Kaur v State Transit Authority - [2011] NSWADT 257

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Kaur v State Transit Authority [2011] NSWADT 257
Hearing dates: 11 October 2011
Decision date: 08 November 2011
Jurisdiction: Equal Opportunity Division
Before: Magistrate N Hennessy, Deputy President
Decision:
Leave to proceed is refused

Catchwords: LEAVE - complaint declined by Anti-Discrimination Board as lacking in substance - whether fair and just for complaint to proceed - drawing of inferences that race was a ground for the treatment - leave refused
Legislation Cited: Anti-Discrimination Act 1977
Administrative Decisions Tribunal Act 1997
Cases Cited: Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165
Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67
Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Jones & Anor v Ekermawi [2009] NSWCA 388
Philip v State of New South Wales [2011] FMCA 308
Shamoon v Chief Constable of the Royal Ulster Constabulary [2003
Category: Interlocutory applications
Parties: Manjit Kaur (Applicant)
State Transit Authority (Respondent)
Representation: D Mahendra (Respondent)
M Kaur (Applicant in person)

File Number(s): 111081

REasons for decision

EQUAL OPPORTUNITY DIVISION (N HENNESSY, LCM (DEPUTY PRESIDENT)): On 12 January 2010 Ms Kaur commenced a traineeship to be employed as a bus driver. The traineeship was for two years during which time Ms Kaur was to obtain Certificate III in Transport and Logistics (Road Transport). She was told that if she was unable to successfully complete the competencies her training contract may be terminated. Two weeks after she commenced training the State Transit Authority (STA) terminated her traineeship allegedly because she was not competent to drive a bus safely. Ten months later Ms Kaur complained to the President of the Anti-Discrimination Board that she had been discriminated against on the ground of her race. Ms Kaur is from India.

The President of the Board declined the complaint as lacking in substance. Ms Kaur requested that her complaint be referred to the Tribunal. A complaint that has been declined cannot go ahead unless the Tribunal gives its permission: Anti-Discrimination Act 1977 ( AD Act ), s 96(1). The test to be applied is whether it is fair and just in all the circumstances for the complaint to proceed: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. The onus is on Ms Kaur to satisfy the Tribunal that leave should be granted.

Complaint to Anti-Discrimination Board

Ms Kaur's initial complaint to the Board stated that before she started the traineeship she was told by an unnamed person or persons that one of the assessors, Sandi Baglin, was reluctant to pass individuals of Asian descent. She says she felt extremely stressed by this information. She drove a bus around the depot with Ms Baglin on 20 and 21 January. On Thursday 21 January she drove outside the depot with Ms Baglin for approximately 20 minutes. During that time, Ms Kaur hit a parked van while turning left. The impact of…

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: [2011] NSWADT 257
Decision Date: 08 November 2011

CaseChat Overview and Summary

Kaur lodged a complaint against the State Transit Authority, alleging racial discrimination in her treatment by the bus driver. The Anti-Discrimination Board dismissed the complaint as lacking in substance. Kaur sought leave to appeal that decision to the Civil and Administrative Tribunal. The legal issues before the tribunal were whether it was fair and just for the appeal to proceed, and whether the tribunal could draw inferences that race was a ground for the treatment in question. The tribunal found that the evidence did not support any inference that race was a factor in the treatment Kaur received, and that the appeal did not raise a question of general legal importance. As such, the tribunal refused leave for the appeal to proceed.

The tribunal considered the evidence provided by Kaur, which included her statement and the driver's statement. The tribunal found that Kaur's evidence did not provide sufficient detail to support an inference that race was a factor in the driver's treatment of her. The tribunal also noted that the driver's evidence did not suggest that race was a factor in his treatment of Kaur. The tribunal found that the appeal did not raise a question of general legal importance, as the issues raised were specific to Kaur's case and did not have wider application. The tribunal concluded that it was not fair and just for the appeal to proceed, and refused leave accordingly.

Orders

Orders of the court

Leave to proceed is refused

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:	Kaur v State Transit Authority [2011] NSWADT 257
Hearing dates:	11 October 2011
Decision date:	08 November 2011
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave to proceed is refused
Catchwords:	LEAVE - complaint declined by Anti-Discrimination Board as lacking in substance - whether fair and just for complaint to proceed - drawing of inferences that race was a ground for the treatment - leave refused
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Chi v Technical and Further Education Commission (EOD) [2010] NSWADTAP 67 Chi v Technical and Further Education Commission (No 3) [2009] NSWADT 271 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Jones & Anor v Ekermawi [2009] NSWCA 388 Philip v State of New South Wales [2011] FMCA 308 Shamoon v Chief Constable of the Royal Ulster Constabulary [2003
Category:	Interlocutory applications
Parties:	Manjit Kaur (Applicant) State Transit Authority (Respondent)
Representation:	D Mahendra (Respondent) M Kaur (Applicant in person)
File Number(s):	111081