Rae v Commissioner of Police NSW (No 2)
[2010] NSWADT 36
•5 February 2010
CITATION: Rae v Commissioner of Police, New South Wales Police Force (No 2) [2010] NSWADT 36 DIVISION: Equal Opportunity Division PARTIES: APPLICANT
RESPONDENT
Darryl Rae
Commissioner of Police, New South Wales Police ForceFILE NUMBER: 081047 HEARING DATES: 19 November 2009 SUBMISSIONS CLOSED: 24 December 2009
DATE OF DECISION:
5 February 2010BEFORE: Chesterman M - Deputy President CATCHWORDS: Dismissal of complaint – racial discrimination – racial vilification – victimisation LEGISLATION CITED: Administrative Decisions Tribunal Act 1997Anti-Discrimination Act 1977Police Act 1990 CASES CITED: Anderson v Thompson [2001] NSWADT 11
Burns v Dye [2002] NSWADT 32
Commissioner of Corrective Services v Dezfouli (EOD) [2008] NSWADTAP 85
Commissioner of Police v Mohamed [2009] NSWCA 432
Commissioner of Police, New South Wales Police Service v Estate of Russell [2001] NSWSC 745
Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16
Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5
Fei v Director General, Department of Commerce (State of NSW) (No 2) [2009] NSWADT 109
Langley v Niland [1981] 2 NSWLR 104
Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 520
R v D and E Marinkovic [1996] EOC 92-841
Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183
Rae v State of New South Wales (NSW Ombudsman) [2009] NSWADT 195
Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4
Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2
Z v University of A & Ors [2004] NSWADT 81REPRESENTATION: APPLICANT
RESPONDENT
Darryl Rae
Commissioner of Police, New South Wales Police ForceORDERS: 1. The complaint by the Applicant is dismissed under section 102 of the Anti-Discrimination Act 1977 except in relation to the following:-(a) The Applicant’s claims of unlawful racial vilification based on statements allegedly made (i) by Sergeant Enchelmaier at Coffs Harbour Police Station on 6 January 2007 and (ii) by Inspector Carey and Superintendent Kenny at or near Tweed Heads Police Station on 3 March 2007.(b) The Applicant’s claims of unlawful discrimination on the ground of race and of victimisation based on the alleged conduct of Sergeant Enchelmaier, Inspector Carey, Superintendent Kenny, Detective Sergeant Burton and Senior Constable Goodall
2. The Respondent is to file and serve Points of Defence in response to the complaint, as amended by Order 1, on or before 3 March 2010
3. The proceedings are set down for a further case conference on 10 March 2010 at 12 noon, for the purpose of fixing a time and venue for the hearing of the complaint.
REASONS FOR DECISION
Introduction
1 In these proceedings, the Applicant, Mr Darryl Rae, seeks remedies under the Anti-Discrimination Act 1977 (‘the AD Act’) for harm caused to him by the alleged misconduct of a number of officers of the New South Wales Police Force. He claims that the Respondent, the Commissioner of Police (‘the Commissioner’), is vicariously liable for this misconduct.
2 On 28 March 2007, Mr Rae lodged a complaint with the Anti-Discrimination Board (‘the Board’). By a letter dated 24 April 2008, following investigation of the complaint by the Board and an unsuccessful attempt to resolve it by conciliation, the President of the Board (‘the President’) referred it to the Tribunal. The accompanying Report by the President included the Board’s summary of the issues raised by the complaint and copies of the Board’s correspondence with Mr Rae (including his initial letter of complaint) and with the Commissioner.
3 The present decision relates to an application by the Commissioner, made on 17 September 2009, for an order under section 102 of the AD Act striking out all or part of Mr Rae’s complaint. The ground initially put forward was that he had failed to provide particulars of the conduct alleged by him. As indicated below, other grounds were added.
Outline of the misconduct alleged by Mr Rae
4 What follows is a brief outline of the nature of the misconduct by police officers alleged by Mr Rae. It is taken principally from the following sources: (a) his initial complaint to the Board, dated 28 March 2007; (b) letters written by him to the Board on 4 June, 27 August and 7 December 2007; (c) a statement sworn by him and filed in the Tribunal on 12 June 2008 (his ‘sworn statement’); and (d) his submissions, filed on 16 December 2009, opposing the present application for dismissal of his complaint. There are numerous inconsistencies between the different and often lengthy accounts that he gave of some of these events.
5 Mr Rae is a resident of Queensland. In his sworn statement, he says that he ‘identifies himself as an Australian indigenous person’.
6 Early in 2006, he came to suspect that his former wife, Ms Glynis Kelly, had fraudulently induced Computershare, a company in which he and Ms Kelly held shares registered in their joint names, to send all future dividend cheques to her at her residence. He went to the Coffs Harbour Police Station and asked an officer on duty to investigate this alleged fraud. Both the officer to whom he first spoke and several other officers with whom he raised the matter subsequently (in some cases, by telephone) gave him no useful assistance and in some instances were abusive of him. Eventually, Senior Constable Vout, who was stationed at Coffs Harbour, said that he was conducting an investigation of the matter.
7 In June 2006, having heard nothing from the Police Force in the interim, he rang Senior Constable Vout. Senior Constable Vout claimed to have completed the investigation. When Mr Rae responded that a client service manager at Computershare and a person living in the same house as Ms Kelly had told him that no police officer had interviewed them, Senior Constable Vout said that in return for a bribe from Mr Rae he would reopen the investigation.
8 In a number of telephone calls to Coffs Harbour Police Station, Mr Rae complained about this alleged behaviour of Senior Constable Vout. None of the officers to whom he spoke was prepared to take his complaint. He then sent a written version of it to the commanding officer of the northern region. During the next two months, he made follow-up inquiries about it at various police stations in northern New South Wales. Except for a telephone interview of him during August 2006, no action appeared to be taken to investigate it.
9 On 6 January 2007, during a visit by Mr Rae to Coffs Harbour Police Station, a number of officers, including Sergeant Enchelmaier, assaulted him and ‘verbally and racially abused him in relation to [his] indigenous background’. Mr Rae gave some particulars of the abusive words allegedly used. The only abusive phrase amongst them with a racial element was ‘black c--t’. He said that Sergeant Enchelmaier used this phrase.
10 In addition, according to Mr Rae, Sergeant Enchelmaier refused to take a complaint made by Mr Rae regarding his own conduct.
11 Within the next day or so, Mr Rae made complaints in person and by telephone about this incident to four police officers – specifically, Chief Inspector Cribb, Constable Drew, Inspector Smith and an unknown officer – at various police stations in northern New South Wales. He alleged that none of these officers was prepared to receive his complaint, for reasons that included his indigenous background. Because his complaint was repeatedly rejected in this way, Mr Rae then sent a written version of it to the Assistant Commissioner Parsons, who was the Commander of the Northern Region.
12 On 3 March 2007, he attended the Tweed Heads Police Station pursuant to a request from Inspector Carey, who was investigating his complaint of assault and racial abuse on 6 January 2007. In the course of an interview conducted by Inspector Carey and Superintendent Kenny, he was asked in detail about his indigenous background in a manner which he found ‘inappropriate’. Outside the police station, as he was leaving it, these two officers ‘racially and verbally abused’ him, using ‘unacceptable terms that can be used to vilify indigenous people’. They made the following remarks aimed at his Aboriginality:-
‘A fucking black whinger.’
‘A dumb black c--t.’
‘Like to ( sic ) rest of the black c--ts in the area, a parasite on society.’
‘A black bludger.’
13 On 5 March 2007, Mr Rae complained in writing about this behaviour of Inspector Carey and Superintendent Kenny to Assistant Commissioner Parsons, of the Northern Command. He was told subsequently that there was no evidence to substantiate his complaint. But according to Mr Rae, an independent witness, Mr Derycke Francis, was prepared to testify that he had not been interviewed during the investigation. Mr Rae maintains also that this investigation was conducted by Inspector Carey.
14 On 8 March 2007, Detective Sergeant Burton and Senior Constable Goodall, from the Tweed Heads Police Station, visited Mr Rae in his office in Charlotte Street, Brisbane. Sergeant Burton had been appointed to investigate his complaint of misconduct by Detective Sergeant Vout. These two officers ‘used racially abusive language’ towards him. Also present were a person whom he identified as ‘Mr Gardiner’, being a barrister who worked for the Aboriginal and Torres Strait Island Legal Service at its Brisbane office, and (it would seem) a number of security officers employed by the Queensland Government. According to Mr Rae, the conduct of these officers was recorded on CCTV.
15 The abusive remarks by Sergeant Burton included the following references to Mr Rae’s Aboriginality:-
‘A black piece of shit.’
‘Are you an educated blackfella or are you on some job program where you black c--ts are given jobs?’
‘I’m going to fit you up as I hate you black c--ts.’
[As a joke, speaking to Senior Constable Goodall, who participated in the joke] ‘What do black c--ts use for ID? A piece of shit.’
16 On 9 or 12 March 2007, Sergeant Burton rang Mr Rae in Brisbane and ‘used inappropriate and racial abuse including a statement about [his] indigenous background’. According to Mr Rae, Sergeant Burton said: ‘It’s Josh Burton here, listen up you black c--t, I still have some more paperwork to give you…’
17 On 17 February 2007, Mr Rae received a death threat on his mobile telephone. When he went to the Woolgoolga Police Station to request that it be investigated, Senior Constable Vout, who was on duty, took the complaint and issued a crime number. Mr Rae expressed concern about Senior Constable Vout’s involvement in this matter. Having been told in a telephone call on 30 June 2007 that Senior Constable Vout was still investigating it, Mr Rae rang Coffs Harbour Police Station on 20 July 2007 and asked to speak to him. He overheard Senior Constable Vout, who refused to take the call, referring to him as a ‘black c—t’. When Mr Rae complained about this behaviour of Senior Constable Vout to the Local Commanding Officer, he was told that no further action would be taken.
18 When Mr Rae spoke on the telephone about all these matters to an inspector in the Professional Standards Command, the inspector ‘made a number of unacceptable racial and other comments’. During a subsequent telephone conversation, an unnamed officer within this section of the Police Force said to him that ‘we don’t investigate complaints from Black fellas’.
19 Although Mr Rae sent written complaints about all these matters to the Commissioner of Police (Commissioner Kenneth Moroney), to senior officers of the Northern Command (including Chief Inspector McCann and Assistant Commissioner Parsons) and to senior officers of the Professional Standards Command (including Inspector Laylim, Inspector Lane, Superintendent McCarthy and Assistant Commissioner Burn), none of them responded or took any action to investigate these complaints. The Police Minister and the Minister’s office similarly failed to respond to his written complaints.
The criminal proceedings instigated against Mr Rae
20 A letter to the Board dated 16 November 2007 from Mr Frank Gaha, a legal officer in the employ of the Police Force, and the Board’s submissions relating to the present decision contain the following assertions in response to those made by Mr Rae.
21 Sergeant Burton, in consequence of his investigation of Mr Rae’s allegations against Senior Constable Vout, concluded that there was sufficient evidence to lay criminal charges against Mr Rae for the offences of using a carriage service to menace, harass or cause offence (Criminal Code Act 1995 (Cth), section 474.17) and making a false complaint (Police Act 1990, section 167). Inspector Carey reached the same conclusions in consequence of his investigation of the alleged incident at Coffs Harbour Police Station on 6 January 2007.
22 The four charges recommended by these two officers were laid against Mr Rae. The Court Attendance Notices relating to them, requiring him to attend the Local Court, were served on him by Senior Constable Goodall on 8 March 2007 at 33 Charlotte Street, Brisbane. Sergeant Burton was also present when they were served.
Procedural history
23 As already indicated, the President referred this complaint to the Tribunal on 24 April 2008.
24 The copies of correspondence forming part of the President’s Report on the complaint included two letters from the Board to Mr Rae, dated 10 April 2007 and 13 June 2007 respectively, requesting further information or particulars regarding the conduct complained of. Mr Rae’s responses were contained in his letters to the Board (already mentioned) on 4 June and 27 August 2007.
25 Seven case conferences have been held in the Tribunal. The dates of these were 28 May 2008, 6 August 2008, 22 October 2008, 18 February 2009, 25 March 2009, 18 August 2009 and 23 September 2009. In each of them Mr Rae has represented himself (sometimes by telephone) and the Commissioner has had legal representation.
26 At the first of these conferences, Ms Grotte, Judicial Member, directed that Mr Rae should spell out the following matters more precisely than he had done in his complaint to the Board: (a) what form or forms of unlawful discrimination he claimed to have occurred; (b) what was the alleged conduct of officers of the New South Wales Police on which he based this claim; and (c) why he claimed that this conduct occurred on account of his race. In her note of this conference, she recorded that there appeared to be several complaints, falling within the following two categories: (i) discrimination on the ground of race in the provision of ‘services’ and (ii) racial vilification.
27 Ms Grotte also gave leave for a summons to be issued to the Commissioner, at the request of Mr Rae, requiring production of what she described as ‘investigation material’. She apparently meant by this phrase the documents in the Commissioner’s possession that related to the police investigation of the fraudulent conduct alleged by Mr Rae against his former wife. Ms Grotte told Mr Rae that the summons would be issued after the Commissioner had filed its response to the claim, that the Commissioner would still be able to object to producing material and that any contested objection would be referred to a Tribunal member for resolution.
28 On 12 June 2008, Mr Rae filed and served the sworn statement mentioned above.
29 In a letter dated 22 July 2008, Henry Davis York, who are the Commissioner’s solicitors in these proceedings, asked him for further particulars of his claim. This letter included the following observations and requests:-
1. A significant proportion of the 93 paragraphs in Mr Rae’s sworn statement described conduct by police officers about which he complained, but did not include any allegation of racial discrimination. The letter requested that he indicate whether he claimed that any of this conduct did in fact amount to unlawful racial discrimination by the officer or officers concerned.
2. A number of other paragraphs in Mr Rae’s sworn statement contained allegations of racial and verbal abuse and abusive misconduct (including physical assault) by one or more police officers. The letter requested that he supply the names of the officers concerned, the names of any witnesses and particulars of both the abusive language allegedly used and the alleged misconduct.
3. The letter also requested that Mr Rae provide details of the basis on which he identified himself as an Australian indigenous person.
30 The letter concluded by saying that once Mr Rae had complied with the Commissioner’s request for further and better particulars, Henry Davis York would require a further six weeks to ‘prepare a full response’.
31 In an email sent to Henry Davis York on 29 July 2008, Mr Rae stated as follows:-
In response to your request… after seeking advice from legal counsel, at this point in time, it is not our intention not ( sic ) to make any further comment in relation to the sworn statement that has been supplied, unless lawfully directed to do so. Further comment may be made if necessary when a full discovery has been undertaken on the subpoenaed material. You have already been made aware of the material that we intend to subpoena.
32 In a letter to Mr Rae dated 29 July 2008, Henry Davis York stated (a) that they believed their request for further and better particulars to have been ‘entirely reasonable’, (b) that they could not provide a full response to his claim in the absence of a response by him to this request and (c) that since he was not prepared to respond voluntarily to that request, they would ask the Tribunal at the forthcoming case conference to order him to respond.
33 On 6 August 2008, shortly before the second case conference, Henry Davis York sent to the Registrar a copy of this correspondence.
34 At this case conference, Ms Grotte told Mr Rae that he needed to ‘identify his case with particularity’. She gave the following directions:-
1. On or before 20 August 2008 Mr Rae should file and serve a response to the Commissioner’s request for further and better particulars and a list of the witnesses that he intended to call.
2. On or before 17 September 2008 the Commissioner should file and serve Points of Defence and a list of the witnesses intended to be called.
35 In her note of this case conference, Ms Grotte recorded that the matters discussed also included (a) ‘the question of the investigation and any reports into any matters alleged by the Applicant’, (b) the defining of ‘the issues’, including whether any of them were agreed and which issues were still in dispute and (c) the witnesses to be called.
36 In response to Ms Grotte’s direction, Mr Rae sent a letter to the Registrar dated 1 September 2008 purporting to answer the questions put to him by Henry Davis York in their letter of 22 July 2008. In response to their question whether, at a number of points in his sworn statement, he was in fact alleging racial discrimination by one or more police officers was to say in each instance that he was indeed ‘pursuing the allegation of race discrimination’. In response to their request to provide particulars of abusive language and misconduct alleged against various police officers, he stated that these could be obtained from various sources. These included (a) closed circuit television records of the alleged assault and racial abuse by Sergeant Enchelmaier and other officers at Coffs Harbour Police Station on 6 January 2007 and the alleged racial abuse at his workplace in Brisbane on 8 March 2007, (b) the record of his interview by Inspector Carey and Superintendent Kenny at the Tweed Heads Police Station on 3 March 2007 (hereafter ‘the Record of Interview’), (c) unspecified letters of complaint that he had written to the NSW Police Force or to other agencies and (d) unspecified internal investigation files maintained by the Commissioner.
37 In a letter to Mr Rae dated 12 September 2008 (of which a copy was sent to the Registrar), Henry Davis York maintained that he had still failed to provide proper particulars of his claim. In order to exemplify this assertion, they made the following observation about his response to their request for particulars of the alleged assault and racial abuse at Coffs Harbour, and of the alleged refusal by Chief Inspector Cribb to receive his complaint about these matters. In relation to these alleged events, he had referred them to the Record of Interview. But this Record, while containing particulars of alleged abusive language by Sergeant Enchelmaier, did not include any particulars of alleged abuse on racial grounds or assault, and did not mention Chief Inspector Cribb.
38 In this letter, Henry Davis York also pointed out that Mr Rae had failed to provide the dates of his letters of complaint to the NSW Police Force to which he had referred, or to provide copies of his letters of complaint to other authorities. In consequence, his references to letters of complaint were of no use in communicating particulars of his claim.
39 Henry Davis York then indicated that they would rely on this correspondence in order to claim costs against Mr Rae for unnecessarily prolonging the proceedings by failing to provide proper particulars. They stated in conclusion that until he had provided these particulars (which they requested by 19 September 2008), they were not in a position to respond to his claim.
40 At the third case conference, held on 22 October 2008, Ms Grotte directed as follows: (a) on or before 27 October 2008 Mr Rae should provide a list of the material in the Commissioner’s possession that he claimed to be relevant to his complaint; (b) the Commissioner should then produce this material to the Tribunal; (c) this material should not be disclosed to Mr Rae; and (d) its relevance should be determined by a Tribunal member.
41 On 3 November 2008, following an assertion by Mr Rae that he had never received a copy of the Record of Interview, Henry Davis York sent one to him.
42 On 11 November 2008, the Tribunal received from Mr Rae a faxed letter listing ten files in the Commissioner’s possession in relation to which he sought an order for production. He characterised eight of these files as bearing upon the internal investigation of alleged misconduct towards him by one or more police officers. This misconduct was alleged to have been committed by 14 named officers, although in his other accounts of relevant he named a further nine officers.
43 At the conclusion of this letter, Mr Rae stated as follows: ‘There should also be some other internal files from the Assistant Commissioner (Northern Command), the Office of the Commissioner, Professional Standards Command, Police Integrity Commission, Ombudsman and the Anti Discrimination Board of New South Wales…’
44 A case conference set down for 26 November 2008 was adjourned because Mr Rae had been compelled by floods to move to temporary accommodation and did not have access to relevant materials.
45 At the fourth case conference, held on 18 February 2009, Ms Grotte directed that Mr Rae should provide to the Tribunal by 11 March 2009 a list of any further documents that he wished to be produced by the Commissioner. She also directed the Commissioner to produce the files relating to the investigations undertaken by police officers into Mr Rae’s allegations of discriminatory conduct.
46 In a statement filed on 10 March 2009, Mr Rae did not list any documents. He commenced by stating that he had ‘outlined all the issues in relation to discrimination’ in his letter of 7 December 2007 to the Board and that he had ‘nothing further to add to the Tribunal except itemising the complaint below so that a clearer understanding may be obtained by the Tribunal’. He then set out five ‘issues’, indicating in relation to each of them which police officers were allegedly implicated.
47 For present purposes, it suffices to indicate that these five ‘issues’ involved the following alleged conduct directed at Mr Rae: (1) ‘racial and verbal abuse’ at Coffs Harbour on 6 January 2007; (2) ‘verbal and racial abuse’ at Tweed Heads on 3 March 2007; (3) ‘racial abuse’ at Brisbane on 8 March 2007; (4) ‘failure’ by senior officers of the Northern Command ‘in relation to the complaints of racial and verbal abuse’; and (5) failure by senior officers of the Professional Standards Command to ‘act on the complaints of racial and verbal abuse’.
48 In this statement filed on 10 March 2009, Mr Rae also maintained that because the Commissioner had failed to produce any ‘investigation files’ there could not have been any investigation and that there had been a failure to obtain relevant evidence, such as the CCTV recording of the alleged events in Brisbane or the testimony of people who witnessed these events.
49 On 23 March 2009, in compliance with Ms Grotte’s direction, the Commissioner produced to the Tribunal three files (‘the Complaints Files’) that had been created within the Police Force as a result of internal investigations of complaints of ‘race discrimination and other conduct’ made by Mr Rae against various officers. An accompanying letter from Henry Davis York indicated that the Commissioner did not consent to inspection of these files by Mr Rae.
50 At the fifth case conference, held on 25 March 2009, Ms Grotte directed that in view of this objection Mr Rae should not be permitted to inspect the Complaint Files until their ‘admissibility’ had been determined by the Tribunal.
51 On 2 April 2009, the Tribunal issued, at the request of Mr Rae, a summons to the Commissioner to produce all documents relating to the investigation by police officers of complaints made by Mr Rae against any ‘members of the NSW Police Force, its contractors, servants and any other associated person’. At the directions hearing on 25 March 2009, the Commissioner had however conveyed an objection any summons requiring the production of such a wide range of documents. It was indicated that this question, if it arose, would be determined by a Tribunal member.
52 On 13 July 2009, following a hearing on 12 June 2009, I delivered a decision relating to the two questions outlined in the two preceding paragraphs. In Order 1 of that decision (Rae v Commissioner of Police, New South Wales Police Force [2009] NSWADT 183 – hereafter ‘the summons decision’), I gave leave for Mr Rae to inspect specified documents contained in the Complaints Files.
53 At the paragraphs indicated below, I made the following observations that bear upon the questions to be resolved in the present decision:-
48… the material filed by Mr Rae falls far short of identifying adequately the factual basis of his claim that the numerous instances of misconduct by police officers that he alleges were racially motivated. As far as one can tell, he claims that these officers committed two forms of unlawful discrimination against him on grounds of race. The first of these, falling under either or both of paragraphs (a) or (b) of section 19 of the AD Act, was inadequate or non-existent provision by the police of the ‘services’ of (i) investigating his allegations of fraud and of a death threat and (ii) dealing satisfactorily with his numerous complaints of police misconduct. The second was unlawful racial vilification under section 20C.
49 I agree with Mr Seck [counsel for the Commissioner] that in the material filed by Mr Rae relating to the provision of ‘services’, neither the existence of what he called ‘racial motivation’ on the part of the relevant police officers nor the facts that might establish such motivation have been properly alleged. As Mr Rae more or less acknowledged at the hearing, all that the material conveys is an implicit allegation of racial motivation.
50 On the other hand, Mr Rae has expressly alleged that the verbal abuse that he has described had a racial motivation. But while he has indicated the nature of the language used in one alleged incident involving racial vilification, he has not done so with regard to a number of other such incidents. Nor has he dealt with a number of other components of unlawful racial vilification, such as the requirements of a ‘public act’ and of ‘incitement’.
59 In these circumstances, I consider that the appropriate approach for the Tribunal to adopt is as follows. A decision on the extent, if any, to which the Commissioner should be required to comply with the summons issued on 2 April 2009 should be deferred until Mr Rae has filed and served particulars in which he completes the following tasks:-
61 If Mr Rae does not supply within a reasonable period the particulars that I have just outlined [i.e. in paragraph [59]], the question may properly be raised as to whether he should be permitted to continue to prosecute those parts of his claim for which he has not provided adequate particulars.
(b) He sets out, with reference to each of these employees individually, the specific facts and circumstances on which he relies in making his claim of unlawful discrimination.(a) He identifies all the employees of the Commissioner alleged by him to have unlawfully discriminated against him, whether (i) in relation to ‘services’ not provided at all or provided inadequately, (ii) through racially vilifying him or (iii) in any other way.
54 Order 2 of the summons decision was framed so as to implement the approach outlined in paragraph [59].
55 At the sixth case conference in the Tribunal, held on 18 August 2009, Magistrate Hennessy, Deputy President, directed that on or before 15 September 2009 Mr Rae should comply with what she described as the direction in paragraph [59] of the summons decision. She also drew his attention to the contents of paragraph [61]. In response to an observation by him that he was ‘ready to run the trial now’, she said that he would not be permitted to ‘run it’ because he had not supplied the particulars that he had been asked to supply. He maintained that the Commissioner had not provided all the material that should have been provided to him.
56 On 15 September 2009, Mr Rae filed in the Tribunal a collection of documents which he described in a covering note as ‘fifty (50) pages of information outlining the basis of the original complaint of discrimination and victimisation’ by the Commissioner. These documents chiefly comprised copies of his correspondence with the Board during its investigation of his complaint and of his sworn statement dated 12 June 2008.
57 The only new document in this collection was a copy of a one-page statement, signed by Mr Deryck Francis. It was to the effect that Mr Francis ‘witnessed two police officers applying racial and physical abuse to Mr Ray (sic) in front of the Tweed Heads police station on Saturday March 3 2007’, that he could identify the two officers, that no one from the police force had spoken to him about the matter and that if necessary he would give evidence about it in court.
58 On 17 September 2009, in the form of a letter to the Registrar, Henry Davis York made the application to which this decision relates. At this stage, the order sought was an order under section 102 of the AD Act striking out parts of Mr Rae’s complaint only and the sole ground put forward was that he had failed to provide proper particulars.
59 In support of this application, Henry Davis York quoted from the paragraphs in the summons decision that I have reproduced above. They maintained that Mr Rae had failed to comply with Magistrate Hennessy’s direction based on paragraph [59] of this decision because the material filed by him on 15 September 2009 did not contain anything new. They referred also to their letters to him dated 22 July and 12 September 2008, emphasising the need for him to particularise his case, and pointed out that about 30 months had elapsed since he lodged his complaint with the Board.
60 At the seventh case conference, held on 23 September 2009, Magistrate Hennessy set down the Commissioner’s application for hearing by me on 19 November 2009. She noted that it was an application for an order dismissing only part of Mr Rae’s complaint. She gave directions requiring the Commissioner, then Mr Rae, to file submissions in advance of the hearing. She also granted permission to the parties to inspect the material produced on summons and noted that Mr Rae was to confirm in writing that he did not press for further access to the documents described in the summons issued on 2 April 2009.
61 On 4 November 2009, having previously notified Mr Rae that compliance with the timetable specified by Magistrate Hennessy was not practicable, Ms Andersen, a partner in Henry Davis York, filed and served lengthy submissions in support of the Commissioner’s application for dismissal. Annexed to these submissions were a copy of the Record of Interview and copies of a number of other documents that were already on the Tribunal’s file.
62 These submissions were filed and served some three weeks after they were due. Henry Davis York indicated in a letter to the Registrar that for this reason they would agree to deferment of the hearing set down for 19 November 2009.
63 In opposing submissions filed on 11 November 2009, Mr Rae contended that I should reject the Commissioner’s application, both because the submissions prepared by Henry Davis York had been filed too late to enable him to respond to them effectively and because the application lacked merit.
64 At the hearing on 19 November 2009, Mr Rae repeated these contentions. After consideration, I determined that because of the late filing of the Commissioner’s submissions, a further period of time should be granted to him to prepare, file and serve supplementary submissions. I directed also that the Commissioner should be permitted to file submissions in reply to any new matter advanced by him and that I should decide the Commissioner’s application ‘on the papers’, under section 76 of the ADT Act.
65 Mr Rae’s primary submission at the hearing was that I should immediately reject the Commissioner’s application under section 102. But he acknowledged that if I was not prepared to accept this contention, this course of action would at least allay his concerns about the late filing of the Commissioner’s submissions. Ms Barry, an employee of Henry Davis York who appeared for the Commissioner, did not oppose this manner of dealing with the application.
66 Mr Rae filed submissions on 16 December 2009 and the Commissioner’s submissions in reply were filed on 24 December 2009.
Relevant statutory provisions
67 Section 102 of the AD Act states that the Tribunal, at any stage in proceedings relating to a complaint, may dismiss the whole or any part of the complaint on a ground on which the President may decline the whole or any part of a complaint under section 92 (1) (a) (i) or (ii) or (b).
68 The grounds set out in these provisions within section 92 are as follows:-
(a) the President is satisfied that:
(ii) the conduct alleged, or part of the conduct alleged, if proven, would not disclose the contravention of a provision of this Act or the regulations, or…
(i) the complaint, or part of the complaint, is frivolous, vexatious, misconceived or lacking in substance, or
(b) the President is satisfied that for any other reason no further action should be taken in respect of the complaint, or part of the complaint…
69 In deciding whether the Tribunal should exercise the power conferred by section 102, consideration must be given whether the facts alleged by the complainant do or might amount to a contravention of one or more of the provisions of the Act. In the present case, Ms Grotte, at the case conference on 28 May 2008, noted that Mr Rae’s complaint might fall within two categories of unlawful discrimination, namely discrimination on the ground of race in the provision of ‘services’ and racial vilification. In the covering note accompanying the material that he filed on 15 September 2009, Mr Rae referred to a third category, victimisation.
70 So far as is relevant to this decision, the provisions of the AD Act relating to discrimination on the ground of race in the provision of ‘services’ are section 4 (the definition of ‘services’), subsections (1)(a) and (2) of section 7 and section 19. These are as follows:-
4 Definitions
services includes:…
(e) services provided by a council or public authority…
(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:7 What constitutes discrimination on the ground of race
(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…
(2) For the purposes of subsection (1) (a) and (b), 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.
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:19 Provision of goods and services
(b) in the terms on which the other person is provided with those goods or services.(a) by refusing to provide the person with those goods or services, or
71 Section 6 of the Police Service Act 1990 contains the following provisions bearing on the concept of ‘services’:-
(2) The NSW Police Force has the following functions:6 Mission and functions of NSW Police Force
(3) In this section:
(a) to provide police services for New South Wales,…
police services includes:
(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and(a) services by way of prevention and detection of crime, and
(d) any other service prescribed by the regulations.(c) the provision of essential services in emergencies, and
(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.
72 For present purposes, the relevant provisions of the AD Act regarding racial vilification are section 20B(a) and (b) and section 20C(1). These state:-
In this Division, public act includes:20B Definition of “public act”
(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and
(b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia…
(1) It is unlawful for a person, by a public act, to incite hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.20C Racial vilification unlawful
73 Section 50 deals in the following terns with victimisation:-
(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:50 Victimisation
(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,
(d) otherwise done anything under or by reference to this Act in relation to the discriminator or any other person,(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
(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.
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.
74 Section 53 of the AD Act renders a principal or employer vicariously liable, subject to certain exceptions, for contraventions of the Act committed by that person’s agent or employee.
75 Within the ADT Act, parts of section 73 are relevant. They are as follows:-
73 Procedure of the Tribunal generally
(2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice.
(4) The Tribunal is to take such measures as are reasonably practicable:(3) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.
(5) The Tribunal:
(a) to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions…
(a) is to act as quickly as is practicable, and(h) 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.(b) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and…
Outline of the parties’ submissions
76 The orders sought by the Commissioner are (a) that the whole of Mr Rae’s complaint should be dismissed under section 102, or (b) in the alternative, that it should be dismissed except as regards (i) the specific allegation of racial abuse by Sergeant Enchelmaier described above at [9] (‘the Enchelmaier allegation’) and (ii) the specific allegations of racial abuse by Inspector Carey and Superintendent Kenny described above at [12] (‘the Carey/Kenny allegations’).
77 In broad outline, the Commissioner advanced three grounds for making one or other of these orders.
78 The first was that any claim by Mr Rae that he suffered unlawful discrimination on the ground of race under section 19 of the Act must fail because at the relevant times the police officers concerned were not providing ‘services’ to him within the meaning of that section. (With reference to another element of section 19, the Commissioner did, however, concede that the New South Wales Police Force was a ‘public authority’).
79 Secondly, the Commissioner maintained that, except possibly in the case of the Enchelmaier allegation and the Carey/Kenny allegations, Mr Rae’s claims of unlawful racial vilification must fail because the alleged statements relied on were not ‘public acts’ as required by section 20B of the AD Act and did not amount to ‘incitement’ as required by section 20C(1).
80 The third ground, put forward chiefly in relation to Mr Rae’s claims that, on various dates, different police officers discriminated against him under section 19 or victimised him under section 50 by failing to act on his complaints of alleged police misconduct, was that despite repeated directions from the Tribunal and requests from the Board and from Henry Davis York, he had failed to provide sufficient particulars.
81 The Commissioner’s submissions expressly disavowed any argument that Mr Rae’s complaint should be dismissed on the ground that it was vexatious. The Commissioner suggested, however, that such an argument might be raised at a later stage of the proceedings.
82 Mr Rae argued that the Commissioner’s application under section 102 should be dismissed because (a) it was no more than a ‘time wasting tactic’, (b) the Board had accepted and investigated his complaint, (c) the evidence obtained from the Board’s investigation (despite failure by the Commissioner to co-operate with it) and from the material within the Complaints Files to which Mr Rae had been granted access was sufficient to warrant setting the case down for trial
83 Specific aspects of these submissions by the parties will be mentioned in the ensuing discussion of the Commissioner’s application.
The operation of section 102
84 It is established by a long line of decisions of the Appeal Panel and the Equal Opportunity Division of this Tribunal that the power to dismiss a complaint summarily under section 102 of the AD Act should be exercised ‘with exceptional caution and only if the circumstances clearly warrant such action’ (see e.g. Sullivan v State of NSW (NSW Police Force) [2009] NSWADT 2 at [15] and the cases cited in that paragraph). It is established also that the need for caution is ‘even more apparent’ when, as in the present case, an application for dismissal has been made before the complainant’s evidence has been adduced at the substantive hearing (see e.g. Commissioner of Police, New South Wales Police Service v Orr (EOD) [2001] NSWADTAP 16 at [34]). In such a case, the Tribunal must assume that the complainant’s case can be established by evidence – i.e., that his or her allegations must be taken ‘at their highest’ (see e.g. Razaghi v Director-General, NSW Department of Health & Anor [2001] NSWADT 4 at [10]).
85 In Razaghi, the Tribunal dismissed an application by the respondents for dismissal of the whole of the applicant’s complaint under section 111 of the AD Act (this was the predecessor of section 102). But it made orders significantly limiting the number of allegations on which the applicant would be permitted to lead evidence. Its explanation of its reasons for so deciding included the following passages (at [22], [24] and [37 – 38]):-
24 As with civil litigation generally, the ‘pleadings’ often fall well short of the ideal. This results, as has happened in this case, in the respondents not being properly informed of the claims against them, and in the Tribunal not being apprised of the questions which it must resolve and the disputes which it must determine. The governing legislation, the Tribunal Act, makes it clear that the Tribunal should not permit form to prevail over substance (see s73(3)). At the same time, the Tribunal Act stipulates that we should strive to ensure that the respondents understand the allegations against them, so that the respondents may choose whether to admit those allegations or defend them (see s73(4)(a)). It sometimes becomes necessary to strike a balance between the overlapping objectives of informality, procedural fairness and efficiency. That balance can be particularly difficult to achieve in cases such as the present where the applicant is unrepresented, the allegations are both grave and voluminous, the stakes are high and the claims made against the respondents are expressed at a level of generality not usually associated with legal proceedings. Striking that balance and determining the extent to which the Tribunal can and should go to assist an unrepresented applicant to frame his/her case have been particularly difficult issues to resolve in this instance.22 The authorities make it clear that, whilst the initial complaint to the President… must allege a contravention of the Act by another person, “it need not allege the relevant facts with the particularity of an indictment or a pleading” ( Langley v Niland [1981] 2 NSWLR 104 at 107, per Hunt J). More recent cases have taken a particularly liberal view of the required minimum content of the initial complaint. The Federal Court, when dealing with similar provisions in Commonwealth anti-discrimination statutes concerning complaints to the Human Rights and Equal Opportunity Commission, has determined, on a number of occasions, that a complaint is valid if it contains nothing more than a broad allegation that another person has contravened the relevant Act… An Appeal Panel of this Tribunal took a similar view in Commissioner of Police v Orr [2001] NSWADTAP 16 at paragraphs 14 to 16.
38 The authorities make it clear, however, that we should not deny the applicant the opportunity to present his case at a hearing if we can identify an arguable case from the material before us. It has been difficult to determine the extent to which the Tribunal should assist the applicant to identify an arguable case by presenting some of his allegations in such a way that they constitute allegations of contraventions of the Act which can be understood and answered by the respondents, as well as fairly tried by the Tribunal. It is of relevance that despite considerable endeavours on his behalf, the applicant is not legally represented. We are also mindful of the fact that the allegations made by the applicant are complex, grave and important…37 Much of the material in both Points of Claim is lacking in substance, in the sense that many allegations are expressed with such a degree of generality that they are essentially meaningless for the purpose of determining whether they comprise claims that either or both respondents have contravened any of the provisions in the Act. It is not appropriate to permit these allegations to proceed to hearing in this case, for the respondents would have no reasonable idea of the allegations against them and the Tribunal would be unaware of the issues which it has to determine. The applicant has already filed thousands of pages of documents with the Tribunal, without in any way indicating their relevance or the claims they support. If the applicant were given the opportunity to proceed directly to hearing, without refining his claims, it is highly likely that the time and expense associated with sifting through this material and determining its relevance would be extraordinary.
86 In the following passage in Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5, the Appeal Panel discussed the meaning of the phrase ‘for any other reason’ in what was then section 111 of the AD Act (it now appears in section 92(b), where the grounds for dismissal under section 102 are set out):-
33 It is against this background that the construction of the phrase “for any other reason the complaint should not be entertained” falls to be determined. It was under this limb of s 111(1) that the Tribunal dismissed the Appellant’s complaint (para 40). Whilst the Tribunal had regard to the ejusdem generis rule of statutory construction, it concluded that “any other reason” was sufficiently broad to allow for a want of prosecution.
34 The ejusdem generis rule (that general matters, which follow a reference to specific matters, are limited to things of the like kind to the specific matters) is in fact merely a subsidiary aid to the construction of terms, once it has been determined that general words are to be limited in their operation by specific words. That determination is made by reference to the context and subject matter of the legislation…
36 The language and purpose of s 111(1) suggests that a beneficial construction (that is, one which favours the Appellant as the person claiming victimisation) is not called for. Its purpose is to allow the Tribunal in certain circumstances and in the exercise of its discretion to dismiss a complaint at any time in the course of proceedings. There is nothing on the face of the provision which warrants limiting “any other reason” to a genus of frivolous or vexatious or lacking in substance or misconceived. Given that these bases for dismissal include both objective and subjective features of the complaint itself, the phrase “any other reason” must refer to something other than the content or character of the complaint. In other words, it must be capable of encompassing some aspect of the proceedings themselves, such as a failure to diligently prosecute a complaint. The legislation thereby recognises that a complaint may not be frivolous, vexatious, misconceived or lacking in substance, yet if the complainant has demonstrated either an unwillingness or an inability to co-operate with the Tribunal and the Respondents in having the matter ready for hearing within an acceptable time, the complaint may nonetheless be dismissed.35 Whilst it is beyond doubt that the AD Act is remedial legislation and should thus be construed beneficially, it is not the case that every provision within the Act falls to be construed that way…
87 In Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 520, a Full Bench of the Federal Court gave consideration to the principles governing dismissal of proceedings on the ground of failure to comply with the Court’s directions. Order 10 Rule 7 of the Federal Court Rules provided that where a party failed to comply with an order of the court directing a party to take steps in the proceedings, the other party might seek an order to dismiss the proceedings.
88 In their joint judgment at [36], Wilcox and Gummow JJ said:
36 The discretion conferred by Order 10 rule 7 is unconfined, except for the condition of non-compliance with a direction. As it is impossible to foresee all of the circumstances under which the rule might be sought to be used, it is undesirable to make any exhaustive statement of the circumstances under which the power granted by the rule will appropriately be exercised. We will not attempt to do so. But two situations are obvious candidates for the exercise of the power: cases in which the history of non-compliance by an applicant is such as to indicate an inability or unwillingness to co-operate with the Court and the other party or parties in having the matter ready for trial within an acceptable period and cases - whatever the applicant's state of mind or resources - in which the non-compliance is continuing and occasioning unnecessary delay, expense or other prejudice to the respondent. Although the history of the matter will always be relevant, it is more likely to be decisive in the first of these two situations. Even though the most recent non-compliance may be minor, the cumulative effect of an applicant's defaults may be such as to satisfy the Judge that the applicant is either subjectively unwilling to co-operate or, for some reason, is unable to do so. Such a conclusion would not readily be reached; but, where it was, fairness to the respondent would normally require the summary dismissal of the proceeding.
89 In Fei v Director General, Department of Commerce (State of NSW) (No 2) [2009] NSWADT 109 at [58], the Tribunal treated this statement of principle (which it had included in a longer quotation at [54] from the judgment of their Honours in Lenijamar) as relevant in deciding an application made under section 102 of the AD Act (and also under section 107(1)(b)) for dismissal of a complaint on the ground of want of prosecution by the complainant.
The question of ‘services’ under section 19
90 In support of the Commissioner’s contention that Mr Rae could not establish discrimination on the ground of race under section 19 of the AD Act because at the relevant times the police officers whom he identified were not providing ‘services’ to him within the meaning of this section, Ms Andersen submitted that when an officer dealt with a complaint from a member of the public about police conduct, the officer did not provide a ‘service’ to the maker of the complaint, but instead carried out a ‘statutory function’ under Part 8A of the Police Act 1990.
91 With regard to this submission, Ms Andersen pointed out that dealing with complaints of this nature was not one of the Commissioner’s key functions under section 6 of the Police Act (of which relevant parts are reproduced above at [71]).
92 The authorities on which Ms Andersen relied included Commissioner of Police, New South Wales Police Service v Estate of Russell [2001] NSWSC 745 at [43 – 44] and Ella and Ors v State of New South Wales (NSW Police) [2005] NSWADT 145 at [21].
93 In the former case, Sully J held that when police officers were pursuing and arresting a man suspected of having committed a crime, they were providing to the community at large ‘services’ within section 19 of the AD Act (being also ‘services’ of the kind described in section 6(3)(a) and (b) of the Police Act). But as soon as they had arrested the man, bringing him into police custody, any police officers involved became charged with a public duty to provide to him services by way of the protection of his person and property. Ms Andersen relied on this ruling for the proposition that the activities of police officers leading up to the service of Court Attendance Notices on Mr Rae in Brisbane on 8 March 2007 (see [22] above) involved the provision of services to the community at large, but not to Mr Rae himself.
94 In the latter case, the Tribunal, referring to Tasmanian Supreme Court authority, held that a decision by the Director Public Prosecutions not to commence a prosecution did not constitute the refusal of a ‘service’ to the victims of the alleged offence(s).
95 Ms Andersen sought to distinguish a recent ruling by the Tribunal, in proceedings brought by Mr Rae (Rae v State of New South Wales (NSW Ombudsman) [2009] NSWADT 195), that the Ombudsman, when dealing with a complaint by a member of the public about a the conduct of a government agency, provides a ‘service’ to the complainant within the meaning of section 19 of the AD Act. She argued that since the ‘whole purpose’ for which the Ombudsman was created was to oversee government agencies, one of its statutory key functions was to receive and deal with such complaints. This activity was not, however, one of the key functions of the Police Force.
96 In her submissions in reply, Ms Andersen drew to my attention the very recent case of Commissioner of Police v Mohamed [2009] NSWCA 432. In that decision, handed down on 23 December 2009, the Court of Appeal supplied answers to three questions of law regarding the concept of ‘services’ that were referred to it by an Appeal Panel of this Tribunal. These questions arose in proceedings in which three members of a family complained that police officers, when asked by them to investigate alleged criminal offences committed against them, discriminated against them on the ground of race through being rude to them and not taking their allegations seriously.
97 One answer of significance for the present proceedings was to the effect that the conduct of police officers with respect to a request to investigate an alleged criminal offence may be a ‘service’, not only to the person or persons reporting the alleged offence but also to other members of the community. A more important aspect of their Honours’ judgments was, however, that they contained firm warnings of the dangers of trying to determine whether ‘services’ were being provided, and if so to whom, ‘in the abstract’: that is, in the absence of specific findings of fact (see Basten JA, with whom Spigelman CJ agreed, at [13] and [45]; Handley AJA at [87 – 89]). In recent proceedings, an Appeal Panel of this Tribunal has expressed a similar opinion: see Commissioner of Corrective Services v Dezfouli (EOD) [2008] NSWADTAP 85 at [87 – 89].
98 In determining this aspect of the Commissioner’s application under section 102, I place significant weight on this warning from the Court of Appeal, and also on the absence of any clear indication from the case law as to whether or not the investigation by police officers of a complaint made against one of their number constitutes a ‘service’ to the person complaining. I accordingly do not accept the Commissioner’s submission that Mr Rae’s claims of unlawful racial discrimination under section 19 necessarily fail at the outset because the relevant alleged conduct by police officers did not involve the provision of ‘services’ to him. If an argument along these lines is to operate as a successful ground of defence in these proceedings, it must be advanced at the substantive hearing of his complaint.
The ingredients of unlawful racial vilification
99 The four instances of racial abuse by police officers that Mr Rae claimed to have occurred are the following: the Enchelmaier allegation, the Carey/Kenny allegations, the allegations of racial abuse by Sergeant Burton and Senior Constable Goodall at Brisbane on 8 March 2007 (‘the Burton/Goodall allegations’) and the alleged abuse by Sergeant Burton in a telephone call to Mr Rae on 9 or 12 March 2007 (‘the Burton allegation’).
100 While the provision of ‘services’ is not a matter of relevance to claims of unlawful racial vilification, a complainant must prove, among other things, that the alleged conduct on which the complaint is based constituted a ‘public act’ as defined in section 20B of the AD Act and amounted to ‘incitement’ under section 20C(1). These provisions are set out above at [72].
101 ‘Public act’. Ms Andersen submitted that Mr Rae supplied no particulars indicating that a ‘public act’ was or could have been involved in any of these four alleged instances of racial abuse.
102 Most cases of unlawful vilification heard by the Tribunal are concerned with material published by the media. In these cases, it is accepted with little or no debate that a ‘public act’ occurred. There have however been a few cases arising from words shouted or spoken in public or semi-public places.
103 In Burns v Dye [2002] NSWADT 32 at [17 – 18], the Tribunal said:-
18 In the more recent decision Anderson v Thompson [2001] NSWADT11, the Tribunal held that abusive words spoken on the stairwell of a block of units constituted a form of communication to the public. Although there were no eyewitnesses the words were spoken with such force they could be overheard by other residents.17 In R v D and E Marinkovic [1996] EOC 92-841 the Equal Opportunity Tribunal held that the placing of a note on the complainant’s front door constituted a “public act” even though the block of units was not open to the public at large and was accessible only to residents and their visitors.
104 The decision in Z v University of A & Ors [2004] NSWADT 81 contains the following statement of principle at [100]:-
100 ‘Public act’ is broadly defined in s 49ZS to include any form of communication to the public, any conduct observable to the public and the distribution or dissemination of any matter to the public. Previous decisions of this Tribunal have adopted a liberal approach when interpreting the definition of ‘public act’…. See R v D and E Marinkovic [1996] EOC 92-841; Anderson v Thompson [2001] NSWADT 11; Burns v Dye [2002] NSWADT 32. These decisions support the view that while it is not necessary that a member of the public actually saw the impugned conduct or heard the communication, the conduct or communication must be capable of being seen or heard, without undue intrusion, by a non-participant to constitute a public act. Thus abuse which is loud enough for bystanders to readily overhear may constitute a public act whereas a conversation in a normal speaking voice would probably not: see Kimble v Souris [2003] NSWADT 49.
105 It is clear that the Burton allegation, being of abuse during a telephone call, did not involve a ‘public act’. The Burton/Goodall allegations concerned conduct allegedly occurring in Mr Rae’s office in Brisbane. Although Mr Rae claimed that some security officers and a witness, Mr Gardiner, were present for at least part of the time and that the conduct was recorded on CCTV, I accept Ms Andersen’s submission that no ‘communication to the public’ or ‘conduct observable by the public’ was alleged against these two officers.
106 On the other hand, the Carey/Kenny allegations involve conduct claimed to have occurred outside the Tweed Heads Police Station and indeed to have been witnessed by Mr Francis. There was, in my opinion, a sufficient allegation of a ‘public act’.
107 The Enchelmaier allegation is close to the borderline. The conduct in question was alleged to have occurred in the Coffs Harbour Police Station. Because any member of the public may visit a police station (unless it is closed for some reason), I consider that a ‘public act’ was sufficiently alleged.
108 ‘Incitement’. In Burns v Dye [2002] NSWADT 32 at [20 – 21], the Tribunal pointed out that the term ‘incite’ means ‘urge on; stimulate or prompt to action’ (a phrase taken from the Macquarie Dictionary, 3rd edition, 1997) and that words which merely ‘convey’ hatred, serious contempt or severe ridicule do not amount to incitement. There must be a third person, or group of people, who are ‘incited’.
109 Accordingly, the Burton allegation, involving an alleged telephone call from Sergeant Burton to Mr Rae, involved no ‘incitement’. But in the Enchelmaier allegation, the Carey/Kenny allegations and the Burton/Goodall allegations, Mr Rae claimed that racial abuse was uttered in the presence of one or more other persons. While it might ultimately be determined that any such words used merely conveyed negative sentiments, as opposed to prompting such sentiments among the third parties who were present, the possibility that they amounted to incitement remains open.
Provision of particulars
110 In my opinion, Ms Andersen was correct in submitting that a substantial proportion of the allegations made by Mr Rae at different stages of these proceedings must be left out of account because, despite requests from the Commissioner and the Board and directions from the Tribunal, he has failed or refused to supplement them with sufficient particulars.
111 It is well established in the law that a respondent in civil proceedings is entitled to be informed of the facts and circumstances that are claimed to constitute grounds for the relief sought in the proceedings. If this information is not provided, the likely result is that the defence prepared by the respondent will be inadequate or excessive (or possibly inadequate in some respects and excessive in others). But the respondent has no entitlement to disclosure of the evidence by which these alleged facts and circumstances will be proved.
112 In the present case, as pointed out by Ms Andersen in her submissions, Mr Rae received two requests from the Board (on 10 April and 13 June 2007) to supply further particulars. He received two such requests from Henry Davis York (on 22 July and 12 September 2008). At the first, second and sixth of the case conferences (held on 30 May 2008, 6 August 2008 and 23 September 2009 respectively), the Tribunal directed that he supply further particulars. The period during which these requests and directions were conveyed to him amounted to more than 30 months.
113 While Mr Rae, in response to these requests and directions, has given particulars of some aspects of his case, he has stated, in relation to other aspects, that the necessary particulars are available to the Commissioner (generally in police files or electronic recordings that he has claimed to exist). To make a statement of this type does not discharge his obligation, as the moving party in these proceedings, to advise the Commissioner of the facts and circumstances on which his case rests. On one occasion (see [31] above) he expressly rejected a request from Henry Davis York to supply further particulars. On two subsequent occasions he was however told by the Tribunal that further particulars were required (see [34] and [55]).
114 The difficulties for the Commissioner are compounded by the fact that Mr Rae has not expressly indicated whether a number of the matters alleged by him – notably, his allegations against Senior Constable Vout contained in his sworn statement dated 12 June 2008 – do or do not form part of his claim for relief in the Tribunal. In view of his statement filed on 10 March 2009 listing five ‘issues’ as the matters to be determined by the Tribunal (see [46 – 47] above), it seems that he no longer seeks relief on the basis of these allegations against Senior Constable Vout. But he has never specifically stated this.
115 The components of his case for which particulars are most conspicuously lacking are the fourth and fifth of these five ‘issues’. As summarised above at [47], these are the alleged failures by senior officers of the Northern Command and of the Professional Standards Command respectively to ‘act on’ his complaints of racial and verbal abuse.
116 In relation to the components of his case for which he has not provided adequate particulars, I consider that he has shown ‘an inability or unwillingness to co-operate’ with the Tribunal and the Commissioner in ‘having the matter ready for trial within an acceptable period’ (to adopt the words of Wilcox and Gummow JJ in Re Lenijamar Pty Ltd; Domenico Picone and Margaret Anne Picone v AGC (Advances) Ltd (1990) 27 FCR 388; [1990] FCA 520 at [36] (see [88 above)). As indicated by the Appeal Panel in Crewdson v Niland & Ors (EOD) [2002] NSWADTAP 5 at [36] (see [86] above), such behaviour may constitute grounds for dismissal of a complaint (or part thereof) under section 102 of the AD Act.
117 The parts of Mr Rae’s complaint to the Tribunal that should be struck out on this ground principally comprise what he called the fourth and fifth ‘issues’ in his document filed on 10 March 2009. But the same treatment is warranted for other parts of the different narratives that he has supplied where he has not included particulars of the acts and circumstances relied on.
118 It is in fact most convenient at this point to identify those parts of his complaint for which sufficient particulars have been supplied.
119 These are, in my assessment, the allegations that have received specific labels in the course of these reasons: namely, the Enchelmaier allegation, the Carey/Kenny allegations, the Burton/Goodall allegations and the Burton allegation. All of these involve alleged abuse, for which particulars of the language allegedly used have been supplied. Ms Andersen’s submissions effectively acknowledged this with regard to the first two items in this list.
Victimisation
120 In his fifty-page document filed in the Tribunal on 15 September 2009, Mr Rae referred to victimisation under section 50 of the AD Act (set out above at [73]), but did not address this form of unlawful discrimination to any significant degree.
121 The same applies, more or less, to Ms Andersen’s submissions. She observed only that in a case based on this ground it must be proved that the respondent knew that the complainant had made a complaint under the Act or intended to make such a complaint.
122 It is apparent that some of the misconduct by police officers alleged by Mr Rae might, if proved, be held to have been prompted by prior claims on his part that he had been the target of unlawful discrimination. This would be sufficient to constitute victimisation under section 50(1)(c).
123 In this context, it is sufficient for me to say in this context if the matters sufficiently particularised and subsequently proved by Mr Rae were found to amount to victimisation on these or similar grounds, he would evidently be entitled to rely on this provision of the AD Act.
My conclusions
124 It is clear from the above reasons that the Commissioner has failed to establish grounds for dismissing the whole of Mr Rae’s complaint under section 102 of the AD Act.
125 In determining which specific aspects of the complaint should be struck out and which aspects should remain on foot, it is useful to recall that, although Mr Rae has designated the Commissioner as the sole respondent in the proceedings, the only route by which he can establish liability against the Commissioner under the Act is through proving that one or more police officers employed by the Commissioner engaged in conduct contravening the Act. The Commissioner’s liability, if such exists, is vicarious liability under section 53.
126 I have held that the only alleged acts of police officers that have been sufficiently particularised are the abusive remarks described in the Enchelmaier allegation, the Carey/Kenny allegations, the Burton/Goodall allegations and the Burton allegation. These potentially provide a starting-point for proving conduct contravening the Act against each of these five officers.
127 For reasons set out above at [99 – 109], I have concluded that, if Mr Rae’s assertions about the content of these remarks and the circumstances in which they were made are taken ‘at their highest’, it cannot be said that his claims of unlawful racial vilification by three of these officers – Sergeant Enchelmaier, Inspector Carey and Superintendent Kenny – would fail as a matter of law. In particular, I have ruled, in response to opposing submissions by Ms Andersen, that their remarks may have constituted ‘public acts’ and may have amounted to ‘incitement’ of third parties allegedly present.
128 On the other hand, I have ruled that the alleged facts on which Mr Rae has based his claims of unlawful racial vilification by Sergeant Burton and Sergeant Goodall could not involve any ‘public act’ and, in the case of what I have called the Burton allegation, could not amount to ‘incitement’. Even if Mr Rae’s assertions are taken at their highest, these claims must fail as a matter of law.
129 It must be borne in mind, however, that Mr Rae also claimed that these particularised allegations of racial abuse by five police officers occurred during a period when he was seeking to ensure – on his account, unsuccessfully – that complaints previously made by him about alleged police misconduct were duly investigated under the Police Act 1990. Furthermore, these complaints included assertions by him that he had been the subject of racial discrimination on account of his indigenous background.
130 To the extent that any of these five officers, according to him, treated him less favourably than they would have treated a non-indigenous person when investigating his complaints, evidence of the racial abuse in which they allegedly engaged could constitute evidence, relevant to a claim by him under section 19, that the ground on which they treated him less favourably was his indigenous background. If he could show that the alleged abuse by these officers was prompted by his having previously complained of discriminatory conduct by police officers, this could provide the basis for a claim of victimisation under section 50.
131 For these reasons, the order to be made on this application by the Commissioner, while striking out substantial components of Mr Rae’s complaint, permits him to pursue a wider range of claims than was envisaged in the alternative order put forward by Ms Andersen (see [76] above).
132 Order 1 of the orders that I make on the Commissioner’s application is as follows:-
1. The complaint by the Applicant is dismissed under section 102 of the Anti-Discrimination Act 1977 except in relation to the following:-
(a) The Applicant’s claims of unlawful racial vilification based on statements allegedly made (i) by Sergeant Enchelmaier at Coffs Harbour Police Station on 6 January 2007 and (ii) by Inspector Carey and Superintendent Kenny at or near Tweed Heads Police Station on 3 March 2007.
(b) The Applicant’s claims of unlawful discrimination on the ground of race and of victimisation based on the alleged conduct of Sergeant Enchelmaier, Inspector Carey, Superintendent Kenny, Detective Sergeant Burton and Senior Constable Goodall.
133 The particulars already supplied by Mr Rae are, in my opinion, sufficient to enable the Commissioner to file and serve Points of Defence in response to such parts of Mr Rae’s complaint as remain on foot. A case conference should then be held with a view to setting down the case for trial.
134 Orders 2 and 3 on this application are therefore directions in the following terms:-
3. The proceedings are set down for a further case conference on 10 March 2010 at 12 noon, for the purpose of fixing a time and venue for the hearing of the complaint.2. The Respondent is to file and serve Points of Defence in response to the complaint, as amended by Order 1, on or before 3 March 2010.
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