Shaikh v Police and Community Youth Clubs NSW Ltd & Ors [2003] NSWADT 15 (22 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Shaikh v Police and Community Youth Clubs NSW Ltd & Ors [2003] NSWADT 15

PARTIES: APPLICANT

Zaheer Shaikh

FIRST RESPONDENT

Police and Community Youth Clubs NSW Ltd

SECOND RESPONDENTS

Robert and Bea Dowling

FILE NUMBERS: 011038

HEARING DATES: 25/03/02-28/03/02, 02/04/02-03/04/02

SUBMISSIONS CLOSED: 11-09-2002

DECISION DATE: 22-01-2003

BEFORE: Britton A - Judicial MemberNemeth de Bikal L - MemberLau L - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

Evidence Act 1995

CASES CITED: Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221

Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5

Dutt v Central Coast Area Health Service [2002] NSWADT 133

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449-450

G v H [1994] HCA 48; (1994) 181 CLR 387 at 399

State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287

Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808

APPLICATION: Race Discrimination - Goods and Services

Racial - Vilification

MATTER FOR DECISION: Principal Matter

APPLICANT REPRESENTATIVE: Applicant

S Friend, solicitor

RESPONDENT REPRESENTATIVE: First Respondent

A Johnson, solicitor

Second Respondent

D Bernie, barrister

ORDERS: The complaints of race discrimination and vilification are dismissed.

Respondents to file and serve brief written submissions on costs, if they so elect within 14 days of the date of this decision.

The complainant to file and serve brief written submissions in reply if he so elects within 14 days of receiving the respondent's submissions.

Reasons for Decision:

1 This decision concerns complaints of race discrimination and racial vilification. The complainant, Zaheer Shaikh was born in Pakistan and moved to Australia in 1991. On 27 November 1999 he attended a social ballroom dancing dance event organised by the second respondents, Bob and Bea Dowling ("the dance event"). He alleges that the second respondents unlawfully discriminated against him at that dance on the grounds of race and that at the dance he was also racially vilified by Mr Dowling.

2 The dance event was held at premises owned by the first respondent, the Police and Community Youth Clubs NSW ("PCYC"). Mr Shaikh asserts that through the operation of s 53 of the Anti-Discrimination Act (NSW) 1977 ("the Act") the first respondent is vicariously liable for the acts of the second respondents.

3 Mr Shaikh lodged a complaint with the President of the Anti-Discrimination Board (respectively "the President" and "the Board") on 10 January 2000 alleging unlawful race discrimination. A further complaint alleging victimisation by the NSW Police Service was made on 25 September 2000.

4 By letter dated 29 May 2001, the President referred both complaints to the Administrative Decisions Tribunal ("the Tribunal") under s 94(1) of the Act, having formed the view that neither complaint could be conciliated.

5 On 21 December 2001 the Tribunal summarily dismissed the complaint against the NSW Police Service on the ground that it was lacking in substance: Shaikh v Police and Community Youth Clubs NSW Ltd & ors [2001] NSWADT 221.

Background

6 The dance event, the subject of this inquiry was organised by Mrs Dowling, a dance teacher and member of the executive of the Burwood PCYC. She had organised similar events at the PCYC hall in Burwood (" the hall") for about a decade. The dance started at about 8pm and finished at about 11pm.

7 Mr Shaikh had been a regular participant since the early nineties and was a keen dancer. The dance was attended by about 70 people of various ethnic and racial backgrounds. Mrs Dowling is Malaysian Chinese. On the night in issue, in addition to Mr Shaikh, at least two people of Indian appearance attended the dance.

8 Admission to the dance was $7 payable on entry. Upon payment, a ticket from a book of raffle tickets was issued. The main ticket seller on the evening in question was Mr Dowling, assisted by Ross Wilkinson. Mr Wilkinson had been assisting Mrs Dowling with dance events at the PCYC hall for a number of years. Mr Dowling had also assisted his wife with these events for a number of years and on a more regular basis since about 1999.

9 Mr Wilkinson had stepped in to relieve Mr Dowling when Mr Shaikh arrived at the dance at about 9pm. Mr Shaikh said he purchased a ticket on arrival from Mr Wilkinson: ticket "B 74". Mr Dowling said that when he spotted Mr Shaikh he asked Mr Wilkinson whether he had purchased a ticket and was told he had not. Shortly after Mr Shaikh's arrival Mr Dowling confronted him, demanded to see his ticket and escorted him outside the hall.

10 A short time later Mr Shaikh re-entered the hall followed by Mr Dowling, and had a brief conversation with another dance patron, Frank Vasin. He then approached the music table (which was situated about 25 metres from the entrance) where Mrs Dowling was seated, organising the music. Mr Shaikh was about a metre away from the table and Mr Dowling stood to his side, again about a metre away. Mr Shaikh was angry and said to Mrs Dowling, "I will sue your husband for defamation". Mr Shaikh had a piece of paper grasped in his fist, which he extended outwards but did not pass to Mr or Mrs Dowling. Mr Shaikh then grabbed the microphone taking it out of its socket. He then left the hall, accompanied by two women, kicking the ticket table as he left. He did not return to the dance.

11 Mr Shaikh claims that during the altercation in front of the music table Mr Dowling said loudly "You Indian bastard you did not buy a ticket". Mr Downing denies this.

12 At the same time as he lodged his complaint with the Board, Mr Shaikh lodged an application with the Fair Trading Tribunal seeking amongst other things, the recovery of the admission fee said to be paid on 27 November 1999. That application was dismissed.

Relevant provisions of the Act

13 Section 7 sets out what constitutes discrimination on the ground of race:

(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:

(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, or

(b) segregates the aggrieved person from persons of a different race or from persons who have such a relative or associate of a different race, or

(c) requires the aggrieved person to comply with a requirement or condition with which a substantially higher proportion of persons not of that race, or who have such a relative or associate not of that race, 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) 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.

14 Mr Shaikh alleges that the first and second respondents subjected him to unlawful race discrimination in the area of goods and services. Section s 19 of the Act provides:

Provision of goods and services

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:

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

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

15 It is not in issue that admission and participation in the dance event constitutes a service as defined by s 4 of the Act.

16 Mr Shaikh also contends that Mr Dowling racially vilified him. Section 20 C of the Act provides:

20C Racial vilification unlawful

(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.

17 Section 53 of the Act deals with the liability of principals for a contravention of the Act by their agent and provides:

(1) An act done by a person as the agent or employee of the person's principal or employer which if done by the principal or employer would be a contravention of this Act is taken to have been done by the principal or employer also unless the principal or employer did not, either before or after the doing of the act, authorise the agent or employee, either expressly or by implication, to do the act.

(2) If both the principal or employer and the agent or employee who did the act are subject to any liability arising under this Act in respect of the doing of the act, they are jointly and severally subject to that liability.

(3) Despite subsection (1), a principal or an employer is not liable under that subsection if the principal or employer took all reasonable steps to prevent the agent or employee from contravening the Act.

Race Discrimination

18 Section 7(1)(a) of the Act is commonly referred to as "direct discrimination" and describes what constitutes discrimination on the ground of race. In Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5 an Appeal Panel of the Tribunal considering the leading authorities and said the following question should be determined in all cases of direct discrimination: "Did the respondent, on the ground of the complainant's race, treat the complainant less favourably than it treated or would have treated a person not of his race in the same circumstances or circumstances that were not materially different?" This test involves two elements that the Appeal Panel labelled 'different treatment' and 'causation'.

19 In this case none of the parties have identified an actual comparator. We therefore proceed on the basis of a hypothetical comparator, that is, a patron not of Mr Shaikh's race in circumstances not materially different from Mr Shaikh. Those circumstances must include a patron with a similar history of uncertain arrangements surrounding his admission to PCYC dance events.

20 The Appeal Panel in Aldridge explained that different treatment, is to be considered before causation "...because if there is no relevant differential treatment it is unnecessary to consider the issue of causation."

21 In the recent decision of Dutt v Central Coast Area Health Service [2002] NSWADT 133 the Tribunal raised concern at [63 - 64] with the outcome of adopting this approach where a hypothetical comparator is employed:

"... When the comparator is hypothetical, the first question cannot be answered as a simple, stand-alone question: the way a hypothetical comparator would be treated cannot be assessed separately from asking what the ground or grounds for treatment of the applicant were. If an applicant was Chinese and was refused service (or denied promotion, or given menial duties etc), we cannot say how the hypothetical comparator, who is not Chinese, would have been treated in the same circumstances. The only fact that it is possible to determine is the ground or grounds on which the applicant was actually refused service. Only when this is known can we say whether a hypothetical comparator would have been refused service in the same circumstances. The applicant could, for example, have been refused service on perverse or irrational grounds, or solely on a ground unrelated to race: it is not until the ground for the actual treatment is known that it is possible to say whether a hypothetical person not of the applicant's race would have been treated differently.

In Aldridge the Appeal Panel said that "if there is no relevant differential treatment it is unnecessary to consider the issue of causation". In the case of a hypothetical comparison, an extension of this might be: but there is no basis on which to assess whether there would have been differential treatment until the cause for the actual treatment is known.

22 It is recognised that the comparative approach enshrined in the Act's definition of direct discrimination is notoriously problematic. (See NSW Law Reform Commission, Review of the Anti-Discrimination Act (NSW) Report 92, 1999, at 3.52) Dutt raises a live issue, which requires close attention. In this decision we do not conclude whether the two tests are compatible, and if not which is preferred.

Onus of Proof

23 It is submitted for the first respondent that, in light of the seriousness of the allegations made, Mr Shaikh must prove his allegations to the Briginshaw standard.

24 Mr Friend, for the complainant, submits that it is overly simplistic to say that the Briginshaw standard should apply. He submits that the allegations made are serious but points out that all allegations are to some degree. Briginshaw, argues Mr Friend, is not a test of universal application for all cases of unlawful conduct brought under the Act. There is no justification, argues Mr Friend, for the standard of proof in cases of race discrimination to be something approaching the criminal standard.

25 The Briginshaw test arises from the wellknown dicta of Dixon J in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362:

Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.

26 The position is now codified by s 140 of the Evidence Act 1995. That section provides:

140 Civil proceedings: standard of proof

(1) In a civil proceeding, the court must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities.

(2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account:

(a) the nature of the cause of action or defence, and

(b) the nature of the subject-matter of the proceeding, and

(c) the gravity of the matters alleged.

27 Stephen Odgers in his commentary on s 140 in Uniform Evidence Law 4th Edition LBC 2000 p. 246, observes that in general, the civil standard is not treated as a mathematical standard but a reasonable attempt to find the facts in the circumstances in a particular case. He notes the judgment of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 at 449-450:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary "where so serious a matter as fraud is to be found"). Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. (Authorities omitted).

28 As noted by the High Court in G v H [1994] HCA 48; (1994) 181 CLR 387 at 399: " Not every case involves issues of importance and gravity in the Briginshaw v. Briginshaw sense." In the equal opportunity jurisdiction there has generally been faithful adherence to the application of Briginshaw (but see State of Victoria v Macedonian Teachers Association of Victoria [1999] FCA 1287; Dutt v Central Coast Area Health Service [at 58]). However, we broadly accept Mr Friend's submission that a one size fits all approach is to be avoided. In our view the appropriate approach is to be guided by all factors relevant to the inquiry, including those listed in s 140(2) of the Evidence Act.

29 We are not satisfied that the circumstances of this case justify a departure from the Briginshaw standard. The allegations raise complaints about the conduct (or failure to act) of both respondents. This does not mean, as Mr Friend suggests, that a complainant is in effect required to meet a standard that falls just short of, or is indistinguishable from the criminal standard.

Issues for Determination

30 Before we determine whether the second respondents, as alleged, contravened s 19 of the Act, a number of factual matters need to be determined. First, did Mr Downing unreasonably suspect and/or accuse Mr Shaikh of not purchasing a ticket? Second, was Mr Shaikh forcibly removed from the dance hall? Third, did Mr Shaikh show his ticket upon request? Fourth, did Mr Dowling use the words, "you Indian bastard" or "you black bastard" in respect of Mr Shaikh?

31 If the answer to any or all of these questions is yes, the next issue to be determined is whether such conduct by the second respondents constitutes 'less favourable treatment' and, if so, whether one of the reasons for that treatment was Mr Shaikh's race, or a characteristic of that race for the purpose of s 19 of the Act?

32 If a finding is made that Mr Dowling did say to Mr Shaikh, words to the effect, "you Indian bastard" it must be determined for the purpose of s 20C of the Act whether on balance the second respondent committed:

a public act

which incites hatred towards, serious contempt for or severe ridicule of Mr Shaikh or members of his race ;

on the ground of Mr Shaikh's race.

33 If a finding is made that the second respondents through their conduct contravened s 19 and/or s 20C of the Act, the final issue for determination is whether the first respondent is liable for that conduct under s 53 of the Act. This requires the following to be determined: whether the Dowlings acted as the agents of the first respondents; if so whether the first respondents expressly or impliedly authorised the offending conduct, and if they did, whether the first respondent took all reasonable steps to prevent them from contravening the Act.

Evidence

Mr Dowling's treatment of Mr Shaikh prior to 27 November 1999

34 According to Mr Shaikh, in early 1996, Mr Dowling said to him: "bloody wog you pinched the firemen's money" in reference to his win in the Equal Opportunity Tribunal in 1995. Mr Dowling claimed he had little to do with Mr Shaikh in 1995-1996 and denied having any discussion with him about the Fire Brigade case but agreed he knew about it through the "rumour mill" at the Club. He claimed he had had no thoughts about the case and had not discussed it with anyone. [In 1995 the Equal Opportunity Tribunal handed down a decision Shaikh v Commissioner, NSW Fire Brigades (1996) EOC 92-808 which upheld Mr Shaikh's complaint of victimisation under the Act, and awarded him $40,000.]

35 In cross-examination, a recording purportedly taken from Mr Shaikh's answering phone was played: "Yes I think you should go back to Pakistan, you bloody wog." Give back the $40,000 you stole from the firemen, you bloody wog." Mr Dowling denied it was his voice on the tape.

36 Mr Shaikh said that since about 1997, Mr Dowling harassed him and called him "Indian" at dance events. Mr Dowling denies this. Ms Fong-Peng, a friend and dance partner of Mr Shaikh, said she observed Mr Dowling constantly staring at Mr Shaikh and noted that he attended dance events on a less regular basis after Mr Dowling took on a more active role.

37 Mr Dowling said he did not have much to do with Mr Shaikh. He agreed that he usually referred to him as an Indian person and claimed that he was unaware until the commencement of these proceedings that Mr Shaikh was originally from Pakistan.

38 Mr Dowling agreed that he did not chat with Mr Shaikh but said he did not know if Mr Shaikh tried to avoid him.

Purchase of Tickets

39 According to Mr Shaikh, once Mr Dowling took a more active role in the dance events (from about 1999), he arranged for his friend, Yut Meng Fong-Peng [Marlene], and on occasion another dance partner, to purchase a ticket on his behalf. He said that he did this to avoid Mr Dowling. Mr Dowling said he was aware that Mr Shaikh's dance partners sometimes purchased tickets for him, but did not know why.

40 Ms Fong-Peng gave evidence that when Mr Dowling was at the dance, she would buy Mr Shaikh's ticket and he would later reimburse her. She said that if he arrived while she was dancing he would wait at the door for her dance to finish. If Mr Wilkinson was on the door, Mr Shaikh would purchase a ticket himself. She said it was not her practice to purchase the ticket until Mr Shaikh arrived as he often did not turn up, and then her money would be wasted.

41 Mr Dowling gave evidence of three occasions when he observed Mr Shaikh trying to "slip in" without paying. On the first occasion he asked Mr Shaikh to purchase a ticket and he replied he did not intend to dance and left. On the second, he claimed Mr Shaikh "slipped in" while he was busy selling tickets and when approached Mr Shaikh said, "Marlene will pay for me" to which she replied, "Not this time". On the third occasion, Mr Shaikh slipped in while he was distracted and when approached, he asked his dance partner to pay.

42 Mr Shaikh gave evidence that on one occasion he was approached by Mr Dowling and asked to purchase a ticket. He replied he did not intend to dance and then left. He said that at that time he was immediately inside the hall, on a seat where visitors who came to collect friends or relatives generally sat. Mr Dowling agreed that visitors would sometimes sit at the back of the hall and would not be expected to pay for admission. However, this was only towards the end of the evening while they waited for their spouse or friend.

43 Mr Shaikh recalled a second occasion when he was asked to show his ticket, to which he replied that Marlene would pay. In evidence he did not recall her saying "not this time" and nor could she.

44 According to Mr Dowling, before November 27 he had not raised with Mr Wilkinson his concerns about Mr Shaikh's avoidance of payment, as it was his view that he was better placed to fix the problem.

Purchase of Ticket: 27 November

45 Mr Wilkinson gave evidence that he could not remember whether in fact Mr Shaikh did (or did not) purchase a ticket.

46 Ticket "B74" Clubs was tendered in evidence and Mr Shaikh attested that this was the ticket issued to him by Mr Wilkinson. Dance patrons, Nancy Ling, Thi-Nu Le and Ms Fong-Peng state they had also been issued with B Clubs tickets that evening.

47 This was disputed by Mr and Mrs Dowling who said on the night they used a C Clubs ticket book (Exhibit 13), being the ticket book signed by Kristina Goukas, the administrator of the Burwood PCYC. According to Mrs Dowling, it was her practice to provide Ms Goukas with the relevant completed ticket book and the PCYC's fee after the dance. In cross-examination, Mr Wilkinson said that a B Clubs ticket book was used on the night. In re examination, he said that it could have been a C Clubs book. He could not be sure.

Mr Shaikh's removal from hall

48 Mr Shaikh gave evidence that at about 9.30 pm Mr Dowling approached him while in the dance hall and said, "You have refused to pay at the gate and on three previous occasions you did not pay the entrance fee." He said that a furious Mr Dowling then placed both arms on his shoulders and turned him around. Mr Shaikh said Mr Dowling was breathing heavily and he did not resist as he was scared.

49 Mr Dowling said that when he first noticed Mr Shaikh he asked Mr Wilkinson had "the Indian gentleman purchased a ticket?" and was told he had not. He reported this to his wife who said: "go ahead and ask for his ticket". Mr Dowling said he then approached Mr Shaikh who had just stopped dancing. According to Mr Dowling, Mr Shaikh turned and tried to avoid him. He said he then politely asked Mr Shaikh to accompany him, and put his arm around his shoulder and led him outside. He denied grabbing Mr Shaikh by both shoulders. His said the reason he escorted Mr Shaikh outside was to spare him the embarrassment of being asked to show his ticket in front of other dance patrons.

50 According to Mr Shaikh, once outside Mr Dowling demanded that he leave and did not ask to see his ticket. He replied, "I have paid my entry fee to Ross". In cross-examination, he said he did not believe the reason he was asked to leave was because Mr Dowling suspected he had not purchased a ticket. Rather, in his view, it was just another example of harassment. In cross-examination he said he did not offer to show his ticket as he was concerned that Mr Dowling may snatch it and throw it away.

51 According to Mr Dowling, Mr Shaikh became agitated and returned inside. Dance patron, Frank Vasin said Mr Shaikh rushed up to him, upset, and said in a loud voice: "This man accused me of not buying a ticket." Mr Dowling said he had presumed that a ticket passed between the two. Mr Vasin denied being asked to pass or having passed his ticket to Mr Shaikh. Mr Vasin said Mr Shaikh then ran across the dance floor yelling and screaming, followed by the "big man [Bob Dowling]".

52 Mr Shaikh agreed, with the exception of the word "fucking", he did say to Mrs Dowling, who was at the music table, "your fucking husband is accusing me of not buying a ticket. I can sue your fucking husband". He denied using bad language during the altercation but conceded he was so upset that he could have. "I have never been that upset in my life."

53 According to Mr Dowling, Mr Shaikh showed him and his wife what appeared to be a crumpled piece of white paper about two inches by two inches inside a clenched fist, but he did not see what exactly was in Mr Shaikh's hand. This is consistent with Mrs Dowling's evidence.

54 In cross-examination, Mr Shaikh insisted that he showed the Dowlings his ticket. He said that he held his ticket in the palm of his hand with his fingers at the top [of the ticket], so that it could not be snatched away and compared it with the ticket book held by Mr Dowling who was by his side. According to Mr Shaikh, there was one ticket left in the ticket book: B 77.

55 Mr Shaikh attested that after he had shown the Dowlings his ticket, Mr Dowling said, "you Indian bastard you did not pay". This is denied. According to Mr Shaikh, during the altercation the music was stopped. Various witnesses gave evidence that at all relevant time the music continued being played.

56 Mr Shaikh said that after this, he reached for the pubic address system in an effort to disable it, to avoid further humiliation. In cross-examination, he said he then pulled the microphone out and swung it, facing Mr Dowling. He said he did not mean to hurt anyone but believed that he may have to defend himself [against Mr Dowling] as he was so angry. Mr Shaikh said that as soon as the microphone was removed from the console his hands were held from behind.

57 Dance patrons Ms Ling, Ms Le and Ms Kimson gave evidence that during the altercation they heard Mr Dowling use words to the effect, "you Indian bastard". Ms Le and Ms Kimson attest that they also heard Mr Dowling say "you black bastard". Mrs Dowling, Mr Chang and Mr Loo claim not to have heard the words used but claim to have heard Mr Shaikh use foul language.

58 Ms Ling, Ms Le and Ms Kimson both wrote statements tendered by Mr Shaikh in proceedings before Fair Trading Tribunal. They respectively state that they saw Mr Shaikh show his ticket to Mr and Mrs Dowling. Ms Le states that she saw Mr Shaikh purchase his ticket from Mr Wilkinson. No mention is made in either statement of the "Indian bastard" allegation. Mr Shaikh denied telling them what to say in their statement but he said he did tell them not to refer to the "Indian/black bastard" comment as that was not relevant to that complaint. This is broadly consistent with the evidence of Ms Le and Ms Ling.

59 In cross-examination Mr Dowling agreed that this was the first time he had ever asked someone to accompany him outside so that he could see their ticket. He claimed that except for Mr Shaikh, he knew of no one else he had asked to show their ticket.

Findings

Purchase of ticket

60 The uncontradicted evidence of Mr Shaikh is that he purchased a ticket from Mr Wilkinson. Three witnesses corroborate Mr Shaikh's claim: Ms Ling, Ms Le and Ms Fong-Peng. On balance we are satisfied that Mr Shaikh purchased a ticket.

61 Mr Friend argues for the complainant that Mr Dowling's attitude and suspicions toward Mr Shaikh cannot be seen in a vacuum. According to Mr Friend, the treatment afforded to Mr Shaikh on the evening of November 27 can only be properly understood against the background of poor treatment and race-based comments (in particular the 1996 Fire Brigade remark) afforded Mr Shaikh since 1996.

62 There is little independent and reliable evidence to support Mr Shaikh's claim, and Mr Dowling's denial, about harassment throughout 1996-1999. This is not surprising. Had Mr Dowling in fact harassed and vilified Mr Shaikh, it is unlikely that he would have done so in public view. Mrs Dowling denies seeing any evidence of harassment, but given her preoccupation with the dance event, she was not well placed to observe her husband, who was usually at the opposite end of the hall, some 20 metres away. The only witness to broadly corroborate Mr Shaikh's claim was Ms Fong-Peng and her evidence only supports Mr Shaikh's claim that he felt uncomfortable and was stared at by Mr Dowling.

63 We are left then with two competing accounts about how Mr Dowling treated Mr Shaikh before the dance. Mr Shaikh steadfastly asserts that he was subjected to harassment. Mr Dowling strongly denies this. While Mr Dowling denies harbouring any ill feelings towards Mr Shaikh, he concedes that they had nothing to do with each other, they did not chat. The relationship between the two was cool. It is more probable than not in our view that Mr Dowling disliked Mr Shaikh for some reason. However we do not accept as asserted by Mr Friend, that the evidence establishes that during this period Mr Dowling's feelings towards Mr Shaikh were contaminated by race. It may be that they were, but the evidence before us does not support such finding.

64 We are not satisfied on balance that Mr Dowling made the remarks attributed to him about the Fire Brigade case or any other race-based remarks before the dance event.

65 We turn now to consider the manner of Mr Dowling's request to see Mr Shaikh's ticket and the circumstances surrounding the request. The uncontested evidence is that on previous occasions Mr Shaikh had not purchased a ticket upon arrival. It is common ground that he had an arrangement with Ms Fong-Peng that from time to time she would buy a ticket on his behalf. While he denies ever dancing without a ticket, Mr Shaikh does not dispute that on occasion he would sit inside the hall and wait for Ms Fong-Peng to finish her dance (which could take up to 20 minutes).

66 It is difficult to see how this arrangement would not result in a degree of confusion. First, Ms Fong-Peng was not the only person who would purchase a ticket for Mr Shaikh. From time to time Mary, another dance partner, would oblige. Ms Fong-Peng did not always know in advance whether Mr Shaikh was to attend and therefore would not buy his ticket ahead of his arrival. When Mr Wilkinson was on the ticket desk, she would leave Mr Shaikh to purchase his own ticket. This of itself must have led to a degree of confusion as Mr Wilkinson and Mr Dowling relieved each other from time to time. Mr O'Shanassy's evidence, which we accept, further indicates that the arrangements were not as seamless as Mr Shaikh suggests. His evidence was that on one occasion Mr Shaikh, when asked for his ticket, told Mr Dowling that Ms Fong-Peng had paid for him, when she had not, and Mr Shaikh then paid.

67 Against this, it is to be observed that Mr Dowling, who we accept believed that Mr Shaikh may have been attempting to sneak in without paying, on no occasion raised these concerns with Mr Wilkinson. If Mr Shaikh's behavior was of increasing concern to him, enough so that he discussed it with his wife, it seems somewhat strange that Mr Dowling did not even mention it to the only person who could effectively assist him monitor the situation. While there is no satisfactory explanation for this silence, the uncontested evidence is that Mr Shaikh went out of his way to avoid Mr Dowling and regularly purchased his ticket in an unorthodox manner. Even if as Mr Shaikh insists, he was not attempting to avoid payment, in this environment of uncertainty it is not surprising that Mr Dowling may have suspected that he was.

68 We turn now to consider the manner in which Mr Dowling asked to see Mr Shaikh's ticket. Mr Dowling's claim that he politely asked Mr Shaikh to accompany him outside "to spare him any embarrassment" and merely put his hand "gently" on one shoulder, in our view lacks the ring of truth. Equally, Mr Shaikh's account suffers from a degree of exaggeration. In our view it is more likely than not that while Mr Shaikh was not "frog marched" (or partly dragged out) of the hall as Mr Shaikh alleges, it would have been clear for all to see that the two were not comrades in arms. Mr Dowling meant business.

69 Once outside, Mr Shaikh did not show his ticket to Mr Dowling. Mr Dowling said he asked to see it. While Mr Dowling denies it, Mr Shaikh states that he was accused of not buying a ticket but that he did not produce it because he was concerned it would be snatched. In our view it was clear to Mr Shaikh that he was expected to show his ticket but he chose not to.

70 Whatever the reason for this apparently petulant behaviour of Mr Shaikh, in our view this is of limited relevance. The critical issue is whether Mr Shaikh was subjected to less favorable treatment not whether his conduct was reasonable.

71 Mr Shaikh's failure to produce the ticket demonstrates that the relationship between the two men was at a low ebb. Neither trusted the other as was further demonstrated by Mr Dowling's accusation on their return to the hall that Mr Vasin had passed his ticket to Mr Shaikh. We accept Mr Vasin's denial.

72 We turn now to the evidence about the altercation at the music table. Much of the evidence on this point is irrelevant but given the difficulties of dissecting relevant portions we deal with the incident as a whole.

73 Mr Shaikh went up to Mrs Dowling who was seated at the music table, presumably to adjudicate the ticket dispute. The uncontested evidence is that while standing in front of the table, Mr Shaikh held his hand out with a piece of paper in his palm and his fingers on the top. The paper did not leave Mr Shaikh's hand.

74 According to Mr Shaikh, he and Mr Dowling stood side by side comparing the ticket book (held by Mr Dowling) with the ticket, which he held. Mr Dowling then called him an "Indian bastard" and said, "You did not pay."

75 The Dowlings say that they could not make out what was on the paper and did not believe it was a ticket. They refute the claim that Mr Dowling produced the ticket book, which Mr Wilkinson says was with him throughout the altercation. The only witness to support Mr Shaikh's claim about the ticket book was Ms Kimson, whose evidence for reasons to which we will return, is unhelpful.

76 Mr Chang's evidence was that he saw the applicant extend his hand forward, but that the applicant did not show the Dowlings what was in it. Mr Keep was three to four metres away and did not see the applicant show Mrs Dowling anything.

77 Ms Ling says that she saw the applicant show the ticket to Mr Dowling, but that the ticket did not leave the applicant's hand. Ms Le said that she saw the applicant show his ticket to both Mr and Mrs Dowling but gave a number of conflicting versions about precisely what she saw.

78 We are not persuaded that Mr Shaikh did produce his ticket or that Mr Dowling held out the ticket book as alleged.

"You Indian Bastard"

79 The uncontested evidence is that Mr Shaikh was extremely upset at the time and immediately before this comment was allegedly made. His evidence was that he had never been so upset in his life. Under cross-examination he was unshaken in his evidence that Mr Dowling did say, " You Indian bastard you did not pay."

80 The evidence of the eyewitnesses is in conflict. Ms Ling, Ms Le and Ms Kimson attest that they heard Mr Dowling use words to the effect, "You Indian bastard." Mrs Dowling, Mr Chang and Mr Loo claim the opposite.

81 Ms Kimson's evidence, is at best, astonishing. In a statement signed on 18 April 2000, she made no reference to any racist remarks being made by Mr Dowling. Her statement can only be considered favourable to the second respondents. It stated that Mr Dowling "gently" put his hand around his Mr Shaikh's shoulder, that Mr Shaikh used obscene language and violently pulled out the microphone. It ended: " This is all I saw of the incident". In contrast in her oral evidence before this Tribunal she was adamant: Mr Shaikh had not used obsence language but she did hear Mr Dowling make racist remarks to Mr Shaikh. When asked to explain these apparently contradictory accounts she said, in effect, that Mrs Dowling had told her what to put in her statement and that she had obliged, knowing that parts were untrue. Added to this, her oral testimony was riddled with internal inconsistencies. We do not know and have no way of knowing whether she lied in her statutory declaration or in her oral testimony. Her evidence is inherently unreliable and thus is of no weight.

82 Of the remaining eye witnesses, Ms Ling, Ms Le, Messrs Chang and Loo, all but Mr Loo gave evidence through an interpreter. All were close enough to the altercation to hear what was said. Ms Ling , Ms Le and Mr Chang admit to poor English skills when listening to rapid speech or with loud background noise.

83 Mr Friend argues that when assessing the so-called "independent" evidence, regard should be had to the fact that Messrs Loo and Chang are students of Mrs Dowling, who has clear motive for corroborating her husband's denial. In contrast, the complainant's witnesses have no personal interest in the outcome of the proceedings.

84 Ms Johnson, for the first respondent, argues that it is telling that the first time the "Indian bastard " allegation is raised is in Mr Shaikh's letter to the Anti-Discrimination Board dated 16 December 1999. In a letter to the PCYC written the day after the dance event Mr Shaikh makes a formal complaint about the second respondents but he makes no reference to being called "an Indian bastard". Similarly, in a letter to the Commissioner of Police dated 6 December 1999, while he details the events of the evening, including his ticket number, he makes no reference to "Indian bastard" comment. Mr Shaikh explains that he was so shaken by the events of 27 November he forgot to mention it. And in any event he says it was covered by the more general phrases in that correspondence.

85 Mr Friend argues that in assessing the veracity of Mr Dowling's denial regard should be had to his admitted reference earlier that evening to Mr Shaikh as " that Indian gentlemen". If Mr Shaikh had lied, Mr Friend asked rhetorically, why would he manufacture an inaccurate racist slur?

86 In our view it is simply implausible that in the correspondence immediately following the incident Mr Shaikh would have failed to make any reference to the words he now says "plague his mind". But even if Mr Shaikh's explanation is accepted that he was so distressed that he failed to mention the abuse until the third written complaint following the incident, we are still left with the competing evidence of the two protagonists and various eyewitnesses. On that evidence we cannot be comfortably satisfied that Mr Dowling used words to the effect of, "you Indian bastard".

Direct Discrimination: Findings and Conclusion

Allegation One: the questioning and accusation of Mr Shaikh

87 As we have discussed, it was not surprising that Mr Dowling suspected that Mr Shaikh might not have purchased his ticket.

88 It is uncontested that in questioning and accusing Mr Shaikh of not purchasing a ticket, Mr Dowling treated him differently to other patrons. Does this also mean that Mr Shaikh was treated differently to the hypothetical patron, of another race, in the same or not materially different circumstances? Those circumstances would include a history of unusual and complicated arrangements concerning the purchase of tickets.

89 It is a matter of common knowledge that an event organiser who suspected a patron of having not purchased a ticket would generally ask that person to produce their ticket (or arrange for another to do so). Here there is limited evidence of how the second respondent in fact responded when they suspected a patron of avoiding payment. The evidence of Mrs Dowling is that on a couple of occasions Mr Wilkinson asked her what to do in such circumstances and she had advised him to ask the patron to show their ticket.

90 On balance we are not persuaded that Mr Shaikh was afforded less favorable treatment than a hypothetical patron not of his race in similar circumstances. Even if that treatment did constitute less favourable treament, we are not persuaded that one of the reasons Mr Dowling suspected Mr Shaikh, and consequently asked to see his ticket, was because of his race.

Allegation 2: Removal from hall

91 The evidence establishes that Mr Shaikh was the only patron who had been asked to leave the hall to show their ticket. The issue for determination is not whether it was unreasonable for Mr Dowling to ask Mr Shaikh to "step outside," in the manner he did, but whether he would have afforded a person not of Mr Shaikh's race, in similar circumstances, more favorable treatment. We are not persuaded that a patron with a similar history of ticket purchase would have received more favourable treatment. Nor are we persuaded that the manner in which Mr Shaikh was escorted from the hall represents less favourable treatment.

92 Even if such treatment did represent less favourable treatment we are not persuaded that one of the reasons Mr Shaikh was singled out for such treatment was his race.

Allegation 3: Indian bastard comment

93 As we are not satisfied this comment was said, it is not necessary to consider whether it constitutes either unlawful discrimination or vilification.

Liability of first respondent

94 Having found that the complaints of race discrimination and racial vilification are not made out, it is unnecessary to consider whether the first respondent should be held liable for any of the conduct of the second respondent.

Costs

95 The respondents seek an order for costs. The first respondent has sought the opportunity to make submissions on this application pending the outcome of the inquiry. Accordingly all parties will be invited to make submissions.

Orders

The complaints of race discrimination and vilification are dismissed.

Respondents to file and serve brief written submissions on costs, if they so elect within 14 days of the date of this decision.

The complainant to file and serve brief written submissions in reply if he so elects within 14 days of receiving the respondent's submissions.