Nicolaou v State of New South Wales (NSW Police Force)

[2015] NSWCATAD 142

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:	Nicolaou v State of New South Wales (NSW Police Force) [2015] NSWCATAD 142
Hearing dates:	27 January 2015
Date of orders:	07 July 2015
Decision date:	07 July 2015
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	N Hennessy LCM, Deputy President
Decision:	Leave is refused for the applicant’s complaint of race discrimination to proceed. Leave is refused for the applicant’s complaint of victimisation to proceed.
Catchwords:	ANTI-DISCRIMINATION –complaints of race discrimination and victimisation declined as lacking in substance – whether fair and just for complaints to proceed
Legislation Cited:	Anti-Discrimination Act 1977 (NSW), s 7, s 19 Police Act 1990 (NSW), s 6 Criminal Procedure Act 1986 (NSW), s 213(3)(b)
Cases Cited:	Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 Commissioner of Police v Mohamed [2009] NSWCA 432 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Soliman v State of NSW (NSW Police Force) [2011] NSWADT 42 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 State of New South Wales v Whiteoak [2014] NSWCATAP 99 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349
Category:	Principal judgment
Parties:	Anastasios Nicolaou (Applicant) State of NSW (NSW Police Force) (Respondent)
Representation:	Counsel: P Strickland SC (Applicant) E Raper (Respondent) Solicitors: Garland Hawthorn Brahe (Applicant) Minter Ellison Lawyers (Respondent)
File Number(s):	1410395

REASONS for decision

Introduction

1. Dr Nicolaou, who is of Greek ethnic background, complains of race discrimination and victimisation against the State of NSW (NSW Police Force). The complaint of race discrimination is that on 5 September 2013 Senior Constable McKibbins issued Dr Nicolaou with a penalty notice for $150 for using offensive language in a public place. The victimisation complaint is that one of the reasons SC McKibbins issued that notice was that Dr Nicolaou had complained about him.

2. The President of the Anti-Discrimination Board declined the complaints on the basis that they were lacking in substance: Anti-Discrimination Act 1977 (NSW), s 92(1)(a). When that happens, the complainant must apply to the Tribunal for permission or ‘leave’ for the complaint to go ahead: Anti-Discrimination Act, s 96. I have refused leave in this case because the complaints lack substance and it is not fair and just for them to proceed.

Principles for granting leave – whether “fair and just”

3. The Supreme Court set out the principles to be applied when determining whether to grant leave in Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [28] – [38]. In that case Schmidt J:

1. emphasised that a cautious approach should be adopted because a refusal of leave will “finally determine the rights of the parties under this legislative scheme, which is dealing with important human rights”;

2. found that the Tribunal’s discretion is unfettered and is not confined to the grounds on which the President of the Anti-Discrimination Board may decline a complaint;

3. concluded that leave must be granted or refused “depending on what (is) fair and just in the particular circumstances, with an onus falling on the plaintiff to establish that the leave should be granted; and

4. noted that where it is apparent that the complaint lacks substance leave may be refused, if that is what justice dictates.

4. The issue to be determined is whether it is fair and just in all the circumstances for the complaints to proceed.

The alleged conduct

5. At about 11.30 am on 5 September 2013 Dr Nicolaou was at work when he asked his nephew, Mr Chrisos, to move his car. SC McKibbins and Constable Janu were patrolling in a police vehicle in the area when they saw Mr Chrisos stopped in a no stopping zone waiting to take the parking space of another vehicle. They stopped their vehicle some distance from the kerb. There are photographs of the police vehicle parked on the street in evidence. I am unable to accurately estimate how far the car was from the kerb from those photographs but it appears to be about two metres.

6. Constable Janus got out of the car and had a brief conversation with Mr Chrisos. After administering a breath test, Constable Janu then went back into the car and spoke with SC McKibbins. A few moments later, Dr Nicolaou walked across the street towards the police car. SC McKibbins got out of the car. Dr Nicolaou said:

This is very arrogant what you are doing here. You are stopping in the middle of the road.

7. When SC McKibbins asked Dr Nicolaou if there was a problem he said, “The position of your car is very arrogant and very inappropriate. You’ve parked your car in the middle of the road.” SC McKibbins explained that, “The position of my car is as a result of the position of your nephew’s car.” The conversation continued:

Dr Nicolaou: His car is here.

SC McKibbins; It wasn’t when I stopped, it was here. How about you let me do my job and I won’t have to write a ticket.

Dr Nicolaou: If you want to write a ticket then write a ticket but I am telling you the position of your car is very arrogant and inappropriate.

SC McKibbins: Who do you think you are speaking to me like that?

Dr Nicolaou: I am a citizen of this country and I am telling you that it is inappropriate. You are blocking the whole fucking road.

McKibbins: I am warning you to stop your swearing, it’s an offence. If you do it again I will charge you.

Dr Nicolaou: You can do whatever you like and I will see you in court. I’ll see you in court.

8. Shortly afterwards Dr Nicolaou said, “I am furious because you have parked your car in this particular position. OK I am a responsible citizen, I respect police. OK But don’t act arrogantly like this.” Then, turning away and throwing his right hand in the air, he said, “Fucking arrogant, every bloody time, just do your job.”

9. SC McKibbins started to explain to Dr Nicolaou the reason he was issuing a penalty notice to his nephew. Dr Nicolaou said that if SC McKibbins charged him for “being rude” he would see him in court with his barrister. The conversation then continued about the possibility that Dr Nicolaou would be issued with a penalty notice for offensive behaviour. SC McKibbins told Dr Nicolaou that someone needed to teach him some manners.

10. The police officers then turned their attention to Mr Chrisos and told him that he would be receiving a ticket for stopping in a no stopping zone. Mr Chrisos provided an explanation and SC McKibbins said, “OK, but if I could reasonably explain to you what had gone on without some lunatic swearing at me.” Dr Nicolaou overheard this remark and took exception to being called a lunatic. He stood close to SC McKibbins even though SC McKibbins repeatedly asked him to “take a step back.” SC McKibbins then said to Mr Chrisos:

As I am trying to say to you without someone who I think is acting like a lunatic talking over the top of me, I could easily have dealt with that if I was allowed to, but when I have someone come out here, calling us arrogant, yelling at us and not allowing us to do our job …

11. The police officers then went back to the car and prepared the paper work for Mr Chrisos’ penalty notice. During this time, Dr Nicolaou knocked on the car window several times saying that the matter will be dealt with through a member of parliament. While in the car, SC McKibbins said to Constable Janu:

I don’t think I have ever dealt with someone as belligerent as this bloke is acting.

12. SC McKibbins then got out of the car and gave Mr Chrisos a ticket for disobeying a no stopping sign. Dr Nicolaou interrupted again and SC McKibbins lead Mr Chrisos away so he could explain the reasons for issuing the ticket without being interrupted. After a short conversation, SC McKibbins walked over to Dr Nicolaou and asked him if he had any questions about what had happened. Dr Nicolaou said that he believed that what SC McKibbins had done was totally inappropriate. SC McKibbins said that he was going to give consideration to charging Dr Nicolaou with offensive language. Dr Nicolaou responded that, “If you think it’s appropriate to charge me then go ahead and do it. I will see you in court.” After further protestations from Dr Nicolaou, the following discussion took place:

SC McKibbins: Sir, can I have a chance to speak?

Dr Nicolaou: You can as long as you say the right things.

SC McKibbins: Can I –

Dr Nicolaou: You say it’s got nothing to do with me. It’s got a lot to do with me. It’s my car.

SC McKibbins: Where I come from . .

Dr Nicolaou: Yes

SC McKibbins: . . . in a conversation when one person speaks the other person listens and then you’ll get the chance to speak.

Dr Nicolaou: It depends. It depends.

SC McKibbins: . . so instead of interrupting how about you let me have a – OK. Don’t worry. See you later.

13. The conversation continued while SC McKibbins walked away. As SC McKibbins drove off he said to Constable Janu, “There is no way I can have a conversation with someone who will continually talk over the top of me.”

14. Later that day, SC McKibbins issued a penalty notice to Dr Nicolaou for breaching s 4A of the Summary offences Act 1988:

4A Offensive language

(1) A person must not use offensive language in or near, or within hearing from, a public place or a school.

Maximum penalty: 6 penalty units.

(2) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

Race discrimination complaint

15. Dr Nicolaou submits that there has been a breach of s 19 of the Anti-Discrimination Act:

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.

16. I understand Dr Nicolaou’s complaint to be one of direct discrimination as defined in s 7(1)(a):

(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 ...

17. In order to substantiate a complaint of direct race discrimination in relation to the issuing of a penalty notice for offensive language, Dr Nicolaou would have to prove that:

1. he is of a member of a race as defined in s 4;

2. the NSW Police Force refused to provide him with a service or provided him with a service on unfavourable terms;

3. in refusing that service or providing it on unfavourable terms, the NSW Police Force treated him less favourably than it treated or would have treated a person who was of a different race in the same or similar circumstances; (differential treatment) and

4. at least one of the reasons for that treatment was Dr Nicolaou’s race: (causation).

Race

18. "Race" is defined in s 4 of the Anti-Discrimination Act to include "colour, nationality, descent and ethnic, ethno-religious or national origin." Dr Nicolaou is of Greek national origin.

Identification of the "service"

19. The first step in determining whether a person has been refused a service or has been provided with a service on unfavourable terms is to identify the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J. The parties agree that the alleged service was the decision to issue or the issuing of a penalty notice to Dr Nicolaou.

20. The term "services" is defined by s 4 of the Anti-Discrimination Act to include "services provided by a council or public authority." The NSW Police Force is a public authority. It is established under the Police Act 1990 (NSW). Section 6 of that Act provides:

6 Mission and functions of NSW Police Force

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions:

(a) to provide police services for New South Wales,

(b) to exercise any other function conferred on it by or under this or any other Act,

(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section:

police services includes:

(a) services by way of prevention and detection of crime, and

(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and

(c) the provision of essential services in emergencies, and

(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.

(5)....

21. The most authoritative statement of the law on the issue of whether decisions made by police constitute the provision of a service is found in Commissioner of Police v Mohamed [2009] NSWCA 432. Ms Mohamed and her family claimed that they had been abused and assaulted by neighbours. When police attended, Ms Mohamed alleged that they were rude to her and failed to take her complaint seriously. Although no factual findings as to the alleged circumstances had been made by the Tribunal below, it appeared that no action had been taken against those said to have been responsible for the abuse and assaults. The Court of Appeal considered the question of whether fulfilment of the duty to investigate alleged criminal offences and to prevent and detect crime, constitutes a service for the purposes of s 19 of the Anti-Discrimination Act.

22. Basten JA and Spigelman CJ (agreeing) held at [35] - [36] that “police owe individual members of the community a duty to exercise their powers and carry out their functions on a non-discriminatory basis.” Their Honours went on to say that, “There is no reason why members who suffer individually as a result of such conduct should not have a basis for complaint under appropriate legislation, including the Anti-Discrimination Act.”

23. It is uncontroversial that police officers are exercising their powers or carrying out their functions when issuing a penalty notice for offensive language. If Dr Nicolaou has suffered as a result of such conduct, it follows that police have either refused to provide him with a service or have provided him with a service on certain terms.

24. In the same case Handley AJA interpreted police services more narrowly concluding at [87] and [88], that “decisions whether or not to prosecute or arrest the alleged perpetrators” are generally not “services”. Sully J also held in Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745 at [44] that police who took part in the arrest of the late Mr Russell were providing services to the community at large but, impliedly, they were not providing services to Mr Russell personally.

25. In State of New South Wales v Whiteoak [2014] NSWCATAP 99 the majority of the Appeal Panel also reached a view that is arguably inconsistent with the general proposition put by Basten JA and Spigelman CJ in Mohamed. That case concerned a complaint of race discrimination made by Mr Whiteoak, who was serving a prison sentence, against the State of NSW. The issue was whether classifying inmates "for the purposes of security and the provision of appropriate development programs" under the Crimes (Administration of Sentences) Regulation 2008 (NSW) amounted to providing a “service”. Wright J and Ms Field in a majority decision held that it did not. After undertaking an detailed analysis of the term “services” in the Anti-Discrimination Act the majority concluded at [160], that:

When a governmental function or statutory duty is being performed for a purpose other than benefitting the relevant person and any outcome is imposed on, rather than just being made available to, that person, it is unlikely that this amounts to "services" being "provided".

26. While views inconsistent with those of Basten JA and Spigelman CJ in Mohamed have been expressed, that broad proposition remains the most authoritative statement of the law on the question of the meaning of “services” provided by police officers. In my view, Dr Nicolaou would be able to prove the second element of his claim, that the NSW Police Force refused to provide him with a service or provided him with a service on unfavourable terms. The Tribunal reached the same conclusion in Soliman v State of NSW (NSW Police Force) [2011] NSWADT 42.

Differential treatment and causation

27. The first component of the test for direct race discrimination is the "differential treatment" test. The treatment afforded to Dr Nicolaou must be compared with the treatment that would have been afforded to a person not of his race in the same or similar circumstances. In the absence of an actual person whose treatment can be compared with the treatment given to Dr Nicolaou a decision maker would have to rely on a hypothetical person in a comparable situation. It is difficult to assess how a hypothetical person would have been treated without first addressing the second component of direct discrimination - causation.

28. At least one of the reasons that SC McKibbins decided to issue Dr Nicolaou with a penalty notice must have been his race: Anti-Discrimination Act, s 4A. There is no need to prove that he intended to discriminate.

29. As with the vast majority of complaints of discrimination, a causal link between Mr Nicolaou’s race and the decision of SC McKibbins would have to be established by inference from primary facts: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262. The following principles identified in Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70] are relevant:

“...

(b) an inference must be reasonably drawn on the basis of the primary facts;

(c) an inference can be drawn from a combination of facts, none of which viewed alone would support that inference ;

(d) a fact relied on as the basis of an inference need not be proved to the requisite standard of proof; it is not enough that the inference is a mere possibility: it must be one of "probable connection";

(e) the inference must be a logical one, and not supposition;

(f) an inference cannot be made where more probable and innocent explanations are available on the evidence.”

30. If leave were granted for the complaint of race discrimination to proceed, the legal burden of proof would be on Dr Nicolaou to prove his case on the balance of probabilities.

31. In summary, the circumstances and events which Dr Nicolaou contends support the inference he seeks to draw are that:

1. SC McKibbins told him that where he comes from “in a conversation when one person speaks, the other person listens”;

2. the charge was dismissed and the Magistrate granted Dr Nicolaou’s application for costs finding that “it is highly likely that the prosecution’s case would have failed”.

32. SC McKibbins was aware that Dr Nicolaou was not from an Anglo-Saxon background. He spoke with a heavy accent and emphasised the fact that he was an Australian citizen.

33. On 6 September 2013, the day after this incident, SC McKibbins had a conversation with Dr Nicolaou. Dr Nicolaou says that SC McKibbins claimed that when he said, “Where I come from . . . in a conversation when one person speaks the other person listens and then you’ll get the chance to speak” he was referring to his upbringing by his parents in the bush and the fact that they taught him manners. Dr Nicolaou’s response to that contention is that:

If the intention was to refer to his parental upbringing he would have made it very clear that he was referring to his parental upbringing by referring to his parent or some word to that effect. He was not referring to his parental upbringing or his upbringing in the bush and he cannot be allowed to make such a claim. He was referring to his background and in the context of having this discussion with someone who had an accent and clearly being of a different ethnic background, it was a racist comment and this is the whole basis of our complaint to the Anti-Discrimination Board.

34. The President of the Anti-Discrimination Board concluded in his reasons for declining the complaint that the, “Where I come from. . .” comment “could refer to a person’s racial background” but that “is not the only inference that can be made.” NSW Police acknowledged that the Tribunal is not bound by the President’s view of the meaning of the comment but submitted that the fact that the President takes that view supports their case.

35. The second matter on which Dr Nicolaou relied to support the inference that race was a reason SC issued the penalty notice was the decision of the findings of the Magistrate when the penalty notice was listed for hearing. At the hearing in the Local Court, Dr Nicolaou objected to the evidence of the two police officers on the basis that the brief of evidence had only been served on the morning of the hearing. The possibility of an adjournment was then discussed but after a short break the prosecution withdrew the charge and it was dismissed. There was no hearing or determination of the charge of using offensive language.

36. In determining whether the relevant inference can be drawn, I am not in a position to make an independent finding as to the strength of the prosecution’s case. Consequently I have not taken into account the authorities provided by the parties on the meaning of s 4A of the Summary Offences Act. But I do accept that when determining Dr Nicolaou’s application for costs, the Magistrate considered the strength of the prosecution’s case and that those findings are relevant.

37. The Local Court has the power to award costs to an accused person when the matter is withdrawn: Criminal Procedure Act 1986 (NSW), s 213(3)(b). Before costs can be awarded the court must be satisfied of certain matters, including “that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecutor in an improper manner”: s 214(1)(b). Although the Magistrate did not refer to this provision, or make a finding in relation to it, Her Honour expressed the view that, “it would certainly seem if the current law from the superior courts was applied as appears to be available to this Court it is highly likely that the prosecution’s case would be failed.” Dr Nicolaou submits that the Magistrate’s view that the case would have failed supports an inference that the decision to prosecute was on the ground of his race.

38. There is no evidence of the number of times SC McKibbins has issued offensive language notices, the race of those to whom such notices have been issued or the outcome of any other prosecutions.

39. There are two facts that support an inference that a reason for the decision to issue Dr Nicolaou with a penalty notice was his race. The first is the, “Where I come from” comment. I am satisfied that when SC McKibbins made the comment he intended to highlight the difference between his background, including his ethnic background, and Dr Nicolaou’s background. The second is the fact that the Magistrate found, in the context of a costs application, that the prosecution’s case would fail. That suggests that there was a reason other than the commission of an offence that motivated SC McKibbins to issue the penalty notice.

40. The facts that do not support such an inference are Dr Nicolaou’s behaviour and SC McKibbins’ reaction to that behaviour. Dr Nicolaou repeatedly told SC McKibbins in a forceful manner that the police car was parked in an “arrogant” and inappropriate way. He told SC McKibbins that he was “blocking the whole fucking road” and then said “fucking arrogant, every bloody time, just do your job.” On many occasions Dr Nicolaou interrupted SC McKibbins and spoke when he was speaking. He challenged his authority, knocked on the car window to get his attention and refused to step back when asked. He was argumentative and belligerent. SC McKibbins remained calm but said, inappropriately, that Dr Nicolaou was acting like a “lunatic.”

41. SC McKibbins’ reaction to Dr Nicolaou’s behaviour was one of frustration and disbelief. He told Constable Janu that he had never dealt with someone “as belligerent as this bloke is acting.” “Later he said, “There is no way I can have a conversation with someone who will continually talk over the top of me.”

42. In my view, if leave were granted for this complaint to proceed, Dr Nicolaou would be unable to satisfy the decision maker that race was a reason for SC McKibbins’ decision. A more probable and innocent explanation is that SC McKibbins’ judgment was clouded by the belligerent and disrespectful manner in which Dr Nicolaou behaved. I consider that a Tribunal hearing this case would find that SC McKibbins would have issued a penalty notice to any person who behaved in that way, regardless of their race. The complaint lacks substance and it is not fair or just for it to proceed.

Victimisation complaint

43. The complaint of victimisation is that one of the reasons SC McKibbins issued the penalty notice was that Dr Nicolaou had complained about him.

44. Section 50 of the Anti-Discrimination Act provides that:

(1) 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.

45. I accept Dr Nicolaou’s submission that SC McKibbins knew that he intended to make a complaint about him. He said as much to Constable Janu when they were in the police car.

46. I accept the submission of the NSW Police Force that although SC McKibbins did anticipate that Dr Nicolaou would make a complaint there is no evidence suggesting a complaint of discrimination under the Anti-Discrimination Act would be made. Section 50(1)(a) requires that the applicant has, or intends to “bring proceedings” under this Act. Similarly s 50(1)(d) requires that Dr Nicolaou has done something “under or by reference to this Act.”

47. There is no evidence whatsoever that Dr Nicolaou did or intended to do anything of that kind. The complaint of victimisation lacks substance and it is not fair or just for it to proceed.

Orders

1. Leave is refused for the complaint of race discrimination to proceed.

2. Leave is refused for the complaint of victimisation to proceed.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar

Decision last updated: 07 July 2015