Puri v Iconic Markets and Events Pty Ltd ACN 610 470 114 (Appeal)

[2019] ACAT 28

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

PURI v ICONIC MARKETS AND EVENTS PTY LTD ACN 610 470 114 (Appeal) [2019] ACAT 28

AA 50/2018 (DT 10/2018)

Catchwords:                APPEAL – discrimination – racial discrimination – unsuccessful application for allocation of market stall – whether discrimination in access to premises – whether discrimination in the provision of goods, services or facilities – role of appeal tribunal

Legislation cited:        ACT Civil and Administrative Tribunal Act 2008 s 79

Discrimination Act 1991 ss 7, 8, 19, 20

Human Rights Commission Act 2005 ss 53CA, 53E, 78

Cases cited:Chakravarty & Commissioner for ACT Revenue [2013] ACAT 11

Das v A&A Air-conditioning [2011] ACAT 52

Tribunal:President G Neate AM

Date of Orders:  1 March 2019

Date of Reasons for Decision:     1 March 2019

AUSTRALIAN CAPITAL TERRITORY                 )
CIVIL & ADMINISTRATIVE TRIBUNAL )          AA 50/2018

BETWEEN:

VIJAY PURI

Appellant

AND:

ICONIC MARKETS AND EVENTS PTY LTD

ACN 610 470 114

Respondent

APPEAL TRIBUNAL:        President G Neate AM

DATE:1 March 2019

ORDER

The Tribunal orders that:

1.The appeal is dismissed.

………………………………..

President G Neate AM

REASONS FOR DECISION

Introduction

1.Vijay Puri is an Australian citizen of Indian origin. He qualified as a Chartered Accountant in India. He and his wife migrated to Australia in October 2014. He is currently unemployed and wishes to conduct a business selling various products imported from India.

2.On 7 December 2014, he applied for the allocation of a multicultural stall at the Old Bus Depot Markets (the Markets) on Wentworth Avenue, Kingston in the Australian Capital Territory. At that time, the Markets were operated by Dimor Pty Ltd (Dimor) trading as Old Bus Depot Markets. The Stallholder Guide dated January 2010 referred to the owners as Morna Whiting and Diane Hinds.[1]

[1] Stallholder Guide dated January 2010 page 3

3.The primary focus of the Markets was to provide “a venue for the sale of quality items that are handcrafted or home-produced by the people of the Canberra region.”[2] Prospective stallholders received approval to sell “specific products.” It was a prerequisite that any items additional to those approved at interview “must be viewed and approved by management.” That “discretion is exercised by the Directors on what is sold at the market based on quality, type of items, and what is considered to benefit the market as a whole.”[3] On the first Sunday of each month, the Markets held its Multicultural Day which (as with other “Special Sundays”) was focused in the Foreshore Gallery area.[4]

4.In his application Mr Puri wrote:

We market Pure Pashmina and Semi Pashmina Scarves made in India. These scarves are made by hands. We also sell Indian Cushion Covers. Hand embroidered and hand stitched. The cushions are made in cotton and brocade silk.[5]

5.   He did not complete the part of the application form that asked “Wholly handcrafted by whom and location of maker (please provide details below).”

6.   He continued:

We are the only one in Canberra selling the Indian Handmade Products which are reasonably priced and are the best as Christmas Gifts.

Since International Products can only be sold on the First Sundays, we will participate on [a] regular basis on all first Sundays.

[2] Stallholder Guide dated January 2010 page 3

[3] Stallholder Guide dated January 2010 page 4

[4] Stallholder Guide dated January 2010 page 6

[5] Stallholder application by Vijay Puri dated 7 December 2014

7.His application was unsuccessful. He received an email dated 9 December 2014 from Diane Hinds, Director, stating that, although Mr Puri’s product “looks of high quality”, they felt that “generically” they had “enough products of this style/type at the markets at this time.”

8.In a series of email messages to the Markets on 24 March, 31 March and 15 May 2015, Mr Puri repeated his request to be allocated a stall. On each occasion his request was unsuccessful. He received responses advising him variously that there was no opportunity at the Markets and that they would contact him if an opportunity arose.

9.On 25 May 2015, Ms Christine Crosswell applied for a multicultural stall at the Markets. The application was made in the stallholder/business name of “(Mr and Mrs) Christine and Tejpal Khatri.” It included the following information about the products to be sold:

My husband is from India and has handmade items from India. This includes cushion covers, bed covers, scarves, pashminas, shawls, camel leather bags, notebooks, bracelets. Would this be permissible on more than the multicultural stall?

10.In response to the question who makes the product and where the product is made, the application included the statement “by my husbands cousin who is a tailor in India. Goods are made in his store there.”

11.The following was provided as “any other information which strengthens the application”:

We are fresh and new and [my] husband is [an] Indian salesman and finding it difficult to secure work since coming to Australia and it is his dream to do this work here, making him happy and strengthening our future together.

12.On 26 May 2015, Ms Crosswell was allocated a stall at which she sold primarily leather bags and notebooks, as well as shawls and pashminas. At the hearing before the Original Tribunal, Richard Vagi, the Markets’ manager, stated that when Ms Crosswell’s application was approved in 2015 her list included items for sale that were not on Mr Puri’s list and by 2018 her stall was about 80 per cent worth of leather bags rather than shawls, pashminas or cushion covers.[6]

[6] Transcript of proceedings 25 October 2018 page 49

13.Another woman, whose name was not identified but who was referred to as Ms X, was also allocated a stall at the Markets. Mr Puri told the Original Tribunal that he had attended her stall and that Ms X sold products from Jaipur in India.[7] The evidence about when she was allocated a stall was equivocal. Mr Puri said he had “no idea” when she started the stall, but it “might be” that she started selling before he made his application in 2014 or “she might have started after I approached the market management for the first time.”[8]

[7] Transcript of proceedings 25 October 2018 page 14

[8] Transcript of proceedings 25 October 2018 pages 15 and 23

14.Mr Puri persisted in his attempts to obtain a stall at the Markets, sending emails to Ms Hinds on 15 September, 27 October and 6 November 2015. Emails in response were sent to him. On 10 November 2015, Ms Hinds wrote, as director and co-owner, as follows:

In our last correspondence with you, we made it apparent to you that at present, there is not an opportunity to trade at the Old Bus Depot Markets, and that we would contact you if something can [sic] available that we might offer you.

You may not be aware, but the Old Bus Depot Markets is a private business, and the Directors make a subjective decision (based on long time experience and gaps in the market at any given time) about what they wish to approve. It is a bit like a gallery, where the owner decides which direction they wish to steer the business in at any given time.

We currently have casual stallholders bringing products that are GENERICALLY like the ones you were wishing to bring. In our judgement, we wish to keep a balance and allow other items to appear at the markets.

We do not ever share details of persons or products on our waiting lists.

We thank you for your ongoing interest in the OBDM, however think it may be better for you to make other plans for selling your products.

We will not be entering into ongoing correspondence with you, but wish you all the very best for your business.[9]

[9] Email from Diane Hinds to Vijay Puri dated 10 November 2015

15.Mr Puri sent another email to Ms Hinds on 12 January 2016 in which he stated that he looked forward to getting a place that year.

16.By agreement for sale of business dated 25 February 2016, Dimor sold the Markets business to Iconic Markets & Events Pty Ltd (the respondent). According to Richard Vagi the sale was completed in May 2016.

17.On 5 December 2017, after a conversation with the new Markets personnel, Mr Puri made his second written application for a multicultural stall at the Markets. He was advised that the new management did not have the records of the previous owners concerning the wait-list. In that application Mr Puri wrote:

We plan to market Hand woven Indian scarfs made of wool, rayon and silk apart from hand embroidered cushion covers and table runner. We will also bring in handicraft items once we get the space allotment.[10]

[10] Stallholder application by Vijay Puri dated 5 December 2017

18.He continued:

We had applied for allotment of a stall in 2015 and were put on wait list with a remark that our Indian products are imported and as and when there is a space, we will get the allotment. We kept on waiting and approached last Sunday to check the status. We are being informed that the management committee has since changed and there is no record available for our pending request. Hence we are moving a fresh application. We will appreciate if we are given a change to showcase our products along with other participants exhibiting Indian products.[11] [errors in original]

[11] Stallholder application by Vijay Puri dated 5 December 2017

He attached photographs of textile products.

19.On 22 December 2017, Mr Puri was advised by email from Mr Vagi that “unfortunately we are unable to approve you for a market stall at this time. We have kept your details on file and if a stall position suitable for your products comes available we will contact you.”

The proceedings

20.Mr Puri alleges that the reason he was not allocated a stall was because his name is Indian and because of his national origin.

21.He also alleges that the reason that Ms Crosswell and Ms X were allocated stalls was because they are of Australian origin. He claimed to have been discriminated against on the basis of his race.

22.On 26 March 2018, Mr Puri made a written discrimination complaint to the Human Rights and Discrimination Commissioner on the ground of ‘race’.

23.Karen Toohey, the Discrimination Commissioner, decided on behalf of the Human Rights Commission that “conciliation is unlikely to be successful as a means of resolving this complaint” and closed the complaint under section 78(1)(f) of the Human Rights Commission Act 2005.[12] Mr Puri was advised that he had the right under that Act to require the Commissioner to refer his complaint to the ACT Civil and Administrative Tribunal (the Tribunal) for determination.

[12] Letter from Karen Toohey to Vijay Puri dated 21 May 2018

24.He exercised that right by email dated 24 May 2015, and on 25 May 2018 the Commissioner referred the matter to the Tribunal.

25.On 25 October 2018, a member of the Tribunal (the Original Tribunal) heard evidence and submissions from Mr Puri, Mr Vagi and Anthony Niravong, the managing director of the respondent, and received documents (including email correspondence) into evidence.

26.On 26 October 2018 the Original Tribunal gave detailed oral reasons for dismissing Mr Puri’s application.

27.On 23 November 2018, Mr Puri appealed against the Original Tribunal’s decision. In his application for appeal Mr Puri sought that “[t]he respondent be punished as per Law for Racial discrimination & payment of $45,000 claimed as loss of income with up to date interest.”  He added “I would request the appellant authority to pass necessary orders in the best interest & keeping in mind the Law of Natural Justice.”

28.The parties were directed to provide specified types of documents to each other and the Tribunal in preparation for the hearing of the appeal. Mr Puri did not comply with all of those directions.

29.The appeal was listed for hearing on 21 February 2019 as a review of the Original Tribunal’s decision of 26 October 2018, subject to the Appeal Tribunal allowing any additional evidence.

30.At the hearing of the appeal, Mr Puri appeared on his own behalf and Mr Vagi and Mr Niravong appeared for the respondent. The only additional evidence admitted, by consent of the parties, was the Stallholder Guide dated January 2010. Otherwise the Appeal Tribunal had before it the oral and written evidence that was before the Original Tribunal.

Applicable law

31.In his written complaint to the Commissioner, lodged on 26 March 2018, Mr Puri complained that:

(a)     he had been treated unfavourably because of race; and

(b)     the alleged discriminatory conduct occurred in relation to:

(i)access to premises; and

(ii)the provision of goods, services or facilities.

32.For his complaint to succeed and, in particular, for his appeal to be allowed, the Tribunal must be satisfied by reference to the relevant provisions of the Discrimination Act 1991 (the Discrimination Act) that Mr Puri was discriminated against on the basis of race.

33.It was apparent at the hearing of the appeal that Mr Puri was not aware of those legislative provisions and that he completed the written complaint documentation to the Commissioner by reference to items which he thought might apply in his circumstances. Consequently, he was not in a position to advance any legal arguments in relation to the relevant legislative provisions. That does not relieve this Appeal Tribunal of the obligation to decide the appeal in accordance with the applicable law.

34.Although it is not necessary to provide an exhaustive analysis of those provisions, it is appropriate to refer to them in order to ascertain which ones might, or do, apply to the circumstances of this case.

35.Two sections operate in relation to the type of discriminatory conduct in which, Mr Puri alleged, the respondent engaged.

36.Section 19(a) of the Discrimination Act provides that it is unlawful for a person to discriminate against another person by refusing to allow the other person access to, or the use of, any premises that the public or a section of the public is entitled or allowed to enter or use (public premises) whether for payment or not.

37.As I understand Mr Puri’s complaint, he does not allege that he was refused access to or use of those parts of the Markets that are public premises. His complaint is that he was denied the allocation of a stall within the Markets. Accordingly, I am not satisfied that section 19 of the Discrimination Act operates to the circumstances of this case.

38.Section 20(a) of the Discrimination Act provides that it is unlawful for a person who provides goods or services, or makes facilities available, to discriminate against another person by refusing to provide those goods or services or make those facilities available to the other person. For Mr Puri to succeed, he would need to demonstrate that the respondent had discriminated against him by refusing to make the facilities of the Markets (in particular, a stall at those markets) available to him.

39.The question then is whether the respondent discriminated against Mr Puri in the way contemplated by the Discrimination Act. Section 8 of that Act provides, in part:

(1)For this Act, discrimination occurs when a person discriminates either directly or indirectly, or both, against someone else.

(2)For this section, a person directly discriminates against someone else if the person treats, or proposes to treat, another person unfavourably because the other person has one or more protected attributes. [emphasis added]

40.Section 7(1) of the Discrimination Act provides that the Act applies to discrimination on the ground of any ‘protected attribute’ including ‘race’ (section 7(1)(r)). The definition of ‘race’ in the Dictionary to the Act includes “colour, descent, ethnic and national origin and nationality.”

41.At the hearing of his appeal, Mr Puri advised the Appeal Tribunal that he was alleging discrimination based on his ‘ethnic and national origin’, that is, because he is of Indian national origin. Mr Puri advised that he became an Australian citizen on 3 February 2019. Before then, and hence on all dates relevant to his complaint, he also had Indian nationality.

42.Consequently, the legal context in which Mr Puri’s complaint is to be decided is, in summary:

(a)section 8(2) of the Discrimination Act provides that a person directly discriminates against another person if they treat the other person unfavourably ‘because’ the other person has the protected attribute, in this case ‘race’ (as defined);

(b)if it can be established under section 8(1) and (2) of the Discrimination Act that Mr Puri has been treated unfavourably ‘because’ of his ‘race’ (specifically his ‘ethnic and national origin’) then he can obtain relief under the Discrimination Act;

(c)it is a rebuttable presumption that discrimination has occurred if Mr Puri establishes that the treatment was unfavourable and presents evidence that would enable the Tribunal to decide, in the absence of any other explanation, that the treatment was because of a protected attribute, namely ‘race’;[13] and

(d)the presumption is rebutted if the respondent establishes that the treatment was not because of a protected attribute of Mr Puri, namely his ‘race’.[14]

The decision of the Original Tribunal

[13] Human Rights Commission Act 2005 section 53CA(2)

[14] Human Rights Commission Act 2005 section 53CA(3)

43.The evidence before the Original Tribunal included the oral evidence of Mr Puri, Mr Vagi and Mr Niravong, written statements from each of them, various emails between the parties, the two applications by Mr Puri to be a stallholder and Ms Crosswell’s application, written statements by Ying Liu (also known as Sally), Morna Whiting and Diane Hinds (none of whom were called by Mr Puri to be cross-examined), a chronology, and a policy document. It is apparent from the reasons for decision of the Original Tribunal, as well as the transcript of the hearing, that the Original Tribunal had regard to the full range of the evidence and submissions.

44.The Original Tribunal stated that she had to be satisfied on the balance of probabilities and had to consider the matter on the evidence before her at the hearing.

45.Having considered the oral and written evidence and the submissions made by the parties, the Original Tribunal made a series of findings.

46.The Original Tribunal noted that Mr Puri made two formal applications and many informal requests for allocation of a stall. The Markets declined to allocate a stall to him. Mr Puri firmly believes that the Markets declined to allocate him a stall because of his race and, put more specifically by him, because of his nation of origin or his Indian name.[15]

[15] Transcript of proceedings 26 October 2018 page 9

47.The Original Tribunal was satisfied that Mr Puri was treated unfavourably.

48.Ms X was also allocated a stall and the Original Tribunal was satisfied that she was treated favourably by the allocation of a stall. However the Original Tribunal had no evidence regarding the decision in relation to Ms X at all, and Mr Puri conceded that Ms X may have been allocated a stall before his first application was made in December 2014.[16] On the available evidence, the Original Tribunal could not be satisfied the decision was made because of Ms X’s race.[17]

[16] Transcript of proceedings 26 October 2018 page 9

[17] Transcript of proceedings 26 October 2018 pages 10-11

49.In relation to the decision in December 2014, the contemporaneous records included the emails which showed that the markets already had stall holders selling similar goods. On the evidence available, the Original Tribunal was not satisfied that the Markets made the decision because of race.[18]

[18] Transcript of proceedings 26 October 2018 page 9

50.In relation to the allocation of a stall to Ms Crosswell, the Original Tribunal was satisfied that Ms Crosswell was treated favourably by the allocation of that stall. However, the Original Tribunal did not have any evidence about the decision‑making process or any file notes. At that time Mr Puri had been on the waiting list for one year and seven months; the Markets’ email dated 24 March 2015 said that he had been placed on a waiting list and “if anything becomes available in the future, we will call you.” That email was sent about 15 months before the time that the decision about Ms Crosswell’s application was made. Importantly, so far as the Original Tribunal was concerned, the Original Tribunal did not know if Ms Crosswell was also on the waiting list and, if so, the length of time she was waiting. The Original Tribunal did not know if the decision-maker considered the waiting list, or if Ms Crosswell provided any information in addition to her application. On the available evidence, the Original Tribunal was not satisfied that the Markets made the decision for reasons including Ms Crosswell’s race.[19]

[19] Transcript of proceedings 26 October 2018 pages 9-10

51.The last decision was in December 2017. Mr Vagi made the decision and gave a detailed statement of the decision-making process. The Original Tribunal did not accept that the goods Mr Puri wanted to sell were not of high quality or not handmade. Mr Niravong confirmed that the decision of Mr Vagi was in accordance with the curating policy of the markets. The items detailed in the application were already being supplied within the market scape with stalls selling similar items from similar regions of the world as well as Australian-made items covering the same product lines. According to Mr Vagi, he felt the best course of action was to place Mr Puri on the waiting list. The email dated 22 December 2017 does not give reasons.[20]

[20] Transcript of proceedings 26 October 2018 page 10. (The transcript reference to an email dated “27” December 2017 would appear to be an error.)

52.In all the circumstances, in particular the fact that at the time the decision was made there were at least two other stalls operating which were selling similar items, the Original Tribunal accepted Mr Vagi’s evidence that the reason he made the decision was on the basis of curating the Markets and that there were other products for sale that were similar to the goods Mr Puri was selling. For that reason, on that evidence, the Tribunal was not satisfied the decision was made because of Mr Puri’s race.[21]

[21] Transcript of proceedings 26 October 2018 pages 10-11

53.The Original Tribunal dismissed the application.

The role of the Appeal Tribunal

54.Section 79(3) of the ACT Civil and Administrative Tribunal Act 2008 (ACATAct) provides that a party to an original application may, by application, appeal the decision to the Tribunal ‘on a question of fact or law’. That provision shapes the requirements and limitations of the appeal.

55.The role of the Appeal Tribunal is different from the role performed by the Original Tribunal. An appeal Tribunal must determine whether the decision appealed against is wrong because the original Tribunal fell into an error of law, made a finding of fact that was clearly wrong, or exercised a discretion on a wrong principle or in a way that was clearly wrong. Ordinarily, if there has been no further evidence admitted or no relevant change in the law, an appeal Tribunal can exercise its appellate powers only if satisfied that there was an error on the part of the original Tribunal. The appeal Tribunal will also give proper allowance to the advantage of the original Tribunal who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.

56.As differently constituted Tribunals have observed in previous cases, an appellant does not have standing to appeal as of right and is required to identify a question of fact or law. The appellant cannot merely request the re-exercise of a discretion.[22] The purpose of the appeal process is not to allow an applicant to try and have a matter reheard because they do not like the previous decision. If that were so there would be no point in the original hearing.[23]

Mr Puri’s submissions

[22] Chakravarty & Commissioner ACT Revenue [2013] ACAT 11 [36]

[23] Das v A&A Air-conditioning [2009] ACAT 52 [19]

57.In his application for appeal, Mr Puri contended that the Original Tribunal had made an error of fact in making the decision to dismiss his application. In summary, Mr Puri wrote that the reason for appealing was because the Original Tribunal had contemplated that Christine Crosswell might have made a stallholder application before Mr Puri when in fact she had not. Consequently, no discrimination was found and his claim of $45,000 was not considered.

58.In his written complaint to the Commission, Mr Puri recounted how, after he approached the management of the Markets in 2015, he was placed on the wait‑list of applicants and was told there was “a long queue and might take few years before I get space.” He asserted that:

(a)a space was allocated to Ms Crosswell who “is of Australian origin although married to an Indian Mr Tejpal Khatri”;

(b)another stallholder “selling the same stuff like mine … is also Australian”;

(c)“management has not given [a] stall to any other nationality except the Australians”

and stated that he had written to the Markets citing discrimination due to his Indian name and country of origin.

59.During the hearing before the Original Tribunal, Mr Puri put part of his argument as follows:

I am waiting since 2014 for my turn to sell that product. I have never been given a single opportunity even for a day to participate, whilst same/similar products made in the same country are permitted by two people to be sold in the same market after I applied. My name is Vijay Puri, I am Indian. Their name is Australian. I call it racist.[24]

[24] Transcript of proceedings 25 October 2018 page 22

60.Later in the hearing he referred to various matters and concluded:

So I feel all these things as summarised that whenever I approached them and I visited them, whenever I sent them [an] email I was never given a chance to participate as a stallholder. I feel it was because of my name. I am not an Australian, I don’t have an Australian name. That’s the reason I call it racial discrimination. I’ve suffered heavy losses because of this. If I would have been there I would have definitely made some money.[25]

[25] Transcript of proceedings 25 October 2018 pages 46-47

61.As part of his reasons for appeal Mr Puri wrote:

I am of the opinion that my name being an Indian [name] was the main reason for non-allotment of stall to sell Indian products, where as an Australian Lady named Christine Khatri (Crosswell), who applied to sell, similar Indian products like mine on 25th May 2015 was allotted the stall on 26th May 2016 [sic] just in one day because the applicant was an Australian. These dates are confirmed from the reply filed by the management with the Commissioner of Discrimination dated 24/5/2018.

This attitude smells of racial discrimination.

62.At the hearing of the appeal, Mr Puri asserted that he has not seen any Indians participating at the markets although people from different countries are there. However, earlier in the hearing he noted that Ms Crosswell’s husband is Indian.

63.He described the judgment of the Original Tribunal as “prejudiced” and hence he made the appeal.

Submissions for Iconic Markets and Events Pty Ltd

64.The respondent submitted that, apart from incorrectly stating the dates on which Ms Crosswell applied for and was granted her stall,[26] the decision of the Original Tribunal and the reasons for it were correct.

[26] ‘21 June 2015’ and ‘26 June 2015’ instead of 25 May 2015 and 26 May 2015 — see transcript of proceedings 26 October 2018 page 5

65.In relation to the decision not to allocate a stall to Mr Puri in December 2014, the respondent submitted that:

(a)the Stallholder Guide dated January 2010 showed that Multicultural Sundays had been held at the markets on the first Sunday of each month since at least 2003;

(b)Mr Puri had visited the Markets previously and had seen what products were being sold;

(c)Mr Puri failed to complete some of the items on the application form (for example, the item titled “Wholly handcrafted - by whom and location of maker (please provide details below)”);

(d)the Market management only had three days to assess his application; and

(e)the reason for Mr Puri not being allocated a stall in December 2014 was, as set out in the letter to him dated 9 December 2014, that they had generically enough products of that style/type at the Market.

66.With regard to Ms Crosswell’s application, the respondent submitted in writing that the range of products that she applied to sell (and the types of products she sells) was “significantly different” from the products listed by Mr Puri. Ms Crosswell has refined her range to concentrate on leather bags and notebooks, with shawls and pashminas being of lesser importance.

67.Mr Niravong gave evidence to the Original Tribunal about the number of stalls, the number of potential stallholders, and the wait-listing practice at the Markets.[27] He said that an average of 180 stalls operate each Sunday, including multicultural Sunday. He referred to a library of 15,000 stallholders who have varying types of approval, for example, on which day they can trade.

[27] Transcript of proceedings 25 October 2018 pages 49-52

68.Mr Puri was concerned that his position on the wait-list appeared to change to his disadvantage. Mr Niravong explained that the list was reviewed for people who had the relevant criteria to ensure they were given an opportunity to trade. It is not simply a sequential list. Once a person has the potential to come out of a wait‑list they would have to submit a new application so that the management could understand if anything had changed within their product line since their original application was made. Management would want to know the nature of the change. In any case, the management would want to allocate a stall to someone who provides products for which there is a gap at the Markets. For example, if a person who was selling ice creams left the Markets, that stall would not be taken by the next person on the list if that person would sell rugs.

69.Mr Niravong reiterated that the main reason why Mr Puri was rejected was that, having reviewed the stallholders who had been preapproved, there was a large representation of the products that Mr Puri wanted to sell.

70.The respondent submitted that the management teams and directors of the Markets (both Dimor and Iconic Markets and Events Pty Ltd) provided sufficient evidence that “company procedures and selection criteria were followed in approving stallholders and the even treatment of applicants, over this time period including Mr Vijay Puri, (Mr and Mrs) Christine and Tejpal Khatri as well as Ms X.”

71.The respondent submitted that, although different personnel from the Markets were involved in decisions about stallholders in the period being considered, the reasons why Mr Puri was not permitted to join the Markets as a stallholder were set out in correspondence, and oral and written evidence. Mr Puri was not the subject of racial discrimination.

Consideration

72.It is apparent that there were two errors in the reasons for decision by the Original Tribunal. First, as both parties noted, the Original Tribunal misstated the date on which Ms Crosswell applied for and was allocated her stall at the Markets. Each party recognised that the minor error was not of any consequence in relation to the Original Tribunal’s decision.

73.Second, Mr Puri relied on the fact that the Original Tribunal had contemplated that Ms Crosswell might have made a stall application before Mr Puri made his application when, it appears, she did not. Even if one accepts that the Original Tribunal erred in that respect, that does not necessarily result in the appeal succeeding. Whether Ms Crosswell’s application was lodged before or after Mr Puri’s might only be relevant to whether her application was treated more favourably than Mr Puri’s application. The Original Tribunal was satisfied that Ms Crosswell was treated favourably by the allocation of that stall. There is no evidence before the Appeal Tribunal to compel a different conclusion.

74.The real issue is whether Mr Puri was treated unfavourably because of his ethnic or national origin. There is no evidence to support such a finding. The processes for allocating stalls, and the reasons why Mr Puri was not allocated one, were explained to the Original Tribunal, and are summarised above.

75.Further, Mr Puri acknowledged that Ms Crosswell’s husband, Tejpal Khatri, is Indian. Ms Crosswell’s application was made in the name of Mr and Mrs Christine and Tejpal Khatri. It included statements that Mr Khatri is from India and has handmade items from India which were made by his cousin in India. The application stated that the couple “are fresh and new and [Mr Khatri] is [an] Indian salesman.” Even if, as Mr Puri suggests, Ms Croswell is Australian, there is no dispute that her husband is Indian and that the application was made on behalf of both of them.

76.There is no evidence that Mr Puri was discriminated against ‘because’ of his ‘ethnic and national origin’ when he was not allocated a stall at the Markets.

77.To the extent that Ms Crosswell was treated favourably with the allocation of a stall, the fact that her Indian husband was named in the application and works with her at that stall is also an answer to Mr Puri’s contention that no Indians work at the Markets, and suggests that the managers of the Markets did not discriminate against him, or others, on the basis of his Indian nationality or national origin.

78.Nothing was put to the Appeal Tribunal which would upset the findings of the Original Tribunal in relation to the allocation of a stall to Ms X.

79.To the extent that there was a rebuttable presumption that discrimination occurred, there was insufficient evidence to enable the Appeal Tribunal to decide, in the absence of any other explanation, that the treatment was because of Mr Puri’s race. In any case, the respondent established to the satisfaction of the Original Tribunal that the treatment was not because of his race, and that conclusion was reinforced by the material before the Appeal Tribunal.

80.It follows that (apart from the minor error or errors noted above) the findings of the Original Tribunal are upheld and hence the decision of the Original Tribunal to dismiss the application by Mr Puri is also upheld. In formal terms, his appeal must be dismissed.

Remedies

81.Although, in light of the conclusion reached about the appeal, it is unnecessary to do so, I will note for completeness some observations about the remedy sought by Mr Puri.

82.Section 53E of the Human Rights Commission Act 2005 provides that if the Commission refers a complaint to the Tribunal and the Tribunal is satisfied that the person complained about engaged in an unlawful act, the Tribunal must make one or more of the specified types of orders. Those orders include, in part, that the person complained about pay to a person a stated amount by way of compensation for any loss or damage suffered by the person because of the unlawful act.

83.In his application for appeal, Mr Puri sought that “[t]he respondent be punished as per Law for Racial discrimination & payment of $45,000 claimed as loss of income with up to date interest.”

84.At the hearing before the Original Tribunal, when asked how he had calculated the amount claimed, he stated “I feel, at least I would have made $15,000 from my products.”[28] However, he went on to say “[t]here is no basis of factual calculations. It is just a rough calculation. It’s my feeling I would have made money because anyone over there is selling very well.”[29] He continued, “[t]hat was my estimation. It can be low, it can be high.”[30]

[28] Transcript of proceedings 25 October 2018 page 47, line 11

[29] Transcript of proceedings 25 October 2018 page 47

[30] Transcript of proceedings 25 October 2018 page 48

85.When asked by the Appeal Tribunal how he calculated that amount, Mr Puri volunteered that this was an estimate based on him earning $1,000 per month at the Markets over a period of four years from December 2014. How he arrived at the figure of $1,000 per month was not clear. He advised the Appeal Tribunal that the amount was the minimum one can expect from those markets. When pressed, he stated that, apart from participation in another market for a couple of weeks, he had not participated in markets. He gave no evidence as to his turnover or profit at the other market, and conceded that he was not sure if the $1,000 per month estimate was “realistic.” His final position was that he could have earned “something” had he been allocated a stall at the Markets.

86.Had he succeeded in establishing that he was discriminated against because of race, additional evidence would have been required to enable the Tribunal to ascertain whether compensation should have been paid for any loss or damage suffered by Mr Puri because of the unlawful act and, if compensation would have been payable, the amount of that compensation.

Conclusion  

87.The appeal is dismissed.

………………………………..

President G Neate AM

HEARING DETAILS

FILE NUMBER:	AA 50/2018
PARTIES, APPLICANT:	Vijay Puri
PARTIES, RESPONDENT:	Iconic Markets and Events Pty Ltd ACN 610 470 114
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	N/A
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	N/A
TRIBUNAL MEMBERS:	President G Neate AM
DATES OF HEARING:	21 February 2019