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Qiu v Hunter Express

Qiu v Hunter Express

Case [2021] NSWCATAD 374 17 December 2021

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Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Qiu v Hunter Express [2021] NSWCATAD 374
Hearing dates: 6 October 2021
Date of orders: 17 December 2021
Decision date: 17 December 2021
Jurisdiction: Administrative and Equal Opportunity Division
Before: D Dinnen, Senior Member
Decision:
(1) Leave is refused for the complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).

Catchwords:
HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — evidence – causation – denial of services – terms of services provided - complaint lacking in substance

Legislation Cited:
Anti-Discrimination Act 1977

Cases Cited:
Bassili v The Star Pty Ltd [2016] NSWCATAD 167
Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282
Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5
Dutt v Central Coast Area Health Service [2002] NSWADT 133
Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143
Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99
IW v The City of Perth [1997] HCA 30
Jones v Ekermawi [2009] NSWCA 388
Langley v Niland [1981] 2 NSWLR 104
Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156
Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20
Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73
Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Spence v Roberts (No 2) [2006] NSWADT 361

Category: Principal judgment
Parties: Jiamin Qiu (Applicant)
Hunter Express (Respondent)
Representation: Applicant self-represented
J Motufitutama (Respondent)

File Number(s): 2021/261280

REASONS FOR DECISION

Background

On 4 June 2021 Jiamin Qiu (the Applicant) lodged a complaint with the President of Anti-Discrimination NSW (the President) against Hunter Express (the Respondent), alleging that she had been discriminated against on the grounds of sex and race in the provision of goods and services.
The Applicant alleged that she attended the Respondent’s Casula depot on 4 June 2021 to collect some parcels on behalf of a friend. She was required to wait a long time and was spoken to rudely by the Respondent’s employee, who shouted abusive language at her and then closed the service window. She alleges that she saw the Respondent’s employee treat male customers ‘significantly better’ and believes that male customers received more favourable treatment due to their race and sex.
On 25 August 2021 the President decided to decline the complaint under s 92(1)(a)(i) of the Anti-Discrimination Act 1977 (the Act), on the ground that the Applicant’s complaint was lacking in substance.
For the reasons that follow, I have decided to refuse leave for the complaint to proceed.

Legal Principles

A person may make a complaint to the President on their own behalf alleging that a person(s) has contravened a provision of the Act: s 87A(1)(a)(i) of the Act.
Where the President decides to accept a complaint under s 89B, she must investigate that complaint:…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Qiu v Hunter Express

Details

AGLC: Qiu v Hunter Express [2021] NSWCATAD 374
Case: [2021] NSWCATAD 374
Decision Date: 17 December 2021

CaseChat Overview and Summary

Qiu v Hunter Express was a case where the complainant, Mr. Qiu, alleged discrimination and denial of services on the basis of race by Hunter Express. The matter was heard by the Anti-Discrimination Tribunal of New South Wales, which was tasked with determining whether the complaint had sufficient substance to warrant further proceedings.

The primary legal issues the tribunal needed to address were whether the complaint met the threshold requirements for leave to proceed, as stipulated by section 96(1) of the Anti-Discrimination Act 1977 (NSW), and whether there was sufficient evidence to suggest that the actions of Hunter Express constituted racial discrimination or denial of services. The tribunal also considered whether the terms of service provided by Hunter Express could be seen as discriminatory and if there was a causal link between the alleged discriminatory conduct and the complainant's grievances.

In its reasoning, the tribunal found that the complaint did not sufficiently establish the necessary elements for discrimination or denial of services. The evidence provided by Mr. Qiu did not demonstrate that Hunter Express's actions were based on race, nor did it show a causal link between the alleged discriminatory conduct and the issues raised. The tribunal concluded that the complaint was lacking in substance and did not meet the criteria for leave to proceed. Therefore, the tribunal refused leave for the complaint to proceed under section 96(1) of the Anti-Discrimination Act 1977 (NSW).

Orders

Orders of the court

(1) Leave is refused for the complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Qiu v Hunter Express [2021] NSWCATAD 374

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 14 of 14 shown

Munt v Workers Compensation Independent Review Officer
[2020] NSWCATAD 156 Para 22

…rt of the manner of actual performance ( Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]). Sections 19 and 33 of the Act do not allow a complaint of discrimination to be brought in relation to the manner in which goods or servi…
Chalker v Murrays Australia Pty Ltd
[2016] NSWCATAD 282 Para 6

…llegations or that the complaint is “not reasonably arguable”: Langley v Niland [1981] 2 NSWLR 104 at 107 and Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 at [22].…
Bassili v The Star Pty Ltd
[2016] NSWCATAD 167 Para 17

…a Health Service [2002] NSWADT 133 at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].…
Hubbard v Roads and Traffic Authority of NSW
[2010] NSWADT 99 Para 16

…urably “on the grounds of”, “because of” or “due” (at least in part) to her race or sex: see Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 at [56].…
Jones & Anor v Ekermawi
[2009] NSWCA 388 Para 9

…Section 96(1) gives the Tribunal an unfettered discretion to grant leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose…
Nicholls and Nicholls v Director General, Department of Education and Training (No 2)
[2009] NSWADTAP 20 Para 15

…217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20. The words “on the grounds of” have been paraphrased as “because of”, “due to,” or “a real” reason, a “genuine” reason or “true” reason for the treatment alleged t…
Ekermawi v Administrative Decisions Tribunal of New South Wales
[2009] NSWSC 143 Para 9

…leave for a complaint to proceed: Jones v Ekermawi [2009] NSWCA 388 at [58] (Jones); Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 at [25] (Ekermawi). That discretion must be exercised having regard to the purpose of the legislative scheme established by the Act and be guided by…
Spence v Roberts (No 2)
[2006] NSWADT 361 Para 22

…erms are the conditions on which the service is or will be performed; they are not part of the manner of actual performance ( Spence v Roberts (No 2) [2006] NSWADT 361 at [58-60]; Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 at [28-30]). Sections 19 and 33 of the Act do not allow a comp…
Purvis v New South Wales
[2003] HCA 62 Para 15

…eason which, either alone or in combination with other reasons, was the true basis for the treatment: Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 per Gleeson CJ at 102, McHugh and Kirby JJ at 144; Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20.…
Dutt v Central Coast Area Health Service
[2002] NSWADT 133 Para 17

…actual comparator with whom to compare the applicant, then a hypothetical comparator may be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].…
Commissioner of Corrective Services v Aldridge
[2000] NSWADTAP 5 Para 17

…ay be considered: see Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [59]‑[65]; Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5; Bassili v The Star Pty Ltd [2016] NSWCATAD 167 at [23].…
Seltsam Pty Ltd v McGuiness
[2000] NSWCA 29 Para 29

…ion is probable. An inference cannot be made where more probable and innocent explanations are available on the evidence: Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262; Dutt v Central Coast Area Health Service [2002] NSWADT 133 at [70]).…
Prakash v Bobb Borg Enterprises Pty Ltd
[1999] NSWADT 73 Para 28

…e Tribunal determines whether she could possibly succeed in her complaint of racial and sex discrimination: Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 at [35]. At the leave hearing, the Applicant stated that there were eye witness accounts, audio and video recordings of her waiting to get the parcel a…
IW v City of Perth
[1997] HCA 30 Para 20

…eged discrimination under the similarly worded s 66K(1) of the Equal Opportunity Act 1984 (WA) Brennan CJ and McHugh J said in IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17:…

Legislation cited in this decision · 2

Anti-Discrimination Act 1977 (NSW)
1 mention (from Para 3)
Equal Opportunity Act 1984 (WA)
1 mention (from Para 20)

Medium Neutral Citation:	Qiu v Hunter Express [2021] NSWCATAD 374
Hearing dates:	6 October 2021
Date of orders:	17 December 2021
Decision date:	17 December 2021
Jurisdiction:	Administrative and Equal Opportunity Division
Before:	D Dinnen, Senior Member
Decision:	(1) Leave is refused for the complaint to proceed pursuant to s 96(1) of the Anti-Discrimination Act 1977 (NSW).
Catchwords:	HUMAN RIGHTS — discrimination — equal opportunity — leave required for complaint to proceed — evidence – causation – denial of services – terms of services provided - complaint lacking in substance
Legislation Cited:	Anti-Discrimination Act 1977
Cases Cited:	Bassili v The Star Pty Ltd [2016] NSWCATAD 167 Chalker v Murrays Australia Pty Ltd [2016] NSWCATAD 282 Commissioner of Corrective Services v Aldridge (EOD) [2000] NSWADTAP 5 Dutt v Central Coast Area Health Service [2002] NSWADT 133 Ekermawi v Administrative Decisions Tribunal of New South Wales [2009] NSWSC 143 Hubbard v Roads and Traffic Authority of NSW [2010] NSWADT 99 IW v The City of Perth [1997] HCA 30 Jones v Ekermawi [2009] NSWCA 388 Langley v Niland [1981] 2 NSWLR 104 Munt v Workers Compensation Independent Review Officer [2020] NSWCATAD 156 Nicholls v Director General, Department of Education and Training (No 2) [2009] NSWADTAP 20 Prakash v Bobb Borg Enterprises Pty Ltd [1999] NSWADT 73 Purvis v State of New South Wales [2003] HCA 62; (2003) 217 CLR 92 Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262 Spence v Roberts (No 2) [2006] NSWADT 361
Category:	Principal judgment
Parties:	Jiamin Qiu (Applicant) Hunter Express (Respondent)
Representation:	Applicant self-represented J Motufitutama (Respondent)
File Number(s):	2021/261280