a threat to subject someone to another form of detriment will generally involve just words. The question is, can the detriment itself just be harsh words? Whether something constitutes a detriment is determined objectively.[69]
[67] Appellant’s submissions in reply dated 21 July 2023 at [2.10]
[68] Kerslake at [140]
[69] Kerslake at [140]
However, the tribunal concluded that mere words could be held to be a detriment when those words included or were accompanied by a threat of physical violence:
It is only in one case that words alone were held to be a detriment, and these were very significant words, in contrast to the other claims which were rejected. Therefore although detriment arising from only words is seen by some as possible, this requires exceptional circumstances. [70]
[70] Kerslake at [145]
The Tribunal in the present case notes that the words do not contain a threat of physical violence but agrees with the appeal respondent that the words constituting the insult and the threat need to be considered in combination.[71] Applying this composite analysis, the words in the insult and the threat amount to exceptional circumstances that establish the adverse treatment that was disadvantageous to the appeal respondent. The insult in this case contained “very significant” words that are deeply offensive. The insult was delivered with a threat that may naturally cause consternation and/or anxiety even though the appeal respondent had secured permanent residence at the time that it was made, particularly because the threat was accompanied by the appellant’s assertions that he had some type of influence with “Immigration”. [72] The Tribunal notes the appeal respondent’s submission that even a groundless report to “Immigration” would be of some concern to a recent immigrant to Australia and the threat of a report to the agency that decides whether or not he can stay in Australia would surely, and understandably, cause some degree of anxiety.[73]
[71] Transcript of appeal proceedings 8 August 2023, pages 45-46
[72] Original Decision at [6]
[73] Appeal respondent's submissions dated 5 July 2023 at [36.4], citing Baltic Shipping Co v Dillon (1993) 176 CLR 344
The Original Tribunal found that the appellant subjected the appeal respondent to a detriment by:
a. …
b. engaging in the racist abuse; and
c. by threatening to report the applicant to the Department of Immigration for an alleged criminal extortion.[74]
[74] Original Decision at [63]
Even though the findings of fact were based on the erroneous application of section 13 of the Discrimination Act including the detriment criterion, the Appeal Tribunal does not discern any errors of fact in these findings. We acknowledge that ideally the evidence led by the appeal respondent in the Original Proceedings would have been subject to cross examination or submissions but (as mentioned above) the appellant had the opportunity to seek leave in the appeal proceedings regarding the evidence and no application was made by either party.
The Tribunal concludes that the appellant subjected the appeal respondent to unfavourable treatment that was real and not illusory[75] pursuant to section 8 of the Discrimination Act.
[75] Applicant 202024 at [112], citing Cooley v Australian National University [2007] ACTDT 2
The second limb of section 8 of the Discrimination Act is about causation. The complainant must prove that the unfavourable treatment was “because” the person has one or more of the protected attributes. The Tribunal notes the parties’ submissions on this point. The appellant said that he did not insult the respondent because he was Iranian, rather he insulted him because of the respondent’s behaviour (or what was perceived to be the respondent’s behaviour), namely that he was unlawfully in possession of one of the appellant’s taxis and the appellant thought that the appeal respondent was trying to extort money from the appellant before he would agree to return the taxi.[76] The appellant relied upon the findings of the Original Tribunal that the commercial dispute about the taxi existed for reasons that were unrelated to any protected attributes.[77] The Appeal Tribunal does not agree with this characterisation of the findings of the Original Tribunal. The Original Tribunal said as follows:
The issue of the [appeal respondent’s] nationality and visa status was not relevant to the merits of the commercial dispute. The [insult and the threat] were entirely gratuitous and motivated by whatever views the [appellant] held on race and immigration issues, and not because of the commercial dispute. [T]hey were a gratuitous insult and threat, based on a protected attribute.[78]
[76] Appellant’s submissions in reply dated 21 July 2023 at [2.12]
[77] Appellant’s submissions dated 9 June 2023 at [22]
[78] Original Decision at [65]
On the question of causation, the appeal respondent said that he could not be called an Iranian c**t were he not from Iran. Similarly, a threat to report him to “Immigration” would be pointless if he was not an immigrant to Australia.[79] The comments only occurred because the appeal respondent has those attributes.
[79] Appeal respondent’s submissions dated 5 July 2023 at [36.3]
In order to satisfy the causative element, it is sufficient if the applicant establishes that the protected attribute, either alone or in combination with other reasons, is a real, genuine and not insubstantial reason for the unfavourable treatment.[80] In Applicant 202024, the tribunal said as follows:
To establish causation in direct discrimination, the applicant must establish the real reason or true basis for the identified unfavourable treatment was [the protected attributes], and this must be done via objective evidence. He must do this on the balance of probabilities.[81]
[80] Kovac v Australian Croatian Club Limited [2014] ACAT 41 at [90]
[81] Applicant 202024 at [114]
The issue of causation is a question of fact and in the present case the Original Tribunal found that causation was established as follows:
The [appellant] did these unfavourable actions because:
(a) he disputed the commission payable;
(b) the [appeal respondent] was an Iranian national;
(c) the [appeal respondent] was on a work visa; and
(d) each of these three motivations played a role in the unfavourable treatment.[82]
[82] Original Decision at [64]
Although it is not clear which test for causation was applied by the Original Tribunal, the Tribunal is not satisfied that the appellant has established that the Original Tribunal fell into error in these findings about the cause of the unfavourable treatment.
Was the unfavourable treatment unlawful under section 20 of the Discrimination Act?
As discussed above, the Discrimination Act is a complicated piece of legislation that requires each of the elements of unlawful discrimination to be fitted together like pieces in a jigsaw puzzle. The last piece of the jigsaw puzzle in this case is that the Discrimination Act requires that the discrimination (that has been established under section 8 of the Discrimination Act) must take place in certain contexts to be unlawful. These contexts or “areas of public life”[83] are identified in part 3 of the Discrimination Act. As stated above, the Original Tribunal found that the area of public life was the relationship of principal and contract worker under section 13 of the Discrimination Act and the parties in the appeal agreed that this was an error. However, the appeal respondent argued that a different section in part 3 of the Discrimination Act - section 20 - could be substituted for section 13. The appeal respondent argued that the findings of fact made by the Senior Member support the proposition that section 20(c) applies to the circumstances.[84]
[83] Applicant 202024 at [90]
[84] Appeal respondent’s submissions dated 5 July 2023 at [20]
Section 20 of the Discrimination Act states as follows:
Goods, services and facilities
It is unlawful for a person (the provider) who (whether for payment or not) provides goods or services, or makes facilities available, to discriminate against another person—(a) by refusing to provide those goods or services or make those facilities available to the other person; or
(b) in the terms or conditions on which the provider provides those goods or services or makes those facilities available to the other person; or
(c) in the way in which the provider provides those goods or services or makes those facilities available to the other person.
Focussing upon subsection 20(c), this provision has three aspects:
(a) Who is the provider?
(b) What is the way in which the provider provides the goods or services?
(c) In the alternative, what is the way in which the provider makes those facilities available to the other person?
Who is the provider?
‘Provider’ is defined in section 10 of the HRC Act as follows:
Who is a provider?
(1) For this Act, a provider of a service is an entity that provides, or holds out that it can provide, the service.
(2) A provider of a service includes—
(a)an entity that employs someone who—
(i)provides the service; or
(ii)holds out that the person can provide the service; and
(b)a volunteer providing the service on behalf of someone else; and
(c)someone who was a provider when the service was provided, but is no longer providing the service.
The Tribunal concludes that the relevant provider for the purposes of section 20 of the Discrimination Act is the Company. Under the heading “Findings of fact”, the Original Tribunal referred to findings in the Gaia Partners proceedings that the appellant and the appeal respondent were:
in a commercial contractual relationship and that the [appellant] owed the [appeal respondent] monies from that relationship. … The evidence led in the present matter is entirely consistent with the finding of a monetary dispute arising out of a contractual relationship concerning the lease of a taxi.[85]
[85] Original Decision at [45]
The Tribunal agrees with the parties to the appeal that this finding contains an error of fact and probably an error of law because the relevant relationship was between the Company and the appeal respondent.[86] The tribunal stated the following in the Gaia Partners proceedings:
As I understood it, the appellant [i.e., the Company] operates its business by leasing taxis to drivers for a fee. Under the terms of engagement, taxi fares earned by a driver are apportioned between the appellant and the driver. The terms of engagement are not under consideration in this case.[87]
[86] Appellant’s submissions dated 9 June 2023 at [4], appeal respondent’s submissions dated 5 July 2023 at [4]
[87] Gaia Partners at [3]
The parties to the present appeal agreed that there was some type of commercial relationship, but the parameters and terms of the relationship were vague. It was evidenced by one document in the Original Proceedings titled “Reconciliation Receipt” for AllGreenCabs dated 14 November 2021 issued to Antonio at the appeal respondent’s mobile number for the sum of $1725.60 covering the period 18 November 2019 to 24 November 2019.[88] The document is not a strong evidentiary foundation for the commercial arrangements but does support the observations made by the tribunal in the Gaia Partners proceedings about who was providing the taxis.
[88] Reconciliation receipt dated 14 November 2021, Exhibit A1 in Original Proceedings on 15 November 2021 page 1
For the sake of clarity, the Tribunal notes that although the Original Tribunal referred to a “voluntary trial” between the parties,[89] ultimately nothing turned on this issue in the appeal.[90]
[89] Original Decision at [14]
[90] Appellant’s list of errors dated 29 August 2023 at [29], appeal respondent’s response to the appellant’s list of errors dated 18 September 2023 at [29]
As stated above, the relevant person who was the provider of the goods or services or who made the facilities available for the operation of section 20 of the Discrimination Act is the Company.
The Company was not a party in the current proceedings, either at first instance or on appeal. There was no documentary evidence before the current Appeal Tribunal about the share ownership or the governance of the Company. In the Gaia Partners proceedings, an ASIC extract was in evidence[91] but not in the present proceedings. The appellant was described as “managing director” of the Company in the Gaia Partners proceedings.[92] In the present proceedings, the appeal respondent relied upon the witness statement filed by the appellant at first instance where he described the relationship between himself and the Company as follows:
My name is Petar Johnson and I am the Managing Director of Gaia Partners which is a sole director and sole shareholder company. I represent the company in these proceedings.[93]
[91] Gaia Partners at [2], footnote 1
[92] Gaia Partners at [2]
[93] Exhibit A1, Original Proceedings, Response by the Respondent dated 15 November 2021, page 8, identified in appeal respondent’s hearing documents on which the respondent relies dated 18 September 2023, page 1
The Appeal Tribunal accepts that the appeal respondent has provided sufficient proof that the appellant was the “sole director” and probably the sole shareholder of the Company.[94]
[94] Appeal respondent's submissions dated 5 July 2023 at [4]
The absence of the Company in the current proceedings nevertheless presented problems for the appeal respondent’s arguments about the application of section 20(c). As stated above, the solicitor acting for the appeal respondent sought to overcome these problems by relying upon section 73 of the Discrimination Act. Section 73 states as follows:
A person who aids, abets, counsels or procures someone else to do an act that is an unlawful act is taken, for this Act, also to have done the act.
We quote from the submissions made during hearing by the solicitor acting for the appeal respondent as follows:
Now, as the only mind that controls Gaia Partners, if Gaia Partners is the contracting party its conduct was and always [would be] procured by Mr Johnson, and if Mr Johnson is the contracting party, he's responsible for his own conduct. So my submission is section 73, because of that evidence that he's the only decision-maker – he is the mind of Gaia Partners – it doesn't really matter, for present purposes, where that contractual basis lies. He's caught either way. [95]
[95] Transcript of appeal proceedings 8 August 2023, page 40
Section 73 of the Discrimination Act is an example of what may be described as “contributory liability” provisions in discrimination legislation, which extends liability for the primary statutory obligation not to engage in discriminatory conduct to other persons who contribute to the principal wrongdoers’ act of unlawful discrimination. However, as stated by Rees et al,
It is necessary to identify an unlawful act by principal wrongdoers when seeking to invoke the contributory liability provisions because, in the absence of a principal wrong, there is no capacity for a person to be liable as a contributor. It is important to reiterate that antidiscrimination statutes do not impose obligations on the community at large – they impose obligations on a limited range of people, such as … providers of goods and services not to discriminate when undertaking their activities.[96]
[96] Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (Federation Press, 3rd edition, 2018) at [15.7.35]
As stated by the New South Wales Administrative Decisions Tribunal (ADT) in Dixon v RNJ Sicame Pty Ltd & Anor; Sims v RNJ Sicame Pty Ltd & Anor[97] (Dixon), “[i]t is … the “primary” complaint, which triggers the liability of third parties under the accessorial provisions … of the Act.”[98] Dixon concerned an application to join, inter alia, a union to the ADT proceedings under the New South Wales equivalent to section 73 of the Discrimination Act. The application was refused. Applying Dixon to the current proceedings, the Tribunal would need to find the primary responsibility which belongs to the Company but that is not possible because the Company is not a party to the proceedings. With respect, the submission made by the solicitor for the appeal respondent during the hearing (that is extracted above) treats the Company and Mr Johnson as being somehow interchangeable but that is not the position in law.
[97] [2002] NSWADT 154
[98] Dixon at [42]
The Tribunal considered whether the appellant was the agent of the Company thereby attracting the operation of section 121A of the Discrimination Act, which binds a principal for the acts of an agent that are within the scope of the representative’s actual or apparent authority.[99] However, this does not resolve the problem about the absence of the Company as a party to the proceedings.
[99] See Cornwall v Aerial Capital Group Pty Ltd trading as Canberra Elite Taxis [2022] ACAT 32
No application was made at first instance or on appeal to add the Company as respondent and we note that it is not a straightforward exercise to substitute or add a corporate respondent in discrimination proceedings in the tribunal because of the expectation that proceedings in the tribunal are dependent upon an application made originally to the HRC. In other words, it potentially raises a jurisdictional issue. As stated by the tribunal in McGhie:
Where a matter is referred to ACAT under section 53A of the HRC Act, the tribunal’s jurisdiction is derived from that Act, and the matters it may consider are those properly referred by the HRC.[100]
[100] McGhie at [7]
The tribunal in Honeybrook v Owners of Units Plan 836[101] (Honeybrook) refused leave for a corporate body to be substituted as applicant in discrimination proceedings. In that case, the company held the putative rights under the HRC Act and the Discrimination Act, but the complaint had been lodged with HRC by the sole director and shareholder of the company in his personal capacity. The question was whether a “swap” could be made of the company for the applicant in the ACAT proceedings. The respondent opposed the substitution.[102] The tribunal noted that the process under division 4.2A of the HRC Act contemplates the involvement of the HRC before a referral to ACAT and the tribunal was disinclined to meddle with this process, and it was unnecessary to do so because neither the applicant nor the company (as the putative substituted applicant) had satisfied the other elements of the Discrimination Act.[103]
[101] Honeybrook v Owners of Units Plan 836; Frogbott Pty Limited v Owners of Units Plan 836 [2023] ACAT 2 at [60]
[102] Honeybrook at [60]
[103] Honeybrook at [61]
To summarise, the Company is the person who is the provider of the goods or services or who makes the facilities available under section 20 of the Discrimination Act. The Company is not a party to the proceedings and orders cannot be made that bind it. The appellant is not a person who is a provider for the section 20 of the Discrimination Act. The argument about section 20(c) therefore fails at the threshold and it is not necessary for the Tribunal to consider the other elements of section 20(c) i.e., what is the way in which the provider provides the goods or services or what is the way in which the provider makes those facilities available to the other person.
The failure to prove this last piece of the jigsaw means that the appeal must be allowed because the area of public life that is required to be proved under part 3 of the Discrimination Act has not been established.
The conclusions set out above are sufficient to allow the appeal.
Orders made under section 39 of the ACAT Act
After the hearing, the Tribunal made orders that any party who sought orders pursuant to section 39 of the ACT Civil and Administrative Tribunal Act2008 (ACAT Act) should make an application for interim orders setting out the reasons and the grounds relied upon by 13 October 2023. The orders noted that the application may be considered on the papers without holding a hearing. The Tribunal has considered the application on the papers and decided to set aside the section 39 orders previously made in the proceedings but to restrict public access to the tribunal file.
The appellant filed an application for interim orders on 16 October 2023. The appellant filed the application in his personal capacity, not by his legal representatives. The appellant asked the Tribunal to “suppress certain information”, including “medical grounds disclosed to ACAT”, his name and his “identity”. The application did not identify the material that constitutes the “medical grounds disclosed to ACAT” and the Tribunal assumes that this material was the evidence filed by the appellant in the Original Proceedings.[104]
[104] For example, Hearing statement of Petar Johnson dated 13 November 2020, pages 3-13
Section 38(1) of the ACAT Act states that the hearing of an application by the tribunal must be in public. However, section 38(2) states that the section does not apply if the tribunal makes an order under section 39 in relation to a hearing or part thereof. Section 39(1) requires the tribunal to be satisfied that the right to a public hearing is outweighed by competing interests before a confidentiality order may be made.[105]
[105] The Tribunal prefers to describe the order as a confidentiality order rather than a suppression order: see Kerslake at [20]
As the tribunal stated in Andreopoulos v University of Canberra[106] (Andreopoulos), the principle of open justice is fundamental to proceedings in courts and tribunals. It is a norm that is reinforced by the right to a fair hearing in section 21 of the Human Rights Act 2004, but not without exception. The Tribunal may restrict access to information in circumstances that are set out in section 39(5) of the ACAT Act as follows:
(a) to protect morals, public order or national security in a democratic society, or
(b) because the interest of the private lives of the parties require the privacy, or
(c) to the extent privacy is strictly necessary, in special circumstances of the application, because publicity would otherwise prejudice the interests of justice.
[106] [2020] ACAT 95
The tribunal in Andreopoulos commented that it is:
a reality of open justice that the identity of parties and material provided to a court or tribunal [may] be revealed or be publicly available. This may include information a party regards as private or otherwise be uncomfortable having in the public domain. A cogent reason by reference to the case would be required for the Tribunal to depart from the norm.[107]
[107] Andreopoulos at [270] citing Australian Investment and Securities Commission v Administrative Appeals Tribunal [2009] FCAFC 185 at [75]
The reasons given by the appellant in the application included his roles as the convenor of a nationally registered political party and as a member of the community of taxi owners.
The Tribunal considers that the appellant has not identified any reasons that justify the exercise of the power under the broad restrictions stated in section 39(5) of the ACAT Act. Therefore, the Tribunal is not satisfied that he has provided a cogent reason to continue the orders made on 27 February 2022. However, the Tribunal is persuaded that restricting public access to the file will ameliorate any concerns about the unnecessary disclosure of medical information pertaining to the appellant and the appeal respondent that is situated on the tribunal file and has therefore made orders restricting public access to the tribunal file.
Conclusion
The appeal is allowed. The orders made in the Original Proceedings are set aside. As stated above, consequential orders will be made in the related proceedings after consultation with the parties.
………………………………..
Temporary Presidential Member Prof P Spender
For and on behalf of the Appeal Tribunal
| Date of hearing: | 8 August 2023 |
| Submissions Closed: Counsel for the Appellant: | 26 September 2023 Mr A Schofield |
| Solicitor for the Appellant: | Mr C Donohue, Donohue & Co, Solicitors |
| Solicitor for the Respondent: | Mr. J Raine, Raine Litigation Lawyers |
0
11
8