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

[2010] NSWADT 284

CITATION:	Whitfield v State of New South Wales (NSW Police Force) [2010] NSWADT 284
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Keith Whitfield RESPONDENT State of Wales (NSW Police Force)
FILE NUMBER:	101068
HEARING DATES:	3 August 2010
SUBMISSIONS CLOSED:	14 September 2010
DATE OF DECISION:	30 November 2010
BEFORE:	Hennessy N - Magistrate (Deputy President)
CATCHWORDS:	LEAVE – alleged age discrimination by police – factual and legal issues as to merits of the complaint and availability of alternative remedy
LEGISLATION CITED:	Anti-Discrimination Act 1977 Administrative Decisions Tribunal Act 1997
CASES CITED:	Jones and Anor v Ekermawi [2009] NSWCA 388 Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 Commissioner of Police v Mohamed [2009] NSWCA 432 Mohamed & Ors v State of New South Wales (NSW Police Force) unreported, 31 March 2010Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745
REPRESENTATION:	APPLICANT L Dillon-Smith, solicitor RESPONDENT V Andersen, solicitor
ORDERS:	Leave is granted for Mr Whitfield’s complaint of age discrimination to proceed The matter is listed for case conference on 9th February 2011 at 9.30am.

REASONS FOR DECISION

Introduction

1 Keith Whitfield has applied to the Tribunal for permission for his complaint of age discrimination against NSW Police to proceed even though the President of the Anti-Discrimination Board (the Board) declined the complaint as lacking substance: Anti-Discrimination Act 1977 (AD Act), s 96. The Tribunal has a discretion to grant or not to grant leave for the complaint 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, another more appropriate remedy is available or that for any other reason no further action should be taken. s or the nature of the conduct is such that further action is not warranted: Jones & Anor v Ekermawi [2009] NSWCA 388 at [60]. In order to assess whether the complaint of disability discrimination should proceed I need to examine both the factual and legal basis for the complaint.

Factual basis for the complaint

2 Mr Whitfield and Mrs Pauline Hart have lived together, for the most part, since 1995. They have never been in an intimate relationship. Mr Whitfield admits to having arguments with Mrs Hart but denies that he ever threatened or hurt her. Since 2003 they have lived in a unit which Mrs Hart apparently either owned or rented from the Catholic Church. Mr Whitfield paid Mrs Hart his share of the rent. In 2005 Mr Whitfield became Mrs Hart's carer. I assume that this means that Mr Whitfield was receiving a Carer Allowance from Centrelink.

3 In 2008 Mrs Hart decided to move in with her daughter. Mr Whitfield's version of events is recorded in a statutory declaration he wrote in September 2009, 12 months after the alleged incident. He says in that statement that Mrs Hart was threatening to take all his possessions when she moved. On a Sunday night towards the end of September 2008, Mr Whitfield says that they were watching television when a police officer, who has now been identified as Constable Lobb, knocked at the door. Mr Whitfield opened the door and says that the following conversation took place:

Mr Whitfield: What can I do for you?

Police Officer: Are you Keith Whitfield?

Mr Whitfield: Yes.

Police Officer: Well pack a bag and get out of the unit.

Mr Whitfield: I am sorry, are you speaking to the right person?

Police Officer: Your name is Keith Whitfield isn't it?

Mr Whitfield: Yes but what is happening, what have I done? What reason have you got to ask me to move out of my house?

Mr Whitfield: I am 86 years of age. I am a returned World War II veteran, where do I go at 8 p.m. at night with no money? I don't understand why you are asking me to leave.

Police Officer: Well look, I will let it go this time but I want you to promise that you will be quiet I don't want you playing up and causing any problems.

Mr Whitfield: I don't know what you're talking about.

4 Mr Whitfield says that Mrs Hart told him that she did not know why the police officer had asked him to leave.

5 The following night at about the same time Mr Whitfield says that he and Mrs Hart were again watching television when the same police officer knocked at the door. Mr Whitfield says that the following conversation took place:

Mr Whitfield: What's the problem?

Police officer: Are you Keith Whitfield?

Mr Whitfield: Yes what is this all about?

Police officer: I can't believe a word you say. Pack your bags and get out. This is Pauline's unit.

Mr Whitfield: Why are you doing this what has happened? I pay half of everything why do I have to leave?

Police officer: Didn't you hear me? I said pack your bags and get out now.

Mr Whitfield: Have you got the right person? I don't understand what have I done wrong? Where do I go at 8 pm at night? I don't have a dollar in my pocket.

Police officer: I will put you in a caravan park.

Mr Whitfield: That won't help I can't pay for it. Please give me some explanation.

Police officer: I will speak to the manager of the caravan park to get him to allow you to stay there until you get your next pay.

Mr Whitfield: That won't help because I can't afford it.

6 Mr Whitfield says that Mrs Hart then came back into the room and told him that she had spoken to a neighbour who said that he could stay with her. Mr Whitfield says that he then began to have chest pains but the police officer ignored him and said:

Police officer: This is Pauline's unit. Now didn't you hear what I said? Pack a bag and leave the premises and stay out until Pauline leaves on 27 October 2008.

Mr Whitfield: I can't just pack my bags that quickly I don't know how long I will be gone. Why do I have to leave please tell me?

Police officer: You can come back tomorrow to get some more things but I do not want you speaking to Pauline or coming back to the unit until after Pauline has moved out.

7 Mr Whitfield says that he was distraught but he collected his belongings and went to stay with the neighbour. The next day he went back to the unit to collect his personal belongings. When Mrs Hart moved out three weeks later Mr Whitfield negotiated with the Catholic Church to lease the unit.

8 NSW Police deny that Constable Lobb ever asked Mr Whitfield to leave the unit. Their version, which is based on COPS events created on the same day as the incident, is that Mrs Hart asked him to leave. NSW Police’s response to Mr Whitfield’s complaint was as follows:

On 29 September 2008, neighbours who are also residents of the units, made a complaint to police alleging aggressive and threatening behaviour toward them by Mr Whitfield. Police from Iluka station attended the complainant's premises and following discussions advised them in regard to personal Apprehended Violence Orders (AVOs).

While police were attending the above incident they were approached by another resident who claimed Mr Whitfield had been verbally abusive towards them on occasions. Police advised the resident in relation to a personal AVO and also suggested that the church, owners of the units, be contacted and made aware of the situation and the problems being created to residents as a result of Mr Whitfield's alleged aggressive behaviour toward them.

Police then attended the residence of Ms Pauline Hart and spoke with Mr Whitfield who denied the allegations made by the other residents and claimed he was polite on all occasions.

Ms Hart told police that Mr Whitfield was lying and that he had been yelling in an aggressive way toward other residents. In the presence of police Mr Whitfield began to verbally degrade Ms Hart.

During conversations between Ms Hart and police she advised them that she was not in a relationship with Mr Whitfield and that he was her paid carer. He had become ill and she had allowed him to stay in her home during that period.

Ms Hart claimed Mr Whitfield had become aggressive toward her and she no longer wanted to have him in her flat. She stated she was currently in the process of selling her residence back to the church and intended to move away and live with her family.

In the presence of police Mr Whitfield kept interrupting Ms Hart, trying to intimidate and bully her. Ms Hart then told police she would no longer allow Mr Whitfield to stay in her home.

Police spoke to a member of Ms Hart's family who confirmed her claims.

As a result, Mr Whitfield made short-term arrangements to stay at a friend's flat until he could find alternative accommodation for the next month allowing time for Ms Hart to sell her residence back to the church. Mr Whitfield stated he was hoping to rent Ms Hart's flat from the church once she had vacated the premises.

Police took the view that the matter was a neighbourhood dispute that seemed to have resolved and as none of the informants were in fear of their personal safety took no further action.

9 The COPS entries provided to the Board generally support the police's version of events. After receiving this response Mr Whitfield replied denying that he had abused any other residents of the units. Mr Whitfield also denied that Constable Lobb had any conversation with him about complaints from neighbours. He says that on both occasions the police officer gave no explanation as to why he was being asked to leave. Neither Mrs Hart, nor her daughter who apparently spoke to the police officer on the phone while he was in attendance, provided any evidence. However, Mrs Hart signed the following hand written notes from Constable’s Lobb’s diary. Some personal details have been deleted from this transcription:

6.40 pm 29/9/08

Pauline Hart

Carer: Keith Frances Whitfield

DOB – 87 years old.

Keith has been a carer for Pauline for 2 years. Have lived in the same house for that time. Known each other 17 years. He is paid carer (paid through Centrelink). Keith is not physical towards me but his tongue never stops. He is always blaming everything on me and it's always my fault. Keith and I used to get on very well however since I told him I am moving to (name deleted) his behaviour towards me has changed. Keith is a gambler and has spent all his money, so he thinks I should leave money to him in my will and some money from when I move/sell out of the flat. He keeps telling me I had to give him money.

Keith can't see what he does and how he talks to me. It is greatly distressing to me how he talks to me as I suffer dizzy spells and angina and stress is a concern for me. I do not want police to apply for an AVO against Keith as I don't have any fears of him. I only want him to leave my house as he was only my carer and he is not required to live with me. I do not want any referrals from other agencies.

Signed

Pauline Hart

10 Mr Whitfield says he was not present when the conversation recorded in the notebook took place.

11 The COPS entries and the diary entries signed by Mrs Hart were prepared on the same day as the alleged incident and support NSW Police’s version of events that it was Mrs Hart who wanted Mr Whitfield to leave her house. Nevertheless, it is plausible that Constable Lobb asked Mr Whitfield to leave following the conversations he had with Mrs Hart and her neighbours. While it is not appropriate to make findings of fact at this stage of the proceedings, it is likely that a finding would be made that Constable Lobb asked (or directed) Mr Whitfield to leave Ms Hart’s home, at the insistence of Mrs Hart. It is highly unlikely, as suggested by Mr Whitfield, that a police officer knocked on his door and demanded that he leave his home without any reason for doing so. However, both parties agreed that it would be very unusual for a police officer to demand that a person leave the house in which they were living if there were no allegations of violence or abuse.

Legal basis for complaint

12 Mr Whitfield alleged that NSW Police have breached s 49ZYN(1) of the AD Act which states that:

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.

13 What it means to “discriminate against a person on the ground of age” is set out in s 49ZYA in the following terms:

(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.
(2) For the purposes of subsection (1) (a), something is done on the ground of a person’s age if it is done on the ground of the person’s age or age group, a characteristic that appertains generally to persons who are that age or age group or a characteristic that is generally imputed to persons who are of that age or age group.
Issue of services whether police are providing a service.

14 Section 49ZYA(1)(a) defines what is known as ‘direct’ discrimination. At least one of the reasons for the treatment must be the person’s age even if that reason was not the dominant or a substantial reason for the treatment: AD Act, s 4A. Section 49B(1)(b) defines what is known as ‘indirect’ discrimination. My understanding is that Mr Whitfield is complaining of ‘direct’ discrimination.

15 In order to substantiate a complaint of direct age discrimination, Mr Whitfield would have to prove that:

a) he is of a particular age or age group;

b) NSW Police refused to provide him with a service or provided him with a service on unfavourable terms;

c) in refusing that service or providing it on unfavourable terms, NSW Police treated him less favourably than it treated or would have treated a person who was of a different age or age group in the same or similar circumstances; and

d) at least one of the reasons for that treatment was Mr Whitfield’s age.

16 Age or age group. Mr Whitfield was 87 years old at the time of the alleged incident.

17 Identification of service. The first step in determining whether a person has been refused a service or provided a service on unfavourable terms is the proper characterisation of the relevant service: Waters v Public Transport Corporation [1991] HCA 49; (1991) 173 CLR 349 at 404-405 per McHugh J, IW v City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 16-17 per Brennan CJ and McHugh J.

18 The term ‘services’ is defined by s 4 of the AD Act to include “services provided by a council or public authority.” The NSW Police Force is a public authority. It is established under the Police Act 1990. Section 6 of that Act provides:

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

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

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

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

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

(3) In this section:

police services includes:

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

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

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

(d) any other service prescribed by the regulations.

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

(5) ....

19 Police officers provide the services set out in s 6(3)(a) and (b) of the Police Act to the community and to individuals in various contexts. Mr Whitfield submitted that the service provided to him was:

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

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

20 Mr Whitfield said that a police officer on a call to a home in relation to a complaint about arguing or domestic violence is providing a service by way of prevention and detection of crime. The police officer in this case was providing the service of attempting to prevent a crime being committed and/or detecting whether a crime had been committed.

21 In Commissioner of Police, NSW Police Service v Estate of Edward John Russell [2001] NSWSC 745, Mr Russell had been arrested by police officers and taken into custody. He complained that he had been discriminated against on the ground of his Aboriginal race. The Tribunal referred the following question of law to the Supreme Court:

‘. . . whether the conduct of the individual respondent constables in the course of the pursuance and arrest of Mr Russell amounted to the provision of a ‘service’ within the meaning of section 19 of the Anti-Discrimination Act . . .’

22 The answer given by Sully J at [44] was that:

A correct assessment of the conduct of the individual police officers in the course of the pursuit and arrest of the late Mr Russell is in my opinion as follows:
[1] the police officers who took part in the pursuit of Mr Russell were providing to the community at large services of the kind described in section 6(3)(a) and (b) of the Police Service Act
[2] the police who took part in the arrest of the late Mr Russell were also thereby providing to the community at large services of those two kinds
[3] as soon as the late Mr Russell had been formally arrested, and had passed thereupon into police custody, the arresting police, and any police officer who had any part at all in the way in which Mr Russell was subsequently handled; or who witnessed the way in which Mr Russell was handled; became thereupon charged with a public duty to provide to the late Mr Russell police services by way of the protection of his person from injury or death, and the protection of his property from damage ‘whether arising from criminal acts or any other way’.

23 During the period of time prior to Mr Russell's arrest, police were providing services to the community at large, not to Mr Russell, whereas after his arrest, police officers were providing Mr Russell with a service. The application of the law to the facts in Russell was not disturbed by the Court of Appeal in Commissioner of Police v Mohamed [2009] NSWCA 432. In that case, because the facts had not been ascertained with any clarity, the Court of Appeal made the general statement that:

Conduct of police officers with respect to a request for assistance in relation to possible criminal activity where protection of persons or property may be involved can involve the refusal or provision of services to the purpose of section 19 of the Anti-Discrimination Act. (Emphasis added.)

24 On remittal from the Court of Appeal the Tribunal decided in Mohamed & Ors v State of New South Wales (NSW Police Force) unreported, 31 March 2010, that the police investigating a complaint made by the Mohamad family were providing services to that family within s 19 of the AD Act and were required not to discriminate on the grounds of race by refusing to provide the services or in the terms on which the services were provided.

25 In accordance with the general statement of the law in the Court of Appeal’s decision in Mohamed, and the more specific statement in Russell, the police officer in this case was providing the community including Mrs Hart and her neighbours with the services in s 6(3)(a) and (b) of the Police Act. The question is whether they were also providing Mr Whitfield with those services. Unlike the situation in Mohamad, Mr Whitfield had not asked police to investigate any possible criminal activity. The facts are similar, but not identical to the situation in Russell. Just as Mr Russell was suspected of having committed a crime, so police attended Mr Whitfield’s home because of allegations against him. Mr Whitfield was never arrested, so it is arguable, in accordance with Sully J’s observations in Russell, that while conducting inquiries about the possible commission of a criminal offence, police are not providing a service to the alleged perpetrator. However, there is no authority directly on point and it is arguable that police were providing a service to Mr Whitfield.

26 Was that service refused or provided on unfavourable terms? Mr Whitfield submitted that the police officer refused to provide the service of detecting and preventing crime because he took no steps to ascertain the true nature of the situation by properly investigating a complaint and making at least some determination as to the truthfulness or seriousness of the complaint. According to Mr Whitfield, the police officer did not put any allegations to Mr Whitfield or issue him with a warning. Even if Mr Whitfield’s version of events is accepted, that conduct does not amount to refusing to provide Mr Whitfield with the service of preventing and detecting crime. It may arguably amount to providing the service on unfavourable terms.

27 Differential treatment and causation. Mr Whitfield said that his situation should be compared with a person aged, for example, in their 40s in the same circumstances. His submission was that a police officer would not have asked such a person to leave their own home. Mr Whitfield says that the police officer would not have had the confidence or courage to have ordered a younger man out of his home in the same circumstances. He said that the police officer took the action he did because he was confident that because of Mr Whitfield’s frail appearance and age, he would not challenge the police officer’s direction. When making the comparison with how a younger man would have been treated, the circumstances must be the same or not materially different. It is likely that a Tribunal would find that the circumstances were that Constable Lobb asked Mr Whitfield to leave after having a conversation with Mrs Hart and that Mrs Hart had, at some stage, arranged for Mr Whitfield to stay with a neighbour for a few weeks. Without hearing evidence from Constable Lobb and Mrs Hart it is difficult to assess the merits of this party of the complaint. Even if a Tribunal did draw such an inference, Mr Whitfield would also have to prove that at least one of the reasons for asking him to leave was his age.

28 The fact that the reason for the conduct is almost always within the respondent’s knowledge, means that it is often difficult for applicants to establish the grounds for that conduct. The High Court recognised and commented on this difficulty in Australian Iron & Steel Pty Ltd v Banovic (1989) 169 CLR 165 at 176 but has not suggested that the evidential burden should be on the respondent to give evidence about the reasons for its conduct. The situation remains under the AD Act that the legal and evidential burden remains on the applicant to prove his or her case. Significantly, Mr Whitfield has the legal and evidential burden of proving that his age was at least one of the reasons for the conduct about which he complains. Even if it is accepted that Mr Whitfield was treated unfairly or rudely, there is no direct evidence to suggest that his age was a reason for that unfairness. Nevertheless, depending on the evidence, it is possible that such an inference could be drawn.

29 Alternative remedy available. Apart from the merits of the complaint, another relevant matter is that Mr Whitfield is able to complain about his treatment to the Ombudsman. A person may complain to the Ombudsman about any unfair treatment by the NSW Police Force including that a police officer has behaved inappropriately. The Ombudsman is independent of NSW Police and its services are provided free of charge. Mr Whitfield lodged such a complaint on 16 March 2009. According to Mr Whitfield’s solicitor, that complaint was referred to the relevant Area Commander for comment but no response has been received.

Conclusion

30 There are various factual and legal issues which arise from Mr Whitfield’s complaint but, on my analysis, the complaint is not so lacking in substance that leave should be refused for it to proceed. Furthermore, the existence of a remedy through the Ombudsman, while relevant, is not sufficient, even in combination with the factual and legal issues, to justify refusing Mr Whitfield leave for his complaint to go ahead.

Leave is granted for Mr Whitfield’s complaint of age discrimination to proceed.

The matter is listed for case conference on 9 ^th February 2011 at 9.30am