Sleiman v Kmart Australia Limited [2003] NSWADT 21 (31 January 2003)

Last Updated: 3 March 2003

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL EQUAL OPPORTUNITIES DIVISION

CITATION: Sleiman v Kmart Australia Limited [2003] NSWADT 21

PARTIES: APPLICANT

Michael Sleiman

RESPONDENT

Kmart Australia Limited

FILE NUMBERS: 011056

HEARING DATES: 25/02/2002-26/02/2002

SUBMISSIONS CLOSED: 26/02/2002

DECISION DATE: 31/01/2003

BEFORE: Rice S - Judicial MemberMcDonald O - MemberPun A - Member

LEGISLATION CITED: Anti-Discrimination Act 1977

Interpretation Act 1987

Listening Devices Act 1984

CASES CITED: Khan -v- Commissioner, Department of Corrective Services & anor [2002] NSWADT 131

Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5

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

Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25

Langley v University of New South Wales (1984) EOC 92-018

APPLICATION: Race Discrimination - Goods and Services

MATTER FOR DECISION: Principal

APPLICANT REPRESENTATIVE: APPLICANT

S Kassem, solicitor

RESPONDENT REPRESENTATIVE: RESPONDENT

K Eastman, barrister

ORDERS: 1. Pursuant to s113 the complaint is dismissed.

2. Pursuant to s114(2) the complainant shall pay the reasonable costs of the respondent relating to the conduct of the hearing on 25 and 26 February 2002, on a party-party basis, in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.

Reasons for Decision:

DECISION

1 For the reasons below the Tribunal finds Mr Sleiman's complaint is not substantiated and is dismissed. This means that Mr Sleiman's application is unsuccessful.

COMPLAINT AND REFERRAL

2 On 30 November 2000 Mr Michael Sleiman complained to the Anti-Discrimination Board (`the ADB') of discrimination on the ground of race, in the provision of goods and services, by Kmart Australia Limited (Kmart).

3 Mr Sleiman's complaint refers to a number of occasions in the six months prior to 30 November 2000 on which he received unsatisfactory goods or services from Kmart. Mr Sleiman says that on each of these occasions he was discriminated against on the ground of his race.

4 The conduct alleged by Mr Sleiman includes comments made by Kmart staff, particularly Mr Heath Guest, conduct of Kmart staff towards Mr Sleiman, and the banning of Mr Sleiman from Kmart stores.

5 Kmart agrees that a written notice was provided to Mr Sleiman advising him that he was no longer welcome in Kmart stores and that he would be asked to leave if found in a Kmart store. Kmart otherwise denies much of the conduct alleged by Mr Sleiman, and says that at no time was its conduct towards Mr Sleiman on the ground of his race. Mr Sleiman's allegations relate principally to the conduct of Mr Guest, who was at the time the Store Manager of Kmart's Armidale store.

6 The President was unable to conciliate Mr Sleiman's complaint, and on 1 August 2001 referred it to the Tribunal for inquiry. The Tribunal conducted the inquiry in Armidale on 25 and 26 February 2002.

LAW

7 Mr Sleiman's complaint invokes sections 7 and 19 of the Anti-Discrimination Act1977 (`the Act'). Section 7(1)(a) of the Act provides that

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.

8 Mr Sleiman says that Kmart treated him less favourably than in the same circumstances, or in circumstances which are not materially different, it treated or would have treated a person of a different race.

9 Section 19 of the Act provides that

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.

10 Mr Sleiman says that Kmart discriminated against him on the ground of his race by refusing to provide him with goods and services, and in the terms on which it provided goods and services.

WHAT ASPECT OF `RACE'?

11 Section 4 of the Act says that:

race includes colour, nationality, descent and ethnic, ethno-religious or national origin.

12 There is very limited evidence before us of Mr Sleiman's race. In his letter of complaint to the ADB Mr Sleiman describes himself as a "Moslem Arab". When conveying Mr Sleiman's complaint to Kmart in August 2001 the President of the ADB attributed to the Mr Sleiman the realization that a remark had been made to him "based on his race (Lebanese) and his ethno-religion (Muslim)". The only indication that we have as to the source of the President's reference to "Lebanese" is a letter Mr Sleiman wrote to the ADB dated 19 April 2001, in which he said that his son had had occasion to say "his father was Lebanese born". Mr Sleiman's prepared statement for the inquiry makes no reference to his race, nor did he refer to it in his oral evidence. He was not cross-examined on it.

13 It seems to have been accepted implicitly by all involved in this matter that within the definition of `race' Mr Sleiman is of Lebanese "national origin".

14 In his complaint Mr Sleiman identified himself as a "Moslem Arab". Looking at those two words separately, he could be identifying his religion (Islam) and his "descent and ethnic origin" (Arab). Taken as a single term the two words `Moslem Arab' might also be a reference to Mr Sleiman's "ethno-religious" origin. Within the definition given to that term by this Tribunal in Khan -v- Commissioner, Department of Corrective Services & anor [2002] NSWADT 131 at para 20, Mr Sleiman would be relying on `a strong association between his nationality or ethnicity, culture, history and his religious beliefs and practices'.

15 Mr Sleiman cannot rely on his religion (Islam) as a ground for unlawful discrimination, but he appears to be relying on all or any of his Arabic descent and ethnic origin, his Lebanese national origin, and his Moslem Arab ethno-religious status. None of this was put in issue, but nor was it made clear which of these Mr Sleiman says was the ground for the conduct. In relation to an allegation that he was called a "terrorist" Mr Sleiman said in giving his evidence that "the word terrorist include all that [Lebanese, Muslim and Arab]".

16 We take account of Mr Sleiman's physical appearance and his accent, his brown skin and black hair, consistent with his being of Arabic descent and ethnicity. There is no evidence that Mr Guest or Kmart staff knew or had reason to believe that Mr Sleiman was of Lebanese national origin or was a Moslem Arab, and we do not take account of those aspects of Mr Sleiman's "race".

MEANING OF `TERMS' OF PROVISION

17 Kmart argued that a comment to a customer would not fall within the phrase "terms on which . . . goods or services [are] provided" in s19(b) of the Act. Kmart argued that the reference in that section to "terms" of providing a service is a reference to the contractual terms and conditions of providing a service, not a reference to the manner in which service is provided.

18 On this argument, a person who receives satisfactory service and takes no exception to the contractual terms on which goods or services are provided, has no remedy under the s19(b) if, in providing those goods or services, the provider uses a racial epithet. Counsel for Kmart pointed out that there may in such circumstances be a remedy under the racial vilification provisions of s20C of the Act.

19 The distinction being drawn is between a narrow or technical understanding of the concept "terms" of service, and a wider or more general understanding. The latter would encompass not only discriminatory contractual terms of service provision, but also discriminatory conduct in the provision of the service. It seems to us unremarkable to give this effect to the provisions of s19(b). It is an ordinary meaning conveyed by the text of the provision, and it promotes the purpose and object underlying the Act (cf ss33 and 34 Interpretation Act 1987). There appears to be no judicial authority on point.

20 In our view, use of a race-based epithet by a provider of goods and services in the course of providing the goods and services would constitute "terms on which" the goods and services are provided, and can be the basis of a complaint under s19(b).

21 In this matter Kmart says that some of Mr Sleiman's allegations (which Kmart denies) refer to alleged conduct outside the physical bounds of the premises of Kmart and not arising in the course of the provision of goods and services. We agree that, if the evidence established that the conduct complained of did not occur in the course of providing goods or services, the conduct would not be covered by s19(b).

INQUIRY

22 The report of the President was admitted into evidence with the consent of both parties.

23 Mr Sleiman gave evidence of incidents he says occurred during the six months prior to his lodging the complaint with the ADB. In addition to his oral evidence Mr Sleiman relied on statements by his sons, Joseph Sleiman and Christopher Sleiman, correspondence, personal references and business records.

24 Kmart relied on the evidence of Mr Heath Guest, and on business records. Kmart also relied on a tape of conversations between Mr Sleiman and Mr Guest and a transcript of those conversations.

25 The transcript had been made on behalf of Kmart. Although the tape is a single document, only so much of the tape as is relied on by Kmart was encompassed by the Tribunal's admitting it into evidence, and only that part of the transcript as related to the admitted parts of the tape was tendered and admitted.

26 If the tape was made in contravention of s5 of the Listening Devices Act 1984 then, in admitting it into evidence, the Tribunal had the comfort of the consent of the parties in accordance with s13(2) of the Act. However the Tribunal made no inquiry and makes no finding as to the legality or not of the creation of the tape.

HISTORY OF RELATIONS

27 Mr Sleiman complains that in his dealings with Kmart in the six months prior to 30 November 2000 he was discriminated against on the ground of his race. However the allegations Mr Sleiman make are best understood in the context of his dealings with Kmart over a period of the previous 14 months. The following account is based on the evidence of both Mr Sleiman and Mr Guest without our making findings as the occurrence or not of the incidents in the manner alleged by either.

28 In September 1999 Mr Sleiman asked Mr Guest for a 15% discount on a purchase the day after the advertised day for the 15% discount. Mr Guest says that he conceded to Mr Sleiman and gave him the discount.

29 In November 1999 Mr Sleiman attempted to obtain a refund on the drills without presenting a docket. On being refused the refund and having the need for a docket explained to him, Mr Sleiman presented a docket and sought a refund. At the same time he presented dockets and sought refunds for three futons and a gym set which had been purchased over the preceding months. Mr Guest arranged for collection of the goods and for a refund of $1372.50.

30 In arranging the collection and refund Mr Guest had occasion to ask Mr Sleiman to not swear to Kmart staff. Mr Sleiman denied swearing and threatened Mr Guest with defamation proceedings.

31 In May 1999, six months before giving the refund for the futons, he had responded to a request from Mr Sleiman and had sent a member of Kmart staff to Mr Sleiman's home to fix a fault in one of the futons. Mr Sleiman denies that the fault was fixed properly.

32 At some time in 1990 Mr Sleiman had attempted to return a defective circular saw he had bought from Kmart but was refused a refund without proof of a defect.

33 In September 2000 Mr Sleiman returned a car battery, complaining it was faulty, but testing showed no fault.

34 In September 2000 Mr Sleiman attended the Kmart store and sought to buy two women's tops which, although the same, were marked at different prices. Mr Guest says that Mr Sleiman was rude and aggressive to staff and caused them distress.

35 In October 2000 Mr Sleiman again returned a car battery, complaining it was faulty, but testing showed no fault. On 11 October 2000 Mr Guest telephoned Mr Sleiman and asked him to stop shopping at the Kmart store. Mr Guest's evidence is that the decision to ban Mr Sleiman was made by a superior officer of Kmart with whom he consulted.

36 On 26 October 2000 Kmart received from the NSW Fair Trading Tribunal, as it then was, a notice advising of Mr Sleiman's claim for a refund on two car batteries, tennis balls and a fan belt, for a refund of outstanding lay-by fees, and for reimbursement of motor vehicle repairs. The total claim was for $691.54. On 1 November 2000 Kmart paid $207.92 and sought proof of the balance.

37 On 2 November 2000 the Kmart National Manager of Customer Satisfaction in Melbourne confirmed in a letter to Mr Sleiman that "you have been formally notified that your are no longer welcome in Kmart. In the event that you're found in any Kmart store in the future you will be asked to leave".

38 On 27 November 2000 Mr Sleiman complained to the Anti-Discrimination Board.

39 On 9 February 2001 at a hearing of the Fair Trading Tribunal Kmart was ordered to pay Mr Sleiman $400, which it did.

PROOF OF ALLEGATIONS

40 It is not sufficient for Mr Sleiman to establish simply that he has been treated unfairly or in a way that has caused him distress. The demanding regime of the Act requires him to satisfy the `comparator' test. Mr Sleiman must show not only how he was treated. He must show that the way he was treated was less favourable treatment than someone not of his race would have been subjected to in the same or materially similar circumstances, and that he was subjected to that treatment on the ground of his race.

41 We say `would have been subjected to', because Mr Sleiman has led no evidence of the way in which anybody not of his race was actually treated. That is, we have no evidence of an actual comparator. The Act allows for proof of less favourable treatment by reference either to an actual or a hypothetical comparator. In this case, in the absence of any evidence of an actual comparator, Mr Sleiman can only rely on the Tribunal's assessment of how Kmart would have treated someone not of his race in the same or not materially different circumstances.

LESS FAVOURABLE TREATMENT

42 We assume, for the sake of argument, that the conduct alleged by Mr Sleiman actually occurred. We look for evidence on the basis of which we can infer that Mr Sleiman would have been treated less favourably than a person not of Mr Sleiman's race would have been treated in the same circumstances.

43 The Tribunal cannot speculate on, guess, surmise or assume how Kmart would have treated someone not of Mr Sleiman's race. There must be evidence on which we can base an inference. The only evidence which might indicate how someone not of Mr Sleiman's race would have been treated is evidence concerning the ground for Mr Guest's actually treatment of Mr Sleiman: the sequential questions of differential treatment and causation (cf Commissioner of Corrective Services -v- Aldridge (EOD) [2000] NSWADTAP 5) will conflate in a situation of a hypothetical comparator (cf Dutt -v- Central Coast Area Health Service [2002] NSWADT 133).

44 Apart from the evidence concerning Mr Guest's actual treatment of Mr Sleiman, there is no evidence on which the Tribunal can reasonably base an inference that Kmart would have treated a person not of Mr Sleiman's race more favourably in the same circumstances. There is no evidence, for example, of any policies, practices or history relating to Kmart and their treatment of other people, whether customers, staff, suppliers or otherwise, on the ground of race. There was no suggestion that Mr Guest had in any other circumstances been motivated by or had ever referred to race in his conduct. Mr Sleiman's complaint stands or falls on establishing that Mr Guest engaged in race-based conduct, and on then drawing an inference that Mr Sleiman's race was the ground for other conduct.

USE OF THE WORD `TERRORIST'

45 The only suggestion that Mr Sleiman's race might have been a ground for Mr Guest's conduct is Mr Guest's alleged use of the word "terrorist". Mr Sleiman says as well that Mr Guest's alleged use of the term "your kind" is indicative that race was a ground for his conduct, but we reject this. Even if the term was used we are not satisfied that in the circumstances that Mr Sleiman alleges it was used it was a race-based term. There is sufficient evidence to satisfy us that Mr Guest had other grounds available to him for characterizing Mr Sleiman as a "kind" of person, the most obvious being Mr Sleiman's persistent complaints over some years about the quality of goods purchased, and his demands for repairs, replacements and refunds.

46 In considering the import of the use of the word "terrorist" we take account of Mr Sleiman's appearance consistent with his being of Arabic descent and ethnicity, and of the well known if not notorious association between terrorism and the Middle East in news media and public perception in Australia, even before the notorious events of 11 September 2001. We are satisfied that during the year 2000 in Australia reference to a Mr Sleiman as a terrorist could have been made on the ground of his race.

47 Mr Guest denies having used the word "terrorist". If, however, we are satisfied that Mr Guest made such a comment there would be some basis, although perhaps not sufficient on its own, to infer that the comment itself, and other conduct Mr Guest is alleged to have engaged in, was on the ground, at least in part, of Mr Sleiman's Arabic descent and ethnicity.

Chronology of `terrorist' allegation

48 Before November 2000 Mr Sleiman had not made any allegation of the use of the word "terrorist". He had however written letters, complaining about faulty goods and poor service, to Kmart on at least 24 November 1999, 14 December 1999, 10 January 2000 and 11 October 2000.

49 The first time that Mr Sleiman alleged that the word had been used was in his letter of complaint to the ADB dated 27 November 2000, when he said that:

on several occasions Heath Guest who I met and knew that he was a manager at Kmart store, Armidale, said to me: `terrorist' as he go past me at the car park near Kmart store.

50 He said further in the same complaint that Mr Guest was:

persistently targeting the nature of my race when he say to me `terrorist' every time he pass me by.

51 We note that these allegations are not specific as to when the word "terrorist" had been used, and say that the word was used "on several occasions" and "every time" Mr Guest passed Mr Sleiman.

52 In his letter of complaint to the ADB of 27 November 2000 Mr Sleiman complains about Mr Guest's conduct in a telephone conversation on 11 October 2000, but he does not say that Mr Guest said the word "terrorist" in that conversation. However in a statutory declaration dated 29 June 2001 and provided to the ADB, Mr Sleiman alleges that Heath Guest "called me terrorist the moment I turned it [the tape recorder] off", on 11 October 2000.

53 In a letter to the ADB of 11 January 2001 Mr Sleiman says "remarks such as `terrorist' every time I went past him in the car park is unlawful". Again Mr Sleiman is not specific as to occasions when this happened, and says it happened "every time" Mr Guest passed Mr Sleiman. But in his statement filed with the Tribunal and dated 22 January 2002 Mr Sleiman is specific in alleging that:

on approximately 12pm on a weekday in August 2000 I clearly recall Mr Guest vocalise the word `terrorist' as he crossed my path.

On a second occasion approximately one to two weeks following the above incident I passed Mr Guest within the Kmart store where he again vocalised the words as follows `hi terrorist'.

On a third occasion approximately one week later whilst in the foyer of the Kmart store . . . Mr Guest bent over into my ear and whispered the words `you are a damned terrorist'.

54 In summary at this point, no allegation is made by Mr Sleiman in his correspondence with Kmart before he complains to the ADB on 27 November 2000, at which time he makes the allegation in very general terms. The allegation becomes increasingly specific over the following 15 months, during the investigation by the ADB and in anticipation of an inquiry by this Tribunal.

55 The delay in making any allegation, the initially general nature of the allegation, and its increasingly specificity over time, make it difficult for us to be satisfied as to when the alleged conduct took place, and raise a question in our minds as to whether it did at all. Further analysis of the timing and content of Mr Sleiman's conduct and correspondence reinforces these concerns.

Correspondence and conversations

56 On 11 October 2000 Mr Sleiman and Mr Guest had a telephone conversation in which Mr Guest told Mr Sleiman that he was no longer welcome in Kmart stores.

57 On the same date, after that conversation, Mr Sleiman wrote a letter to Kmart with a heading "Re: Your unlawful and unreasonable threats of allegation and accusation over the phone". No mention is made of the use of the word "terrorist" in that letter, even though Mr Sleiman writes of:

. . . your unreasonable threats of allegation and accusation over the phone all day today the 11 October 2000.

58 On 2 November 2000 Kmart wrote to Mr Sleiman confirming that he was no longer welcome in Kmart stores.

59 On 27 November Mr Sleiman wrote to Kmart, with a heading "Re: Your derogatory and racist remark, unlawful and unreasonable threats of allegation and accusation over the phone" and on the same day Mr Sleiman wrote his letter of complaint to the ADB.

60 We note that the difference in the headings on the letters of 11 October and 27 November is the insertion in the later letter of the words "derogatory and racist remark".

61 Mr Sleiman taped the telephone conversation on 11 October 2000. On 29 June 2001 Mr Sleiman alleged that Mr Guest "called me terrorist the moment I turned it [the tape recorder] off", on 11 October 2000. We have read the transcript and listened to the tape. We are satisfied that the tape recorder was operating until the end of the conversation between Mr Sleiman and Mr Guest; the sound of a telephone hanging up is audible. It is highly improbable that Mr Guest was still speaking to Mr Sleiman the moment the tape was turned off.

62 In that conversation on 11 October Mr Sleiman and Mr Guest exchanged terse words. Mr Sleiman accused Mr Guest of lying. Mr Sleiman referred to the existence at Kmart of a "culture between you and the staff when you get together, when you is in trouble". But Mr Sleiman made no reference to Mr Guest's having previously used of the word terrorist, or to any race-based conduct by Mr Guest or staff of Kmart.

63 Mr Sleiman taped a further telephone conversation between with Mr Guest on 13 October 2000. The tape and its transcript is in evidence. Mr Sleiman asks about the `prohibition order' and challenges Mr Guest over a remark Mr Guest made concerning defamation. Mr Sleiman makes no reference to Mr Guest's previous use of the word terrorist or to any race-based conduct by Mr Guest or staff of Kmart.

No corroboration

64 In addition to his own evidence, Mr Sleiman relies on corroborative evidence from his sons, Joseph and Christopher Sleiman. In a written statement Christopher Sleiman states:

On this occasion as we passed Mr Heath Guest in between the carpark and the Kmart store which I recall occurred on approximately 12pm on a weekday in August 2000 I clearly recall hearing Mr Guest vocalise the word `terrorist' as he crossed my father path. I recall that he was directly facing us. I recall my father did not say anything to him and I recall my father saying `did you hear what he said' and my reply was `yes'".

65 Joseph Sleiman states:

on this occasion as we passed Mr Heath Guest in between the carpark and the Kmart store. I clearly recall hearing Mr Guest vocalise the word `terrorist' as he crossed my father path. I recall my father did not say anything to him and I recall my father saying `did you hear what he said' and my reply was `yes'.

66 The Tribunal compares these two accounts, which are identical even to the grammatical or typographical errors, with the statement of Mr Sleiman as follows:

on this occasion as we passed Mr Heath Guest in between the car park and the Kmart store which I recall occurred on approximately 12pm on a weekday in August 2000 I clearly recall hearing Mr Guest vocalise the word `terrorist' as he crossed my path. I recall that he was directly facing me. I did not say anything to him and I recall asking my children `did you hear what he said' and their reply was `yes'.

67 The near identical nature of these statements is such as to wholly discredit them as reliable accounts of the conduct alleged.

Evidence of Mr Sleiman and Mr Guest

68 Mr Guest denies saying "terrorist" to Mr Sleiman. We have had the opportunity of hearing the taped conversation between Mr Guest and Mr Sleiman on 11 October 2000 and note the measured and restrained way in which Mr Guest responds to what in our view is Mr Sleiman's persistent goading and threats.

69 Kmart made a concerted attack on Mr Sleiman's credibility, during cross-examination and in submissions. Mr Sleiman appeared to the Tribunal to be well aware that the cross-examination was pointing out inconsistencies in his evidence. Mr Sleiman avoided many of the propositions that were put to him for adoption or rejection, and when he answered them he did so inconsistently. He altered his accounts of incidents, denied having given evidence that he did give, and denied that things were said in the conversations which he himself had taped. The Tribunal rejects Mr Sleiman's evidence as unreliable.

70 In so saying we have had regard to the personal references which were admitted into evidence for Mr Sleiman. Those references were not prepared for this inquiry, and did not comment on Mr Sleiman's reliability as a witnesses in legal proceedings. At best they refer to the opinions of people who say that, at times prior to his giving evidence, Mr Sleiman was generally honest and trustworthy in interpersonal dealings. The referees did not give evidence before us. The references do not persuade us that Mr Sleiman's recollection of events should be preferred to that of Mr Guest.

Finding

71 We prefer the evidence of Mr Guest to that of Mr Sleiman, and are satisfied that Mr Guest did not say the word "terrorist" to Mr Sleiman at all.

NO EVIDENCE

72 We have found that Mr Guest did not say "terrorist" to Mr Sleiman. Thus, even if Kmart's alleged other conduct towards Mr Sleiman occurred as he alleges, there is no evidence available to the Tribunal on the basis of which it can infer that that conduct was on the ground of Mr Sleiman's race. In light of the view we have formed of the unreliability of Mr Sleiman's recollections we would be unable in any event to be accept his evidence as to the occurrence and circumstances of the other alleged conduct.

73 In relation to the one act which is admitted by Kmart -prohibition of Mr Sleiman from Kmart stores - a fair question to ask might be `what other reasonable explanation can there be for such conduct?' Problems of proof are such that a rhetorical approach such as thisis often all that is available to a complainant of race discrimination

74 We are satisfied from Mr Guest's evidence and business records of Kmart that, in the circumstances, Mr Sleiman's long history of making complaints about both the goods and the services provided by Kmart, combined with his argumentative and aggressive manner with staff, was the ground for his being prohibited from entry. We accepts that what Mr Guest said to Mr Sleiman in the recorded conversation of 11 October 2000 accurately sets out Kmart's grounds for banning Mr Sleiman:

Because the last time you spoke to the gentleman in, you were going to sue him and the last time you spoke to one of my girls at the service desk in relation to the battery a couple of weeks ago you made a statement that if there's something wrong that Kmart will pay for it.

It then goes back to not only 10 months ago when you and I had the issue at the service desk which dragged on for a while, there is a couple of incidents that I have signed documentation from witnesses that have stated that you've caused commotion and I have a couple of signed statements from staff who are afraid of you shopping in this store. They didn't want to serve you because of the fear they have. This prohibition letter, as well as you not liking the stock, you having issues with the stock and having issues with our service. To stop all that, to stop you having issues and us having the issues it's best you don't shop in my store.

75 No argument arises on the facts that the condition for entry to Kmart stores imposed on Mr Sleiman was unreasonable, or was one with which people not of Mr Sleiman's race would be any more able to comply.

COSTS

76 Kmart seeks an order for costs. Section 114 of the Act provides that each party to an inquiry shall pay his or her own costs, but that the Tribunal may make such order as to costs if it is of the opinion in a particular case that there are circumstances that justify it doing so.

77 Kmart argues that the evidence has shown that there is no basis for Mr Sleiman's having made the complaint.

78 We are mindful of the comment of the Appeal Panel in Tu -v- University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25, at para 39, 42 and 43:

the special character of the jurisdiction . . . seeks to protect and promote the observance of fundamental human rights. For example in Anon v Anon (No 1) [1997] NSWEOT (18 July 1997) it was said that the human rights protection objective 'might be thwarted if complainants were to be discouraged from pursuing claims before the Tribunal due to fear of the amounts that may be awarded against them for inter alia legal costs if unsuccessful on those claims'.

. . .

42 The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.

. . . respondents are often left to bear the cost, because of the greater public interests involved in upholding the making of complaints of violation of human rights . . . .

79 The decision in Tu invites us, as did counsel for Kmart, to consider whether Mr Sleiman's conduct of his complaint was frivolous, vexatious or lacking in good faith. Counsel for Kmart submitted that it is apt to consider the observations of Hutley J in Langley v University of New South Wales (1984) EOC 92-018 at 75,468:

. . . the complaints lacked any conceivable merit in fact or law. Under those circumstances my only criticism of the proceedings so far is that this was a case in which the complainant was not ordered to pay the costs by the Tribunal. That si the one effective sanction available to keep this Act within bounds and to ensure it will not be made the subject of gross abuse.

80 At the same time we are mindful of the difficulty a complainant has in establishing a race discrimination complaint, usually having to rely on cross examination, admissions or inference that race was a ground for conduct.

81 In this matter however we are satisfied that Mr Sleiman had no reasonable basis for believing that the conduct he complained of was on the ground of his race. There is no objective indication that his race was a ground for Kmart's conduct. The history and detail of his own complaints to Kmart show that Mr Sleiman's allegation of race as a ground for Kmart's conduct did not arise until after he had been banned for Kmart.

82 We find it difficult to accept that Mr Sleiman was even in the position of many race discrimination complainants: that they are at a loss to explain why they have been subjected to certain conduct, and so conclude that it must have been on the ground of their race. On assessing the evidence we are of the view that this complaint was simply and consciously an extension of the long series of various claims that Mr Sleiman made against Kmart.

83 In our view Mr Sleiman's complaint is both vexatious and lacking in good faith. It is in the public interest that parties to a complaint, whether complaining or responding, are on notice that they must not waste time and resources with arguments that do not genuinely address a complaint of discrimination under the Anti-Discrimination Act.

84 In this particular case there are circumstances that justify the Tribunal departing from the presumptive position in s114 that each party shall pay their own costs, and that warrant an order that Mr Sleiman will pay Kmart reasonable legal costs.

ORDERS

1. Pursuant to s113 the complaint is dismissed.

2. Pursuant to s114(2) the complainant shall pay the reasonable costs of the respondent relating to the conduct of the hearing on 25 and 26 February 2002, on a party-party basis, in a sum to be agreed between the parties within 60 days of the making of these orders, failing which the costs to be paid will be assessed in accordance with the provisions of Division 6 of Part 11 of the Legal Profession Act 1987.