Li v Westbus Pty Ltd

[2002] NSWADT 260

CITATION:	Li & Anor -v- Westbus Pty Ltd & Anor [2002] NSWADT 260
DIVISION:	Equal Opportunity Division
PARTIES:	FIRST APPLICANT Jin Mei Li SECOND APPLICANT Zhi Fan Wang FIRST RESPONDENT Westbus Pty Ltd SECOND RESPONDENT Neville Hill
FILE NUMBER:	011032
HEARING DATES:	24/09/2002 - 26/09/2002
SUBMISSIONS CLOSED:	09/26/2002
DATE OF DECISION:	12/11/2002
BEFORE:	Goode P - Judicial Member; McDonald O - Member; Jowett T - 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:	Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18 Karekar v Tafe Commission of NSW [2000] NSWADT 187 Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 Moreira & Anor v Peter Robert Motors Pty Ltd [2002] NSWADT 70 Langley v Niland & Anor (1981) 2NSWLR 104 Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998) Tredinnick v Wentworth Area Health Service [2000] NSWADT 172 Karekar v Tafe Commission of NSW [2000] NSWADT 187 State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 Khanna v Ministry of Defence (1981) I.C.R. 653 Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 Dutt v Central Coast Area Health Service [2002] NSWADT 133
REPRESENTATION:	APPLICANTS N Poynder, barrister FIRST RESPONDENT C Ronalds, barrister SECOND RESPONDENT M Burns, solicitor
ORDERS:	1. The application is dismissed.

1 This is a preliminary application brought by the Respondents under s 111(1) of the Anti-Discrimination Act, 1977 ("the Act") seeking summary dismissal of part of Mr Wang's complaint.

2 The relief sought by the Respondents is opposed by Mr Wang. Although strictly the respondent to the application, for convenience Mr Wang is referred to as an Applicant.

3 The application is made at a time in the Applicants' case when the only evidence remaining to be called is of a medical nature.

4 The Applicants, Ms Li and Mr Wang, are Chinese born Australian citizens.

5 We are asked to dismiss that part of the complaint which alleges that Mr Wang was unlawfully discriminated against on the ground of his race on 13 June 2000. That part of the complaint which alleges that Ms Li and Mr Wang were unlawfully discriminated against on the ground of their race on 5 June 2000 is not the subject of a similar challenge.

6 The Respondents submit that we should dismiss that part of the complaint which relates to the incident on 13 June 2000 on the ground that it is misconceived or lacking in substance.

7 For the purposes of the present application, we have taken the evidence in the Applicants' case at its highest so as to enable us to determine whether the evidence is capable of amounting to a contravention of the Act : see Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]; Ravel v Plastral Fidence Pty Ltd [1999] NSWADT 18; Karekar v Tafe Commission of NSW [2000] NSWADT 187 at [37].

8 We have approached the present application on the basis that we have the power to dismiss part of a complaint under s 111(1). This issue was considered in Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 where the Appeal Panel said at [18]:

"The Tribunal has previously utilised s 111 in order to dismiss part only of a complaint, although the point was not argued in the proceedings : Wensley v Director General, Dept of Education and Training [2000] NSWADT 142. For our part, we see nothing objectionable in utilising s 111 to dismiss part of a complaint in respect of which the Tribunal does not have jurisdiction, but on one view, there need be no resort to s 111 because what is sought to be dismissed was never properly before the Tribunal in the first place (see Phillpot v The Spastic Centre of NSW, unreported, 2 May 2001)."

9 The following material is taken from the evidence presented thus far in the case for the Applicants. Since we have yet to hear any oral evidence from the Respondents, it does not represent our concluded view of either the evidence or the merits of the Applicants' case.

10 In order to put the incident which occurred on 13 June 2000 into proper context, it is necessary to first set out the evidence in relation to the incident on 5 June 2000.

Incident on 5 June 2000

11 The Applicants are a married couple who reside with their daughter Amy and her husband at 15 Knightsbridge Place, Castle Hill. At the relevant time, they were frequent users of the First Respondent's bus service, in particular route 606.

12 On 5 June 2000 they were using the First Respondent's 606 bus service to travel home from Castle Towers Shopping Centre. They boarded the bus at a bus stop near the Shopping Centre. The Second Respondent, Mr Hill, was the bus driver.

13 When it was the Applicants' turn to pay their fare, Mr Wang had $2 ready to pay Mr Hill for two tickets. Mr Hill told them that the fare to the Knightsbridge Shopping Centre was $1.10 each. When the Applicants queried the fare, Mr Hill pointed at the bus door and shouted at them in a very loud voice:

"Don't argue with me. I am the driver here. I don’t care what other drivers do. Go and catch a dollar bus, get out."

14 The Applicants elected to continue with the journey. After paying $2.00 for the two tickets they told Mr Hill that they would alight from the bus one stop before their usual destination. They took a seat about 3 rows back from the driver and spoke to each other in Chinese about which stop they should get off. Mr Hill stopped serving the other passengers, turned towards the Applicants and said in a very loud voice:

"Speak English!"

15 The Applicants ceased their conversation with one another. As they were alighting from the bus, Ms Li said to Mr Hill:

"Thank you, have a nice day."

Mr Hill replied in a loud and aggressive manner:

"I will have a nice day if I don’t see you again. Get off quickly."

He revved the bus as he said this.

16 In cross-examination, the Applicants said that after they sat down on the bus, Mr Hill said to other passengers who were boarding the bus the words "Chinese Chinese" and that at the time he was looking at the Applicants. Mr Wang said that when Mr Hill said the words "Chinese Chinese" he didn’t catch the whole sentence.

Incident on 13 June 2000

17 On 13 June 2000, Mr Wang sought to use the same bus service on the same route. On that day he was travelling from Castle Towers Shopping Centre to the Knightsbridge shops. He boarded the bus and observed that Mr Hill was the driver on duty. He had his concession card in his hand and $1.00 ready to pay for the fare. Mr Hill said to him:

"Not you again. You're the person who was here with your wife last week. It is $1.10."

18 Mr Wang replied:

"My daughter made telephone call to your company last week and $1.00 was correct for pensioner. You can check with your office."

When Mr Wang handed him a one dollar coin to pay for the ticket, Mr Hill became very angry and shouted at him:

"Get out of my bus."

Mr Hill shouted this at him about 5 or 6 times. Mr Wang then got off the bus trembling.

Mr Wang's Case

19 It is Mr Wang's case that Mr Hill's conduct towards him on both 5 and 13 June occurred on the ground of his race and / or on the ground of a characteristic that appertains generally to or is generally imputed to persons of that race, namely, that he does not speak English. Reliance is placed on the recent decision of Moreira & Anor v Peter Robert Motors Pty Ltd [2002] NSWADT 70, particularly at [66]-[70].

20 Mr Wang further alleges that Mr Hill's behaviour contravenes s 19 of the Act, viz by refusing (either actually or constructively) to provide him with the bus service and / or in the terms on which the service was provided.

Submissions on behalf of Mr Wang

21 In relation to the second incident on 13 June 2000, Mr Poynder submits that Mr Hill's conduct was part of the same course of conduct exhibited by him towards Ms Li and Mr Wang on 5 June 2000. Having treated Mr Wang and Ms Li less favourably on the ground of their race on 5 June, he submits that Mr Hill's rudeness and refusal to allow Mr Wang to use the bus on 13 June 2000 can be seen as part of the same course of racially discriminatory conduct.

The Respondents' Submissions

22 Both Mr Burns and Ms Ronalds submit that the evidence demonstrates that the incident which occurred on 13 June 2000 is entirely separate from that which occurred on 5 June and that it cannot be seen as part of the same course of conduct. They submit that Mr Hill's conduct on 13 June 2000 occurred solely on the ground of a dispute over the correct fare and, therefore, that Mr Wang cannot establish the necessary causal nexus between the alleged unfavourable treatment and his race.

23 Accordingly, the Respondents submit that even taking the Applicants' evidence at its highest, the alleged conduct on 13 June 2000 could not possibly amount to a contravention of s 19 of the Act and that we should dismiss that part of the complaint on the basis that it is "misconceived" or "lacking in substance".

Relevant Legislation

24 Section 111(1) of the Act provides:

"(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."

25 Section 19 provides:

"It is unlawful for a person who provides (whether or not for payment) goods or services to discriminate against another person on the ground of race:
(a) by refusing to provide the person with those goods or services, or
(b) in the terms on which the other person is provided with those goods or services."

26 Section 7 sets out what constitutes discrimination on the ground of race. Relevantly s 7 states:

"(1) A person ( the perpetrator ) discriminates against another person ( the aggrieved person ) on the ground of race if, on the ground of the aggrieved person's race or the race 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 of a different race or who has such a relative or associate of a different race, or
(b) . . . .
(c) . . .
(2) For the purposes of sub-section (1)(a) . . . , something is done on the ground of a person's race if it is done on the ground of the person's race, a characteristic that appertains generally to persons of that race or a characteristic that is generally imputed to persons of that race."

27 Section 53 relevantly provides:

"(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.
(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.
(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.
(4) . . . . ."

28 Section 4A of the Act provides:

"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."

29 Section 4A makes it clear that provided the Applicants' race is one of the reasons for the Respondent's conduct, the conduct will still be regarded as unlawful even though the Applicants' race is not the dominant or a substantial reason for the conduct.

Relevant Legal Principles

30 Both the Act and the Administrative Decisions Tribunal Act, 1997 ("the Tribunal Act") contain provisions which permit the Tribunal to dismiss a complaint before a full inquiry has been concluded.

31 Section 73(5)(h) of the Tribunal Act is couched in narrower terms than s 111(1) of the Act and provides 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."

32 Although s 73(5) of the Tribunal Act and s 111(1) of the Act are designed to operate together (see s 111(3) of the Act), it is clear that the category "for any other reason" has been omitted from s 73(5)(h). The Respondents in the present case rely on s 111(1), rather than s 73(5)(h).

33 While there is no commonly accepted definition of the terms "misconceived" and "lacking in substance", the terms have been considered by many courts and tribunals in the context of interpreting anti-discrimination legislation at both the State and Commonwealth levels. 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. This is consistent with the approach adopted in Langley v Niland & Anor (1981) 2NSWLR 104 at 107; Reyes-Gonzalez v Sydney Institute of Technology (1998) NSWEOT (6 March 1998); Tredinnick v Wentworth Area Health Service [2000] NSWADT 172; Karekar v Tafe Commission of NSW [2000] NSWADT 187.

34 This view is also consistent with the interpretation adopted by Ormiston JA in State Electricity Commission of Victoria v Rabel [1998] 1 VR 102 at 108-109 in relation to the Victorian equivalent of s 111, viz s 75 of the VCAT Act. His Honour stated that the terms "misconceived" and "lacking in substance" were commonly used by lawyers, with "misconceived" meaning a "misunderstanding of legal principle" and "lacking in substance" meaning "an untenable proposition of law or fact."

The Tribunal's Findings

35 In order to establish his case in relation to the incident on 13 June 2000, Mr Wang must prove vicariously through the conduct of Mr Hill that the evidence is capable of grounding an inference that the First Respondent's conduct occurred on the ground of his race in one of the ways specified in s19 of the Act.

36 Is it open to us on the evidence to infer that an operative ground, amongst others, of Mr Hill's conduct on 13 June 2000 was Mr Wang's race?

37 It is well established that where there is no direct evidence of unlawful discrimination, an applicant may use in support inferences drawn from the primary facts: see eg Khanna v Ministry of Defence (1981) I.C.R. 653 at 658; Fenwick v Beveridge Building Products Pty Ltd (1986) EOC 92-147 at 76, 462.

38 Relying on various Tribunal decisions as well as the decision in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, the Tribunal in Dutt v Central Coast Area Health Service [2002] NSWADT 133 identified the following considerations in the drawing of inferences at [70]:

"i. a causal link, such as that which is necessary in proving direct discrimination, can be established by inference from primary facts
ii. an inference must be reasonably drawn on the basis of the primary facts
iii. an inference can be drawn from a combination of facts, none of which viewed alone would support that inference
iv. a fact relied on as the basis of an inference need not be proved to the requisite standard of proof
v. it is not enough that the inference is a mere possibility : it must be one of "probable connection"
vi. the inference must be a logical one, and not supposition
vii. an inference cannot be made where more probable and innocent explanations are available on the evidence."

39 In relation to the incident on 13 June 2000, it seems clear on the evidence thus far that a ground of Mr Hill's conduct was a dispute over the correct fare.

40 After careful analysis, we are also of the view that taking the evidence thus far at its highest, it is open to us to infer that an additional ground (not necessarily the dominant ground) of Mr Hill's conduct on 13 June was Mr Wang's race. In reaching this view, we have been particularly influenced by the following:

· The incident on 5 June 2000 is capable of establishing that Mr Hill held racially discriminatory attitudes towards Ms Li and Mr Wang.

· The second incident on 13 June occurred only 8 days after the first incident.

· On 13 June Mr Hill immediately recognised Mr Wang from the earlier incident, as evidenced by the comment:

"Not you again. You're the person who was here with your wife last week. It is $1.10."

· Mr Hill ignored Mr Wang's endeavours to explain that his daughter Amy had rung the company and ascertained that $1.00 was the correct fare

· Mr Hill shouted at him 5 or 6 times:

"Get out of my bus."

41 We have rejected the Respondents' submission that we should view the incidents on 5 June and 13 June as entirely separate. We consider that the second incident can only be properly understood by reference back to the first incident. Had Mr Hill not recognised Mr Wang from the incident on 5 June, our view may well have been different.

42 Accordingly, we propose to dismiss the present application.

ORDERS

43 The application under s 111(1) is dismissed.