KB v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 30

CITATION:	KB -v- Commissioner of Police, New South Wales Police Service [2002] NSWADT 30 revised - 20/11/2003
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT KB RESPONDENT Commissioner of Police, New South Wales Police Service
FILE NUMBER:	011013
HEARING DATES:	14/11/2001
SUBMISSIONS CLOSED:	11/14/2001
DATE OF DECISION:	03/04/2002
BEFORE:	Hennessy N - Magistrate (Deputy President); Strickland J - Member; Nemeth de Bikal L - Member
APPLICATION:	Dismissal of complaint - frivolous, vexatious, misconceived or lacking in substance
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Commissioner of Police v Orr [2001] NSWADTAP 16 Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172 Assal v Department of Health Housing and Community Services (1992) EOC 92-409 State Electricity Commission of Victoria v Rabel & Ors (1998) 1 VR 102 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Khan v Macquarie University and Webster [1999] NSW ADT 100 General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125 Tannock v State of New South Wales [1999] NSWADT 31 Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 Director General of Education v Breen [1982] 2 IR 93 Hill v University of New England (1990) EOC 92-291
REPRESENTATION:	APPLICANT In person RESPONDENT N Ball, solicitor
ORDERS:	Each of the applicant’s complaints is dismissed.

Introduction
1 On 1 March 2001, the President of the Anti-Discrimination Board (ADB) referred three complaints from Mr KB to the Tribunal under s 94(1) of the Anti-Discrimination Act 1977 (AD Act). The first complaint alleged discrimination on the ground of presumed homosexuality and disability (presumed mental illness) in the provision of goods and services. The complaint, which was lodged with the ADB on 30 December 1998, and subsequent correspondence, alleged that Mr KB had reported incidents to Miranda and Cronulla Police Stations and that none of these matters had been adequately investigated. The complaints related to allegations of drug taking, sexual assaults and assaults upon himself at the Cronulla Hotel. The President was unable to ascertain from Mr KB whether the alleged failure to investigate these matters occurred within 6 months of the complaint being lodged as required by s 88(3) of the AD Act.

2 Mr KB lodged two further complaints with the ADB on 30 October 2000 alleging victimisation and discrimination on the grounds of homosexuality (presumed) and disability (presumed mental illness) by the NSW Police Service regarding an incident that occurred on 10 October 2000 at the Cronulla Police Station. This complaint was lodged within the 6 month period required by s 88(3) of the AD Act.

3 At a case conference on 2 April 2001 Judicial Member Bell attempted to obtain from Mr KB the particulars of his complaints. Mr KB advised that he wished to pursue three incidents namely:

a) a complaint of discrimination on the grounds of homosexuality (presumed) and disability (presumed mental illness) in relation to the failure of the respondent to investigate allegations of sexual assault made by Mr KB;
b) a complaint of discrimination on the grounds of homosexuality (presumed) and disability (presumed mental illness) in relation to the alleged failure of the respondent to provide him with all the documents requested pursuant to an application under the Freedom of Information Act 1989 (FOI Act);
c) a complaint of discrimination on the grounds of homosexuality (presumed) and disability (presumed mental illness) in relation to the manner in which Mr KB was treated by police on 10 October 2000.
4 These complaints will be referred to as the “sexual assault complaint”, “the FOI complaint” and the “Assault of 10 October complaint” respectively.

FOI complaint
5 The respondent determined Mr KB’ application under the FOI Act on 31 January 2001. As these matters occurred after Mr KB had lodged his complaint with the ADB, and no further complaint was lodged with the ADB in relation to this matter, the Tribunal does not have jurisdiction to hear it. The reason for this is that s 96 of the AD Act gives the Tribunal jurisdiction. That section requires the Tribunal to hold an inquiry in relation to each complaint referred to it by the President of the ADB pursuant to section 94(1). Complaints are made to the President under s 88 of the AD Act. The Tribunal can only conduct an inquiry into complaints that are first made to the President and then referred to it by the President. (See Commissioner of Police v Orr [2001] NSWADTAP 16.) Consequently Mr KB’ FOI complaint is dismissed under s 111 of the AD Act “for any other reason”. That reason is that the Tribunal does not have jurisdiction to hear the complaint.

Victimisation complaint
6 There is no indication on the file that Mr KB made any reference to the victimisation complaint in relation to the 10 October 2000 incident at either of the case conferences he attended. However, since the President of the ADB referred that complaint to the Tribunal it is a complaint that is validly before us and must be considered.

Request for further details of complaints
7 Because of the lack of detail of the three remaining complaints (the sexual assault complaint, the 10 October complaint and the victimisation complaint relating to 10 October) Ms Bell directed that the respondent request further and better particulars from Mr KB. Mr KB replied to this request. At the next case conference on 3 May 2001 the respondent submitted that Mr KB had failed to provide proper replies to their request for further and better particulars. Ms Bell took the opportunity to elicit orally from Mr KB the details of his complaints. It appears that Mr KB gave some details in relation to the sexual assault complaint and the October 10 complaint.

Section 111 application
8 On 19 June 2001, the respondent filed written submissions in support of their application to dismiss the matter pursuant to s 111 of the AD Act or s 73(5)(h) of the Administrative Decisions Tribunal Act 1997 (ADT Act). The Tribunal decided to determine the application “on the papers” pursuant to s 76 of the ADT Act.

Relevant legislation
9 Section 111 of the AD Act states that:

(1) Where, at any stage of an inquiry, the Tribunal is satisfied that a complaint is frivolous, vexatious, misconceived or lacking in substance, or that for any other reason the complaint should not be entertained, it may dismiss the complaint.
(1A) The Tribunal may dismiss a complaint if satisfied that the person or (in the case of a complaint made on behalf of more than one person) each person on whose behalf the complaint was made does not wish to proceed with the complaint.
(1B) The Tribunal may amend a complaint made on behalf of more than one person to remove a person as a person on whose behalf the complaint was made if the Tribunal is satisfied that the person does not wish to proceed with the complaint.
(2) Where the Tribunal dismisses a complaint under this section, it may order the complainant to pay the costs of the inquiry.
(3) Nothing in this section limits the generality of the powers conferred on the Tribunal by Chapter 6 of the Administrative Decisions Tribunal Act 1997.
10 Section 73(5)(h) of the ADT Act, which is within Chapter 6, states that:
The Tribunal may dismiss at any stage any proceedings before it if it considers the proceedings to be frivolous or vexatious or otherwise misconceived or lacking in substance.
11 Section 111(3) of the AD Act states that "Nothing in this section limits the generality of the powers conferred on the Tribunal by chapter 6 of the Administrative Decisions Tribunal Act 1997". Section 73(5)(h) is found in chapter 6 of the ADT Act. Consequently the two provisions can operate concurrently.

12 The only substantive difference between the two sections is that the Tribunal can dismiss a complaint “for any other reason” under the AD Act. “Any other reason” is not a ground for dismissal under the ADT Act. We have decided to apply s 111 of the AD Act.

13 The approach taken by the Tribunal in previous applications under s 111 is usefully summarised in Tredinnick -v- Wentworth Area Health Service [2000] NSWADT 172 at [32] to [36]:

The terms "misconceived" and "lacking in substance" have been considered by many courts and tribunals in the context of interpreting anti-discrimination legislation at both the State and the Commonwealth levels: see for example Assal v Department of Health Housing and Community Services (1992) EOC 92-409; State Electricity Commission of Victoria v Rabel & Ors (1998) 1 VR 102; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73; and Khan v Macquarie University and Webster [1999] NSW ADT 100.

While there is no commonly accepted definition, we consider it is appropriate to describe a complaint as "misconceived" or " lacking in substance" if it can be demonstrated that there exists no factual basis for the allegations, or that the allegations lack merit: see Langley v Niland & Anor at 107; Reyes-Gonzales v Sydney Institute of Technology at 6 .

We are also of the view that a Tribunal should exercise its discretion to dismiss a complaint summarily with exceptional caution and only if the circumstances clearly warrant such action (see General Steel Industries Inc v Commissioner for Railways (NSW) 1964 112 CLR 125; Tannock v State of New South Wales [1999] NSWADT 31 (11 May 1999)). The need for caution is even more apparent in cases where a s 111(1) application is made prior to the adducing of the Applicant's evidence at the substantive hearing.

In the circumstances of the present case, in order to ascertain whether the complaint is "misconceived" or "lacking in substance", we propose to take the Applicant's foreshadowed evidence at its highest, so as to enable us to determine whether he could possibly substantiate a complaint under the Act : see Prakash v Bobb Borg Enterprises Pty Ltd at 13-14; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18.

14 In summary, if we are of the view that the conduct complained of could not possibly amount to a contravention of the relevant provisions of the Act, we are bound to find the complaint is either "misconceived" or "lacking in substance". On the other hand, if we are of the view that the conduct complained of could possibly amount to a contravention of the relevant provisions of the Act, we are bound to dismiss the respondent’s application.

Evidence in relation to the three complaints before the Tribunal
15 Tribuanl’s approach to the evidence. We have taken into account the evidence and submissions filed by Mr KB in determining this application. In general, we have not taken into account evidence filed by the respondent because the Tribunal’s role on a s 111 application is to determine whether the applicant’s evidence, at its highest, could possibly substantiate a complaint under the AD Act. However in some cases the respondent’s evidence provided uncontroversial factual information relevant to the complaints, such as dates on which Mr KB contacted police. We have identified this evidence in these reasons. Otherwise, the respondent’s evidence has not been taken into account for the purposes of this determination.

16 Very little of the material filed by Mr KB or conveyed orally to Ms Bell, contains relevant details about matters which could amount to a breach of the AD Act. In general the material was inconsistent, confused, lacking in relevant detail and, at times, abusive. However we have read all the information provided by Mr KB and have attempted to extract all the relevant evidence.

17 Mr KB provided 12 documents (labelled (a) to (k)) under cover of a letter dated 20 January 1999 to the ADB. Many of these documents do not relate to the current complaints. On reading the file, we found two references to matters which arguably could be related to mental illness and homosexuality. The first reference is in a letter dated 31 August 1999 from Borys Rudko, Executive Officer of the Georges River Region of the Police Service to Irene Moss, Ombudsman. In that letter Mr Rudko states that:

“On the question of Mr KB’ assertion that his complaints are not adequately responded to, the position is that Region staff are trying to avoid encouraging Mr KB in his incessant complaining. The reason for this is, essentially, (a) that his complaints are not, in general, considered to be realistic; and, (b) it is not in the public interest to expend scarce investigatory and administrative resources on processing complaints which are vexatious, confused, and unlikely to result in any positive outcome. Mr KB' letters and phone communications continue to be characterised by little insanities (eg I am disqualifying Magistrate Darryl John Pearce - letter of 17.08.1999) and the now customary element of personal abuse directed at senior police, the judiciary, and, of course, the Ombudsman.”
18 There is also a reference in a COPS entry, Event Number E 5674270 4432891, identifying an “Associated Factor” in an alleged assault against Mr KB on 25 November 1998 as “possible homosexual hate.”

19 Sexual assault complaint. In the case conference on 3 May 2001, Mr KB told Judicial Member Bell and the respondent’s representative that he was sexually assaulted some time during the period 1987-1989 at Paddington, Bondi and the Cronulla Hotel. He alleges Scott Chapman, Steven Crawford, Rick and others assaulted him. As this was Mr KB' opportunity to particularise his complaint, we have proceeded on the basis that these are the assaults he is referring to in his complaint.

20 Mr KB alleged that the police officers concerned failed to adequately investigate his allegations of sexual assault. He alleges that the police officers did not believe him and that they harassed him. Mr KB did not provide any answers in response to written questions from the respondent such as “What is the evidence upon which you rely to base your claim that the NSW Police Service by its officers discriminated against you in the manner alleged?”

21 Mr KB did not provide any further details to the Tribunal of alleged assaults in Bondi or at the Cronulla RSL, or the dates on which these alleged assaults were notified to the respondent.

22 Mr KB stated that he reported these incidents (although it is not clear precisely what incidents he is referring to) to Constable Connery. He said that the dates and times on which he reported the incidents are contained in papers with the Ombudsman’s office. He recalls that he reported one incident to police officers on 22 August 2000.

23 Material filed by the respondent provides evidence that Mr KB met with Detective Superintendent Paul Jones on 8 October 1998 in response to representations made by him concerning several alleged sexual assaults. The respondent filed an affidavit dated 30 April 2001 setting out the circumstances of this meeting.

24 The 10 October assault. The evidence in relation to this complaint is contained in a police fact sheet provided by Mr KB, in Mr KB’ response to the respondent’s request for further and better particulars dated 14 April 2001 and in a letter from Mr KB to the ADB dated 6 December 2000. In summary, the police fact sheet states that Mr KB attended the Cronulla Police Station on 10 October 2000. He demanded that police serve a subpoena against Cronulla RSL Club. Police advised that the paper was not a subpoena and Mr KB became abusive and started yelling “This is a fucking conspiracy. You have no right to have me banned from the RSL club.” Senior Constable Jarvis told Mr KB that police officers could not serve the subpoena and he would have to take it to Sutherland Court. Mr KB yelled that “this will prove that you’re lying. You have to fucking serve it with me now.” After further similar exchanges between police officers and Mr KB, Senior Constable Jarvis said “Leave the police station. You are to stop coming to the police station every day and abusing the police. Now leave the station. You are banned from the station except in case of an emergency.” Mr KB yelled that “You can’t fucking ban me from the station.” Police officers asked Mr KB to leave several times but he refused. Mr KB kicked in the front wooden door of the police station causing it to swing into the wall and continued yelling. Mr KB threw his body weight into the wire screen door causing it to smash into the concrete wall. Senior Constable Jarvis arrested Mr KB for offensive behaviour. Mr KB struck Senior Constable Jarvis on the chest and ran down the stairs. Senior Constable Jarvis attempted to grab hold of Mr KB but he resisted. During the wrestle to contain Mr KB Senior Constable Jarvis and Mr KB fell heavily to the ground. Mr KB continued to struggle and other police came and handcuffed Mr KB. Mr KB was taken to the holding dock where he threw himself into the concrete wall. He continued to twist and manipulate the handcuffs causing him injury.

25 Mr KB provided to the Tribunal statements of Sergeant Christopher Pickard, Constable Danielle Wrathall and Inspector McMahon in relation to this incident. Mr KB also wrote to the ADB on 6 December 2000 saying “Also could you ask the Commissioner what has been done about a bashing by at least 10 people has been done. (sic) I was held by 2 people while all these people ran down stairs and punched me in the stomack (sic) face and back of head until I was unconscious.”

26 In his response to the respondent’s request for further and better particulars, Mr KB alleges that Senior Constable Jarvis and Constables Buchanan and Pritchard assaulted him outside the Cronulla Police Station. He said that this assault included “choking, kneeing in the back, bashing my head against the bitumen, flicking another set of handcuffs up my arm and crushing the handcuffs on purpose.”

27 Mr KB was charged with assaulting a police officer while executing his duty, resisting arrest, conducting himself in an offensive manner in a public place and remaining on inclosed lands of Cronulla Police Station after being requested to leave. On 12 January 2001 the charges were heard and determined in Mr KB’s absence. Mr KB was convicted and fined a total of $1,424.00. Mr KB appealed to the District Court against these convictions. The matter was heard and determined on 30 August 2001. In respect of each charge the appeal was upheld and the conviction quashed. All charges were dismissed. There was no other information about the District Court proceedings in evidence.

Reasons and Decision
28 Set out below are the provisions of the AD Act which are potentially relevant to Mr KB’ complaints.

29 Section 49B defines discrimination on the ground of disability. That section states that:

(1) A person (the perpetrator) discriminates against another person (the aggrieved person) on the ground of disability if, on the ground of the aggrieved person's disability or the disability of a relative or associate of the aggrieved person, the perpetrator:
(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who does not have that disability or who does not have such a relative or associate who has that disability, or
(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who do not have that disability, or who do not have such a relative or associate who has that disability, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.
(2) . . .

(3) . . .
(4) A reference in this section to persons who have a disability ("the particular disability") is a reference to persons who have the particular disability or who have a disability that is substantially the same as the particular disability.

Section 49A defines a person’s disability as a reference to a disability that the person has, or that a person is thought to have (whether or not the person in fact has the disability).

Section 49ZG is in substantially identical terms to s 49B except that the ground is homosexuality. Section 49ZF defines homosexuality to include a reference to the person's being thought to be a homosexual person, whether he or she is in fact a homosexual person or not.

30 Section 4A provides that disability or homosexuality need not be the only, or even the dominant, reason for the treatment:
If:
(a) an act is done for 2 or more reasons, and
(b) one of the reasons consists of unlawful discrimination under this Act against a person (whether or not it is the dominant or a substantial reason for doing the act), then, for the purposes of this Act, the act is taken to be done for that reason.
31 Section 49M provides that disability discrimination is unlawful in relation to the provision of goods and services. Section 49ZP is in substantially identical terms to s 49M except that it relates to homosexuality. Section 49M states that:
(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against a person on the ground of disability:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which he or she provides the person with those goods or services.
(2) Nothing in this section renders it unlawful to discriminate against a person on the ground of the person's disability if the provision of the goods or services would impose unjustifiable hardship on the person who provides the goods or services.
32 “Services” are defined in s 4 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.
33 Section 50 relates to victimisation. That section states that:
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:
(a) brought proceedings against the discriminator or any other person under this Act,
(b) given evidence or information in connection with proceedings brought by any person against the discriminator or any other person under this Act,
(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.
(2) Subsection (1) does not apply to the subjecting of a person to a detriment by reason of an allegation made by the person if the allegation was false and not made in good faith.
34 In the context of an application by the respondent under s 111 of the AD Act, the Tribunal must determine whether Mr KB’ evidence at its highest could possibly substantiate a contravention of the discrimination provisions of the AD Act set out above. The elements of such a contravention are that:
1. Mr KB is presumed to have a disability within the meaning of the AD Act and/or he is thought to be homosexual.
2. The respondent is providing goods or services to Mr KB.
3. The respondent has refused to provide Mr KB with goods or services or has provided goods or services on certain terms.
4. In refusing to provide goods or services or in providing them on certain terms the respondent has treated Mr KB less favourably than in the same circumstances, or in circumstances which are not materially different, the respondent treats or would treat a person who it does not presume to be homosexual or to have a disability.
5. The respondent’s refusal to provide Mr KB with goods or services, or its provision of services on certain terms is on the ground of Mr KB presumed homosexuality and/or presumed disability.
Sexual assault complaints
35 A preliminary question in relation to this complaint is whether the Tribunal has jurisdiction to hear it, given that Mr KB may not have lodged his complaint with the ADB within 6 months after the date on which the contravention of the Act is alleged to have been committed. Section 88 (3) states that:
(3) A complaint shall be lodged within 6 months after the date on which the contravention of this Act or the regulations which is the subject of that complaint is alleged to have been committed.
36 The only date that Mr KB identified as a date he complained to police about allegations of sexual assault is 22 August 2000. That date is well after Mr KB lodged his complaint with the Anti-Discrimination Board (30 December 1998) so it cannot form part of his complaint to this Tribunal. To be within time, any alleged contravention would have to have occurred between 30 June 1998 and 30 December 1998.

37 Mr KB stated that he reported certain allegations to Constable Connery. Senior Constable Connery interviewed Mr KB on 26 August 2000. Even though Mr KB did not identify the report he made to Detective Superintendent Jones in the case conference, we are satisfied that at least one such report was made to police during the relevant statutory period. In these circumstances the Tribunal has jurisdiction to deal with Mr KB' complaint to the ADB about the handling of the report he made to Detective Superintendent Jones.

38 For the purpose of determining the respondent’s application under s 111, we have assumed, without making any findings, that Mr KB could possibly make out the elements listed from 1 to 4 at paragraph 34 above.

39 In relation to the fifth element, namely “causation”, it is the grounds or the reasons for the respondent's action, as opposed to his or her intentions or motives for so acting, which are relevant. In Director General of Education v Breen [1982] 2 IR 93 at 95 Street CJ stated:

To amount to discriminatory conduct prohibited by the Act the characteristic which will provide the ground must have a proximate bearing upon the act charged as discrimination. Moreover, the characteristic must have a causally operative effect upon the decision to commit or the committing of the act of discrimination.
40 The test of causation to be employed when considering a case of direct discrimination is also influenced by section 4A of the Act set out above at paragraph 30.

41 Assuming Mr KB is presumed to have a disability within the meaning of the AD Act and/or he is thought to be homosexual, there is no evidence that either of these attributes had a “causally operative effect” on the manner in which Detective Superintendent Jones dealt with Mr KB' allegations on 8 October 1998. The reference to “little insanities” in Borys Rudko’s letter quoted above is a comment and is not put forward as a reason for the way in which the police service treated Mr KB. Even if that comment could possibly establish that some police officers treated Mr KB in the manner they did on the ground of presumed mental illness, there is no evidence linking that comment to any conduct of Detective Superintendent Jones. The comment was made on 31 August 1999, 12 months after Detective Superintendent Jones considered Mr KB’ allegations of sexual assault.

42 The reference to “possible homosexual hate” as an associated factor in relation to an alleged assault on 25 November 1998 is merely a record of an observation about the possible motives for the alleged assault. It does not lead to a possible inference that presumed homosexuality as a ground for the manner in which police officers, and more particularly Detective Superintendent Jones treated Mr KB in October 1998.

43 The former Equal Opportunity Tribunal’s decision in Hill v University of New England (1990) EOC 92-291 is often cited as authority for the proposition that a person’s suspicion or belief about the reasons for another person’s behaviour should not be “escalated impermissibly to the level of proof.”

44 In these circumstances Mr KB could not possibly establish a contravention of the AD Act in relation to this incident. The sexual assault complaint is therefore dismissed under s 111 as lacking in substance.

October 20 complaint
45 Although this incident occurred on 20 October 2000, it was the subject of a separate complaint to the ADB on 30 October 2000. Consequently, the Tribunal has jurisdiction to determine this complaint.

46 If we take Mr KB’ evidence at its highest, we would be satisfied that at least 10 police officers bashed Mr KB. In addition, he was held by two people while all these people ran down stairs and punched him in the stomach, face and the back of his head until he was unconscious. Mr KB also said that this incident included “choking, kneeing in the back, bashing my head against the bitumen, flicking another set of handcuffs up my arm and crushing the handcuffs on purpose.”

47 This matter was dealt with by the Local Court and, ultimately by the District Court on appeal. It is not the Tribunal’s role to decide whether there has been any criminal wrong doing on the part of either Mr KB or the named police officers. Our role is to determine whether the AD Act may possibly have been breached. For the purpose of determining the respondent’s application under s 111, we have assumed, without making any findings, that Mr KB could possibly make out the elements listed from 1 to 4 at paragraph 34 above.

48 Focusing again on the fifth element, namely “causation”, Mr KB provided no evidence, other than his own assertion, that his treatment by police officers was actuated by presumed disability or presumed homosexuality. In those circumstances he could not possibly establish a contravention of the AD Act in relation to this incident. That complaint is therefore dismissed under s 111 as lacking in substance.

Victimisation complaint
49 The President of the ADB referred to the Tribunal a complaint of victimisation in relation to the 10 October incident. Mr KB has not withdrawn that complaint but it does not appear to have been dealt with in the case conferences. There is nothing in the respondent’s request for further and better particulars in relation to the victimisation complaint. In the absence of any specific evidence relating to the victimisation complaint, we will assess that complaint on the same evidence as that provided in relation to the complaint of discrimination in relation to the 10 October incident.

50 There is no possible contravention of s 50 of the AD Act unless the respondent has subjected Mr KB to a detriment on the ground that Mr KB has done one of the acts listed in s 50(a) to (e). Mr KB has not identified the act he is relying on in terms of s 50(a) to (e), nor has he identified the detriment he has allegedly suffered. Even if the Tribunal was satisfied that Mr KB has suffered a detriment (being bashed by police officers) and that he has done one of the things listed in s 50(a) to (e), there is no evidence that the detriment came about “on the ground” of Mr KB performing that act. In those circumstances the complaint of victimisation is dismissed under s 111 as lacking in substance.

Orders
51 Each of the applicant’s complaints is dismissed.

Revised on 19/11/03 to anonymise applicant's name