Stewart v Hunt

[2012] NSWADT 12

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Stewart v Hunt [2012] NSWADT 12
Hearing dates:	25 January 2012
Decision date:	01 February 2012
Jurisdiction:	Equal Opportunity Division
Before:	Magistrate N Hennessy, Deputy President
Decision:	Leave for the applicant's complaint to proceed is refused.
Catchwords:	LEAVE - complaint of age discrimination in the provision of services - test is what is fair and just - merits of the complaint considered - leave to proceed refused
Legislation Cited:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
Cases Cited:	Jones and Anor v Ekermawi [2009] NSWCA 388
Category:	Interlocutory applications
Parties:	James Stewart (Applicant) Robert Hunt (First Respondent) SJ Hunt (Second Respondent) SD Hunt (Third Respondent)
Representation:	James Stewart (Applicant, in person) Robert Hunt (First Respondent, in person)
File Number(s):	111141

REasons for decision

Introduction

1. Mr Stewart complained to the President of the Anti-Discrimination Board that the licensees of the Bangor Post Office had discriminated against him. He said that Mr Hunt asked him to leave his pram at the front of the shop and refused to serve him on another occasion. He says the discrimination was on the ground of the age of his children. At the time Mr Stewart had a 3 year old and 20 month old twins. The licensees deny discriminating against Mr Stewart and say that he was asked to leave his pram at the front of the shop because it was damaging shop fittings. He was refused service because of his abusive and threatening behaviour. Mr Stewart denies both those assertions.

1. The President of the Anti-Discrimination Board declined Mr Stewart's complaint because there was no evidence to support his allegation that the licensees' treatment of him was based on the age of his children. He has applied to the Tribunal for permission for his complaint to go ahead: Anti-Discrimination Act 1977 ( AD Act ), s 96. The Tribunal has a discretion to grant or refuse leave for the complaints to go ahead and will be guided by what is fair and just in the circumstances: Jones and Anor v Ekermawi [2009] NSWCA 388. When deciding whether to grant leave, the Tribunal may have regard to the grounds on which the President may decline a complaint under s 92(1) of the AD Act , including that the complaint lacks substance.

1. In order to decide whether the complaint should proceed I need to examine both the factual and legal basis for the complaint and come to a conclusion as to its merits.

Legal test

1. If this complaint were to proceed to hearing Mr Stewart would have to prove that the respondents breached s 49ZYN(1) of the AD Act :

(1) It is unlawful for a person who provides, for payment or not, goods or services to discriminate against another person on the ground of age:

(a) by refusing to provide the other person with those goods or services, or

(b) in the terms on which the other person is provided with those goods or services.

1. Discrimination on the ground of age is defined in s 49ZYA:

(1) A person ("the perpetrator") discriminates against another person ( "the aggrieved person") on the ground of age if, on the ground of the aggrieved person's age or the age of a relative or associate of the aggrieved person, the perpetrator:

(a) treats the aggrieved person less favourably than in the same circumstances, or in circumstances which are not materially different, the perpetrator treats or would treat a person who is not of that age or age group or who does not have such a relative or associate who is that age or age group, or

(b) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons who are not of that age or age group, or who do not have such a relative or associate who is that age or age group, comply or are able to comply, being a requirement which is not reasonable having regard to the circumstances of the case and with which the aggrieved person does not or is not able to comply.

1. The first part of the definition refers to 'direct' discrimination. The second part refers to 'indirect' discrimination. My understanding is that Mr Stewart is complaining of 'direct' discrimination on the ground of the ages of his relatives, that is, his three children.

1. Consequently, in order to substantiate a complaint of direct age discrimination in the provision of services Mr Stewart would have to prove that:

(1)   his children are of a particular age or age group;

(2)   the respondents refused to provide him with a service or provided him with a service on unfavourable terms;

(3)   in refusing that service or in providing it on unfavourable terms, the respondents treated him less favourably than they treated or would have treated a person who did not have children of that age in the same or similar circumstances; (differential treatment) and

(4)   at least one of the reasons for that treatment was the age of Mr Stewart's children even if that reason was not the dominant or a substantial reason for the treatment: AD Act s 4A (causation).

Evidence

1. There were at least three occasions in February 2011 when Mr Stewart visited the Post Office at Bangor. On the first occasion he was wheeling his three children in a twin pram with a toddler seat attached. He admits that while in the queue at the post office waiting to pay his bill, one of the children picked up a glass picture frame. He says he took it off the child and put it back straight away. He says that after he had been served Mr Hunt said, "Your kids are handling and damaging stock and your pram is damaging the shelving." Mr Hunt asked him to leave his pram at the front of the shop in future. Mr Stewart said that he told Mr Hunt that he had no right to tell him where to leave his children.

1. Mr Hunt's version of this incident is that Mr Stewart rammed his pram into shop fixtures and that he politely suggested that he leave it at the front of the shop next time. He says Mr Stewart immediately became agitated and abusive and left the store yelling that he would no longer be bringing his business to that post office. Mr Stewart denies that the pram damaged any fixtures or fittings and also denies threatening or abusing staff.

1. Mr Stewart says that a few days after this incident he went to the Post Office again and saw Mr Hunt. He said he popped his head in and commented that Mr Hunt had moved the shelving. He said Mr Hunt told him that he had not moved the shelving. Mr Stewart then volunteered that Mr Hunt could not tell him where to leave his kids and that he was bound to give him access to the post office. He says that Mr Hunt explained that he was not asking is Mr Stewart to leave the pram outside but rather, to leave it at the front of the shop.

1. Mr Hunt's version of this incident is that Mr Stewart came to the store with no business to transact and without his children. He was argumentative and abusive to the staff and was told that his business was no longer welcome.

1. On a third occasion Mr Stewart says that Mr Hunt refused to serve him. Mr Hunt admits refusing service but maintains that he did so because of Mr Stewart's abusive and threatening behaviour on the previous occasion. Mr Stewart attended the post office at a later date without his children and says that he was served without incident. Mr Hunt explains this by saying that staff who were working that day had not been present on the previous occasion when Mr Hunt had behaved in an abusive and threatening manner.

Differential treatment and causation

1. The first component of the test for direct discrimination is the 'differential treatment' test. The treatment afforded to Mr Stewart must be compared with the treatment that would have been afforded to a person who does not have children of the age of Mr Stewart's children in the same or similar circumstances. In the absence of an actual person whose treatment could be validly compared with the treatment given to Mr Stewart, a decision maker would have to rely on a hypothetical person in a comparable situation. The second component of the test is that at least one of the reasons for being treated in the way he was treated must be the ages of the children.

1. Mr Stewart relies on the fact that he was served when he did not have the children with him after he had been told that his business was not welcome. He says that this proves that the treatment he was afforded was on the ground of the age of his children.

1. There was no evidence that Mr Hunt refuses to serve people who are accompanied by children. If this matter went to hearing the tribunal is likely to accept Mr Hunt's evidence that his motivation in asking Mr Stewart to leave him pram at the front of the shop was his perception, rightly or wrongly, that the pram was damaging the fittings in the shop. That is a far more plausible than concluding that Mr Hunt simply did not want children in his shop. Similarly, a Tribunal is likely to accept Mr Hunt's evidence that the reason for refusing to serve him was because of Mr Stewart's behaviour on a previous occasion, not because he was accompanied by young children. As the complaint has little or no prospects of success, leave is refused for the complaint to proceed.

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Decision last updated: 01 February 2012