LEE and CITY OF SWAN - [2019] WASAT 120

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: EQUAL OPPORTUNITY ACT 1984 (WA)
CITATION:   LEE and CITY OF SWAN [2019] WASAT 120
MEMBER:   MS L EDDY, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   25 NOVEMBER 2019
FILE NO/S:   EOA 13 of 2019
BETWEEN:   AMELIA LEE
Applicant
AND
CITY OF SWAN
Respondent

Catchwords:

Equal opportunity - Allegation of discrimination on ground of race in area of services - Service of providing opportunity to potential owners of deceased cat to identify cat - Application to strike out complaint referred to Tribunal after being dismissed by Equal Opportunity Commissioner - Lacking in substance - Turns on own facts

Legislation:

Equal Opportunity Act 1984 (WA), s 4, s 36, s 46, s 90(2), Pt III
State Administrative Tribunal Act 2004 (WA), s 47, s 60(2)

Result:

Application to strike out proceeding allowed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	N/A
Respondent	:	N/A

Case(s) referred to in decision(s):

IW v City of Perth [1997] HCA 30; 191 CLR 1
Laurent and Commissioner of Police [2009] WASAT 254
Rainsford v Victoria (2007) 167 FCR 1
Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770
Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

In April 2019 Ms Amelia Lee (applicant) made a complaint to the Equal Opportunity Commission alleging racial discrimination by the City of Swan (City or respondent) in relation to actions taken by one of the City's rangers in respect of a deceased cat. The Commissioner for Equal Opportunity (Commissioner) described the Ms Lee's complaint as an allegation of race discrimination in the area of the provision of a good or service. After asking Ms Lee several times for further information and documentation, by letter dated 5 June 2019, the Commissioner dismissed Ms Lee's complaint as lacking in substance. On 6 June 2019 the applicant advised the Commissioner that she did not agree with the Commissioner's decision and requested that her complaint be referred to the Tribunal.
On 19 June 2019, the Tribunal received the Commissioner's referral, pursuant to s 90(2) of the Equal Opportunity Act 1984 (WA) (EO Act), of Ms Lee's complaint. The matter was listed for a directions hearing on 3 July 2019. Ms Lee requested adjournment of that directions hearing on the basis that she was unwell. The Tribunal advised Ms Lee of the limited nature of the directions hearing and offered Ms Lee the ability to attend the directions hearing by telephone link. Ms Lee did not accept this offer and maintained her request for an adjournment. The directions hearing was vacated as requested. Prior to re-listing the directions hearing, the Tribunal attempted to liaise with Ms Lee as to a suitable date for the directions hearing. When she did not initially respond, Ms Lee was given three options and asked to advise her preference. When the Tribunal received no response from Ms Lee, the matter was listed at 9:30 am on 10 July 2019. After receiving notice of that listing, Ms Lee advised the Tribunal that she preferred one of the other of the three options originally offered to her. She stated that she has 'a back condition and require [sic] to take anti-inflammatory medicine in the morning. Therefore, I would to [sic] choose Wednesday [10 July] afternoon'. The Tribunal did not alter the time of the directions hearing.
On 10 July 2019, Ms Lee again requested that the directions hearing be vacated on the basis that she was unwell. Ms Lee provided a medical certificate from a general practitioner that stated that the applicant 'has a medical condition and will be unfit for work from 10/07/2019 to 11/07/2019 inclusive'. The Tribunal offered Ms Lee the ability to attend the directions hearing via telephone link but she rejected that offer. In light of the very limited nature of a first directions hearing, the fact that the medical certificate did not indicate that Ms Lee was not medically unfit to attend the Tribunal via a telephone link, and in light of the time that had passed since the referral had been lodged with the Tribunal, the Tribunal advised Ms Lee that the directions hearing would proceed, and repeated the offer that she attend via telephone link.
Employed officers of the City attended the directions hearing on 10 July 2019. Ms Lee did not attend. At that directions hearing, when the Tribunal asked about the City's attitude to the idea of mediation, the City's officers advised the Tribunal that Ms Lee had made multiple complaints about the matters the subject of the matter currently before the Tribunal to many different bodies and that the ranger involved was finding the fact of the Tribunal proceedings quite distressing. The City's officers did not think mediation would be a useful process in the circumstances of this case. The only order made at the directions hearing was that the matter was adjourned to a further directions hearing on 15 August 2019.
On 15 July 2019, the City made an application to strike out Ms Lee's complaint on the basis that 'the facts as alleged by Ms Lee are not capable of supporting a claim of racial discrimination under the Equal Opportunity Act 1984 as already determined by the Equal Opportunity Commissioner on 5 June 2019'. On 17 July 2019 the Tribunal made orders requiring the filing of submissions in support of the strike out application, and any submissions in reply by Ms Lee and that the strike out application would be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). The directions hearing on 15 August 2019 was vacated.
The Tribunal has before it the following documents relating to the substance of this matter:
•Referral from Commissioner
•summary of Investigation of Complaint
•email from Ms Lee dated 27 April 2019, 3:19 am
•email from Ms Lee dated 27 April 2019, 3.18 pm with attached letter (two pages)
•letter from Ms Lee to 'Lisa' dated 22 April 2019 (nine pages)
•'Amelia Lee Public Statement' dated 8 May 2019 (two pages)
•City of Swan Work Requests No 558283, No 557805, No 558947
•email Ms Lee to the City dated 18 March 2018 and responding email from the City dated 8 October 2018
•letter from Ms Lee to 'Stephen' dated 4 February 2019 (four pages)
•email from Feedback Team Customer and Library Services to Ms Lee hand dated 1 October 2018
•letter or email to 'Debra' hand dated 12 December 2018 (two pages)
•email to Ms Lee from Feedback Team Customer and Library Services dated 11 December 2018 (two copies)
•email from Ms Lee to Debra dated 13 December 2018
•email to the City from Ms Lee dated 15 December 2018
•letter from Ms Lee to 'Mary, city advocate' dated 23 December 2018 (four pages)
•email from Ms Lee dated 18 December 2018
•letter or Email from Ms Lee dated 20 December 2018 (five pages)
•letter from Ms Lee to the City's council advocate department dated 23 December 2018 (five pages)
•letter or Email from Ms Lee to the City dated 25 December 2018 (four pages)
•letter or email from Ms Lee to Ombudsman dated 5 January 2019 (three pages)
•letter from Ms Lee dated 15 February 2019 (seven pages)
•letter from Ms Lee to WA Local Government Association dated 20 February 2019 (four pages)
•letter from Ms Lee to 'Ombudsman and Local Government' dated 1 March 2019 (four pages)
•letter from Ms Lee to 'Local Government of Western Australia' dated 3 March 2019 (three pages)
•letter from Ms Lee to 'Phillipe' dated 8 March 2019 (eight pages)
•letter from Ms Lee to Ombudsman dated 12 March 2019 (nine pages)
•letter from Ms Lee to Mr Phillipe Cassian dated 15 March 2019 (three pages)
•letter from Ms Lee to 'Mr. Phillipe' dated 22 March 2019 (eight pages)
•letter from Ms Lee to Ombudsman office dated 26 March 2019 (two pages)
•letter from Ms Lee to Ombudsman dated 27 March 2019 (two pages)
•letter from Ms Lee to Mr Phillipe Cassian dated 29 March 2019 (two pages)
•letter or Email from Ms Lee undated (three pages)
•letter from Ms Lee to Mr Phillipe Cassian dated 30 March 2019 (three pages) (two copies)
•letter from Ms Lee to Mr Phillipe Cassian dated 31 March 2019 (five pages)
•letter from Ms Lee to Ombudsman dated 1 April 2019 (three pages)
•letter or email from Ms Lee dated 4 April 2019
•'Amelia Lee Public Statement' dated 8 May 2019 (two pages)
•letter from Ms Lee to Councillor Jennifer Catalano dated 17 May 2019 (five pages)
•letter from Ms Lee to 'Ann-Marie and Dr. John Byrne' dated 2 June 2019 (five pages)
•black and white copies of photographs of cat
•email from Ms Lee to Equal Opportunity Commission dated 5 June 2019
•letter from Commissioner to Ms Lee dated 5 June 2019
•letter from Commissioner to the City dated 5 June 2019
•email from Ms Lee to Equal Opportunity Commission dated 6 June 2019
•letter from Commissioner to Ms Lee dated 7 June 2019
•letter from Commissioner to the City dated 7 June 2019
•email from Ms Lee to the Tribunal dated 6 July 2019 and attached documents (14 pages of attached documents, most double sided)
•email from Ms Lee to the City of Swan copied to the Tribunal dated 10 July 2019
•letter from the City's Chief Executive Officer to the Tribunal containing the respondent's submission in support of the strike out application dated 24 July 2019
•letter from Ms Lee to the Tribunal dated 30 August 2019
•email from Ms Lee to the Tribunal dated 27 October 2019 asking to add information 'for your reference only' - no regard was had to this document as it has not be copied to the respondent
•'Booklet' from Ms Lee containing her 'response letter' dated 28 August 2019

Application to strike out

Section 47 of the SAT Act provides that a proceeding may be dismissed or struck out if the Tribunal believes that the proceeding is frivolous, vexations, misconceived or lacking in substance, is being used for an improper purpose or is otherwise an abuse of process. However, in the Tribunal, this power must be approached with caution, particularly when the party whose case is subject to an application under s 47 is self-represented and does not have the benefit of legal representation: Laurent and Commissioner of Police [2009] WASAT 254 at [18] (Laurent).
As was explained in Laurent at [20]-[23]:
20When, as in the present case, an application is made at an interlocutory stage, it is appropriate to assume that all of the factual assertions made by an applicant will be made out, and to consider, from that perspective, whether the proceeding is frivolous, vexatious, misconceived, or lacking in substance: Ambrus and Churches of Christ Homes and Community Services Incorporated [2006] WASAT 141 (Ambrus) at [16] (Deputy President Judge Chaney, as he then was). Even then, however, caution should be applied in the exercise of the power in s 47. If there is a serious question of fact to be determined, or if factual issues are likely to be affected by evidence in the possession of a respondent, that factor may render it inappropriate to dismiss the proceeding pursuant to s 47 of the SAT Act. In discrimination cases, it is not uncommonly the case that the evidence led by a respondent and crossexamination of the respondent's witnesses may provide the causative link between the conduct complained of and the ground of discrimination alleged: see Soelberg and Commissioner of Police and Ors [2007] WASAT 214 at [49] (Deputy President Judge Eckert), and Margan v University of Technology, Sydney (EOD) [2003] NSWADTAP 65 at [11].
21In relation to its exercise at the interlocutory stage, the power in s 47 of the SAT Act has been viewed as analogous to the power of courts to summarily dismiss a proceeding when the pleadings fail to disclose any reasonable cause of action. The principles applicable to the exercise of that power have been considered applicable to the exercise of the power in s 47. In Ambrus at [8], Deputy President Judge Chaney observed that:
… the principle to be applied in an application such as this is at least analogous to the principle explained by Barwick CJ in General Steel Industries Inc v Commissioner of Railways (NSW) (1964) 112 CLR 125 which requires that, in order to strike out a proceeding, it should be demonstrated that it is so obviously untenable that it cannot possibly succeed or is manifestly groundless or that it discloses a case which the court is satisfied cannot succeed.
22See also Turner at [43] [48]. A similar approach has been adopted in relation to s 75 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act): see, for example, Forrester v AIMS Corporation [2004] VSC 506 at [17] [28] (Kaye J), applying State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 (Rabel).
23In so far as the respondents submit that the proceeding is 'misconceived' or 'without substance', I note that the term 'misconceived' connotes a misunderstanding of legal principle while the term 'lacking in substance' connotes an untenable proposition of law or fact: Rabel at 108 109 (Ormiston JA).
It must be demonstrated that '[the proceeding] is so obviously untenable that it cannot possibly succeed or is manifestly groundless or ... it discloses a case which the [Tribunal] is satisfied cannot succeed'; Ambrus and Churches of Christ Homes & Community Services Incorporated [2006] WASAT 141 at [8].

The facts alleged

While the material provided by Ms Lee is voluminous, it is highly repetitive and it is possible to summarise her allegations relatively simply. From the material that was before the Commissioner, the allegations can be summarised as follows.
On the same day that Ms Lee's cat Melly went missing, a domesticated and de-sexed female tabby and white cat wearing a grey flea collar was found dead outside of Ms Lee's house, at 89 Wheatstone Drive, Kiara on Saturday morning on 1 December 2017 by two employees of the respondent. Ms Lee describes these people as being Asian. The ranger did not enter the property at 89 Wheatstone Drive in order to enquire whether the deceased cat belonged to the occupants. The two employees did enquire at 83 Wheatstone Drive as to whether the occupant owned the deceased cat. It was from this address that the respondent had received notification of the presence of the deceased cat in Wheatstone Drive. The occupant of that house, 'Lisa' told Ms Lee that the deceased cat she saw looked like Ms Lee's cat Melly.
The employees 'randomly knocked on other doors'. The employees of the respondent took the deceased cat away and disposed of it. The employees of the respondent did not, before disposing of the deceased cat's body, contact Ms Lee to advise her about the cat. Ms Lee claims that alternatively, the respondent's employees should have used social media to post a picture of the deceased cat in order to provide an opportunity for the owner of the cat to become aware that the cat had died. Ms Lee asserts that the respondent should not have disposed of the deceased cat before waiting at least a week.
When Ms Lee discovered that the deceased cat had been disposed of in a rubbish facility, she requested that the cat be returned to her so that she could bury it properly. This request was denied. In other documents, Ms Lee says the deceased cat was cremated.
The deceased cat may have had a microchip in its ear. Ms Lee's cat Melly has/had a microchip in her ear, but the ownership details recorded were not correct as Ms Lee had not updated them by providing her own details. The respondent did not have any record that Ms Lee had a cat as she had not registered it with them.
When Ms Lee complained via telephone calls and in person at the respondent's offices, and asked to speak directly to the ranger in question, she was denied access to the ranger. This is also alleged to be discriminatory behaviour.
From the additional material provided to the Tribunal in response to the strike out application, the following additional allegations are made. The ranger asked the occupants of 82, 83, 84, 86, 87 and 88 Wheatstone Drive if the cat belonged to them. The ranger took the cat's body away and disposed of it. The occupants at Nos 76, 78, 80, 81 and 85 Wheatstone Drive were also not visited by the ranger before the deceased cat was taken away and disposed of. The occupants at Nos 85 Wheatstone Drive are Malaysian Chinese. One of the occupants of 81 Wheatstone Drive is of Asian descent. Ms Lee is of 'Hong Kong Chinese' descent.
No information was given as to the racial background of the occupants of Nos 76, 78, 80, 86 and 93 Wheatstone Drive: houses at which the ranger did not enquire about the deceased cat. The occupants of 88 Wheatstone Drive are described as being Indonesian; one of the houses at which the ranger did make enquiries.
For the purposes of this application, the Tribunal assumes all of the facts alleged by Ms Lee to be capable of being proved to be true.
As indicated above, the Commissioner identified Ms Lee's claim as an allegation of race discrimination in the area of goods and services. The provisions in relation to discrimination on the ground of race are contained in Pt III of the EO Act. Section 36 of the EO Act provides the definition of discrimination:
(1)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of -
(a)the race of the aggrieved person; or
(b)a characteristic that appertains generally to persons of the race of the aggrieved person; or
(c)a characteristic that is generally imputed to persons of the race of the aggrieved person,
the discriminator -
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat a person of a different race; or
(e)segregates the aggrieved person from persons of a different race.
(1a)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if, on the ground of -
(a)the race of; or
(b)a characteristic that appertains generally to persons of the same race as; or
(c)a characteristic that is generally imputed to persons of the same race as,
any relative or associate of the aggrieved person, the discriminator -
(d)treats the aggrieved person less favourably than in the same circumstances, or in circumstances that are not materially different, the discriminator treats or would treat persons; or
(e)segregates the aggrieved person from persons,
who are not of that race.
(2)For the purposes of this Act, a person (in this subsection referred to as the discriminator) discriminates against another person (in this subsection referred to as the aggrieved person) on the ground of race if the discriminator requires the aggrieved person to comply with a requirement or condition -
(a)with which a substantially higher proportion of persons not of the same race as the aggrieved person comply or are able to comply; and
(b)which is not reasonable having regard to the circumstances of the case; and
(c)with which the aggrieved person does not or is not able to comply.

Section 46 of the EO Act relates to goods, services and facilities, and it provides:
It is unlawful for a person who, whether for payment or not, provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s race -
(a)by refusing to provide the other person with those goods or services or to make those facilities available to the other person; or
(b)in the terms or conditions on which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person; or
(c)in the manner in which the first mentioned person provides the other person with those goods or services or makes those facilities available to the other person.
The terms goods and facilities are not defined in the EO Act. 'Services' is defined in an inclusive way in s 4 of the EO Act:
services includes -
(a)services relating to banking, insurance, superannuation and the provision of grants, loans, credit or finance; and
(b)services relating to entertainment, recreation or refreshment; and
(c)services relating to transport or travel; and
(d)services of the kind provided by members of any profession or trade; and
(e)services of the kind provided by a government (other than the assessment of an application for suitability for adoptive parenthood, or the placement of a child for adoption or with a view to the child’s adoption, under the Adoption Act 1994), a government or public authority or a local government body[.]

The meaning of 'services'

That inclusive definition does not prevent the term from having its ordinary, broad meaning. Having regard to the purpose of the EO Act, the term 'services' should be construed as widely as that term permits: IW v City of Perth [1997] HCA 30; 191 CLR 1 at 11-12, 22-23, 27 and 70.
The determination of the relevant service in question is a question of fact determined by the situation of the particular case: Rainsford v Victoria (2007) 167 FCR 1 at [72] (Rainsford). It may be useful to ask whether a particular act involves helpful or beneficial activity: Rainsford at [73].
As was stated in Robinson v Commissioner of Police, NSW Police Force [2012] FCA 770 at [167]:
This underscores the need to focus on the position of the person alleging discrimination to identify whether services are being provided or refused to that person and to others in the same circumstances or in circumstances that are not materially different. It does not follow from the fact that the public or a section of the public benefits from an activity that, in a given case of alleged discrimination, a service is relevantly involved
It is not necessary for the conduct to be required to be carried out by a person's terms of employment; it may be sufficient if it is a service that is customarily provided: Waters Waters v Public Transport Corporation [1991] HCA 49; 173 CLR 349 at 373 (Waters)
In the circumstances of this case, the fundamental question is what is the good, service or facility which is available which was either refused or offered on different terms or in a different manner to Ms Lee on the grounds of her race? In this case, I think it can only be a 'service' that is in question, as the allegations do not raise any question of goods or facilities.
There can be no question that the respondent provides services to residents within its local government area. However, it is necessary to identify the alleged service that is the subject of the complaint with some precision: Waters at 404-405.
Ms Lee complains that the respondent's employees did not enquire at her residence on the day the deceased cat was found as to whether it belonged to anyone in the household, but did enquire at some other residences on Wheatstone Drive.
It is not clear why the employees made these enquiries. There is no evidence on which the Tribunal would be able to conclude that such enquiries were part of the employees' role or were expected of them by the respondent. There is no evidence as to whether the enquiries conducted in relation to the deceased cat is something that is generally done when a deceased animal that appears to have been a pet is found by the respondent's employees. For the purpose of the strike out application, I consider it appropriate to assume that either this service is ordinarily provided, or if not, then offering the service to other people in Wheatstone Drive on this occasion is sufficient to establish that the respondent offered some people, but not others in Wheatstone Drive this service.
For the purposes of this application, the Tribunal is satisfied that this task, if in fact undertaken, as it seemingly was, could be considered to be a helpful or beneficial activity. It might allow the deceased's cat's owner to be advised of the cat's death and take charge of burial of the cat if he or she wished. At least for the purposes of the strike out application, I am prepared to assume that Ms Lee could establish that the respondent's employees were carrying out a 'service' when they made enquiries in Wheatstone Road in order to attempt to identify the owner of a deceased cat.
There is no allegation of any overt statement made orally or in writing to support the allegation that the failure to enquire at Ms Lee's residence was because of Ms Lee's race. There is no allegation that the respondent's employees who attended the area knew Ms Lee or had any knowledge of her race or racial background. The evidence, taken at is highest indicates that the respondent's employees made enquiries at some residences in Wheatstone Drive and not at others. The racial background is provided for only some residences that were visited, and for only some of the residences that were not visited. Again, whether the respondent's employees knew the racial background of the occupants of the residences that were not attended is not known.
In addition, although the suggestion that the reason some houses were not visited by the respondent's employees was alleged to have been based on the fact that the occupants of some of the houses have been identified as being of Asian descent, Ms Lee claimed in her original complaint that the respondent's employees 'randomly' knocked on doors. This allegation is inconsistent with the allegation of discrimination.
The Tribunal finds that there is no reasonable basis for any inference that the failure to visit Ms Lee's residence to enquire about the deceased cat on the day it was found was on the ground of Ms Lee's race.
Nor is there any sufficient information on which the Tribunal could conclude that Ms Lee might be able to establish that the deceased cat found was in fact Ms Lee's cat, Melly.
At its highest, the information provided by Ms Lee is capable of establishing that 'Lisa', who saw the deceased cat, advised Ms Lee that the deceased cat was Ms Lee's cat. This seems to be based on being shown a picture of Melly on a flyer approximately a week after having seen the deceased cat. Ms Lee alleges that the occupants of 93 Wheatstone Drive had also observed the deceased cat and advised Ms Lee that it was Melly. This was also based on viewing a picture of Melly on a flyer, although it is not clear when this occurred.
An unidentified person advised Ms Lee by telephone that the deceased cat was Ms Lee's cat, and the person knew this as he or she had seen the cat 'cut into her house'. If that person could be identified, there would be basis to presume that Ms Lee could possibly establish that the deceased cat was her cat Melly, assuming that person would come up to proof in a hearing. However, the Tribunal would need expert evidence about the likelihood of being able to identify a deceased animal that is not owned by the identifier based on some prior observations of the animal. In any event, it seems, based on the fact that Ms Lee did not provide the name and address of the caller, that Ms Lee does not know who this person is, and would not be able to produce that person to give evidence. Thus the only identification evidence in relation to the deceased cat seems to be limited to people asserting a similarity between a photograph of Ms Lee's cat when alive, and personal observations of a deceased cat. The Tribunal is not satisfied that this would be likely to be sufficient to establish the identity of the deceased cat with any certainty at all.
There is no requirement for a respondent to provide a service that it do not in fact provide. Although Ms Lee suggests that the respondent could have put a picture of the deceased cat on social media to allow for an opportunity for an owner to identify the deceased cat, there is no information before the Tribunal that suggests that the respondent offers this as a service to anyone. Ms Lee claims that the inability to bury Melly has caused her considerable distress and loss. However, as Ms Lee's allegations are not capable of establishing the identity of the deceased cat, the Tribunal would have no basis to find that Ms Lee would, (if the conduct that occurred had in fact been discriminatory), have in fact been able to bury Melly. There is therefore no basis on which to believe that Ms Lee might be able to establish any causative link between any loss or suffering she experienced due to the alleged actions of the respondent's employees.
The second allegation of discrimination relates to the refusal to allow Ms Lee to speak to the respondent's employees. There are no facts on which any conclusion can be drawn that the respondent offers any service of allowing people to question the respondent's employees. Ms Lee alleges no facts capable of supporting any conclusion that there was any refusal of any service, any difference in the terms and conditions on which any service was offered or in the manner in which any service was made available.
In addition, other than to make a bare allegation of discrimination, there are no facts alleged on which one might be able to make a reasonable inference that the reason for the refusal was Ms Lee's race. It is apparent from the repetitive, hectoring and highly accusatory tone of all of the correspondence submitted by Ms Lee, both to the Commissioner and to the Tribunal, that the respondent may have had very good reason to refuse to allow Ms Lee to question its employees. Indeed, Ms Lee's allegation that she was told that it would be harassment if she was allowed to question the employees, supports the position that the respondent had in fact taken the view that Ms Lee would not be measured or reasonable if any such questioning was in fact allowed.
Ultimately, Ms Lee's complaint is that the respondent, through its employees, did not advise her of the deceased cat and did not give her an opportunity to identify the deceased cat. The cat was found outside Ms Lee's home. However, Ms Lee does not allege anywhere that in fact she, or someone else able to confirm whether or not the deceased cat was Melly was home during the time the respondent's employees were canvassing households in Wheatstone Drive, or that he or she was in a state and/or position such that he or she would have been able to hear, if in fact they did approach the residence and knock on the door.
Further, assuming the deceased cat was Melly, the cat was not registered as living at Ms Lee's residence, nor was its microchip updated to record the cat's current owner's details. Other than if the respondent's employees had been able to enquire with Ms Lee or her family as to the ownership of the deceased cat when they were making enquiries in the street, the respondent had no way of knowing who owned the cat.
The application to strike out the complaint pursuant to s 47 of the SAT Act should be allowed. Assuming the facts alleged by Ms Lee are capable of being proved to be true, those facts are not capable of establishing that the respondent discriminated against Ms Lee on the ground of race. Her complaint is misconceived and entirely lacking in substance and should be stuck out.

Order

The Tribunal orders:
1.The respondent's application pursuant to s 47 of the State Administrative Tribunal Act 2004 (WA) to strike out these proceedings is allowed and the proceeding is struck out.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS L EDDY, SENIOR MEMBER
25 NOVEMBER 2019